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EXHIBIT 10.37
ADVISORY AND INVESTMENT BANKING AGREEMENT
This Agreement is made and entered into as of the [__]th day
of August, 2000, by and between Kashner Davidson Securities Corporation, a
Florida corporation ("Kashner") and TrueVision International, Inc., a Delaware
corporation (the "Company").
In consideration of the mutual promises made herein and for
other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the parties hereto agree as follows:
1. PURPOSE: The Company hereby engages Kashner for the term
specified in Paragraph 2 hereof to render consulting advice to the Company as an
investment banker relating to financial and similar matters upon the terms and
conditions set forth herein.
2. TERM: Except as otherwise specified in paragraph 4 hereof,
this Agreement shall be effective for the period commencing on from [THE
EFFECTIVE DATE] and for three years thereafter.
3. DUTIES OF KASHNER: During the term of this Agreement,
Kashner shall seek out Transactions (as hereinafter defined) on behalf of the
Company and shall furnish advice to the Company in connection with any such
Transactions.
4. COMPENSATION: In consideration for the services rendered by
Kashner to the Company pursuant to this Agreement (and in addition to the
expenses provided for in Paragraph 5 hereof), the Company shall compensate
Kashner as follows:
(a) The Company shall pay Kashner a fee of
$3,000 per month during the term of this Agreement. The sum of $108,000 shall be
payable in full on the date of this Agreement. In the event that Kashner ceases
its business operations as a financial advisor and investment banker,
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materially breaches or is unable to satisfy its performance obligations
hereunder, then Kashner shall repay to the Company the pro rata unearned portion
of foregoing fee, based on the number of months for which performance was
delivered and the remaining number of months in the term.
(b) In the event that any Transaction (as
hereinafter defined) occurs during the term of this Agreement or one year
thereafter, the Company shall pay fees to Kashner as follows:
<TABLE>
<CAPTION>
CONSIDERATION FEE
------------- ---
<S> <C>
$ - 0 - to $ 1,000,000 5% of Consideration
$ 1,000,001 to $2,000,000 4% of Consideration
$ 2,000,001 to $3,000,000 3% of Consideration
$ 3,000,001 to $4,000,000 2% of Consideration
$4,000,001 or more 1% of the Consideration in excess of $4,000,001
</TABLE>
For the purposes of this Agreement, "Consideration" shall mean
the total market value on the day of the closing of stock, cash, assets and all
other property (real or personal) exchanged or received, directly or indirectly
by the Company or any of its security holders in connection with any
Transaction. Any co-broker or brokers retained by Kashner shall be paid by
Kashner.
For the purposes of the Agreement, a "Transaction" shall mean
(a) any transaction originated by Kashner, whereby, directly or indirectly,
control of or a material interest in the Company or any of its businesses or any
of their respective assets, is transferred for Consideration, or (b) any
transaction originated by Kashner whereby the Company acquires any other company
or the assets of any other company or an interest in any other company (an
"Acquisition") or to so act.
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In the event Kashner originates a line of credit with a
lender, the Company and Kashner will mutually agree on a satisfactory fee for
such services provided based upon reasonable and customary practice in the
industry and the terms of payment of such fee; provided, however, that in the
event the Company is introduced to a corporate partner by Kashner in connection
with a merger, Acquisition or financing and a credit line develops directly as a
result of the introduction, the appropriate fee shall be the amount set forth in
the schedule above with consideration to be based upon the amount of the line of
credit. In the event Kashner introduces the Company to a joint venture partner
or customer and sales develop as a result of the introduction, the Company
agrees to pay a fee of five percent (5%) of total sales generated directly from
this introduction during the first two years following the date of the first
sale, in lieu of the fees set forth in the schedule above. Total sales shall
mean cash receipts less any applicable refunds, returns, allowances, credits and
shipping charges and monies paid by the Company by way of settlement or judgment
arising out of claims made by or threatened against the Company. Commission
payments shall be paid on the 15th day of each month following the receipt of
customers' payment. In the event any adjustments are made to the total sales
after the commission has been paid, the Company shall be entitled to an
appropriate refund or credit against future payments under this Agreement. All
fees to be paid pursuant to this Agreement, except as otherwise specified, are
due and payable to Kashner in cash at the closing or closings of any transaction
specified in Paragraph 4 hereof. In the event that this Agreement shall not be
renewed or if terminated for any reason, notwithstanding any such non-renewal or
termination, Kashner shall be entitled to a full fee as provided under
Paragraphs 4 and 5 hereof, for any transaction for which the discussions were
initiated during the term of this Agreement and which is consummated within a
period of twelve months after non-renewal or termination of this Agreement.
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5. EXPENSES OF KASHNER: In addition to the fees payable
hereunder, and regardless of whether any transaction set forth in Paragraph 4
hereof is proposed or consummated the Company shall reimburse Kashner for all
fees and disbursements of Kashner's counsel and Kashner's travel and reasonable
out-of-pocket expenses incurred in connection with and in direct furtherance of
the services performed by Kashner pursuant to this Agreement, including without
limitation, hotels, food and associated expenses and long-distance telephone
calls. Kashner shall obtain the consent of the Company before incurring any
expense over $1,000.
6. LIABILITY OF KASHNER:
(a) The Company acknowledges that all opinions and
advice (written or oral) given by Kashner to the Company in connection with
Kashner's engagement are intended solely for the benefit and use of the Company
in considering the transaction to which they relate, and the Company agrees that
no person or entity other than the Company shall be entitled to make use of or
rely upon the advice of Kashner to be given hereunder, and no such opinion or
advice shall be used for any other purpose or reproduced, disseminated, quoted
or referred to at any time, in any manner or for any purpose, nor may the
Company make any public references to Kashner, or use Kashner's name in any
annual reports or any other reports or releases of the Company without Kashner's
prior written consent.
(b) The Company acknowledges that Kashner makes no
commitment whatsoever as to making a market in the Company's securities or to
recommending or advising its clients to purchase the Company's securities,
except that Kashner has committed to make a market in the Company's securities
for at least 45 days after the effective date of the Company's initial public
offering. Research reports or corporate finance reports that may be prepared by
Kashner will, when and if prepared, be done
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solely on the merits or judgment of analysis of Kashner or any senior corporate
finance personnel of Kashner.
7. KASHNER'S SERVICES TO OTHERS: The Company acknowledges that
Kashner or its affiliates are in the business of providing financial services
and consulting advice to others. Nothing herein contained shall be construed to
limit or restrict Kashner in conducting such business with respect to others, or
in rendering such advice to others.
8. COMPANY INFORMATION:
(a) The Company recognizes and confirms that, in
advising the Company and in fulfilling its engagement hereunder, Kashner will
use and rely on data, material and other information furnished to Kashner by the
Company. The Company acknowledges and agrees that in performing its services
under this engagement, Kashner may rely upon the data, material and other
information supplied by the Company without independently verifying the
accuracy, completeness or veracity of same.
(b) Except as contemplated by the terms hereof
or as required by applicable law, Kashner shall keep confidential all material
non-public information provided to it by the Company, and shall not disclose
such information to any third party, other than such of its employees and
advisors as Kashner determines to have a need to know. Upon termination of this
Agreement, at the request of the Company, Kashner shall deliver to the Company
all non-public material in its possession relating to the business affairs of
the Company.
