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VENTURE CATALYST.COM
A DIVISION OF
INLAND ENTERTAINMENT CORPORATION
3420 OCEAN PARK BOULEVARD, SUITE 3020
SANTA MONICA, CALIFORNIA 90405
NOVEMBER 23, 1999
MANOHAR PRABHU
CHIEF EXECUTIVE OFFICER
ULTREXX CORPORATION
2125 WESTERN AVENUE, SUITE 302
SEATTLE, WA 98121
Dear Mickey:
This letter agreement (the "Agreement") confirms the terms and
conditions of the engagement of Venture Catalyst.com, a Division of Inland
Entertainment Corporation ("Venture Catalyst"), by Ultrexx Corporation (the
"Company") to render general consulting, certain investor relations and
financial communication services to the Company which are referred to herein.
1. SERVICES.
Commencing December 1, 1999 (the "Commencement Date"), Venture
Catalyst agrees to perform general marketing, investor relations, and
financial communication services for the Company which are ordinarily and
customarily performed by an investor relations firm on behalf of a corporate
client. These services include, but are not limited to (a) review of the
non-financial portions of quarterly and annual reports sent to securityholders
by the Company, exclusive of any current, quarterly or annual reports filed
with U.S. Securities and Exchange Commission and/or other regulatory agencies;
(b) drafting and distribution of financial and general press releases; (c)
drafting of a corporate profile for distribution to the Company's shareholders
and the public; (d) introduction of the Company to the financial brokerage
community.
2. NON-EXCLUSIVE RELATIONSHIP; NO GUARANTEE.
Venture Catalyst will act as a non-exclusive agent of the
Company and shall use its best efforts in the performance of its services
described above. Nothing in this Agreement shall be construed as limiting
Venture Catalyst's right to represent other clients.
3. FEES.
On or before the last business day of each month, the Company
shall pay to Venture Catalyst a fee of $6,500 per month in shares of the
Company's common stock at a fixed price of $0.20 per share, totaling 32,500
shares of the Company's common stock. The first payment is due December 31,
1999. Said $6,500 fee includes $2,000 per month allocated toward a lease
payment, due and payable under a separate Sublease Agreement between the
Company and Inland Entertainment Corporation. The Company represents and
warrants to Venture Catalyst that the Company's shares of common stock to be
issued by the Company to Venture Catalyst as compensation pursuant to this
Section 3 of this Agreement and pursuant to Section 6 of this Agreement have
been duly authorized and, upon delivery to Venture Catalyst in accordance with
the terms hereof (in the case of the shares delivered pursuant to this Section
3) and in accordance with the terms of the Capital Investment, hereinafter
defined (in the case of the shares referred to in Section 6), will have been
validly issued, fully paid, nonassessable and free of preemptive rights,
contractual rights to purchase and
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Mr. Manohar Prabhu
Ultrexx Corporation
November 23, 1999
Page 2
similar rights. The Company also represents and warrants to Venture Catalyst
that it will comply with all applicable requirements necessary to allow
Venture Catalyst to utilize Rule 144 under the Securities Act of 1933, as
amended (or any successor or similar rule.
4. EXPENSES.
In addition to any fees that may be payable hereunder, the
Company agrees, from time to time upon request, to reimburse Venture Catalyst
for all reasonable out of pocket expenses incurred by it in the performance of
services on behalf of the Company. Such out of pocket expenses shall include,
but are not limited to, costs of long-distance telephone charges, facsimile
services, mileage/travel, messenger services, printing, copying, postage,
investor advertising, broadcast e-mail, broadcast fax, fax on demand, press
release filings and other such ancillary services. It is understood by Venture
Catalyst, however, that any single expense in excess of $200.00 must be
approved, in advance by the Company in writing. Any disputed expense must be
made known to Venture Catalyst in writing within 5 days of receipt. Out of
pocket expenses will be billed on or about the fifteenth of each month and
will be due and payable with 10 days of receipt.
5. CAPITAL INVESTMENT.
Venture Catalyst shall invest the sum of $100,000 through the
purchase of 714,286 shares of the Company's common stock at a price of $0.14
per share, said stock to be registered as Rule 144 stock. These shares will be
subject to the resale restrictions of Rule 144 under the Securities Act of
1933 and must be held for a minimum of one year before becoming eligible for
sale under Rule 144. Venture Catalyst shall tender the funds on or before
12/1/99. Ultrexx undertakes that use of proceeds of these funds shall include
the balance of legal and accounting fees required for completing the process
of filing to be a fully reporting company.
6. TERM AND TERMINATION OF THE ENGAGEMENT.
Venture Catalyst's engagement hereunder shall be for a period of
one year from the Commencement Date. This Agreement may be terminated by
either the Company or Venture Catalyst at any time, with or without cause,
upon provision of one month's written notice to that effect to the other
party; provided, however, that Venture Catalyst will be entitled to (a) its
full fee for the first month under Section 3 hereof regardless of when this
Agreement is terminated if terminated by the Company; (b) its pro-rated fee
for months after the first month if terminated by either party. It is also
agreed by both the Company and Venture Catalyst that the provisions of this
Section 6 and Sections 5,7 and 8 hereof shall survive such termination.
7. INDEMNITY.
(a) INDEMNIFICATION BY THE COMPANY. In connection with
Venture Catalyst's engagement hereunder, including modifications or future
additions to this engagement and the related activities prior to this date,
the Company agrees that it will indemnify, hold harmless and defend Venture
Catalyst and its affiliates, any director, officer, agent or employee of
Venture Catalyst or any of its affiliates and each other person, if any,
controlling Venture Catalyst or any of its affiliates and each of their
successors and assigns (collectively, the "VC Group") against and in respect
of any and all losses, damages, claims, obligations, demands, actions, suits,
proceedings, assessments, liabilities, judgments, recoveries and deficiencies,
costs and expenses (including, without limitation, reasonable attorneys' fees
and costs and expenses incurred in investigating, preparing, defending against
or prosecuting any litigation, claim, proceeding or demand), all on an after
tax basis, less any amounts actually paid as insurance reimbursement, of any
kind or character (collectively, a "Loss"), (i) related to, arising out of or
resulting from (A) oral or
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Mr. Manohar Prabhu
Ultrexx Corporation
November 23, 1999
Page 3
written information provided by the Company, the Company's employees or the
Company's other agents, for use by Venture Catalyst in connection with Venture
Catalyst's performance of services under this Agreement; (B) other action or
failure to act by the Company, the Company's employees or the Company's other
agents or by Venture Catalyst at the Company's request or with the Company's
consent or (C) any breach of, or failure by the Company to fully perform, or
any inaccuracy in, any of the representations, warranties, covenants or
agreements of the Company in this Agreement or (ii) otherwise related to or
arising out of the engagement of Venture Catalyst pursuant to this Agreement
or any transaction or conduct in connection therewith except that this clause
(ii) and clause (i)(B) relating to actions by Venture Catalyst, shall not
apply with respect to any losses that are finally judicially determined to
have resulted from Venture Catalyst's willful misconduct, bad faith or gross
negligence.
(b) NOTICE OF CLAIM. Whenever Venture Catalyst learns
of or discovers any matter which may give rise to a claim for indemnification
(the "Claim") against the Company (the "Indemnity Obligator") under this
Section 10, Venture Catalyst, as the indemnified party (the "Indemnified
Party"), shall give notice to the Indemnity Obligor of the Claim. With respect
to Claims which are the subject of actions, suits, or proceedings threatened
or asserted in writing by any third party (a "Third Party Claim"), the
Indemnified Party shall, within 15 days following receipt of such Third Party
Claim, promptly notify the Indemnity Obligor in writing of any Claim for
recovery, specifying in reasonable detail the nature of the Loss and the
amount of the liability estimated to arise therefrom. If the Indemnified Party
does not so notify the Indemnity Obligor within 15 days of its discovery of a
Third Party Claim, such Claim shall be barred only to the extent that the
Indemnity Obligor is prejudiced by such failure to notify. The Indemnified
Party shall provide to the Indemnity Obligor as promptly as practicable
thereafter all information and documentation reasonably requested by the
Indemnity Obligor to verify the Claim asserted.
(c) DEFENSE. If the facts relating to a Loss arise out
a Third Party Claim, or if there is any claim against a third party available
by virtue of the circumstances of the Loss, the Indemnity Obligor shall, by
giving written notice to the Indemnified Party within 15 days following its
receipt of the notice of such claim, assume the defense or the prosecution
thereof, including the employment of counsel or accountants, reasonably
satisfactory to the Indemnified Party, at its cost and expense; PROVIDED,
HOWEVER, that during the interim the Indemnified Party shall use its best
efforts to take all action (not including settlement) reasonably necessary to
protect against further damage or loss with respect to the Loss. The
Indemnified Party shall have the right to employ counsel separate from counsel
employed by the Indemnity Obligor in any such action and to participate
therein, but the fees and expenses of such counsel shall be at the Indemnified
Party's own expense, unless (a) the employment thereof has been specifically
authorized by the Indemnity Obligor, (b) such Indemnified Party has been
advised by counsel reasonably satisfactory to the Indemnity Obligor that there
may be one or more legal defenses available to it which are different from or
additional to those available to the Indemnity Obligor and in the reasonable
judgment of such counsel it is advisable for such Indemnified Party to employ
separate counsel, or (c) the Indemnity Obligor has failed to assume the
defense of such action and employ counsel reasonably satisfactory to the
Indemnified Party. Whether or not the Indemnity Obligor defends or prosecutes
such claim, all the parties hereto shall cooperate in the defense or
prosecution thereof and shall furnish such records, information and testimony
and shall attend such conferences, discovery proceedings and trial as may be
reasonably requested in connection therewith. The Indemnity Obligor shall not
be liable for any settlement of any such claim effected without its prior
written consent. In the event of payment by the Indemnity Obligor to the
Indemnified Party in connection with any Loss arising out of a Third Party
Claim, the Indemnity Obligor shall be subrogated to and shall stand in the
place of the Indemnified Party as to any events or circumstances in respect of
which the Indemnified Party may have any right or claim against such third
party relating to such indemnified matter. The Indemnified Party shall
cooperate with the Indemnity Obligor in prosecuting
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Mr. Manohar Prabhu
Ultrexx Corporation
November 23, 1999
Page 4
any subrogated claim. The Indemnity Obligor will take no action in connection
with any claim that would adversely affect the Indemnified Party without the
consent of the Indemnified Party.
(d) DURATION OF THE COMPANY'S OBLIGATIONS. The
Indemnity Obligor's indemnification obligations under this Agreement shall
survive the termination of this Agreement.
8. ACKNOWLEDGMENTS AND REPRESENTATIONS.
(a) The Company recognizes and confirms that in
performing its duties pursuant to this Agreement, Venture Catalyst will be
using and relying upon data, material and other information furnished by the
Company, its employees and representatives (the "Information"). The Company
hereby agrees and represents that all Information furnished to Venture
Catalyst in connection with, and relating to Venture Catalyst's performance of
services under, this Agreement shall be accurate and complete in all material
respects at the time furnished, and that if such Information, in whole or
part, becomes materially inaccurate, misleading or incomplete during the term
of Venture Catalyst's engagement hereunder, the Company shall so advise
Venture Catalyst in writing and correct any such inaccuracy or omission.
Venture Catalyst assumes no responsibility for the accuracy and completeness
of such Information. In rendering its services hereunder, Venture Catalyst
shall be entitled to use and rely upon the Information without independent
verification thereof. To the extent consistent with legal requirements, all
Information, unless publicly available or otherwise available to Venture
Catalyst without restriction or breach of any confidentiality agreement, will
be held by Venture Catalyst in confidence and will not be disclosed to anyone
other than Venture Catalyst's agents and advisors without the Company's prior
written approval or used for any purpose other than those referred to in this
Agreement.
(b) The Company understands and agrees that in
furnishing the Company with advice and other services as provided in this
Agreement, neither Venture Catalyst nor any officer, director, employee or
agent thereof shall be liable to the Company, its affiliates or its creditors
for errors of judgment or for anything except willful misconduct, bad faith or
gross negligence in the performance of its duties under the terms of this
Agreement.
