MANAGEMENT SERVICES AGREEMENT
This Management Services Agreement (this "Agreement"), dated March ,
1999, is entered into by and between Infusion Capital Partners, L.L.C., a
Delaware limited liability company ("Infusion"), and Premier Concepts,
Inc., a Colorado corporation ("Premier").
In consideration of the mutual covenants of the parties set forth in
this Agreement, the parties, intending to be legally bound, agree as
follows:
1. Purpose; Exclusivity. Premier hereby engages Infusion, as an
independent contractor of Premier, to provide the services required
pursuant to Section 3 throughout the Term (defined below), on the terms and
subject to the conditions set forth herein. Premier shall not engage or
employ any third party to provide during the Term, or compensate in any
form any third party for providing during the Term, any services to be
provided by Infusion hereunder.
2. Term. The period during which Infusion shall provide services to
Premier hereunder shall commence on the date hereof and continue until
December 31, 1999 (the "Term"); provided, however, prior to the expiration
of the Term, (a) Infusion may terminate this Agreement in accordance with
Sections 9 or 12 and (b) Premier may terminate this Agreement in accordance
with Section 13. The Term of this Agreement shall renew from year to year
commencing January 1, 2000, with Infusion's compensation to be agreed upon
by the parties, and in the event the Second Funding (defined below) does
not occur the Term of this Agreement shall renew on terms and conditions to
be determined by the parties.
3. Services of Infusion
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3.1 Throughout the Term, Infusion shall:
(i) Identify and arrange for an entity determined by
Infusion (the "First Investor") to invest $220,768.75 to purchase 353,230
shares of Premier's common stock, which shall constitute 19.9% of the
issued and outstanding shares of Premier's common stock (immediately prior
to such investment) at the price of $5/8 ($.625) per share (the "First
Funding"), as more particularly described in and subject to the terms and
conditions of a Stock Purchase Agreement mutually satisfactory to Premier
and the First Investor executed contemporaneously with this Agreement (the
"First Stock Purchase Agreement");
(ii) If requested by Premier at any time within the six (6)
month period after the First Funding, identify and arrange, as soon as is
reasonably practicable (but in no event more than thirty (30) days) after
such request, for an entity or individuals determined by Infusion (which
entity may be the First Investor or any assignee(s) of Infusion, the
"Second Investor") to invest the difference between $500,000 and the amount
of the First Funding to purchase shares of a new series of convertible
preferred stock (the "Second Funding"), as more particularly described in
and subject to the terms and conditions of a Stock Purchase Agreement
mutually satisfactory to Premier and the Second Investor executed
contemporaneously with this Agreement (the "Second Stock Purchase
Agreement");
(iii) Supervise the financing and use of proceeds
contemplated by the First Stock Purchase Agreement and the Second Stock
Purchase Agreement;
(iv) Coordinate the drafting of an analytical document for
distribution by Premier to broker-dealers and supervise public relations
relating to the distribution of such analytical document; and
(v) Provide strategic, operational and investment banking
advice, including, without limitation, presenting other financing (debt and
equity) opportunities to Premier and assisting Premier in structuring and
negotiating the terms of other financing opportunities Premier desires to
pursue, whether the opportunity was presented to Premier by Infusion or by
a third party (with Infusion's compensation to be determined by the parties
in connection with any such other financing).
3.2 Except for arranging the First Funding and the Second
Funding (which shall be performed in accordance with certain terms
regarding dates of closing), Infusion shall provide the services and render
advice pertaining to the matters set forth above at Infusion's initiative,
if and when determined by Infusion, or upon reasonable request by Premier.
With reasonable advance notice from Premier, an employee or representative
of Infusion shall use reasonable efforts to participate (whether in person
or by teleconference) in strategic planning sessions of Premier's
management and Board of Directors. It is understood and acknowledged by
the parties, however, that the value of Infusion's services and advice is
not readily quantifiable and not necessarily in proportion to the amount of
time devoted to performing services, and Infusion shall not be obligated to
spend any specific amount of time to the rendering of any services
hereunder.