9. INDEMNIFICATION:
(a) The Company shall indemnify and hold Kashner and
its directors, officers, employees and agents harmless against any and all
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liabilities, claims, lawsuits, including any and all awards and/or judgments to
which it may become subject under the Securities Act of 1933, as amended (the
"1933 Act"), the Securities Exchange Act of 1934, as amended (the "Act") or any
other federal or state statute, at common law or otherwise, insofar as said
liabilities, claims and lawsuits (including awards and/or judgments) arise out
of or are in connection with the services rendered by Kashner or any
transactions in connection with this Agreement, except for any liabilities,
claims and lawsuits (including awards judgments and related costs and expenses),
arising out of acts or omissions of Kashner. In addition, the Company shall also
indemnify and hold Kashner harmless against any and all reasonable costs and
expenses, including reasonable counsel fees, incurred or relating to the
foregoing. If it is finally judicially determined that the Company will not be
responsible for any liabilities, claims and lawsuits or expenses related
thereto, the indemnified party, by his or its acceptance of such amounts, agrees
to repay the Company all amounts previously paid by the Company to the
indemnified person and will pay all costs of collection thereof, including but
not limited to reasonable attorneys' fees related thereto.
Kashner shall give the Company prompt notice of any
such liability, claim or lawsuit which Kashner contends is the subject matter of
the Company's indemnification and the Company thereupon shall be granted the
right to take any and all necessary and proper action, at its sole cost and
expense, with respect to such liability, claim and lawsuit, including the right
to settle, compromise and dispose of such liability, claim or lawsuit, excepting
therefrom any and all proceedings or hearings before any regulatory bodies
and/or authorities.
Kashner shall indemnify and hold the Company and its
directors, officers, employees and agents harmless against any and all
liabilities, claims and lawsuits, including any and all awards and/or judgments
to which it may become subject under the 1933 Act, the Act or any other
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federal or state statute, at common law or otherwise, insofar as said
liabilities, claims and lawsuits (including awards and/or judgments) arise out
of or are based upon Kashner's gross negligence, useful misconduct, bad faith or
any untrue statement or alleged untrue statement of a material fact or omission
at a material fact required to be stated or necessary to make the statement
provided by Kashner, not misleading, which statement or omission was made in
reliance upon information furnished in writing to the Company by or on behalf of
Kashner for inclusion in any registration statement or prospectus or any
amendment or supplement thereto in connection with any transaction to which this
Agreement applies. In addition, Kashner shall also indemnify and hold the
Company harmless against any and all costs and expenses, including reasonable
counsel fees, incurred or relating to the foregoing.
The Company shall give to Kashner prompt notice of
any such liability, claim or lawsuit which the Company contends is the subject
matter of Kashner's indemnification and Kashner thereupon shall be granted the
right to a take any and all necessary and proper action, at its sole cost and
expense, with respect to such liability, claim and lawsuit, including the right
to settle, compromise or dispose of such liability, claim or lawsuit, excepting
therefrom any and all proceedings or hearings before any regulatory bodies
and/or authorities.
(b) In order to provide for just and equitable
contribution under the Act in any case in which (i) any person entitled to
indemnification under this Section 9 makes claim for indemnification pursuant
hereto but it is judicially determined (by the entry of a final judgment or
decree by a court of competent jurisdiction and the expiration of time to appeal
or the denial of the last right of appeal) that such indemnification may not be
enforced in such case notwithstanding the fact that this Section 10 provides for
indemnification in such case, or (ii) contribution under the Act may be required
on the part of any such person in circumstances for which indemnification is
provided under this Section
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10, then, and in each such case, the Company and Kashner shall contribute to the
aggregate losses, claims, damages or liabilities to which they may be subject
(after any contribution from others) in such proportion taking into
consideration the relative benefits received by each party from the offering
covered by the prospectus with respect to any transactions in connection with
this Agreement (taking into account the portion of the proceeds of the offering
realized by each), the parties' relative knowledge and access to information
concerning the matter with respect to which the claim was assessed, the
opportunity to correct and prevent any statement or omission and other equitable
considerations appropriate under the circumstances; provided, however, that
notwithstanding the above in no event shall Kashner be required to contribute
any amount in excess of 10% of the public offering price of any securities to
which such Prospectus applies; and provided, that, in any such case, no person
guilty of a fraudulent misrepresentation (within the meaning of Section 11(f) of
the Act) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation.
