Engagement Letter - Network Acquisitions Inc. and First Capital Investments Inc.
September 20, 1998
Caron Harte
Secretary/Treasurer
Network Acquisitions, Inc.
5325 S. Valentia Way, Suite 220
Englewood, CO 80111
RE: ENGAGEMENT LETTER
Dear Ms. Harte:
This letter agreement (the "Agreement") confirms our prior conversations
concerning the parameters attendant upon First Capital Investments, Inc.
("FCI"), a broker/dealer registered with the Securities and Exchange
Commission and member in good standing with the National Association of
Securities Dealers and Securities Investor Protection Corporation, acting
as an exclusive financial placement agent and advisor to Network
Acquisitions Inc., its subsidiaries and affiliates ("NAI"), to be re-named
Cavion Technologies, Inc., upon completion of the pending acquisition of
Cavion Technologies, Inc., NAI and FCI are sometimes hereinafter
collectively referred to as the "Parties."
In this regard and in consideration for the mutual benefit derived
herefrom and other good and valuable consideration, the receipt and
adequacy of which is hereby acknowledged and accepted, the Parties jointly
and severally represent, warrant, covenant and agree as follows:
1. ENGAGEMENT: NAI hereby engages and retains FCI as an exclusive
placement agent and financial advisor for and on behalf of NAI to perform
the Services (as that term is hereinafter defined) and FCI hereby accepts
such appointment on the terms and subject to the conditions hereinafter
set forth, and agrees to use its best efforts in providing such Services.
2. SERVICES. The Services to be provided by FCI will include, but are
not necessarily limited to, coordinating and introducing NAI and/or any of
its affiliates to one or more individuals, firms or entities (the
"Candidate(s)") who may have an interest in providing investment capital
in the form of bridge financing, private placement financing, media
financing, or in pursuing a form of Business Combination with NAI. As
used in this Agreement, the term "Business Combination" shall mean any
form of merger, acquisition, joint venture, licensing agreement, product
sales and/or marketing, distribution, combination and/or consolidation,
etc., involving NAI and/or any of its subsidiaries, affiliates and any
other entity, either introduced by FCI or any other entity, which utilizes
the efforts or work product of FCI. As used in this Agreement, the term
"investment" shall include the contribution of anything of value by the
Candidate to NAI, its subsidiaries or affiliates. NAI and FCI hereby
confirm their express written intent that FCI shall only be required to
devote such time to the performance of the Services as FCI, in its sole
and exclusive discretion, shall deem necessary and proper to discharge its
responsibilities under this Agreement.
Furthermore, FCI will act as financial advisor and exclusive
financial placement agent for and on behalf of NAI to consummate:
(a) A Private Placement of securities or an investment by a
strategic partner or partners of up to Eight Million Dollars
($8,000,000.00);
(b) A Business Combination as defined under "Services" above; and
(c) Additionally, FCI will provide financial advisory Services on an
ongoing basis after the closing of the private placement of securities
transaction identified in Section 2(b) for a monthly fee as set forth
below under Section 3, Compensation.
The above items are subject to and conditioned upon the results of
FCI's due diligence, prevailing market conditions, and any adverse
material changes of NAI of any form or nature, affecting its financial or
business condition between the date of this letter and the closing of the
transactions contemplated herein. If, in the opinion of FCI, a material
change occurs or is identified, further performance under the terms of
this Agreement, including, but not limited to, the funding and/or closing
of any transaction, shall be suspended until the provisions of this
Agreement are revised to the satisfaction of FCI.
In conjunction with the Services, FCI agrees to: (i) make itself
available to the officers of NAI at such mutually agreed upon place during
normal business hours for reasonable periods of time, subject to
reasonable advance notice and mutually convenient scheduling, for the
purpose of advising and assisting NAI in the preparation of such reports,
summaries, corporate and/or transaction profiles, due diligence packages
and/or other material and documentation as shall be necessary, in the
opinion of FCI, to properly present NAI as an investment opportunity to
potential Candidates; (ii) aiding and assisting NAI's management in
structuring the nature, extent and corporate finance and other parameters
of the private or other offer(s) to be made to the Candidate(s); (iii)
make itself available for telephone conferences with the principal
financial sales and/or operating officer(s) of NAI during normal business
hours; (iv) evaluating proposals and participating in negotiations with
the Candidate(s); and (v) perform such other corporate finance, investment
banking, and other similar advisory services relating to the Candidate
and/or such other aspects of NAI's operations, management, or development
as the principal executive, financial, sales and/or operating officer(s)
of NAI reasonably may request, consistent with the provisions of this
Agreement. The foregoing are hereafter collectively referred to as the
"Services," and incorporated into the definition of "Services" set forth
hereinabove.
