Exhibit 10.2
BAYTREE CAPITAL ASSOCIATES, LLC
THE ▇▇▇▇▇ BUILDING AT
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇ FACSIMILE (▇▇▇) ▇▇▇-▇▇▇▇
December 13, 2004
Activeworlds Corp.
▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇, President
Dear ▇▇▇▇:
This letter agreement (this "Agreement") sets forth the understanding
between Baytree Capital Associates, LLC ("Baytree") and Activeworlds Corp. (the
"Company") in connection with the engagement of Baytree by the Company for the
purposes stated below.
1. Services and Duties. Pursuant to the terms and conditions set forth
in this Agreement, the Company hereby engages Baytree on a non-exclusive basis
for the term specified in Paragraph 2 hereof to render consulting advice to the
Company with respect to completing the acquisition of Hi-G-Tek, Ltd.(the
"Transaction") with a view toward enhancing shareholder value and providing
ongoing assistance following the closing of the Transaction including (i)
consulting regarding marketing, (ii) identifying and selecting financing and
accounting personnel, (iii) compliance with basis reporting requirements under
the Securities Exchange Act of 1934 by working with lawyers and auditors
selected by Activeworlds, (iv) assistance in compliance with corporate
governance requirements of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 by interfacing with
professionals retained by Activeworlds, (v) assistance in otherwise improving
the Company's corporate governance procedures and (vi) introducing the Company
to broker-dealers and other professionals including investor and public
relations firms. You understand that Baytree does not and will not engage in the
practice of law or provide investor or public relations services, and its
agreement to provide consulting advice is subject to the Company retaining
United States legal counsel approved by Baytree which approval may not be
unreasonably withheld.
2. Term. Except as otherwise specified in Paragraph 3 hereof, this
Agreement shall be effective on the above date and expire twenty-four (24)
months from the closing of the Transaction.
3. Compensation and Expenses. In consideration for the services
rendered by Baytree to the Company pursuant to this Agreement as a consultant
(and in addition to the expenses provided for herein), the Company shall
compensate Baytree as follows:
▇▇▇▇ ▇▇▇▇▇, President
Activeworlds Corp.
Page 2 of 7
(a) Baytree shall be entitled to a fee as provided in the
Agreement and Plan of Merger relating to the Transaction.
(b) Baytree shall be entitled to a Common Stock Purchase
Warrant (the "Warrant") for the purchase of up to 750,000 shares of Common Stock
of the Company. The Warrant shall be exercisable for three years, the holder
shall be entitled to piggy back registration rights as to be provided in the
agreement relating to the Transaction and it shall have a cashless exercise
provision and shall otherwise be in a customary form. The exercise price of the
Warrant shall be $2.00 per share. In the event of a stock split, reverse stock
split, recapitalization or similar event the number of shares of Common Stock to
be purchased and the exercise price shall be proportionately adjusted. The
Company shall not enter into any merger in which it is not the surviving party
or sell all or substantially all of its assets without giving Baytree 20 days'
prior written notice as provided in the Warrant.
(c) In addition to the fees payable hereunder, and regardless
of whether any Transaction is proposed or consummated, the Company shall
reimburse Baytree for all of its travel and reasonable out-of-pocket expenses
incurred in connection with and in direct furtherance of the services performed
by Baytree pursuant to this Agreement, including without limitation, hotels,
airfare, including first class travel outside of the United States, food and
associated expenses and long distance telephone calls. Baytree shall obtain the
consent of the Company before incurring any expense over $5,000.00.
Any obligation pursuant to this Paragraph 3 shall survive the
termination or expiration of this Agreement, as provided for herein.
4. Representations, Warranties, and Covenants.
(a) The Company represents and warrants that this Agreement
has been duly authorized, executed and delivered by the Company and constitutes
a valid and binding agreement of the Company enforceable against the Company in
accordance with its terms. The Company further represents and warrants that
consummation of any Transaction contemplated herein will not conflict with or
result in a breach of any of the terms, provisions or conditions of any written
agreement to which it is a party.
(b) Baytree represents and warrants that this Agreement has
been duly authorized, executed and delivered by it and constitutes its valid and
binding agreement enforceable against it in accordance with its terms. Baytree
further represents and warrants that consummation of any Transaction
contemplated herein will not conflict with or result in a breach of any of the
terms, provisions or conditions of any written agreement to which it is a party.
(c) The Company represents that it is aware that Baytree is
not a NASD member and that it is aware that Baytree will not be acting as a
broker-dealer in connection with the sale of any shares of the Company's
securities and that any compensation received by Baytree is deemed to be in
connection with Baytree's provision of the services provided for in Section 1 of
the Agreement. Baytree is not acting as a finder and does not expect to receive
▇▇▇▇ ▇▇▇▇▇, President
Activeworlds Corp.
Page 3 of 7
any compensation relating to the purchase or sale of any securities whether as a
finder or otherwise.
5. Liability of Baytree. The Company acknowledges that all opinions and
advice (written or oral) given by Baytree to the Company in connection with
Baytree's engagement are intended solely for the benefit and use of the Company,
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 Baytree 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 Baytree, or
use Baytree's name in any annual reports or any other reports or releases of the
Company without Baytree's prior written consent.
6. Baytree's Services to Others. The Company acknowledges that Baytree
and its affiliates are in the business of providing consulting advice to others.
Nothing herein contained shall be construed to limit or restrict Baytree in
conducting such business with respect to others, or in rendering such advice to
others. Baytree shall be expected to normally perform its services from its
offices unless it elects otherwise and shall only provide limited time.
7. Indemnification. The Company agrees to indemnify Baytree, its
principals, members, officers, employees and agents who participate in any
Transaction, as set forth in Annex A, attached hereto.
8. Information. The Company recognizes and confirms that in performing
its obligations under this Agreement, Baytree and other persons who participate
in any Transaction contemplated hereby will be using and relying on data,
material, and other information (the "Information") furnished by the Company or
their respective employees and representatives. In connection with Baytree's
activities on the Company's behalf, the Company will cooperate with Baytree and
will furnish Baytree with all information concerning the Company, and any
Transaction, and will provide Baytree with access to the Company's officers,
directors, employees, independent accountants and legal counsel for the purpose
of performing Baytree's obligations pursuant to this Agreement. The Company
hereby agrees and represents that all Information (a) furnished directly by the
Company to Baytree pursuant to this Agreement, and (b) contained in any filing
by the Company with any court or governmental or regulatory agency, commission
or instrumentality (each, an "Agency") shall, at all times during the period of
the engagement of Baytree hereunder, be accurate and complete in all material
respects and that, if the Information provided by the Company becomes materially
inaccurate, incomplete or misleading during the term of Baytree's engagement
hereunder, the Company shall so advise Baytree in writing. Accordingly, Baytree
assumes no responsibility for the accuracy and completeness of the Information.
In rendering its services hereunder, Baytree will be using and relying upon the
Information without independent verification thereof or independent evaluation
of any of the assets or liabilities of the Company. All Information that is not
publicly available will be confidential and proprietary information belonging to
the Company and Baytree shall have no interest of any kind in such information
by virtue of the Agreement. No Information shall be revealed, or used (except in
▇▇▇▇ ▇▇▇▇▇, President
Activeworlds Corp.
Page 4 of 7
the performance of Baytree's duties under this Agreement) by Baytree unless
legally compelled as determined in good faith by counsel to Baytree and with
reasonable notice given to the Company.
9. Baytree as Independent Contractor. Baytree shall perform its
services hereunder as an independent contractor and not as an employee or agent
of the Company or an affiliate thereof. It is expressly understood and agreed to
by the parties hereto that Baytree shall have no authority to act for, represent
or bind the Company or any affiliate thereof in any manner, except as may be
agreed to expressly by the Company in writing from time to time.
10. 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 to be severable.
11. Successors. This Agreement and all rights, liabilities and
obligations hereunder shall be binding upon and inure to the benefit of each
party's successors but may not be assigned without the prior written approval of
the other party. Any such approval shall not be unreasonably withheld.
12. Headings. The descriptive headings of the paragraphs of this
Agreement are inserted for convenience only, do not constitute a part of this
Agreement and shall not affect in any way the meaning or interpretation of this
Agreement.
13. No Brokers. The Company represents and warrants to Baytree that
there are no brokers, representatives or other persons which have an interest in
or claim for compensation due to Baytree from any Transaction contemplated
herein.
14. Notices. Any notice or other communication to be given to the
Company hereunder may be given be delivering the same in writing to the address
set forth above, and any notice or other communication to be given to Baytree
may be given by delivering the same to Baytree Capital Associates, LLC, ▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Principal, or in
each case, such other address of which a party shall have received notice. Any
notice or other communication hereunder shall be deemed given three days after
deposit in the mail if mailed by certified mail, return receipt requested, or on
the day after deposit with an overnight courier service for next day delivery,
or on the date personally delivered.
15. Miscellaneous:
(a) This Agreement between the Company and Baytree constitutes
the entire Agreement and understanding of the parties hereto.
▇▇▇▇ ▇▇▇▇▇, President
Activeworlds Corp.
Page 5 of 7
(b) This Agreement may be executed in any number of
counterparts, each of which together shall constitute one and the same original
document.
(c) No provision of this Agreement may be amended, modified or
waived, except in a writing signed by all of the parties hereto.
(d) This Agreement shall be construed in accordance with and
governed by the laws of the State of New York, 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 New York City, and they hereby submit to
the exclusive jurisdiction of the courts of the State of New York located in New
York, New York and of the federal courts in the Southern District of New York
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, as provided in Paragraph 14 hereof.
Please confirm that the foregoing correctly sets forth our agreement by
signing the enclosed letters 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 first above written.
