Finder's Agreement - SBI E-2 Capital (USA) Inc. and Netgateway Inc.
As of June 14, 2001
Netgateway, Inc.
754 East Technology Avenue
Orem, Utah 84097
Re: Finder's Agreement
Ladies and Gentlemen:
When countersigned by you below, the following letter will set forth
our understanding and constitute our agreement (the "Agreement") by which SBI
E2-Capital (USA) Inc. (the "Finder") will serve on behalf of Netgateway, Inc.
(the "Company") as a finder to introduce the Company to potential investors
("Potential Investors") in connection with the Company's private offering (the
"Transaction") of $2,500,000 aggregate principal amount of its common stock,
$.001 par value (the "Common Stock").
1. Services. The services which the Finder may provide shall be in
addition to, and independent of, any other services which the Finder is expected
to provide to the Company under any other agreements that the Finder may have
with the Company. Accordingly, no portion of the compensation which the Finder
may earn under such other agreements will have any relationship to the finder's
fee set forth below; nor will payment of any such finder's fee have any
relationship to any other sums for which the Company is obligated to the Finder.
2. Best Efforts. The Finder will use the Finder's best efforts in
rendering its services to the Company in connection with the Transaction.
Neither the Company, nor any of its officers, directors or shareholders, will be
obligated to proceed with any person that the Finder may introduce to the
Company. The Finder's services hereunder will be provided on a non-exclusive
basis during the term hereof.
3. Term. The term of this Agreement shall be for a period of one year,
commencing as of June 15, 2001. However, any such expiration shall be qualified
as provided by the other terms and conditions of this Agreement.
4. Compensation. For its role as Finder with respect to the
Transaction, the Finder will be entitled to receive, and the Company shall pay
the full amount of, a finder's fee in an amount equal to the following:
(a) 2% of the gross proceeds all capital raised during the term
of the engagement,
(b) 7% of any proceeds raised via introduction from the Finder,
(c) Warrants to purchase 250,000 shares of common stock at the
Offering price in the Transaction, issued to the Finder or
its designees, along with standard anti-dilution and net
issuance provisions.
5. Expenses. The Company shall reimburse the Finder promptly for any
out-of-pocket expenses, including fees and expenses of the Finder's counsel,
incurred by the Finder in connection with rendering its services hereunder at
the Company's request, upon submission of a bill therefore.
6. Potential Investors. The Finder will periodically inform you in
writing as to the identity of those Potential Investors who, based on the
Finder's discussions with them, have expressed an interest in participating in
the Transaction. As to any such party, the provision of the Finder's
introduction will fully qualify for and entitle the Finder to receive the full
amount of compensation set forth in Section 4 above, even though the Company may
have been aware of or even had discussions with any such party prior to the
introduction which the Finder has provided.
7. Indemnification. The Company shall indemnify and hold harmless the
Finder from and against any and all claims, losses, damages, liabilities and
costs, including reasonable attorneys' fees and costs (collectively, "Losses")
that are incurred or sustained by the Finder that arise from, relate to or are
connected with the performance of the Finder's duties under this Agreement,
except if such Losses are caused by the Finder's willful misconduct or
intentional wrongdoing. In addition, the Company shall cooperate fully with the
Finder in the Finder's defense of any of the foregoing.
8. Status of Finder. The Finder is an independent contractor and is not
and shall not be considered the Company's agent for any purposes whatsoever. The
Finder is not granted any right or authority to assume or create any obligations
or liability, express or implied, on the Company's behalf, or to negotiate on
behalf of or bind the Company in any manner whatsoever. The Finder is not
licensed as a securities broker or dealer and cannot and will not engage in the
sale of securities on behalf of the Company, or in any other activity for which
such or any other license is required.
9. Arbitration. All disputes between the Company and the Finder
relating to or arising from this Agreement shall be submitted upon the written
demand of any party hereto to mandatory, final and binding arbitration under the
rules and regulations of the American Arbitration Association, to be conducted
in Los Angeles, California.
