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EXHIBIT 10.9
CHATSWORTH SECURITIES LLC
March 20, 1999
Xx. Xxxxxxx Xxxxxx
President
Corporate Buying Service Inc.
0000 X. Xxxxxxx Xxxxxxx
Xxxx Xxxxx, XX 00000
Dear Xx. Xxxxxx:
This letter (this "Agreement") confirms the terms upon which Corporate Buying
Services Inc. ("CBS" or the "Company") and Chatsworth Securities LLC
("Chatsworth") have agreed to amend and restate the terms of that certain letter
agreement entered into between them on March 18, 1999 (the "Initial Engagement
Agreement") pursuant to which Chatsworth was retained to serve as a consultant
to the Company.
SECTION 1: NATURE OF THE ENGAGEMENT
In the capacity described above, Chatsworth will act as a consultant and will
advise and assist the Company with respect to the following:
(a) Advise and assist the Company in analyzing corporate and
technology infrastructure needs;
(b) Advise and assist the Company in evaluating the Company's
website;
(c) Advise and assist the Company in evaluating and enhancing the
Company's marketing program, including the development of a
national sales force;
(d) Advise and assist the Company in retaining executive search firms
and evaluating managerial personnel needs;
(e) Advise and assist the Company in identifying and hiring a
suitable CFO and CTO;
(f) Advise and assist the Company in identifying suitable candidates
for the Company's Board of Directors;
(g) Prepare a comprehensive business plan for the Company to
facilitate raising private equity capital;
(h) Prepare a valuation of the Company to facilitate raising private
equity capital;
(i) Advise and assist the Company in evaluating debt and equity
alternatives for financing the Company's growth;
(j) Advise and assist the Company in selecting and retaining
auditors; and
(k) Advise and assist the Company in establishing an employee stock
option plan and program.
Xxx Xxxx Xxxxxx Xxxxxx, Xxxxxxxxx, XX 00000
Tel. (000) 000-0000 Fax (000) 000-0000
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SECTION 2: FEES
In consideration of the services provided by Chatsworth hereunder, the Company
shall issue to Chatsworth a warrant to purchase 1.65 shares of common stock,
$.01 par value per share, of the Company (which shall be subject to adjustment
on account of any stock split or dividend undertaken by the Company) in the form
attached hereto as EXHIBIT A (the "Warrant").
SECTION 3: EXPENSES
In addition to the Warrant, the Company hereby agrees, from time to time upon
request, to reimburse Chatsworth for all reasonable and pre-approved
out-of-pocket traveling expenses incurred by Chatsworth in fulfilling its
obligations hereunder.
SECTION 4: INDEMNIFICATION
The Company agrees to indemnify, defend and hold harmless Chatsworth against any
and all loss, liability claim, damage and expense whatsoever (including, but not
limited to, any and all expenses reasonably incurred in investigating, preparing
or defending against any litigation commenced or threatened, or any claim
whatsoever) arising out of any untrue statement or alleged untrue statement of a
material fact contained in any registration statement filed by the Company with
the SEC and any prospectus contained therein (as amended and supplemented from
time to time) or the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein
not misleading; PROVIDED, HOWEVER, that the Company shall not be liable in any
such case to the extent that any such loss, claim damage or liability arises out
of or is based upon (a) an untrue statement, or alleged untrue statement or
omission or alleged omission made in such registration statement or prospectus,
or such amendment or supplement, in reliance upon and in conformity with
information furnished to the Company by Chatsworth, or (b) grossly negligent,
reckless or intentional misconduct or wrongful acts of Chatsworth.
Chatsworth agrees that it will indemnify, defend and hold harmless the Company
and each of its officers, directors, employees and agents from and against any
loss, expense, claim, damage, or liability (including but not limited to any and
all expenses reasonably incurred in investigating, preparing or defending
against any litigation, commenced or threatened, or any claim whatsoever),
insofar as any such loss, expense, claim, damage, liability, or actions in
respect thereof arises out of or is based on any untrue statement or alleged
untrue statement of any material fact made by Chatsworth or the omission on or
alleged omission by Chatsworth of any material fact or any fact necessary to
make the statements made by Chatsworth not misleading or any grossly negligent,
reckless or intentional misconduct or wrongful act of Chatsworth or any of its
officers, directors, employees and agents.
SECTION 5: TERMINATION OF ENGAGEMENT
Chatsworth's engagement hereunder may be terminated by either the Company or
Chatsworth at any time, with or without cause, upon 10 days' written advice to
the other party; PROVIDED, HOWEVER, that
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Chatsworth will be entitled to keep the Warrant subject to the terms set forth
therein; and PROVIDED, FURTHER, the provisions of Section 3, 4, and 5 shall
survive such termination.
The Company understands and agrees that all advice (written or oral) given by
Chatsworth to the Company in connection with Chatsworth's engagement hereunder
is intended solely for its benefit and use, and that no such advice shall be
used, reproduced, disseminated, quoted or referred to at any time, in any manner
or for any purpose, nor shall any public reference be made to Chatsworth except
(i) as may be required by law, any applicable rules or regulations promulgated
pursuant thereto or the rules of any exchange or market on which shares of the
Company are or are proposed to be listed, or (ii) with Chatsworth's prior
written consent.
Each Holder and the Company agrees to arbitrate all disputes, controversies or
differences that may arise between them with respect to any provision of this
Agreement. Either party may give notice to the other of its decision to
arbitrate the dispute, and such notice shall specify the issue or issues to be
arbitrated. Each party shall select one arbitrator, and the two arbitrators
thereby selected shall select a third arbitrator. The arbitration shall take
place in Palm Beach County, Florida or such other place as the parties shall
agree, under the then-current Commercial Arbitration Rules of the American
Arbitration Association. The decision of a majority of the three arbitrators,
including any assessment of the cost of arbitration, will be final and binding
on the parties. The arbitrators will only have the authority to award actual
direct damages, and will not have the authority to award consequential or
punitive damages. Judgement upon the decision made by the arbitrators may be
entered in any court of competent jurisdiction.
Please confirm that the foregoing is in accordance with your understandings and
agreements with Chatsworth by signing the duplicate copy of this letter and
returning the same to the undersigned, thereby constituting this a binding
agreement between us, our respective successors and assigns.
SECTION 6: OTHER
The terms of this letter agreement shall supersede and replace the terms of the
Initial Engagement Letter and the terms of such Initial Engagement Letter shall
be null and void.
Very truly yours,
CHATSWORTH SECURITIES LLC
By: /s/ XXXXXX X. XXXXXXX
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Xxxxxx X. Xxxxxxx
Managing Director
Accepted and agreed to as
of the date of this letter
CORPORATE BUYING SERVICE INC.
By: /s/ XXXXXXX XXXXXX
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Xxxxxxx Xxxxxx
President
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