3.3 Nothing in this Agreement shall require Premier to request
that Infusion perform any particular service at any particular time or
require Infusion to undertake any duties beyond the scope of the services
required by this Section 3. Premier specifically acknowledges that
Infusion shall not be providing legal, tax or accounting services.
3.4 Infusion makes no representation or warranty and gives no
guaranty or assurance as to the number of financing opportunities it may
present to Premier, the desirability of any opportunities presented
(including, without limitation, the First Funding and the Second Funding),
the success of Premier in negotiating or agreeing on the terms of any
financing, the financial or other performance of any financing or the tax
or accounting treatment of any financing or terms thereof. All decisions
relating to financings by Premier (including whether to pursue an, what
offer to make or accept, what agreement to enter into and the like), even
if based on the advice of Infusion, shall be the sole responsibility of
Premier.
4. Compensation
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4.1 In consideration for services rendered by Infusion pursuant
to this Agreement, Premier shall:
(i) Pay Infusion the sum of $50,000, $25,000 of which
Infusion shall be entitled to upon signing this Agreement ($10,000 of which
will be paid upon such signing and the balance of which will be paid in 3
consecutive monthly installments of $5,000 each, with such payments to be
made on the 15th day of the month) and the remaining $25,000 of which
Infusion shall be entitled to upon and subject to the Second Funding
($10,000 of which will be paid upon the Second Funding and the balance of
which will be paid in 3 consecutive monthly installments of $5,000 each,
with such payments to be made on the 15th day of the month); and
(ii) Upon and subject to the Second Funding, issue Infusion
as an additional financing fee a warrant in the form of Exhibit A hereto to
purchase 50,000 shares of Premier's common stock at the price per share
equal to$5/8 ($.625), which warrant shall be exercisable on a cashless
basis for a period of 3 years from issuance and may be assigned by Infusion
in whole or in part.
4.2 In the event the Second Funding does not occur, Infusion's
cash compensation and the number of shares under Infusion's warrant will be
reduced in proportion to the amount by which the First Funding is less than
$500,000, and Premier shall issue such warrant promptly following the
expiration of the six (6) month period during the which the Second Funding
may be requested by Premier and upon Infusion's failure to require the
Second Funding thereafter as provided in Section 6.8.
4.3 Each payment to Infusion under this Agreement shall be
delivered to ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, or such other address as Infusion may designate from time to time,
in the form of a check made payable to the order of "Infusion Capital
Partners, L.L.C."
5. Expenses. In addition to other payments due to Infusion pursuant
to this Agreement, Premier shall reimburse Infusion for all reasonable,
out-of-pocket expenses incurred by Infusion relating to its services
rendered pursuant to this Agreement (including, but not limited to, legal
fees and costs, travel and lodging, on-line research, printing and postage
for bulk mailings). Premier shall be entitled to receive a copy of
invoices, receipts and other documentation evidencing the incurrence of
such an expense by Infusion. Such payment shall be made in accordance with
Section 4.3 within 30 days of invoice.
6. Representations, Warranties and Covenants of Premier. Premier
makes the following representations, warranties and covenants to Infusion:
6.1 Premier has the corporate power and authority to execute and
deliver this Agreement and to perform all of Premier's obligations as set
forth in this Agreement, and Premier has obtained any and all necessary
approvals relating to such execution, delivery or performance (except for
the stockholder approval referred to in Section 6.7).
6.2 This Agreement has been duly executed and delivered by
Premier and constitutes a valid and binding obligation, enforceable against
Premier in accordance with its terms. The execution, delivery and
performance of this Agreement by Premier do not violate, breach or
contravene the provisions of (i) any charter document, agreement or
document, by which Premier or any of its assets is bound, (ii) any
judgment, decree, order, ruling of any judicial or arbitral body or any
regulatory or other governmental commission, agency or body having
jurisdiction over Premier or any of its assets or (iii) any applicable law.
