EXHIBIT 10.4
FINANCIAL CONSULTING AGREEMENT
THIS FINANCIAL CONSULTING AGREEMENT (this "Agreement"), made as of this
15th day of May 2002, is by and between, Warp Solutions, Inc., a Delaware
corporation with its principal place of business at 000 Xxxxxxxxx Xxxxxx, Xxx
Xxxx, XX 00000, its subsidiaries, affiliates and successors (the "Company"), and
Lighthouse Capital Ltd, a New York corporation ("Lighthouse"), with its
principal place of business at 000 Xxxxxxxx, Xxxxx 000, Xxx Xxxx, XX 00000.
R E C I T A L S:
A. The Company desires to retain Lighthouse to provide certain
financial consulting services.
B. Lighthouse desires to provide certain financial consulting services
to the Company in accordance with the terms and conditions contained
hereinafter.
NOW, THEREFORE, in consideration of the mutual promises set forth
herein, the parties hereto hereby agree as follows:
1 . Consulting Services. During the term of this Agreement, Lighthouse
is hereby retained by the Company to provide financial consulting services to
the Company, as said services relate to corporate finance matters. Lighthouse
shall provide such financial consulting services as reasonably requested by the
Company during the term of this Agreement which may include, but not be limited
to:
i) Assist the Company with its current plans to obtain financing.
It is understood that the final terms and conditions of any
financing must be acceptable by the Board of Directors of the
Company and the investors however there can be no assurances
that the Company will receive financing during the term of
this agreement. In association with financing efforts,
Lighthouse will seek to communicate and clarify the Company's
business model, strategic objectives and inherent value to the
investment community. This may include assessing the current
promotional and public relations efforts and providing
suggestions where appropriate.
ii) Make necessary presentations to institutional funds,
registered representatives and shareholders in order to inform
them with respect to the affairs of the Company and maintain
timely personal contact with such registered representatives
and shareholders to assure their awareness of the Company's
performance, including the forwarding of its corporate
profile, materials published in newspapers, magazines and
journals, press releases, brochures and mailers provided by
the Company;
iii) Identify registered representatives (stockbrokers) and
portfolio managers (collectively "advisers") who may be
interested in considering for the portfolio of their
customers, the common stock of the Company, introducing the
Company to such advisers and coordinating communications and
relationships with such advisers on behalf of the Company, all
in order to develop and expand a network of advisers who are
well informed regarding the Company.
Nothing hereunder shall require Lighthouse to devote a minimum number
of hours per calendar month toward the performance of services hereunder. Unless
otherwise agreed to by Lighthouse, all
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services hereunder shall be performed by Lighthouse, in its sole discretion, at
its principal place of business or other offices. Notwithstanding anything
contained herein to the contrary, the services to be performed by Lighthouse
hereunder may be performed by any employee or consultant to Lighthouse.
2. Term. The term of this Agreement shall be for one (1) year
commencing as of the date first written above and is automatically renewable
unless cancelled in writing with 30 days notice. Notwithstanding any termination
of this Agreement pursuant to the terms hereof or otherwise, if two (2) years
from the effective date of introduction to the Company of an entity, the Company
enters into a definitive commitment relating to a Financing (or any portion
thereof) or non-financing capital transaction with any entity, the Company shall
pay to Lighthouse fees in accordance with the terms and provisions of Sections
3(ii) or 3(iii), as applicable.