3. COMPENSATION. In consideration for the Services, and in addition to
the expense allowances set forth in Section 5 hereinbelow, NAI shall pay
to FCI and FCI hereby agrees to accept as compensation for the Services:
(a) PRIVATE PLACEMENT. A cash fee equal to eight per cent (8%) of
the total gross dollar amount received by NAI as proceeds from the private
placement financing prior to any deductions (e.g., $ ,000,000 x 8% = $
00,000 commission), payable as NAI is paid proportionately in the course
of the private placement financing. In addition, NAI shall issue to FCI
Common Stock Purchase Warrants entitling FCI to purchase 10% of the total
amount of any Securities issued (the "Warrants"). The Warrants shall be
exercisable at any time during a five year term at 110% of the price paid
by the initial investors for the stock, convertible debt, or other
equivalent securities of NAI. For example, if NAI issues 250,000 shares
of stock at $4.00 per share, then FCI shall be granted an option to
purchase 25,000 shares at $4.40 per share for a five year period. If a
$1,000,000 note convertible into 250,000 equity shares at S4.00 per share
is issued, then FCI shall be entitled to an option to purchase 25,000
shares at $4.40 per share for a five year period. In the event the
transaction consummated by FCI for NAI pursuant to this Agreement is a
100% debt financing deal, FCI shall be entitled to options to purchase
24,000 shares of NAI.
(b) ADVISORY SERVICES: $-0- per month for a period of two (2) years
beginning on the date of successful closing of the private placement or
media financing, for ongoing financial advisory Services.
(c) BUSINESS COMBINATIONS: Eight per cent of the total gross
consideration and/or value attributed to the business combination of any
form or nature. As used herein, the phrase "total gross consideration
and/or value attributed to the business combination" shall be deemed to
mean the total gross amount of money and/or securities or any other
compensation and/or investment that the Candidate agrees to pay to NAI,
its subsidiaries, affiliates, and/or its stockholders for the business
combination between NAI and the Candidate and/or any of their respective
subsidiaries or affiliates, or the total gross purchase price to be paid,
the total gross value of the transaction to a third party (providing that
the eight per cent to be paid to FCI is based on the value of NAI only and
not on any combined value of NAI and an acquiring third party), or total
gross investment made by NAI in the transaction if applicable.
4. OTHER MATERIAL TERMS AND CONDITIONS.
(a) NAI will use the proceeds from the financings exclusively for the
designated purposes as set forth on the schedule attached as Exhibit "A"
("Use of Proceeds"), incorporated herein by this reference. Any deviation
therefrom will require FCI's prior written consent.
(b) FCI may act in concert and associate with other broker/dealers,
advisors and consultants in order to accomplish the goals and objectives
set forth herein, and as such may apportion or reallow such portion of its
commissions and fees to those Parties as it deems appropriate.
(c) NAI will prepare, or cause to have prepared on its behalf, in a
timely manner and at NAI's sole expense, any promissory notes, private
placement memoranda, or other documentation deemed reasonably necessary to
effectuate and facilitate any financing referenced herein, in a form and
content reasonably satisfactory to FCI.
(d) NAI agrees to furnish FCI with written notice via facsimile (or
overnight delivery service) of the proposed closing date of the
transaction or business combination on the same day as it receives notice
thereof from its counsel or from any other entity.
(e) Upon the closing of any transaction made the subject of this
Agreement (the "Closing"), FCI shall receive its cash fee and the delivery
of any Warrants at such closing.
(f) If applicable, in the event FCI agrees to receive all or any
portion of its commissions or fees in securities or other non-cash
compensation (the "Shares"), NAI hereby covenants and agrees to cause the
Candidate to grant and to extend to FCI, at FCI's sole discretion, the
same demand and/or "piggyback" registration rights NAI receives. FCI
hereby agrees that if the Shares of the Candidate's securities being
tendered to NAI are unregistered, it will execute and deliver to the
Candidate a standard form of investment letter and consent to the
imposition of the appropriate restrictive legend and stop transfer orders
on and against all certificates it receives as compensation.
Additionally, and in any event, NAI agrees to cooperate with FCI in any
registration, assignment, and/or transfer of securities FCI acquires and
deems necessary or advisable to assign, transfer or liquidate, in whole or
in part, for its own business purposes.
(g) Any funds, securities or any other value received by NAI during
the term of this Agreement, regardless of its source, shall be subject to
the terms and conditions of this Agreement.