(c) The Company acknowledges that Venture Catalyst has
been retained solely as an advisor to the Company, and not as an advisor to or
agent of any other person, and that the Company's engagement of Venture
Catalyst is not intended to confer rights upon any persons not a party hereto
(including shareholders, employees or creditors of the Company) against
Venture Catalyst, Venture Catalyst's affiliates or their respective directors,
officers, employees and agents.
(d) The Company represents and warrants to Venture
Catalyst that it will not cause, or knowingly permit (a) any action to be
taken which violates or (b) a failure to act, the effect of which violates,
any federal or state securities law.
9. NOTICES.
All notices, requests, consents and other communications under
this Agreement shall be in writing and shall be delivered by (a) personal
delivery, (b) telecopy, facsimile or other electronic means, or (c) mail by
overnight courier or first class certified or registered mail, return receipt
requested, postage prepaid, and properly addressed as follows:
If to Venture Catalyst, at Venture Catalyst.com, a Division of
Inland Entertainment Corporation, 3420 Ocean Park Boulevard, Suite 3020, Santa
Monica, California 90405, Attention:
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Mr. Manohar Prabhu
Ultrexx Corporation
November 23, 1999
Page 5
President; Fax: (310) 399-3431, e-mail: [email protected]. If to the Company,
at Ultrexx Corporation,2125 Western Avenue, Suite 302, Seattle, WA 98121.
Attention: Chief Executive Officer; Fax: ( 206 ) 448-9273, e-mail
[email protected].
Any party may change its address for purposes of this provision
by giving the other party written notice of the new address in the manner set
forth above. Notice will be conclusively deemed to have been given when
personally delivered, or if given by Federal Express or other similar
overnight service, on the date of delivery, or on the third day after being
sent by first class registered or certified mail, or if given by telecopy, fax
or other electronic media, when confirmation of transmission is indicated by
the sender's machine.
10. ARBITRATION.
All controversies, disputes or claims arising out of or relating
to this Agreement shall be resolved by binding arbitration. The arbitration
shall be conducted in accordance with the Commercial Arbitration Rules of the
American Arbitration Association. All arbitrators shall possess such
experience in, and knowledge of, the subject area of the controversy or claim
so as to qualify as an "expert" with respect to such subject matter. The
governing law for the purposes of any arbitration arising hereunder shall be
as set forth in Section 12 hereof. The prevailing party shall be entitled to
receive its reasonable attorneys' fees and all costs relating to the
arbitration. Any award rendered by arbitration shall be final and binding on
the parties, and judgment thereon may be entered in any court of competent
jurisdiction.
11. GOVERNING LAW.
This Agreement shall be governed by and construed in accordance
with the laws of the state of California, without regard to the conflicts of
laws provisions thereof, and may not be amended or modified except in writing
signed by both parties.
12. SUCCESSORS.
This Agreement and all rights and obligations thereunder shall
be binding upon and inure to the benefit of each party's successors, but may
not be assigned without the prior written consent of the other party, which
shall not be unreasonably withheld or delayed.
13. SEVERABILITY.
If any provision of this Agreement shall be held or made invalid
by a statute, rule, regulation, decision of a tribunal or otherwise, the
remainder of this Agreement shall not be affected thereby and, to this extent,
the provisions of this Agreement shall be deemed severable.
14. AUTHORIZATION.
The Company represents and warrants that it has all requisite
power and authority, and has received all necessary authorizations, to enter
into and carry out the terms and provisions of this Agreement.
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Mr. Manohar Prabhu
Ultrexx Corporation
November 23, 1999
Page 6
Please confirm that the foregoing correctly sets forth our Agreement by
signing the enclosed letter in the space provided and returning them to us for
execution, whereupon we will send you a fully executed original letter which
shall constitute a binding Agreement as of the date that you executed this
Agreement. We look forward to working with you on this assignment.
Very truly yours,
VENTURE CATALYST.COM,
a Division of Inland Entertainment Corporation
By:
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Sanjay Sabnani
President
Agreed to and Accepted.
Ultrexx Corporation
By:
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Manohar "Mickey" Prabhu
Chief Executive Officer
Date:
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