EX-10 9 dkm100g.txt EXHIBIT 10.7 - ADVISORY/INVESTMENT BANKING AGRMT EXHIBIT 10.7 ADVISORY AND INVESTMENT BANKING AGREEMENT ----------------------------------------- This Agreement is made and entered into as of the ____ day of ________________, 2002 by and between ViewTrade Securities, Inc., a Florida corporation ("ViewTrade"), and EONNET MEDIA, Inc., a Florida 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 ViewTrade 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 from ______________, 2002 to _______________, 2004. 3. Duties of ViewTrade: During the term of this Agreement, ViewTrade 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 ViewTrade to the Company pursuant to this Agreement (and in addition to the expenses provided for in Paragraph 5 hereof), the Company shall compensate ViewTrade as follows: (a) The Company shall pay ViewTrade a fee of $5,208.33 per month during the term of this Agreement. The sum of $125,000 shall be payable in full on the date of this Agreement; (b) In the event that any Transaction (as herein- after defined) occurs during the term of this Agreement or one year thereafter, the Company shall pay fees to ViewTrade as follows: Consideration Fee ------------- --- $ - 0 - to $ 500,000 Minimum fee of $25,000 $ 500,000 to $5,000,000 5% of Consideration $5,000,000 or more $250,000 plus 1% of the Consideration in excess of $5,000,000 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 -2- holders in connection with any Transaction. Any co-broker retained by ViewTrade shall be paid by ViewTrade. For the purposes of the Agreement, a "Transaction" shall mean (a) any transaction originated by ViewTrade, other than in the ordinary course of trade or business of the Company, 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, (b) any transaction originated by ViewTrade whereby the Company acquires any other company or the assets of any other company or an interest in any other company (an "Acquisi- tion") or (c) any sale or Acquisition in connection with which the Company engages an investment banker other than ViewTrade and pays such investment banker a fee in respect of such Transaction. In the event ViewTrade originates a line of credit with a lender, the Company and ViewTrade will mutually agree on a satisfactory fee and the terms of payment of such fee; provided, however, that in the event the Company is introduced to a corporate partner by ViewTrade 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. In the event ViewTrade 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 -3- total sales generated directly from this introduction during the first two years following the date of the first sale. 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 ViewTrade 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, ViewTrade 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. 5. Expenses of ViewTrade: In addition to the fees payable hereunder, and regardless of whether any transaction set forth in -4- Paragraph 4 hereof is proposed or consummated the Company shall reimburse ViewTrade for all fees and disbursements of ViewTrade's counsel and ViewTrade's travel and out-of-pocket expenses incurred in connection with the services performed by ViewTrade pursuant to this Agreement, including without limitation, hotels, food and associated expenses and long-distance telephone calls, except that ViewTrade shall obtain the Company's prior written consent for any expense exceeding $500. 6. Liability of ViewTrade: (1) The Company acknowledges that all opinions and advice (written or oral) given by ViewTrade to the Company in connection with ViewTrade'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 ViewTrade 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 ViewTrade, or use ViewTrade's name in any annual reports or any other reports or releases of the Company without ViewTrade's prior written consent. -5- (2) The Company acknowledges that ViewTrade 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. Research reports or corporate finance reports that may be prepared by ViewTrade will, when and if prepared, be done solely on the merits or judgment of analysis of ViewTrade or any senior corporate finance personnel of ViewTrade. 7. ViewTrade's Services to Others: The Company acknowledges that ViewTrade's 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 ViewTrade 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, ViewTrade will use and rely on data, material and other information furnished to ViewTrade by the Company. The Company acknowledges and agrees that in performing its services under this engagement, ViewTrade may rely upon the data, material and other information -6- 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, ViewTrade 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 ViewTrade determines to have a need to know. 9. Indemnification: a. The Company shall indemnify and hold ViewTrade harmless against any and all 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 ViewTrade or any transactions in connection with this Agreement, except for any liabilities, claims and lawsuits (including awards and/or judgments), arising out of acts or omissions of ViewTrade. In addition, the Company shall also indemnify and hold ViewTrade harmless -7- against any and all costs and expenses, including reasonable counsel fees, incurred or relating to the foregoing. ViewTrade shall give the Company prompt notice of any such liability, claim or lawsuit which ViewTrade 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. ViewTrade shall indemnify and hold the Company 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 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 any untrue statement or alleged untrue statement of a material fact required to be stated or necessary to make the statement therein, not misleading, which statement or omission was made in reliance upon information furnished in writing to the Company by or on behalf of ViewTrade for inclusion in any registration statement or prospectus or any amendment or supplement thereto in connection with any transaction -8- to which this Agreement applies. In addition, ViewTrade 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 ViewTrade prompt notice of any such liability, claim or lawsuit which the Company contends is the subject matter of ViewTrade's indemnification and ViewTrade 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 -9- indemnification is provided under this Section 10, then, and in each such case, the Company and ViewTrade 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 ViewTrade 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 -10- (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 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. ViewTrade an Independent Contractor : ViewTrade shall perform its services hereunder as an independent contractor and not as an employee of the Company or an affiliate thereof. It is expressly understood and agreed to by the parties hereto that ViewTrade shall have no authority to act for, represent or bind the Company or any -11- affiliate thereof in any manner, except as may be agreed to expressly by the Company in writing from time to time. 11. Miscellaneous: (1) This Agreement between the Company and ViewTrade 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. (2) 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: Eonnet Media, Inc. 6925 112th Circle North, Ste 101 New York, New York 10155 with a copy to: Foley & Lardner 100 N. Tampa Street, Ste 2700 Tampa, Florida 33602 If to ViewTrade, to: ViewTrade Securities, Inc. 720 West Palmetto Park Rd., Suite 210 Boca Raton, Florida 33433 -12- with a copy to: ARTHUR S. MARCUS Gersten, Savage, & Kaplowitz, LLP 101 East 52nd Street New York, New York 10022 (3) 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. (4) This Agreement may be executed in any number of counterparts, each of which together shall constitute one and the same original document. (5) No provision of this Agreement may be amended, modified or waived, except in a writing signed by all of the parties hereto. (6) This Agreement shall be construed in accordance with and governed by the laws of the State of Florida, 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 West Palm Beach, Florida, and they hereby submit to the exclusive jurisdiction of the courts of the State of Florida located in West Palm Beach, Florida, and of the federal courts in Florida 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. -13- IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed, as of the day and year first above written. VIEWTRADE SECURITIES, INC. By:________________________________ EONNET MEDIA, INC. By:________________________________ -14-