3. Compensation.
i) Lighthouse will be paid a monthly retainer of $10,000 for the term
of this agreement (section 2) and a five (5) year warrant to purchase 150,000
shares of the Company's common stock priced $1.20 with a cashless exercise
feature and standard piggy back rights. The Company further hereby agrees to pay
on a pre-approval basis all reasonable out-of-pocket expenses incurred by
Lighthouse in connection with the services to be rendered by Lighthouse
hereunder;
ii) In the event the Company effectuates a Transaction (to be construed
as a financing or a merger/acquisition transaction) pursuant to which the
Company receives cash (or other form of consideration) from an Entity in
consideration of its issuance of voting and/or non-voting common, preferred or
convertible stock, notes, bonds, debentures or other securities or instruments
and such Transaction is effectuated as a result of any introduction to the
Entity made directly by Lighthouse to the Company [but not one that is
effectuated through the efforts of an advisor that Lighthouse is compensated for
in (iii) below], then the Company hereby agrees to pay Lighthouse a fee equal to
10% of the cash consideration received by the Company and 10% warrant coverage
[of the deal size] convertible at 100% of the investment price. Payment shall be
due and payable in cash on the date of any such closing. The warrant shall have
a five (5) year term, standard piggyback registration rights and a cashless
exercise feature. If there shall be more than one closing, the Company shall pay
said fee with respect to the consideration received at each such closing;
iii) If Lighthouse introduces the Company to a consultant or advisor
that raises funds, provides merger and acquisition or other investment banking
related services, such as a brokerage firm, the Company will pay Lighthouse 10%
of the compensation that is paid to that advisor, or the difference between the
fee that advisor paid and the total fee in (ii), whichever is greater but not to
exceed 5%;
iv) The Company further agrees to compensate Lighthouse if a
Transaction is consummated pursuant to section 3. (ii), with any Entity that may
be negotiated directly with the Company or introduced to the Company by another
intermediary or through any other method. Lighthouse will agree to a lower fee
not to exceed 5% of the total Transaction.
v) There may be vendors that Lighthouse recommends the Company hire
such as brokerage, investor relations, direct mail, e-mail and telemarketing
companies. These Companies, if they are approved by the Company, will be paid
directly, or through Lighthouse, by the Company for their services.
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4. Transfer Sheets, DTC Sheets and Standard & Poor's/Xxxxx'x Listing.
For a period of two (2) years from its public listing, and at its expense, the
Company shall provide Lighthouse with copies of its monthly transfer sheets and
weekly Depository Trust Company transaction summary records, if requested by
Lighthouse. The Company agrees that for a period of five years from its public
listing it will register and remain covered by the Corporation Records Service
published by Standard & Poor's or Xxxxx'x.
5. Board of Directors. During the five (5) years following the
Company's public listing, Lighthouse shall have the right to (i) receive at
least ten (10) days' prior notice to any meeting of the Board of Directors of
the Company (or any action to be taken by written consent without such meeting)
or such lesser reasonable notice as the Company shall have provided to its
directors, together with copies of any and all reports, documents or other
information delivered to the Board of Directors from time to time, (ii) at the
option of Lighthouse, have any person designated by it attend any and all such
meetings of the Board of Directors; and (iii) at the option of Lighthouse, to
designate one (1) director to the Board of Directors of the Company. Such
designee, if elected or appointed, shall attend meetings of the Board and
receive the same compensation that is paid to other non-management directors of
the Company and shall be entitled to receive reimbursement for all reasonable
expenses incurred in attending such meetings. To the extent permitted by law,
the Company will agree to indemnify us and our designee for the actions of such
designee as a director of the Company. In the event the Company maintains a
liability insurance policy affording coverage for the acts of its officers and
directors, it will agree, if possible, to include our designee as an insured
under such policy.
6. Representations of the Company. The Company hereby represents and
warrants that any and all information supplied hereunder to Lighthouse in
connection with any and all services to be performed hereunder by Lighthouse for
and on behalf of the Company shall be true, complete and correct as of the date
of such dissemination and shall not fail to state a material fact necessary to
make any of such information not misleading. The Company hereby acknowledges
that the ability of Lighthouse to adequately provide financial consulting
services hereunder is dependent upon the prompt dissemination of accurate,
correct and complete information to Lighthouse. The Company further represents
and warrants hereunder that this Agreement and the transactions contemplated
hereunder, including the issuance of the warrants hereunder, have been duly and
validly authorized by all requisite corporate action; that the Company has the
full right, power and capacity to execute, deliver and perform its obligations
hereunder; and that this Agreement, upon execution and delivery of the same by
the Company, will represent the valid and binding obligation of the Company
enforceable in accordance with its terms. The representations and warranties set
forth herein shall survive the termination of this Agreement.