5. EXPENSES. In addition to the compensation outlined in Section 3
hereinabove, it expressly is agreed and understood that FCI's compensation
as provided in this Agreement also does not include the normal and
reasonable out-of-pocket expenses, including, but not limited to, long
distance communication, airfare, hotel lodging and meals, transportation,
express mail, outside consultants, etc., incurred by FCI in carrying out
its duties under this Agreement, and NAI hereby agrees to reimburse FCI
therefor promptly, upon receipt of an invoice from FCI. Whenever
feasible, FCI will request advance payment of approved expenses. FCI
shall not incur any expense in excess of Two Hundred Dollars ($200.00)
without NAI's prior consent, which consent shall not be unreasonably
withheld. The reimbursement for expenses shall not be subject to any
maximum allocation, and shall be reimbursed fully.
6. COOPERATION WITH REGISTRATION OF SECURITIES.
(a) "PIGGY BACK" REGISTRATION RIGHTS: If NAI shall, at any time
after the Closing and prior to the fifth (5th) anniversary of closing
thereof, propose the registration of an offering of its debt or equity
securities, the NAI shall give written notice as promptly as possible of
such proposed registration to FCI and use all reasonable efforts to cause
the offering of such amount of Shares owned by FCI, as FCI shall request,
within fifteen (15) calendar days after the giving of such notice, to be
included, upon the same terms (including the method of distribution) of
any such offer.
(b) SECURITIES REGISTRATION EXPENSES: Unless otherwise agreed to by
FCI and NAI in writing, NAI shall pay all costs and expenses associated
with any registration initiated by NAI, including without limitation: (i)
all filing fees with the SEC; (ii) fees and expenses of compliance with
securities or blue sky laws (including fees and disbursements of counsel
in connection with blue sky qualifications of the Shares); (iii) printing
expenses; (iv) the fees and expenses incurred in connection with the
listing of the Shares; and (v) fees and expenses of counsel and
independent certified public accountants for NAI (including the expenses
of any comfort letters), including costs associated with registrations
requested by FCI. NAI agrees to provide full cooperation in a timely
manner for any registration statement requested by FCI.
FCI shall pay all of its own costs and expenses incurred, including
all commissions, legal fees and expenses associated with registration and
compliance under the various blue sky laws (including fees and
disbursements of counsel in connection with blue sky qualifications of the
Securities) for the sale or other distribution of the Shares with any
states selected by FCI not previously registered by NAI, pursuant to the
terms of this Agreement.
(c) PRIVATE SALE RIGHTS: NAI will timely cooperate with and approve
any private sale or transfer of stock or warrants issued to FCI and
provide and/or deliver opinions and all reasonable documentation, and
execute as necessary, any registration statements and documents
customarily utilized in connection therewith.
Any private sale or transfer may include, but shall not be limited to
transactions made or consummated under or pursuant to the 33 Act or the
rules or regulations adopted thereunder including but not limited to
Regulation S and Regulation D. In this regard, NAI specifically covenants
and agrees to prepare, execute and deliver any and all documentation
necessary to cause its securities counsel to publish opinions and deliver
written instructions to NAI's transfer agent within (10) business days
from the date FCI or its designee delivers written request to NAI for the
transfer, sale, and/or removal of restrictive legend (where applicable) of
or from the Shares, if applicable.
In any event, NAI agrees to reasonably cooperate with FCI in any
private sale, other sales or transfers of its Shares under applicable law.
7. TERM AND TERMINATION. This Agreement shall be effective upon its
execution and shall remain in effect for two (2) years from the closing
date of the last financing. NAI shall have the right to terminate FCI's
engagement hereunder by furnishing FCI with a 60-day advance written
notice. However, no termination of this Agreement shall in any way affect
the right of FCI to receive as a result of the Services rendered
hereunder: (i) reimbursement for billed, accrued and/or unbilled
disbursements and expenses which right the Parties hereby agree and
consent is absolute, or (ii) its compensation, fees, Shares or Warrants on
any transactions which result in NAI receiving benefits, or (iii) the full
amount of the compensation, fees, Shares or Warrants upon the closing of a
Business Combination between NAI and any Candidate occurring during the
term of this Agreement, or (iv) its advisory fees for the term of this
Agreement after closing of any financing, or (v) compensation, fees,
Shares or Warrants on any transaction which utilizes to any extent the
efforts or work product of FCI. Furthermore, if NAI enters into any deal
with a Candidate introduced to NAI by FCI, or any person or entity to
whom FCI made a presentation or supplied information regarding NAI, FCI
shall be entitled to the full compensation called for in this Agreement as
if the Agreement were in full force and effect.