10. General Terms.
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(a) Governing Law. This Agreement shall be construed in
accordance with and governed by the laws of the State of
California.
(b) Attorneys' Fees. If any litigation or other legal proceeding
relating to this Agreement occurs between the parties, the
prevailing party shall be entitled to recover (in addition
to any other relief awarded or granted) its reasonable costs
and expenses, including attorneys' fees and costs incurred
in such litigation or proceeding.
(c) Severability. If any term or provision of this Agreement is
determined to be illegal, invalid or otherwise unenforceable
by a court of competent jurisdiction, then to the extent
necessary to make such provision or this Agreement legal,
valid or otherwise enforceable, such term or provision will
be limited, construed or severed and deleted from this
Agreement, and the remaining portion of such term or
provision and the remaining other terms and provisions
hereof shall survive, remain in full force and effect and
continue to be binding, and will be interpreted to give
effect to the intention of the parties hereto insofar as
that is possible.
(d) Personal Jurisdiction and Venue. The parties hereto each
submit to the personal jurisdiction of, and venue in, the
federal and state courts in the City of Los Angeles, State
of California, for any actions arising out of or relating to
this Agreement.
(e) Amendment and Modification. This Agreement and any of its
terms and provisions may only be amended, modified,
supplemented or waived in a writing signed by both parties
hereto.
(f) Entire Agreement. This Agreement represents the entire
agreement between the parties with respect to the subject
matter hereof and replace and supersede any and all prior or
contemporaneous agreements or understandings, written, oral
or otherwise with respect to the subject matter hereof.
(g) Waiver. No waiver of any term or provision hereof or consent
to any action hereunder shall constitute a waiver of any
other term or provision hereof or consent to any other
action hereunder, whether or not similar. No waiver or
consent hereunder shall constitute a continuing waiver or
consent hereunder or commit a party to provide a waiver or
consent in the future except to the extent specifically set
forth in writing. The entire agreement between the parties
with respect to the subject matter hereof and replace and
supersede any and all prior or contemporaneous agreements or
understandings, written, oral or otherwise with respect to
the subject matter hereof.
(h) Successors and Assigns. This Agreement can not be assigned
by either party without the prior written consent of the
other party, which consent can be withheld in such other
party's sole discretion. This Agreement shall be binding
upon and inure to the benefit of the parties hereto and
their respective heirs, successors and permitted assigns.
(i) Notices. All communications hereunder shall be in writing
and, if sent to the Adviser, shall be mailed, delivered, or
telexed or telegraphed and confirmed by letter, to SBI
E2-Capital (USA) Inc., 23 Corporate Plaza 210, Newport
Beach, CA 92660 Attn: Shelly Singhal, Managing Director, or
if sent to the Company, shall be mailed, delivered, or
telexed or telegraphed and confirmed by letter, to
Netgateway, Inc., 754 East Technology Avenue, Orem, Utah
84097 Attn: Don Danks. All notices hereunder shall be
effective upon receipt by the party to which it is
addressed.
(j) Headings. Headings contained in the Agreement are solely for
convenience and shall not be used to define or construe any
of the terms or provisions hereof.
(k) Meanings of Certain Words. Whenever the context may require,
any pronouns used in this Agreement shall include the
corresponding masculine, feminine or neuter forms, and the
singular forms of nouns or pronouns shall include the plural
and vice versa.
(l) Construction. The rule of construction that any ambiguity in
an agreement be construed against the drafter of such
agreement shall not apply to this Agreement.
Should the Foregoing conform to your understanding for our agreement,
please indicate your acknowledgement thereof and agreement thereto by signing
the enclosed copy of this letter where indicated below and returning one fully
signed copy hereof to the undersigned.
Very truly yours,
SBI E2-Capital (USA) Inc.
By
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Shelly Singhal
Managing Director
Acknowledged And Agreed:
NETGATEWAY, INC.
By:
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Don Danks
Its: CEO/Chairman
Dated:
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