6.3 All information provided or made available to Infusion by or
on behalf of Premier will not contain any untrue statement of a material
fact or omit to state a material fact necessary in order to make the
statements therein not misleading in light of the circumstances under which
such statements are made. If during or after the Term Premier becomes
aware of any fact or circumstance which gives Premier a reasonable basis
for believing that information previously provided or made available to
Premier contained an untrue statement of a material fact or omitted to
state a material fact necessary in order to make the statements therein not
misleading in light of the circumstances under which such statements were
made, Premier shall make prompt written disclosure to Infusion of such fact
or circumstance.
6.4 All projections provided or made available to Infusion by or
on behalf of Premier will have been prepared in good faith by Premier (or
by a third party acting on behalf of Premier and reasonably believed by
Premier to be competent as to the tasks performed) and will be based upon
assumptions that were reasonable in light of the circumstances under which
they are made.
6.5 In rendering its services hereunder, Infusion will, with
Premier's authorization, be using and relying on information provided or
made available by Premier (and additional information available from public
or other sources) without independent verification (such as an independent
appraisal of assets of Premier). Infusion will not be responsible or
liable for, and Premier will indemnify and hold harmless Infusion from any
claim or action challenging or questioning, the accuracy or completeness of
any information provided or made available by Premier.
6.6 Premier's representations and warranties made in this
Agreement are true and correct as of the execution of this Agreement and
shall remain true and correct in all material respects throughout the Term.
6.7 Premier shall solicit and use its best efforts to obtain
stockholder approval for the Second Funding (and any related transactions)
on the terms of the Second Stock Purchase Agreement (and on such other
terms as may be reasonably requested by Infusion or the Second Investor)
prior to Premier's filing of its report on Form 10-K for its fiscal year
ended January 31, 1999. Premier shall obtain Infusion's advance approval,
which shall not be unreasonably withheld, of any materials to be
distributed or filed, and of any action to be taken, with respect to such
approval.
6.8 Premier grants Infusion the option to require, and Infusion
may require, if Premier does not request Infusion to arrange the Second
Funding within the six (6) month period after the First Funding, Premier to
obtain the stockholder approval described in Section 6.7 and accept the
Second Funding within thirty (30) days thereafter (subject to satisfaction
of the conditions contained in the Second Stock Purchase Agreement).
7. Certain Conditions Precedent. The infusion's obligations
hereunder, including, without limitation, its obligation to arrange the
First Funding and the Second Funding, are subject to the satisfaction or
waiver, as of the applicable date(s) of performance by Infusion, of the
following conditions:
7.1 Premier shall have taken all actions and proceedings
required in connection with the transactions contemplated hereby to be
consummated at or prior to such date(s), and all necessary consents,
authorizations, approvals, filings and notices with respect to the
transactions contemplated by this Agreement (including, without limitation,
those required to grant Infusion the preemptive rights herein) shall have
been obtained, made or given by Premier.
7.2 The applicable parties shall have entered into the First
Stock Purchase Agreement, the Second Stock Purchase Agreement, the E-
Commerce Services Agreement (between Premier and MeridianTelesis, LLC), the
Registration and Anti-Dilution Agreements (between Premier and each of
Infusion and the First Investor) and all other agreements contemplated
hereby or thereby.
7.3 Premier shall have reimbursed Infusion for all expenses for
which Infusion shall be reimbursed pursuant to Section 5.
7.4 The representations and warranties of Premier herein shall
be true and correct at and as of such date(s), and Premier shall have
performed and complied with all covenants and conditions contained herein
which are required to be performed or complied with at or before such
date(s).
7.5 All conditions set forth in the First Stock Purchase
Agreement and the Second Stock Purchase Agreement shall have been satisfied
or waived as of such date(s).
8. Confidentiality
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8.1 Infusion acknowledges that it has and throughout the Term
will continue to have a relationship of trust and confidence with Premier.