8. REPRESENTATIONS, WARRANTIES AND COVENANTS. In order to implement the
operation of this Agreement, NAI and FCI hereby jointly and severally
represent, warrant, covenant, agree and consent as follows:
(a) The execution, delivery and performance of this Agreement, in
the time and manner herein specified, will not conflict with, result in a
breach of, or constitute a default under any existing agreement,
indenture, or other instrument to which either NAI or FCI is a party or by
which either entity may be bound or affected.
(b) Both NAI and FCI have full legal authority to enter into this
Agreement and to perform the same in the time and manner contemplated.
(c) This Agreement has been submitted to, ratified and approved by
the respective Board of Directors of NAI and FCI.
(d) NAI will cooperate with FCI, and promptly will provide FCI with
all pertinent materials and requested information in order for FCI to
perform its Services pursuant to this Agreement.
(e) When issued, both the Warrants and the Shares of NAI's Common
Stock issuable upon exercise thereof shall be duly and validly issued,
fully paid and non-assessable.
9. CONFIDENTIAL DATA:
(a) FCI shall not divulge to others, any trade or confidential
information, knowledge, or data concerning or pertaining to the business
and affairs of NAI, obtained by it as a result of its engagement
hereunder, unless authorized, in writing, by NAI.
(b) NAI shall not divulge to others, any trade secret or
confidential information, knowledge, or data concerning or pertaining to
the business and affairs of FCI, obtained by it as a result of its
engagement hereunder, unless authorized by FCI.
(c) FCI shall not be in the performance of its duties to divulge to
NAT or any officer, director, agent or employee of NAI, any secret or
confidential information, knowledge, or data concerning any other person,
firm or entity (including, but not limited to, any such persons, firm or
entity which may be a competitor or potential competitor of NAI) which FCI
may have or be able to obtain otherwise than as a result of the
relationship established by this Agreement.
10. INDEPENDENT CONTRACTOR. FCI shall be, and in all respects be deemed
to be, an independent contractor in the performance of its duties
hereunder, any law of any jurisdiction to the contrary notwithstanding.
FCI shall not, by reason of this Agreement or the performance of the
Services, be, or be deemed to be, an employee, agent, partner, co-venturer
or controlling person of NAI, and FCI shall have no power to enter into
any agreement on behalf of or otherwise bind NAI. FCI shall not have, or
be deemed to have, fiduciary obligations or duties to NAI and shall be
free to pursue, conduct and carry on for its own account (or for the
account of others) such activities, employments, ventures, businesses and
other pursuits as FCI in its sole, absolute and unfettered discretion, may
elect.
11. INDEMNITY. NAI hereby agrees and consents at its sole cost and
expense to indemnify and hold FCI harmless from any and all claims or
liabilities brought against FCI or its affiliates, by individuals or
entities not a party to this Agreement, including claims or liabilities of
every kind, nature and description, fixed or contingent (including,
without limitations, counsel fees and expenses in connection with any
action, claim or proceeding relating to such liabilities), arising out of
any action or event related to this Agreement, commencing or occurring as
a result of or by reason of any untrue or misleading statement of a
material fact, or omission of a material fact, or breach by or failure of
NAI to perform under any representation, covenant, or commitment made by
NAI hereunder, or as a result of any misrepresentation made by NAI
hereunder.
12. ASSIGNMENTS. This Agreement is binding upon and shall inure to the
benefit of and be enforceable against the Parties hereto and their
respective subsidiaries, affiliates, successors and assigns.
Notwithstanding the foregoing, neither Party shall assign or transfer any
rights or obligations hereunder, except that, (i) NAI may assign or
transfer this Agreement to a successor corporation in the event of a
merger, consolidation, or transfer, or sale of all or substantially all of
the assets of NAI, provided that no such assignment shall relieve NAI from
liability for the obligations assumed by it hereunder; and (ii) FCI may
assign or transfer this Agreement to any firm which is an affiliate of
FCI, provided that no such assignment shall relieve FCI from liability for
its obligations hereunder.
13. ADDITIONAL INSTRUMENTS. Each of the Parties shall from time to time,
at the request of others, execute, acknowledge and deliver to the other
Party any and all further instruments that reasonably may be reasonably
required to give full effect and force to the provisions of this
Agreement.
14. ENTIRE AGREEMENT. Each Party hereby covenants that this Agreement is
intended to and does contain and embody all of the understandings and
agreements, both written or oral, of the Parties with respect to the
subject matter of this Agreement, and that there exists no oral agreement
or understanding, expressed or implied, whereby the absolute, final and
unconditional character and nature of this Agreement shall be in any way
invalidated or affected. There are no representations, warranties or
covenants other than those set forth in this Agreement.
