EXHIBIT 10.47
VIGIC
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a GTCR ▇▇▇▇▇▇ ▇▇▇▇▇▇, LLC company
March, 26, 2001
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Chief Executive Officer
Infocast Corporation
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RE: CONSULTING AGREEMENT
Dear ▇▇. ▇▇▇▇:
We are pleased to confirm the arrangements under which Infocast Corporation
("Infocast", or the "Company") has engaged VIGIC Services, LLC ("VIGIC"), to
render certain consultant and advisory services to the Company in connection
with the Company's efforts to develop operating strategies, pursue possible
acquisitions or other strategic transactions, and to raise debt and/or equity
capital (a "Financing"), the proceeds of which will be utilized to fund
operations of the Company, acquisitions, and other general corporate purposes.
This Consulting Agreement shall cancel and replace that Consulting Agreement
dated March 5, 2001, between VIGIC and the Company.
1. Services. VIGIC shall provide advice and counsel to the executives,
directors, and personnel of the Company through (a) attendance at
Board of Directors meetings of the Company; (b) participation in
business and strategic planning sessions and reviewing and
commenting on business and strategic plans and agreements; (c)
identifying and or/communicating with potential strategic partners;
(d) participating in the strategy and implementation of the growth
activities of the Company, including recommendation and guidance
regarding hiring activities; and (e) providing general mentoring and
advice to the Company's management team. In connection with its
engagement hereunder, VIGIC may advise and assist the Company in
arranging, evaluating, structuring, and negotiating a Financing, and
will seek to introduce the Company to qualified and mutually
acceptable investors. VIGIC does not, however, guarantee any success
in consummating a Financing for the Company, and shall have no
liability to the Company in the event no Financing occurs.
In connection with this engagement, the Company agrees to furnish
VIGIC with all information concerning the Company that VIGIC deems
appropriate, and to provide it with access to the Company's
officers, directors, employees, accountants, counsel and other
representatives, it being understood that VIGIC will rely solely
upon such information supplied by the Company and its
representatives, without assuming any responsibility for the
accuracy or completeness of such information, or the independent
investigation or verification thereof. The Company represents that
all information furnished by it or on its behalf to VIGIC will be
accurate and complete in all material respects.
2. Term of Agreement. This agreement shall continue in full force and
effect through March 31, 2004.
VIGIC Services, LLC, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
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3. Board of Directors Representation. The Company agrees, within 30
days of the execution of this consulting agreement, to cause its
stockholders to elect a representative designated by VIGIC to the
Board of Directors of the Company, and to retain the VIGIC
Representative as a member of the Board of Directors so long as this
consulting agreement remains effective. The Company shall provide
VIGIC evidence of indemnification rights typical for corporate board
members reasonably satisfactory to VIGIC.
4. Fees for Services. VIGIC shall charge the following fees for its
services:
a) CONSULTING RETAINER. The Company will pay to VIGIC a
consulting retainer in the amount of $16,666.67 per
month for so long as this consulting agreement remains
effective. The first four (4) monthly consulting
retainer payments will be payable in the lump sum amount
of $66,666.67 on June 15, 2001. Successive monthly
consulting retainer payments shall be made on the 15th
day of each month. Such payments shall be
non-refundable, and are not contingent upon completion
of any transaction or specified performance by either
VIGIC or the Company.
b) FUND-RAISING FEES. In the event that a Financing is
consummated between the Company and any investors
introduced to the Company by VIGIC, the Company shall
pay to VIGIC cash compensation in an amount equal to
seven percent (7.0%) of the gross amount of the
Financing, payable upon closing of the Financing, out of
the proceeds thereof.
c) OTHER CONSIDERATION. As consideration for the services
provided to the Company by VIGIC to date, the Company
hereby agrees to grant warrants to VIGIC to purchase
1,500,000 shares of common stock of the Company,
exercisable at a price of $1.00 per share, for a period
of five (5) years from the date of this agreement. One
half (750,000) of the warrants will be exercisable on or
after March 15, 2001, with the remaining 750,000
warrants exercisable on or after March 1, 2002. Infocast
agrees to negotiate and execute such documents as are
necessary and customary to evidence an agreement of this
type (including a warrant agreement) upon the request of
VIGIC.
5. Expenses. The Company hereby agrees to reimburse VIGIC for all
reasonable out-of-pocket expenses incurred on or after the date of
this engagement letter, including, but not limited to, travel,
meals, lodging, expenses for presentation and financial materials,
and legal fees and expenses. Such expenses will be payable promptly
upon VIGIC's written request, which request shall include
documentation evidencing the expenses incurred.
6. Confidentiality. VIGIC hereby agrees to use all non-public
information provided to it by the Company solely for the purpose of
rendering services to the Company pursuant to this engagement, and
to treat confidentially such information for so long as such
information remains non-public.
7. Indemnification. Since VIGIC will be acting on behalf of the Company
in connection with its engagement hereunder, Annex A attached hereto
and incorporated herein sets forth the agreement of the parties
relating to the indemnification by the Company of VIGIC.
In the event of any termination of VIGIC's engagement hereunder,
VIGIC shall continue to be entitled to all consideration and
reimbursement set forth in Paragraphs 4 and 5 above, including
receipt of compensation in the event a Financing is closed with
investors introduced to the Company by VIGIC during the term of this
Consulting Agreement.
8. Other Matters.
(a) Any advice or opinions provided by VIGIC may not be
disclosed or referred to publicly or to any third party
except in accordance with VIGIC's written consent.
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(b) The Company represents that it has all requisite power
and authority to enter into this agreement, and that
this agreement has been duly and validly authorized by
all necessary corporate action on the part of the
Company and has been duly executed and delivered by the
Company.
(c) The terms and conditions of this letter shall not be
amended or modified except by written agreement of both
parties.
(d) This agreement shall be binding upon the Company and
VIGIC and their respective successors and assigns.
(e) This letter agreement shall be governed by and construed
in accordance with the laws of the state of Illinois, in
the United States of America.
If this letter correctly sets forth your understanding of our agreement, please
execute where indicated below and return to the attention of VIGIC an original
executed version at your earliest convenience.
Sincerely,
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Principal
Infocast Corporation
By:
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Name:
Title:
Date:
VIGIC Services, LLC, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
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ANNEX A
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In the event that VIGIC becomes involved in any capacity in any action,
proceeding or investigation brought by or against any person, including
stockholders of the Company, in connection with or as a result of either this
engagement or any matter referred to in this letter, the Company periodically
will reimburse VIGIC for its legal and other expenses (including the cost of any
investigation and preparation) incurred in connection therewith. The Company
will also indemnify and hold VIGIC harmless against any losses, claims, damages
or liabilities to any such person in connection with or as a result of either
its engagement or any matter referred to in this letter, except to the extent
that any such loss, claim, damage or liability is finally judicially determined
to have resulted from the gross negligence or bad faith of VIGIC in performing
the services that are the subject of this letter. If for any reason the
foregoing Indemnification is unavailable to VIGIC or insufficient to hold it
harmless, then the Company shall contribute to the amount paid or payable by
VIGIC as a result of such loss, claim, damage or liability in such proportion as
is appropriate to reflect the relative economic interests of the Company or any
person asserting claims on behalf of or in right of the Company on the one hand
and VIGIC on the other hand in the matters contemplated by this letter as well
as the relative fault of the Company and VIGIC with respect to such loss, claim,
damage or liability and any other relevant equitable considerations. The
reimbursement, indemnity, and contribution obligations of the Company under this
paragraph shall be in addition to any liability which the Company may otherwise
have, and shall be binding upon and insure to the benefit of any successors,
assigns, heirs and person representatives of the Company, VIGIC, any such
affiliate and any such person. The Company also agrees that VIGIC shall not have
any liability to the Company or any person asserting claims on behalf of or in
right of the Company in connection with or as a result of either its engagement
or any matter referred to in this letter except to the extent that any losses,
claims, damages, liabilities or expenses incurred by the Company are finally
judicially determined to have resulted from the gross negligence or bad of VIGIC
in performing the services that are the subject of this letter; provided,
however, that in no event shall any such liability exceed the cash fees received
by VIGIC hereunder. The provisions of this Annex A shall survive any termination
or completion of the engagement provided by this letter agreement and this
letter agreement shall be governed by and construed in accordance with the laws
of the State of Illinois.
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