Based on such relationship, Infusion has and throughout the Term will
continue to be given access to Confidential Information (as hereinafter
defined). Infusion may disclose Confidential Information only to its
managers, officers, employees and counsel to the extent they need to know
such information for the purpose of providing the services required by this
Agreement. Infusion and its managers, officers, employees and counsel
shall maintain in strict confidence, protect and safeguard the Confidential
Information, and, except as expressly provided in the preceding sentence,
shall not, directly or indirectly, (a) disclose, reveal or make available
to any third party any Confidential Information, (b) assist or enable any
third party to access or use any Confidential Information or (c) use or
exploit any Confidential Information for any purpose whatsoever.
Notwithstanding anything in this Section 8, Infusion or any of its
managers, officers, employees or counsel may disclose Confidential
Information to the extent (and only to the extent) required by applicable
law (including by request for information or documents through legal
proceedings, subpoena, governmental investigation or any similar process)
without liability hereunder, but only if prior to making such disclosure
Premier has been given written notice of such required disclosure and a
reasonable opportunity to seek a protective order or other appropriate
assurance that confidential treatment will be accorded and Infusion has
given all reasonable cooperation with Premier's efforts to preserve the
confidentiality of the Confidential Information, provided that any out-of-
pocket expenses that Infusion would incur in complying with this Section 8
shall be paid by Premier.
8.2 "Confidential Information" means any information, data or
facts concerning the business, operations, finances, assets, affairs or
prospects of Premier or any of its portfolio companies, including all
information relating to: (a) performance of its business, whether
historic, current or prospective (including information contained in
financial statements, tax returns, financial projections, budgets, business
plans and other financial, managerial, tax and accounting plans, statements
or reports); (b) customers, prospective customers, suppliers or vendors
(in each case, including names, addresses, persons to contact, type and
quantity of products bought or sold, specifications and preferences, credit
information, financial arrangements and other dealings); (c) employees,
consultants, contractors or other personnel or service providers, whether
employed or independent (in each case, including names, addresses,
compensation, benefits, other financial arrangements, extent of services,
nature of relationship, policies, practices and dealings); (d) investors,
prospective investors, lenders, guarantors, sureties, lessors, lessees,
licensors, licensees and business contacts; (d) proprietary technology,
formulae, methods of production, processes, procedures, techniques, know-
how, research and development efforts or results (whether abandoned, in
progress or completed); (e) products, services, packaging, pricing,
marketing or business practices or policies; (f) type, quantity, condition
or value of assets, tangible or intangible (including computer software,
systems and intellectual property); (g) prospective investments,
acquisitions, financings and other transactions outside the ordinary course
of Premier's business; or (h) trade secrets or any other information which
Premier wishes to keep confidential; provided, however, "Confidential
Information" will cease to include information after it (i) becomes
available to the public (other than as a result of a breach hereof or other
wrongful conduct by Infusion), (ii) becomes available to Infusion on a
nonconfidential basis from a third party that is not in breach of a duty
(contractual, fiduciary or otherwise) to maintain the confidentiality of
such information or (iii) is independently developed by Infusion without
any use whatsoever of Confidential Information.
9. Other Engagements. Nothing in this Agreement shall restrict or
limit Infusion's acceptance of other engagements or performance of services
for any third parties, including competitors of Premier, subject at all
times to Infusion's obligations under Section 8. If Infusion believes that
any task it is required to perform for a third party is in conflict with
the best interests of Premier, Infusion shall disclose such conflict to
Premier and, if requested by Premier, shall terminate Infusion's engagement
with either Premier or the third party, as Infusion may choose. Premier
acknowledges that Infusion serves as investment advisor and consultant to
Equisition Capital, LLC ("Equisition"), a private equity fund which will be
the First Investor, and to other parties affiliated with Infusion, which
(including Equisition) may be the Second Investor. Premier also
acknowledges that the sole member of Infusion owns membership interest in
Equisition and has voting control of Equisition. Premier knowingly and
intelligently waives all conflicts of interest arising out of such
relationships.
10. Independent Contractor Status. The relationship of Infusion to
Premier is and shall remain solely that of an independent contractor.
Infusion shall not be considered for any purpose, and shall not represent
itself as being, a member, manager, officer, employee, partner, joint
venturer, agent or representative of Premier. Infusion's authority to act
for Premier shall be limited strictly to such authority as may be granted
to Infusion in writing from time to time by the Board of Directors and/or
senior management of Premier, and Infusion shall have no authority, and
shall not represent itself as having authority, to enter into contracts for
or otherwise bind Premier or to take any other action beyond what is
expressly permitted pursuant to this Agreement.
11. Public Announcements. Following the closing of any financing or
other transaction involving Premier, Infusion shall have the right to place
advertisements or make other public announcements in financial and other
newspapers, journals and periodicals, at Infusion's own expense, describing
Infusion's services to Premier hereunder, provided that Infusion has
provided a copy of any such advertisement or announcement to Premier prior
to publication thereof and Premier has consented to such advertisement or
announcement, with such consent not to be unreasonably withheld, delayed or
conditioned. Infusion specifically acknowledges that Premier may withhold
its consent to any publication that would constitute or result in the
breach of a confidentiality, non-disclosure or other agreement between
Premier and an unrelated third party.
12. Termination by Infusion. Infusion may terminate this Agreement
at any time, by giving written notice setting forth the effective date of
termination (which may be immediate), after any of the following: (i)
Premier's failure to pay completely and timely the compensation due to
Infusion pursuant to Section 4 or expenses due pursuant to Section 5, which
failure either remains uncured for thirty (30) days after written notice or
is the third such failure to pay completely and timely; (ii) a material
misrepresentation by Premier in Section 6; (iii) a material breach of a
warranty or covenant made by Premier in or pursuant to this Agreement; (iv)
the indictment of Premier or any of its Directors or officers for a crime
involving moral turpitude; or (v) the failure to satisfy any of the
conditions set forth in the First Stock Purchase Agreement or the Second
Stock Purchase Agreement in accordance with their terms.
13. Termination by Premier. Premier may terminate the Term at any
time, by giving written notice setting forth the effective date of
termination (which may be immediate), after: (i) a material
misrepresentation by Infusion in or pursuant to this Agreement; (ii) a
material breach of a warranty or covenant made by Infusion in or pursuant
to this Agreement; (iii) conduct on the part of Infusion intended to, or
reasonably expected to, cause material damage to the business, assets,
operations, condition, affairs or prospects of Premier; (iv) the indictment
of Infusion or any of its managers or officers for a crime involving moral
turpitude, whether relating to Infusion's engagement hereunder or
otherwise; or (v) Infusion's repeated failure to render advice requested by
Premier within the scope of Infusion's duties as set forth in Section 3,
which failure persists after written notice to Infusion.
14. Effect of Termination. Upon termination of the Term for any
reason, Premier shall pay Infusion the compensation owed pursuant to
Section 4 and expense reimbursements owed pursuant to Section 5 through the
effective date of termination. Sections 6, 8, 15 - 30 and this Section 14
shall survive the termination of the Term for any reason whatsoever and
remain in full force and effect indefinitely.
15. Indemnification of Premier
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15.1 Infusion agrees to indemnify, defend and hold harmless
Premier and its members, managers, officers and employees from and against
any and all Losses arising in connection with (i) a material breach by
Infusion of this Agreement or (ii) any other act or omission of Infusion
and its members, managers, officers and employees which has a material
adverse effect on Premier, subject to Section 15.2. "Losses" means all
losses, claims, suits, actions, liabilities, obligations, expenses
(including court costs, amounts paid in settlement, judgments, and counsel
fees and other expenses incurred in connection with investigating,
preparing, pursuing or defending any claim giving rise to a right of
indemnification under this Agreement) and damages of any kind. In all
cases, Losses shall be calculated on a net after-tax basis, accounting for
the tax effects of the Losses incurred and the indemnification payments to
be received, and shall take into account any insurance proceeds receivable
in connection with the Losses.
15.2 Notwithstanding anything in this Agreement to the contrary,
the aggregate liability of Infusion to Premier or any of its members,
managers, officers or employees for acts and omissions, whether in breach
of this Agreement or otherwise relating to Infusion's performance of
services for Premier pursuant to this Agreement, shall not exceed the
aggregate amount of compensation actually received by Infusion pursuant to
Section 4; provided, however, such limitation shall not apply to Losses
directly resulting from Infusion's intentionally wrongful conduct.
16. Indemnification of Infusion. Premier agrees to indemnify, defend
and hold harmless Infusion and its members, managers, officers and
employees from and against any and all Losses arising in connection with
any misrepresentation, breach of warranty or breach of covenant by Premier
in this Agreement.
17. Third Party Claims. Promptly (and in any event within five
business days) after receipt of actual notice that a third party is
commencing a lawsuit, arbitration or other action (a "Third Party Action")
against a party hereto (the "Indemnified Party") based on allegations
which, if proven, would entitle the Indemnified Party to indemnification
pursuant to Section 15 or 16 of this Agreement, the Indemnified Party shall
give written notice of the pending or threatened Third Party Action to the
party that would be obligated to provide such indemnification (the
"Indemnifying Party"). Delay in notifying the Indemnifying Party shall
relieve the Indemnifying Party from liability only to the extent the
Indemnifying Party shall have been materially prejudiced by such delay. As
a condition to its right to indemnification hereunder, the Indemnified
Party shall give the Indemnifying Party the right (without prejudice to the
right of the Indemnifying Party to contest its obligation to indemnify the
Indemnified Party with respect to any claims made in the Third Party
Action) to assume control of the defense of the Third Party Action,
including through the selection and engagement of counsel reasonably
satisfactory to the Indemnified Party. The party hereto not in control of
the defense of a Third Party Action shall have the right to participate in
the Third Party Action through its own separate counsel at such party's own
expense; except, however, even if the Indemnifying Party assumes the
defense of a Third Party Action, the Indemnifying Party shall be liable for
the fees and expenses of the Indemnified Party's separate counsel if the
Indemnified Party shall have been advised by counsel that there may be one
or more legal defenses available to the Indemnified Party which may
conflict with or be inconsistent with those available to the Indemnifying
Party. No party shall be liable for or bound by any settlement of an
action effected without such party's written consent, which shall not be
unreasonably withheld, delayed or conditioned. In addition, neither party
will settle, compromise or consent to the entry of a judgment in or
otherwise seek to terminate any pending or threatened action in respect of
which indemnification or contribution may be sought hereunder (whether or
not the Indemnified Party is a party thereto) unless such settlement,
compromise, consent or termination includes an unconditional release of the
Indemnified Party from all claims arising out of such action.
18. Rights and Remedies. Except as otherwise expressly provided
herein, the rights and remedies of the parties under this Agreement
(including the right to terminate this Agreement and the right to
indemnification) shall be cumulative with and in addition to, not exclusive
or in replacement of, any other rights or remedies that may be available
under any other agreement between the parties, at law or in equity.
19. Forum Selection for Disputes. Each of the parties to this
Agreement hereby submits to the exclusive, personal jurisdiction of either
the Federal District Court for the Eastern District of Pennsylvania or the
Court of Common Pleas of Philadelphia County, Pennsylvania for all claims,
disputes or controversies involving the parties hereto and relating to this
Agreement; provided, however, nothing herein shall prevent a party hereto
from asserting a claim for indemnification or any other claim hereunder
against the other party hereto in connection with a Third Party Action in
the same jurisdiction where a Third Party Action has been brought. Each
party hereby knowingly, intelligently and voluntarily waives its right to
contest the jurisdiction or venue of either such court, whether on the
grounds of inconvenience or otherwise, and each party hereto knowingly,
intelligently and voluntarily waives its right to initiate a suit or action
against the other party in any other court or forum, except as expressly
provided in Section 17.
20. Waiver of Jury Trial. IRREVOCABLY AND UNCONDITIONALLY, EACH OF
THE PARTIES HERETO HEREBY KNOWINGLY, INTELLIGENTLY AND VOLUNTARILY WAIVES
ITS RIGHTS TO DEMAND TRIAL BY JURY IN ANY LITIGATION, SUIT OR OTHER ACTION
BROUGHT UNDER OR IN CONNECTION WITH THIS AGREEMENT OR UNDER ANY OTHER
AGREEMENT, INSTRUMENT OR DOCUMENT EXECUTED PURSUANT TO, OR IN CONNECTION
WITH, THIS AGREEMENT OR ANY PROVISION OF ANY OF THE FOREGOING OR ANY OTHER
MATTERS INVOLVING BOTH OF THE PARTIES HERETO.
21. Notices and Other Communications. Any notice, consent, demand or
other communication required or permitted under this Agreement shall be
made in writing and shall be deemed to have been duly given if (a) sent by
personal delivery or facsimile, telecopier or similar transmission (and
shall be deemed given upon confirmation of receipt), (b) mailed by first
class registered or certified mail, return receipt requested, postage
prepaid (and shall be deemed delivered three (3) days after the date
received for delivery by the United States Postal Service, whether or not
accepted by the addressee) or (c) sent by nationally recognized next-day
delivery courier that guaranties delivery within twenty-four (24) hours,
charges prepaid (and shall be deemed delivered one business day after
delivery to said courier), addressed to the parties hereto at their
respective addresses set forth under their names on the signature pages
hereto, marked in each case to the attention of the President of the
recipient; however, each party may change the person to be notified on its
behalf or the address of such person from time to time by giving notice of
such change at least ten (10) days in advance.
22. Entire Agreement. This Agreement embodies the entire agreement
and understanding between the parties hereto pertaining to the subject
matter hereof and supersedes all prior agreements and understandings of the
parties, oral or written, express or implied, in connection therewith.
23. Amendments and Waivers. Any provision of this Agreement may be
amended or modified, in whole or in part, and the compliance with any
provision of this Agreement may be waived only with the written consent of
(a) both parties hereto, in the case of an amendment or modification and
(b) the party waiving compliance with a provision, in the case of a waiver.
24. No Waiver. No waiver by any party hereto of any condition, or
the breach of any term or covenant contained in this Agreement, whether by
conduct or otherwise, in any one or more instances, shall be deemed or
construed as a further or continuing waiver of any such condition or breach
or waiver of any other condition.
25. Severability. If any provision (or any part of any provision) of
this Agreement shall for any reason be determined by a court of competent
jurisdiction to be invalid, illegal or unenforceable in any respect, such
determination shall not invalidate, impair or affect the remainder of this
Agreement, which shall continue in full force and effect. If such invalid,
illegal or unenforceable provision would be valid, legal and enforceable if
modified in scope, duration or otherwise, such provision shall be deemed
modified to the minimum extent necessary to render the same valid, legal
and enforceable.
26. Governing Law. This Agreement, its interpretation, performance
and enforcement, and the rights and remedies of the parties hereto, shall
be governed and construed by and in accordance with the laws of the
Commonwealth of Pennsylvania, without regard to principles of conflict of
laws.
27. Binding Effect. This Agreement shall be binding upon and inure
to the benefit of the parties hereto and their respective representatives,
successors and permitted assigns. Either party may assign its rights and
obligations under this Agreement (a) as part of a merger, consolidation or
other transaction effecting an assignment by operation of law or (b) as
part of a sale or transfer of substantially all of its assets, including
its business and goodwill, in which case the successor entity shall confirm
in writing at the time of such sale or transfer that such successor remains
bound by this Agreement. Except as provided in the preceding sentence,
neither party may assign any of its rights or obligations under this
Agreement without the prior written consent of the other party, in such
other party's sole discretion.
28. No Third Party Rights. This Agreement is not intended to, and it
shall not, provide any rights whatsoever to any third party, and no third
party shall have any right to assert a claim under or enforce this
Agreement against any party hereto. The services rendered by Infusion to
Premier are intended for the sole benefit of Premier. Accordingly, unless
otherwise expressly agreed in writing by Infusion, no one other than
Premier is authorized to rely upon any statement, opinion or advice of
Infusion, and no statement, opinion or advice of Infusion shall be
reproduced, disseminated, quoted or referred to at any time in any manner
or otherwise used for any purpose, other than as contemplated by this
Agreement.
