EXHIBIT 10.9
[GRAPHIC] Trinity Learning Corporation
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
March 1, 2003
Mr. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ Advisors, LLC.
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇.
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Dear ▇▇▇▇▇▇▇:
When executed by the undersigned where indicated below, this letter will form an
Advisory Agreement (the "Agreement") for the 12 month period commencing February
22, 2003 between ▇▇▇▇▇▇▇ Advisors LLC a limited liability corporation ("VCA")
and Trinity Learning Corporation ("TLC") whereby VCA will provide certain
advisory services to TLC on a non-exclusive basis, including general corporate
advisory and business development services.
VCA will devote a portion of its professional resources to TLC during the course
of this agreement; TLC acknowledges that it is engaging VCA on a best efforts
basis.
A. Advisory Services to Be Performed for TLC by VCA.
1. General Corporate Advisory Services. VCA will provide as needed, TLC with
advice in connection with (i) structuring and implementing its overall corporate
finance strategy, including market positioning with respect to financial
markets, (ii) review and analysis of business plans, corporate materials, and
investor relations materials for distribution to prospective investors, (iii)
general consulting services focused on the acquisition, development and
retention of human resources, assistance to senior management in developing and
implementing an effective and flexible organizational design, and development
and implementation of an effective and compliant Human Resources policies,
practices and associated employee handbooks; (iv) recruitment for Board and/or
other senior positions as requested, and (v) merger and acquisition
identification, analysis and structuring. VCA will also assist TLC on an
on-going, non-exclusive basis in identifying placement agents, underwriters,
lenders and other sources of financing during the term of this Agreement, as
needed.
2. Financial Advisory Services: VCA may identify and contact, on a non-exclusive
basis, certain venture capital, underwriters and investment banking companies
and other strategic investors that may provide TLC with financing or that may
agree to assist TLC in equity or debt offerings. VCA will regularly inform TLC
regarding the status of these VCA financing contacts.
Compensation: TLC agrees to pay to VCA at Closing in cash a Financing Success
Fee, equal to (a) 3.5% of gross proceeds from equity financings and/or (b) 1.5%
of gross proceeds of debt
financings completed by one or more of the underwriters or placement agents
introduced to TLC by VCA. In addition, TLC agrees to pay to VCA or its assignees
any compensation due to VCA for its assistance in identifying prospective
investors in TLC, pursuant to the placement terms and conditions of TLC Offering
Memorandums (on a 10 and 10 basis.)
3. Merger and Acquisition Services. VCA will assist TLC in identifying potential
merger and/or acquisition candidates. VCA will assist in contacting pre-approved
target companies and in structuring such transactions.
Compensation: TLC agrees to pay to VCA at Closing in cash (or other like-kind
compensation acceptable to VCA) an M&A Success Fee according to a ▇▇▇▇▇▇ Formula
based on the value of the transaction as follows: 5% of the first $1 million in
value, 4% of the second $l million in value, 3% of the third $1 million in
value, 2% of the fourth $1 million in value and 1% of all value thereafter.
4. General Business Development Services. VCA will assist TLC, on a best efforts
basis, in the identification of new U.S. and international business development
opportunities including but not limited to (i) new marketing and distribution
channels, (ii) new strategic marketing, co-marketing, OEM or private label
agreements, or (iii) new technology, hardware or software partners or equipment.
Compensation: VCA and TLC agree to negotiate in good faith, in advance, a
compensation schedule for Business Development Services provided by VCA on a
case-by-case basis. In general VCA will expect a fee of approximately 2.5% of
the revenues for a period of one year, which compensation shall survive
termination of this Advisory Agreement.
B. Expenses
TLC agrees to reimburse VCA for reasonable out-of-pocket travel expenses related
to VGA's performance of the services described in this Agreement (i.e. travel
and lodging for VCA professionals to destinations where TLC has requested or
approved the presence of VCA professionals).
C. Term of Agreement
The term of this Agreement shall commence on February 22, 2003 and shall be in
effect for 12 months, automatically renewable for an additional 12 months unless
terminated in writing by TLC, VGA's compensation shall survive termination of
this Agreement according to the following terms:
1. VCA shall be entitled to the compensation described above if (a) TLC
receives proceeds from a financing conducted by any Approved
Underwriter resulting from an VCA contact within 12 months of the
expiration or termination of this Agreement or (b) completes a merger,
acquisition or asset divestiture with any party identified to TLC by
VCA within 12 months of the expiration or termination of this
Agreement.
D. Indemnification
VCA and TLC agree to indemnify and hold each other harmless against claims
resulting from actions or omissions in connection with this engagement or
arising out of willful misstatement of material facts by the other party or its
affiliates or representatives.
E. Governing Law
This Agreement shall be governed by the laws of the State of Utah.
F. Signatures
By their authorized signatures below, VCA and TLC do agree to be bound by the
terms of this Agreement. This Agreement may be signed in counterparts, including
fax signatures. Changes in the terms and conditions of this Agreement may be
enacted only with mutual written consent.
G. Acceptance or Rejection by TLC
TLC shall have the exclusive right, in its sole discretion, to accept or reject
any business opportunity, credit facility, investment or advise presented,
discovered or procured by VCA pursuant to this agreement. In the event of a
rejection by TLC, for any reason, VCA shall not be entitled to any of the
compensation that would have been payable hereunder, if the transaction had been
consummated. VCA is, furthermore, not authorized to enter into any agreements
with any person or entity on behalf of TLC.
H. Confidentiality
In the course of rendering the services provided for in this Agreement, VCA will
learn and may develop information that is considered by TLC to be confidential.
VCA agrees not to use or disclose such confidential information, except for the
purpose of performing its duties hereunder, without the express written consent
of TLC.
ACCEPTED FOR TLC
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇
Date:
ACCEPTED FOR VCA
VCA, Managing Director
Date: