EXHIBIT 10.88
[LETTERHEAD OF MCC FINANCIAL SERVICES ADVISORS, INC.]
October 1, 2004
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Trinity Learning Corporation
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▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Re: Letter Agreement
Dear ▇▇▇▇:
Following our recent conversations, we are pleased to offer the financial
advisory services of MCC Financial Services Advisors, Inc., a Delaware
corporation ("MCC") to Trinity Learning Corporation ("the Company") pursuant to
the following agreement ("Agreement") as outlined below:
1. Scope of Engagement. MCC is hereby engaged by the Company to provide
Investor Relations services.
2. Fees. The Company hereby agrees to pay MCC the following amounts
(collectively, the "Fees"):
2.1 Monthly Retainer. A non-refundable fee to MCC of $5,000 per month,
with the first three months' retainer of $15,000 payable upon execution of
this agreement. Thereafter a payment shall be sent to MCC pursuant to a
monthly invoice sent to the Company. The retainer will continue to be
$5,000 per month after the "Initial Term" (as defined in section 3.1) and
any extensions thereof.
2.2 Equity Component. The equity component will be delivered in two
tranches. The first tranche of 100,000 Rule 144 shares is to be issued as
follows: 25,000 shares issued to MCC Financial Services Advisors, Inc.;
30,000 shares issued to ▇▇▇▇▇ ▇. ▇▇▇▇▇; 25,000 shares issued to LIB
Holdings, Inc.; and 20,000 shares issued to Dilek Mir is to be issued by
Oct. 30, 2004. Upon continuing this agreement beyond February 1, 2005, the
second tranche of 50,000 shares of Rule 144 stock is to be issued by
February 2, 2005.
2.3 Payment. For the avoidance of doubt, unless otherwise specified in
writing and signed by the Parties hereto, all fees payable pursuant to this
Section 2 and expenses payable pursuant to Section 4 shall be paid within
30 days after the issuance of an invoice by MCC. Any amounts not paid
within this period shall bear interest at rate of two percent (2%) per
month.
3. Term; Termination
3.1 Term. The initial term of this Letter Agreement shall be for a
period of three months ("Initial Term"), commencing on the date of this
Agreement written above. The Initial Term shall be automatically extended
for successive one month terms unless terminated in writing pursuant to
Section 3.2
3.2 Termination. Any party may terminate this Exclusive Letter
Agreement following the Initial Term upon no less than thirty (30) days
advance written notice. Upon termination of this Agreement, all obligations
of the parties hereto shall cease, except that the provisions of this
Agreement contained in Section 2 and in Sections 4 through 9 shall continue
in effect.
4. Expenses. The Company will reimburse MCC for all out of pocket expenses
properly and reasonably incurred in the course of this Agreement, provided,
however, that the MCC member incurring such expense will notify the Company
prior to incurring any single expense or series of related expenses in excess of
$250.00. Such expenses will be invoiced on a regular basis. Any expenses
incurred or charged hereunder shall be calculated net of any applicable value
added or sales tax which will also be paid by or charged to the Company. Any
amount not paid within thirty (30) days of invoice will accrue interest at the
rate of two percent (2%) per month.
5. Indemnity. The Company hereby agrees to indemnify and holds harmless
MCC, its agents, representatives, employees, partners and independent
contractors for any losses, damages or expenses that may be incurred by MCC or
such other parties as a result of any breach of any covenant, agreement,
representation or warranty made hereunder or any other loss, damage, attorney's
fees, costs or expenses incurred by MCC or such other parties resulting from the
acts or actions of the Company hereunder.
6. Confidentiality. The parties acknowledge that during the course of this
Agreement that each of the parties will become acquainted with and will have
access to information that is of a confidential and proprietary nature. Each of
the parties further acknowledges that disclosure of such information could cause
irreparable harm to the Company or MCC that would not be compensable by money
damages. Accordingly, each of the parties hereto agrees to keep such information
confidential and shall not disclose or allow disclosure to any third persons
without the consent of the other party. In the event that there is a breach or a
threatened breach of this confidentiality agreement, the parties agree that the
offended party shall have an immediate right to seek injunctive relief in
addition to money damages.
7. The Company's Obligations/Provision of Information.
7.1 Information. The Company will provide MCC with all material
information relevant to MCC's engagement hereunder. The Company will ensure
that information so supplied is true and accurate in all material respects
and is not misleading, whether by omission or otherwise.
7.2 Authorization. The Company confirms and undertakes that it has all
necessary powers and has obtained or will obtain all necessary
authorizations, consents, and approvals, including approvals from the board
of directors of the Company, validly and lawfully required to enter into
this Agreement, to conduct business as, when, and where it intends, and to
conduct any and all services contemplated hereunder. The entering into of
this Agreement does not violate the bylaws of the Company or any other
Agreement.
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7.3. Accuracy. In performing its services hereunder, MCC shall be
entitled to assume the accuracy and completeness of all financial and other
information that may be furnished to the MCC and MCC will not be
responsible for independently verifying the accuracy and completeness of
such information and the Company will review all materials prepared by the
MCC for factual accuracy.
8. Authorization. Except where the Company expressly instructs MCC
otherwise, MCC is entitled to assume that instructions (whether or not in
writing or orally communicated) have been properly authorized by the Company if
they are given or purport to be given by an individual or person who is or
purports to be and is reasonably believed by MCC to be a director, employee,
authorized agent or representative of the Company.
9. Miscellaneous.
9.1. Assignment. This Agreement may not be assigned without the
written consent of each of the parties hereto, such consent not to be
unreasonably withheld.
9.2. Entire Agreement. This Agreement constitutes the entire
understanding between the Company and the MCC with reference to the subject
matter hereof and supersedes any prior understandings and agreements
related thereto, whether written or oral.
9.3. Severability. If any provision of this Agreement, or the
application of such provision to any person or circumstance, shall be held
invalid by a court of competent jurisdiction, the remainder of this
Agreement, or the application of such provision to persons or circumstances
other than those to which it is held invalid, shall not be affected
thereby.
9.4. Currency. Unless otherwise specified in writing, all monies
payable to any member of MCC hereunder shall be paid in U.S. Dollars.
9.5. Notices. Any notice required hereunder to be given by either
party shall be in writing and shall be delivered personally or sent by
certified or registered mail, postage prepaid, or by private courier, with
written verification of delivery, or by facsimile transmission to the other
party to the address or telephone number set forth below or to such other
address or telephone number as either party may designate from time to time
according to this provision. A notice delivered personally shall be
effective upon receipt. A notice sent by facsimile transmission shall be
effective twenty-four hours after the dispatch thereof. A notice sent by
mail or private courier shall be effective on the third day after the day
of mailing.
To MCC at: To Company at:
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Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇, Esq. Attention:
Fax:▇▇(▇▇▇) ▇▇▇-▇▇▇▇ Fax: ▇-▇▇▇ ▇▇▇ ▇▇▇▇
9.6. Affiliates. In the context of this letter and, in particular, the
provisions of this Agreement regarding the nature of MCC's engagement and
Fees due to MCC hereunder, the Company shall be deemed to include the
Company or any entity that controls, is controlled by, or is under common
control with the Company ("Affiliates") and, accordingly, all obligations
of the company hereunder shall be joint and several with its Affiliates.
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9.7. Governing Law & Jurisdiction. This Agreement and all rights and
obligations arising hereunder or in connection herewith are subject to and
will be governed by and construed, performed and enforced in accordance
with the laws of State of Delaware, without regard to conflicts of laws,
and the parties submit to the exclusive jurisdiction of the courts located
in Salt Lake County, State of Utah, for resolution of any disputes arising
hereunder.
9.8. Acknowledgments. The Company acknowledges that MCC:
9.8.1. is not providing any legal, accounting, or tax advice to
the Company or any other person;
9.8.2. is acting as an independent contractor to provide the
services described herein, and that no employment, partnership, joint
venture, or fiduciary relationship has been created by this Agreement;
9.8.3. may subcontract a portion of the services to be performed
by MCC hereunder to experienced and capable service providers;
9.8.4. is not responsible for advising the Company in respect of
any applicable laws and regulations, and the Company undertakes to
obtain appropriate advice in respect of all other laws and regulations
which may be applicable in any relevant jurisdiction and promptly to
communicate that advice to MCC insofar as the same is relevant to the
carrying out of its services hereunder; and
9.8.5. will not incur any liability to the Company in respect of
any breach of applicable laws or regulations where MCC has acted in
good faith in the absence of or in accordance with such advice.
9.8.6. If the foregoing accurately reflects the agreement reached
between the parties, please sign and return the attached copy of this
Agreement to indicate your consent and acceptance of its terms,
effective as of the date first set forth above.
Yours faithfully: Accepted:
MCC Financial Services Advisors, Inc. Trinity Learning Corporation
Signature: /s/ Dilek Mir Signature: /s/ ▇▇▇▇ ▇▇▇▇
Name: Dilek Mir Name:
Title: Managing Director Title:
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