Very truly yours,
BAYTREE CAPITAL ASSOCIATES, LLC
By: ________________________________
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Managing Member
Agreed and accepted as of the above date.
ACTIVEWORLDS CORP.
By: ______________________
▇▇▇▇ ▇▇▇▇▇, President
▇▇▇▇ ▇▇▇▇▇, President
Activeworlds Corp.
Page 6 of 7
ANNEX A:
INDEMNIFICATION
Reference is made to the Consulting Agreement as of the date
hereof (the "Consulting Agreement"), the Company agrees to indemnify Baytree,
its principals, members, officers, employees and agents and other persons who
participate in any Transaction, and their respective employees, directors,
officers, agents, affiliates, and each person, if any, who controls them within
the meaning of either Section 20 of the Securities Exchange Act of 1934 or
Section 15 of the Securities Act of 1933 (each such person, including Baytree,
is referred to as "Indemnified Party") from and against any losses, claims,
damages and liabilities, joint or several including all legal or other expenses
reasonably incurred by an Indemnified Party in connection with the preparation
for or defense of any threatened or pending claim, action or proceeding, whether
or not resulting in any liability ("Damages"), to which such Indemnified Party,
in connection with its services or arising out of its engagement hereunder, may
become subject under any applicable Federal or state law or otherwise, including
but not limited to liability (i) caused by or arising out of an untrue statement
or an alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact necessary in order to make a statement not
misleading in light of the circumstances under which it was made, (ii) caused by
or arising out of any act or failure to act by the Company, or (iii) arising out
of Baytree's engagement or the rendering by any Indemnified Party of its
services under this Agreement; provided, however, that the Company will not be
liable to the Indemnified Party hereunder to the extent that any Damages are
found in a final non-appealable judgment by a court of competent jurisdiction to
have resulted from the gross negligence, bad faith or willful misconduct of the
Indemnified Party seeking indemnification hereunder, or the violation of any
federal or state securities law or regulation by an Indemnified Party.
These indemnification provisions shall be in addition to any
liability which the Company may otherwise have to any Indemnified Party.
If for any reason, other than a final non-appealable judgment
finding an Indemnified Party liable for Damages for its gross negligence, bad
faith, or willful misconduct the foregoing indemnity is unavailable to an
Indemnified Party or insufficient to hold an Indemnified Party harmless, then
the Company shall and shall cause the Company, to contribute to the amount paid
or payable by an Indemnified Party as a result of such Damages in such
proportion as is appropriate to reflect not only the relative benefits received
by the Company, as the case may be and its shareholders on the one hand, and
Baytree on the other, but also the relative fault of the Company, as the case
may be, and the Indemnified Party as well as any relevant equitable
considerations, subject to the limitation that in no event shall the total
contribution of all Indemnified Parties to all such Damages exceed the amount of
fees actually received and retained by Baytree and others who participate in any
Transaction.
Promptly after receipt by the Indemnified Party of notice of
any claim or of the commencement of any action in respect of which indemnity may
be sought, the Indemnified Party will immediately notify the Company in writing
of the receipt or commencement thereof and the Company shall have the right to
▇▇▇▇ ▇▇▇▇▇, President
Activeworlds Corp.
Page 7 of 7
assume the defense of such claim or action (including the employment of counsel
reasonably satisfactory to the Indemnified Party and the payment of fees and
expenses of such counsel), provided that the Indemnified Party shall have the
right to control its defense if, in the opinion of its counsel, the Indemnified
Party's defense is unique or separate to it as the case may be, as opposed to a
defense pertaining to the Company. In any event, the Indemnified Party shall
have the right to retain counsel reasonably satisfactory to the Company, at the
Company's expense, to represent it in any claim or action in respect of which
indemnity may be sought and agrees to cooperate with the Company and the
Company's counsel in the defense of such claim or action, it being understood,
however, that the Company shall not, in connection with any one such claim or
action or separate, but substantially similar or related claims or actions in
the same jurisdiction arising out of the same general allegations or
circumstances, be liable for the reasonable fees and expenses of more than one
separate firm of attorneys, for all the Indemnified Parties unless the defense
of one Indemnified Party is unique or separate from that of another Indemnified
Party subject to the same claim or action. In the event that the Company does
not promptly assume the defense of a claim or action, the Indemnified Party
shall have the right to employ counsel reasonably satisfactory to the Company,
at the Company's expense, to defend such claim or action. The omission by an
Indemnified Party to promptly notify the Company of the receipt or commencement
of any claim or action in respect of which indemnity may be sought will relieve
the Company from any liability the Company may have to such Indemnified Party
only to the extent that such a delay in notification materially prejudice the
Company's defense of such claim or action. The Company shall not settle any
claim or action unless Baytree and each other Indemnified Party, which shall at
a minimum always include Baytree's members and employees, receives an
unconditional general release. Any obligation pursuant to this Annex shall
survive the termination or expiration of this Agreement.