Financial Advisor Agreement - Allen & Co. Inc. and FinancialWeb.com Inc.
[ALLEN & COMPANY LETTERHEAD APPEARS HERE]
March 31, 1999
FinancialWeb.com, Inc.
201 Park Place, Suite 321
Altamonte Springs, Florida 32701
Attn: Kevin Lichtman
Chief Executive Officer
Dear Mr. Lichtman:
We are pleased to confirm our mutual understanding concerning the retention
by FinancialWeb.com, Inc. (collectively with its subsidiaries and affiliates,
the "Company") of Allen & Company Incorporated ("Allen") to act as the Company's
exclusive financial advisor on the terms set forth herein.
1. Scope of Engagement. (a) In connection with this engagement, Allen
will serve as the Company's exclusive financial advisor with respect to a
variety of specific transaction proposals, including matters relating to (i)
entering into one or more strategic partnerships, joint ventures or similar
arrangements, (ii) possible mergers or stock sales or other dispositions, (iii)
sales or other dispositions of businesses or assets, and (iv) other similar or
related matters with which the Company may from time to time require assistance.
(b) In addition, Allen shall have the right to act as the Company's
exclusive financial advisor and/or placement agent in connection with the
exploration of various financing alternatives, including, but not limited to,
the raising of debt or equity capital, both public and private.
2. Advisory Fees and Expenses. In consideration for the services
described in paragraph 1(a) above, the Company shall issue to Allen, as soon as
practicable after the signing of this letter, warrants to purchase 908,222
shares of the Company's Common Stock, exercisable up to the tenth anniversary of
the date of issuance at an exercise price of $4.00 per share subject to the
terms thereof (the "Warrants"). The Warrants will be evidenced by a warrant
certificate (the "Warrant Certificate") which shall contain other customary
loans, as well as provisions for registration rights and conversion rights and
the issuance of additional warrants at the related "going in" price if the
company shall issue additional equity securities (including securities
convertible into equity securities but excluding securities issued in connection
with any transaction for which Allan represents the Company pursuant to this
letter agreement) during this engagement. In addition, before commencing any
specific assignment on the Company's behalf as referred to in paragraph l(b)
hereof, the Company and Allen will discuss, and mutually determine, a reasonable
and customary fee or fee scale to be paid to Allen in connection therewith.
<PAGE>
FinancialWeb.com, Inc.
March 31, 1999
Page 3
4. Public Announcements. Prior to any press release or other public
disclosure relating to our services hereunder, the Company and Allen shall
confer and reach an agreement upon the contents of any such disclosure.
Notwithstanding the foregoing, except as required by any applicable law, rule or
regulation, no party shall make any public announcement regarding this
engagement or our relationship with the Company thereunder without the prior
consent of the other party.
5. Responsibility for Disclosure. The Company shall provide Allen all
information material to its business and operations as well as any other
relevant information which Allen reasonably requests in connection with the
performance of its services hereunder. The Company represents and warrants to
Allen that all such information, and all information released to the public or
filed by the Company with any relevant government agency or regulatory body,
will be accurate and complete in all material respects at the time it is
furnished or filed, and the Company agrees to keep Allen advised of all material
developments affecting the Company through the later of the term of our
engagement or completion of any transaction in which Allen is involved. The
Company recognizes that, in rendering its services hereunder, Allen will be
using information provided by the Company, as well as information available from
other sources deemed appropriate by Allen. The Company further acknowledges that
Allen does not assume responsibility for and may rely, without independent
verification, on the accuracy or completeness of any such information.
Allen agrees that, except as otherwise required by law, any material
non-public information delivered to it hereunder by the Company will be treated
by Allen as confidential and no such information or summaries, analysis, reports
or other derivative information with respect thereto will be disseminated,
referred to, quoted or otherwise made public without the prior written consent
of the Company, which consent will not be unreasonably withheld. Further, it is
understood that any information provided by either party to the other hereunder
may be reproduced, disseminated, quoted or otherwise referred, in each case, to
the officers of the other party who normally provide attention to these types of
matters and its legal counsel utilized in connection with such matters, but that
each of Allen and the Company will take reasonable steps to ensure that the
confidentiality of such information is maintained and that none of its officers,
employees or agents utilizes any material non-public information in connection
with the determination to buy, sell or hold securities of the Company.
6. Indemnification and Contribution. The Company agrees that in the event
Allen or any of Allen's officers, employees, agents, affiliates or controlling
persons, if any (each of the foregoing, including Allen, an "Indemnified
Person"), become involved in any capacity (whether or not as a party) in any
action, claim, proceeding or investigation (including any securityholder action
or claim or any action brought by or in the right of the Company) related to or
arising out of our engagement, including any related services already performed
and any modifications or future additions to such engagement, the Company will
promptly upon demand advance to such
Allen & Company
Incorporated
<PAGE>
FinancialWeb.com, Inc.
March 31, 1999
Page 4
Indemnified Person, or reimburse each such Indemnified Person for, its
reasonable legal and other expenses (including the cost of any investigation and
preparation) as and when they are to be incurred, or are incurred, in connection
therewith.
In addition, the Company will indemnify and hold harmless each Indemnified
Person from and against, and no Indemnified Person shall have any liability
(whether direct or indirect, in contract or tort or otherwise) to the Company or
its securityholders or creditors for, any losses, claims, damages, liabilities
or expenses (including, without limitation, attorney's fees and expenses)
related to or arising out of our engagement, any services provided thereunder or
any transactions or proposed transactions related thereto, including any related
services already performed and any modifications or future additions to such
engagement whether or not any pending or threatened action, claim, proceeding or
investigation giving rise to such losses, claims, damages, liabilities or
expenses is initiated or brought by or on behalf of the Company and whether or
not in connection with any action, claim, proceeding or investigation in which
the Company or any Indemnified Person is a party, except to the extent that any
such loss, claim, damage, liability or expense is found by a court of competent
jurisdiction in a judgment that has become final in that it is no longer subject
to appeal or review to have resulted directly and primarily from such
Indemnified Person's bad faith or gross negligence.
If for any reason the foregoing indemnification is held unenforceable,
then the Company shall contribute to the loss, claim, damage, liability or
expense for which such indemnification is held unenforceable in such proportion
as is appropriate to reflect the relative benefits received, or sought to be
received, by the Company and its securityholders on the one hand and the party
entitled to contribution on the other hand in the matters contemplated by this
engagement, as well as the relative fault of the Company and such party with
respect to such loss, claim, damage, liability or expense, and any other
relevant equitable considerations. The Company agrees that, to the extent
permitted by applicable law, in no event shall the Indemnified Persons be
responsible for or be required to contribute amounts which in the aggregate
exceed the fees, if any, actually paid to Allen for such financial advisory
services.
The Company's reimbursement, indemnity and contribution obligations under
this letter shall be in addition to any liability which the Company may
otherwise have and shall not be limited by any rights Allen or any other
Indemnified Person may otherwise have. The Company agrees that, without Allen's
prior written consent, which will not be unreasonably withheld, the Company will
not settle, compromise or consent to the entry of any judgment in any pending or
threatened claim, action, proceeding or investigation in respect of which
indemnification or contribution could be sought hereunder (whether or not Allen
or any other Indemnified Person is an actual or potential party to such claim,
action, proceeding or investigation), unless such settlement, compromise or
consent includes an unconditional release of each Indemnified Person from all
liability arising out of such claim, action, proceeding or investigation.
Allen & Company
Incorporated
<PAGE>
FinancialWeb.com, Inc.
March 31, 1999
Page 5
The provisions of this paragraph 6 shall remain in effect indefinitely,
notwithstanding the completion of this assignment, the expiration of the term
hereof or any other termination of this engagement
7. Miscellaneous. No waiver, amendment or other modification of this
agreement shall be effective unless in writing and signed by each party to be
bound thereby. This agreement, and any claim related directly or indirectly to
this agreement, shall be governed by, and construed in accordance with, the laws
of the State of New York applicable to agreements executed and to be fully
performed therein. The parties hereby irrevocably and unconditionally submit (to
the extent permitted by law) to the nonexclusive jurisdiction of the courts of
the State of New York located in the City and County of New York and the United
States District Court for the Southern District of New York for any legal action
or proceeding arising out of this agreement or Allen's engagement hereunder, and
each of the parties hereby irrevocably consents to service of process in any
such action or proceeding by certified or registered mail at the address for
such party set forth above. Allen and the Company (on the Company's own behalf
are to the extent permitted by applicable law, on behalf of its stockholders and
creditors) waive all right to trial by jury in any action, proceeding or
counterclaim (whether based upon contract, tort or otherwise) related to or
arising out of our engagement. The obligations of this agreement shall be
binding upon and shall inure to the benefit of the parties hereto, the
Indemnified Persons hereunder and any of their successors, assigns, heirs and
personal representatives.
Allen & Company
Incorporated
<PAGE>
FinancialWeb.Com, Inc.
March 31, 1999
Page 6
Please confirm that the foregoing is in accordance with your understanding
of the terms of our engagement by signing and returning to us the enclosed
duplicate of this letter, which shall thereupon constitute a binding agreement
between us.
Very truly yours,
ALLEN & COMPANY INCORPORATED
By: /s/ Enrique F. Senior
---------------------------------
Name: Enrique F. Senior
Title: Managing Director
Accepted and agreed to
as of the date first above written:
FINANCIALWEB.COM, INC.
By: /s/ Kevin Lichtman
--------------------------------
Name: Kevin Lichtman
Title: Chief Executive Officer
Allen & Company
Incorporated