15. LAWS OF THE STATE OF COLORADO. This Agreement shall be deemed to be
made in, governed by, interpreted under and construed in all respects in
accordance with the laws of the State of Colorado, irrespective of the
country or place of domicile or residence of either Party, and without
giving effect to any choice or conflict of laws provision or rule (whether
of the State of Colorado or any other jurisdiction) that would cause the
application of the laws of any jurisdiction other than the State of
Colorado. In the event of controversy arising out of the interpretation,
construction, performance or breach of this Agreement, the Parties hereby
agree and consent to the jurisdiction and venue of the District or County
Court of Arapahoe County, Colorado; or the United States District Court
for the District of Colorado, and further agree and consent that personal
service or process in any such action or proceeding outside of the State
of Colorado and Arapahoe County shall be tantamount to service in person
within Arapahoe County, Colorado and shall confer personal jurisdiction
and venue upon either of the said Courts.
16. FACSIMILE SIGNATURES / COUNTERPARTS. Facsimile signatures on this
shall be sufficient and acceptable to bind the Parties and for execution
of this Agreement. This Agreement shall only be effective and binding
when executed by all Parties hereto. This Agreement may he executed in
counterparts by facsimile, each of which so executed shall be deemed an
original and constitute one and the same agreement.
17. ADDRESS OF PARTIES. Each Party shall at all times keep the other
informed of its principal place of business if different from that stated
herein, and shall promptly notify the other of any change, giving the
address of the new principal place of business or residence.
18. NOTICES. All notices required to be sent, or which may be sent,
pursuant to any provision of this Agreement shall be sent by certified
mail, return receipt requested, or by overnight package delivery service
to each of the Parties at the address appearing herein, and shall be
effective from the date of mailing or the validated air bill.
19. MODIFICATION AND WAIVER. A modification or waiver of any of the
provisions of this Agreement shall be effective only if made in writing
and executed with the same formality as this Agreement. The failure of
any Party to insist upon strict performance of any of the provisions of
this Agreement shall not be construed as a waiver of any subsequent
default of the same or similar nature or of any other nature.
20. INJUNCTIVE RELIEF. Solely by virtue of their execution of this
Agreement and in consideration for the mutual covenants of each other, NAI
and FCI hereby agree, consent and acknowledge that, in the event of the
failure by NAI to pay the consideration to FCI or in the event of breach
of any other material term, FCI will be without adequate remedy-at-law and
shall therefore, be entitled to immediately redress any material breach of
this Agreement by temporary or permanent injunctive or mandatory relief
obtained in an action or proceeding instituted in the District or County
Court of Arapahoe County, State of Colorado or the United States District
Court for the District of Colorado, without the necessity of proving
damages and without prejudice to any other remedies which FCI may have at
law or in equity. For the purposes of this Agreement, NAI agrees and
consents that upon a material breach of this Agreement as aforesaid, in
addition to any other legal and/or equitable remedies, FCI may present a
conformed copy of this Agreement to the aforesaid courts and thereby shall
be able to obtain a permanent injunction enforcing this Agreement or
barring, enjoining or otherwise prohibiting NAI from circumventing the
express written intent of the Parties as enumerated in this Agreement. In
the event any action is commenced by either Party to enforce the terms of
this Agreement, the prevailing Party in any such action shall be entitled
to its related costs and reasonable attorney fees.
(THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK)
If the foregoing correctly sets forth our understanding and
agreement, please indicate your acceptance by signing the enclosed copy of
this Agreement in the indicated space and returning the same to the
undersigned at your earliest convenience.
Very truly yours, AGREED AND ACCEPTED:
FIRST CAPITAL INVESTMENTS, INC. NETWORK ACQUISITIONS, INC.
By: /s/ Gary J. Graham By: /s/ Caron Harte
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Gary J. Graham, President Caron Harte, Secretary/Treasurer
EXHIBIT "A"
USE OF PROCEEDS
PRIVATE PLACEMENT FINANCING:
Initial Investment $8,000,000.00
Less Cost of Offering 720,000.00
Funding Under the Business Plan 5,400,000.00
Repayment of Outstanding Payables* 1,400,000.00
Working Capital 480,000.00
------------
Total Proceeds: $8,000,000.00
* NAI's outstanding payables will not be paid until such time as NAI
has signed and connected 100 credit unions.
EXHIBIT "B"
BUSINESS PLAN