7. Indemnification.
(a) The Company hereby agrees to indemnify, defend and hold
harmless Lighthouse, its officers, directors, principals, employees, partners,
consultants, affiliates, and shareholders, and their successors and assigns from
and against any and all claims, damages, losses, liability, deficiencies,
actions, suits or proceedings (collectively the "Losses") arising out of or
resulting from: (i) any breach of a representation, or warranty by the Company
contained in this Agreement; or (ii) any activities or services performed
hereunder by Lighthouse, unless such Losses were the result of the intentional
misconduct or gross negligence of Lighthouse or were the result of any
information supplied by Lighthouse; or (iii) any and all costs and expenses
(including reasonable attorneys' and paralegals' fees) related to the foregoing,
and as more fully described below. Lighthouse hereby agrees to indemnify, defend
and hold harmless the Company, and its officers, directors and
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shareholders, and their successors and assigns from and against any and all
Losses arising out of or resulting from (i) the intentional misconduct or gross
negligence of Lighthouse, unless such Losses were the result of any written or
public information supplied by the Company; or (ii) any and all costs and
expenses (including reasonable attorneys' and paralegals' fees) related to the
foregoing, and as more fully described below.
(b) If Lighthouse or the Company (in each case, the
"Indemnified Party") receives written notice of the commencement of any legal
action, suit or proceeding with respect to which the Company or Lighthouse (in
each case, the "Indemnifying Party") is or may be obligated to provide
indemnification pursuant to this Section 7, the Indemnified party shall, within
thirty (30) days of the receipt of such written notice, give the Indemnifying
Party written notice thereof (a "Claim Notice"). Failure to give such Claim
Notice within such thirty (30) day period shall not constitute a waiver by the
Indemnified Party of its right to indemnity hereunder with respect to such
action, suit or proceeding if the Indemnifying Party is not materially adversely
affected by such delay. Upon receipt by the Indemnifying Party of a Claim Notice
from the Indemnified Party with respect to any claim for indemnification which
is based upon a claim made by a third party ("Third Party Claim"), the
Indemnified Party may assume the defense of the Third Party Claim with counsel
of its own choosing, as described below. The Indemnifying Party and the
Indemnified party shall cooperate with each other in the defense of the Third
Party Claim and shall furnish such records, information and testimony and attend
all such conferences, discovery proceedings, hearings, trial and appeals as may
be reasonably required in connection therewith. The Indemnified Party shall have
the right to employ its own counsel in any such action, but the fees and
expenses of such counsel shall be at the expense of the Indemnifying Party
unless the Indemnifying Party shall not have promptly employed counsel to assume
the defense of the Third Party Claim, in which event such fees and expenses
shall be borne solely by Indemnifying Party. The Indemnifying Party shall not
satisfy or settle any Third Party Claim for which indemnification has been
sought and is available hereunder, without the prior written consent of the
Indemnified Party unless such claim can be settled entirely for cash and the
Indemnified Party shall be given a full release from all parties in connection
therewith. If the Indemnifying Party shall fail with reasonable promptness
either to defend such Third Party Claim or to satisfy or settle the same, the
Indemnified Party may defend, satisfy or settle the Third Party Claim at the
expense of the Indemnifying Party and the Indemnifying Party shall pay to the
Indemnified Party the amount of any such Loss within ten (10) days after written
demand therefor. The indemnification provisions hereunder shall survive the
termination of this Agreement.
8. Amendment. No modification, waiver, amendment, discharge or change
of this Agreement shall be valid unless a written instrument, executed by both
parties hereto, evidences the same.
9. Notices. All notices, demands or other communications given
hereunder shall be in writing and shall be deemed to have been duly given when
delivered in person or transmitted by facsimile transmission or on the third
calendar day after being mailed by United States registered or certified mail,
return receipt requested, postage prepaid, to the addresses hereinabove first
mentioned or to such other address as any party hereto shall designate to the
other for such purpose in the manner hereinafter set forth.
10. Entire Agreement. This Agreement contains all of the understandings
and agreements of the parties with respect to the subject matter discussed
herein. All prior agreements, whether written or oral, are merged herein and
shall be of no force or effect.
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11. Severability. The invalidity, illegality or unenforceability of any
provision or provisions of this Agreement will not affect any other provision of
this Agreement, which will remain in full force and effect, nor will the
invalidity, illegality or unenforceability of a portion of any provision of this
Agreement affect the balance of such provision. In the event that any one or
more of the provisions contained in this Agreement or any portion thereof shall
for any reason be held to be invalid, illegal or unenforceable in any respect,
this Agreement shall be reformed, construed and enforced as if such invalid,
illegal or unenforceable provision had never been contained herein.
12. Construction and Enforcement. This Agreement shall be construed in
accordance with the laws of the State of New York, without application of the
principles of conflicts of laws. If it becomes necessary for any party to
institute legal action to enforce the terms and conditions of this Agreement,
the successful party will be awarded reasonable attorneys' fees at all trial and
appellate levels, expenses and costs. The parties hereto hereby accept the
exclusive jurisdiction of those courts for the purpose of any such suit, action
or proceeding. The parties hereto hereby irrevocably waive, to the fullest
extent permitted by law, any objection that any of them may now or hereafter
have to the laying of venue of any suit, action or proceeding arising out of or
relating to this Agreement or any judgment entered by any court in respect
thereof brought in the State of New York, and hereby further irrevocably waive
any claim that any suit, action or proceeding brought in New York, has been
brought in an inconvenient forum.
13. Binding Nature. The terms and provisions of this Agreement shall be
binding upon and inure to the benefit of the parties, and their respective
successors and assigns.
14. Confidential Information. Lighthouse agrees that all non-public
information pertaining to the prior, current or contemplated business of the
Company is valuable and confidential assets of the Company. Such information
shall include, without limitation, information relating to customer lists,
bidding procedures, insurance products and programs, intellectual property,
patents, trademarks, trade secrets, financing techniques and sources and such
financial statements of the Company as are not available to the public.
Lighthouse, its officers, directors, employees, agents and shareholders shall
hold all such information in trust and confidence for the Company and shall not
use or disclose any such information for other than the benefit of the Company's
business and shall be liable for damages incurred by the Company as a result of
the use or disclosure of such information by Lighthouse, its officers,
directors, employees, agents or shareholders for any purpose other than the
benefit of the Company's business, either during the term of the attached
Agreement or after the termination or expiration thereof, except (i) where such
information is publicly available or later becomes publicly available other than
through a breach of this Agreement, or (ii) where such information is
subsequently lawfully obtained by Lighthouse from a third party or parties who
are not under an obligation of confidentiality to the Company, or (iii) if such
information is known to Lighthouse prior to the execution of this Agreement, or
(iv) as may be required by law. These confidentiality obligations shall survive
termination of this Agreement.
15. Independent Contractor Status. It is expressly understood and
agreed that Lighthouse shall, at all times, act as an independent contractor
with respect to the Company and not as an employee or agent of the Company, and
nothing contained in the attached Agreement shall be construed to create a joint
venture, partnership, association or other affiliation, or like relationship,
between the parties. It is specifically agreed that the relationship is and
shall remain that of independent parties to a contractual relationship and that
Lighthouse shall have no right to bind the Company in any manner. In no event
shall either party be liable for the debts or obligations of the other except as
otherwise specifically provided in this Agreement.
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16. Counterparts. This Agreement may be executed in any number of
counterparts, including facsimile signatures, which shall be deemed as original
signatures. All executed counterparts shall constitute one Agreement,
notwithstanding that all signatories are not signatories to the original or the
same counterpart.
17. Prior Agreements. This agreement supercedes any previous agreements
between the Company and Lighthouse.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
ACCCEPTED AND AGREED:
Warp Solutions, Inc.
By:
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Xxxx Xxxxxxx, President & CEO
Lighthouse Capital Ltd
By:
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Xxxxxxx X. Xxxxx, President
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