Within fifteen (15) days after receipt by any party
to this Agreement (or its representative) of notice of the commencement of any
action, suit or proceeding, such party will, if a claim for contribution in
respect thereof is to be made against another party (the "Contributing Party"),
notify the Contributing Party of the commencement thereof, but the omission so
to notify the Contributing Party will not relieve it from any liability which it
may have to any other party other than for contribution hereunder. In case any
such action, suit or proceeding is brought against any party, and such party
notifies a Contributing Party or his or its representative of the commencement
thereof within the aforesaid fifteen (15) days, the Contributing Party will be
entitled to participate therein with the notifying party and any other
Contributing Party similarly notified. Any such Contributing Party shall not be
liable to any party seeking contribution on account of any settlement of any
claim, action or
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proceeding effected by such party seeking contribution without the written
consent of the Contributing Party. The indemnification provisions contained in
this Section 10 are in addition to any other rights or remedies which either
party hereto may have with respect to the other or hereunder.
10. KASHNER AS INDEPENDENT CONTRACTOR : Kashner shall perform
its services hereunder as independent contractors and not as employees of the
Company or an affiliate thereof. It is expressly understood and agreed to by the
parties hereto that Kashner shall have no authority to act for, represent or
bind the Company or any affiliate thereof in any manner, except as may be agreed
to expressly by the Company in writing from time to time.
11. MISCELLANEOUS:
(a) This Agreement between the Company and Kashner
constitutes the entire agreement and understanding of the parties hereto, and
supersedes any and all previous agreements and understandings, whether oral or
written, between the parties with respect to the matters set forth herein.
(b) Any notice or communication permitted or required
hereunder shall be in writing and shall be deemed sufficiently given if
hand-delivered or sent (i) postage prepaid by registered mail, return receipt
requested, or (ii) by facsimile, to the respective parties as set forth below,
or to such other address as either party may notify the other in writing:
If to the Company, to: TrueVision International, Inc..
1720 Louisiana Blvd., N.E.
Albuquerque, New Mexico 87110
Attn: John C. Homan
with a copy to: Gregory Bartko, Esq.
3475 Lenox Road
Suite 400
Atlanta, Georgia 30326
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If to Kashner, to: Kashner Davidson Securities Corporation
77 South Palm Avenue
Sarasota, Florida 34236
Attn: Mathew Meister
with a copy to: Sichenzia, Ross & Freidman LLP
135 West 50th Street, 20th Floor
New York, New York 10020
Attn: Gregory Sichenzia, Esq.
(c) This Agreement shall be binding upon and inure to
the benefit of each of the parties hereto and their respective successors, legal
representatives and assigns.
(d) This Agreement may be executed in any number of
counterparts, each of which together shall constitute one and the same original
document.
(e) No provision of this Agreement may be amended,
modified or waived, except in a writing signed by all of the parties hereto.
(f) This Agreement shall be construed in accordance
with and governed by the laws of the State of New York, without giving effect to
conflict of law principles. The parties hereby agree that any dispute which may
arise between them arising out of or in connection with this Agreement shall be
adjudicated before a court located in New York City, and they hereby submit to
the exclusive jurisdiction of the courts of the State of New York located in New
York, New York and of the federal courts in the Southern District of New York
with respect to any action or legal proceeding commenced by any party, and
irrevocably waive any objection they now or hereafter may have respecting the
venue of any such action or proceeding brought in such a court or respecting the
fact that such court is an inconvenient forum, relating to or arising out of
this Agreement, and consent to the service of process in any such action or
legal proceeding by means of registered or certified mail, return receipt
requested, in care of the address set forth in Paragraph 11(b) hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed, as of the day and year first above written.
KASHNER DAVIDSON SECURITIES
CORPORATION
By:______________________________
TRUEVISION INTERNATIONAL, INC.
By:_______________________________
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