29. Construction. The masculine form, wherever used herein, shall be
construed to include the feminine and the neuter, and vice versa, where
appropriate. The singular form, wherever used herein, shall be construed
to include the plural, and vice versa, where appropriate. The term
"include" (and correlative terms, such as "includes" and "including") shall
not be construed as a term of limitation in any context but shall be
construed as if followed by the words "without limitation." All references
in this Agreement to a "Section" shall be to the applicable section of this
Agreement, unless otherwise specially provided. The captions of Sections
are for the convenience of the parties only; they form no part of this
Agreement and shall not affect its interpretation.
30. Determining Days. In computing the number of days for purposes
hereof, all days shall be counted, including Saturdays, Sundays and legal
holidays in the Commonwealth of Pennsylvania (unless only business days are
specified); provided, however, that if the final day of any time period
falls on a Saturday, Sunday or legal holiday, the final day shall be deemed
to be the following day which is not a Saturday, Sunday or holiday. A
"business day" shall mean any day which is not a Saturday, Sunday or legal
holiday in the Commonwealth of Pennsylvania.
31. Counterparts. This Agreement may be executed in counterparts,
each of which when so executed shall be deemed to be an original and all
counterparts together shall constitute one and the same instrument. The
transmission of a signature by telecopier will be treated as delivery of an
executed original.
32. Preemptive Rights. Premier hereby grants to Infusion the right
to purchase all New Securities (defined below) which Premier may propose,
during the Term and any renewal of this Agreement, to sell or issue,
subject to and in accordance with the following provisions:
32.1 In the event that Premier proposes to undertake an issuance
of New Securities, Premier shall give Infusion an Offer Notice (defined
below), which shall constitute an offer by Premier to Infusion to purchase
the New Securities as provided in this Section 32. Infusion shall have the
right, exercisable by giving an Acceptance (defined below) to Premier
within fifteen (15) days following the date of receipt of such Offer
Notice, to purchase the New Securities at the price and upon the terms
specified in the Offer Notice. Infusion shall be obligated to purchase the
quantity of New Securities stated in its Acceptance and to close such
purchase within 90 days from the date of such Acceptance.
32.2 In the event that the quantity of New Securities proposed to
be sold by Premier exceeds the aggregate quantity of New Securities for
which Infusion has given Acceptance, within 90 days thereafter Premier may
sell (or enter into an agreement pursuant to which the sale of the New
Securities covered thereby shall be closed, if at all, within 90 days from
the date of said agreement (a "Sale Agreement")) those New Securities for
which Infusion's preemptive rights were not exercised in accordance with
Section 32.1, at a price and upon terms no more favorable in any respect to
a purchaser thereof than specified in the Offer Notice. In the event that
Premier has not sold (or entered into a Sale Agreement covering) all of the
New Securities within said 90-day period (or sold and issued the New
Securities to be sold pursuant to the Sale Agreement within 90 days from
the date thereof), Premier shall not issue or sell any New Securities
without first offering such securities to Infusion in the manner required
hereby.
32.3 Infusion may assign its preemptive rights to any one or more
persons or entities or arrange for the exercise or purchase of New
Securities through the exercise of these preemptive rights by any one or
more other persons or entities.
32.4 For purposes hereof:
(i) "Acceptance" means a written notice by Infusion to
Premier stating that Infusion is exercising its preemptive rights hereunder
and specifying the quantity of New Securities which Infusion desires to
purchase.
(ii) "New Securities" means any Common Stock or Preferred
Stock of Premier, whether now or hereafter authorized, and rights, options
or warrants to purchase Common Stock or Preferred Stock, and securities of
any type whatsoever which are, or may become, convertible into Common Stock
or Preferred Stock; provided, however, that "New Securities" does not
include (i) the securities issuable with respect to or upon conversion of
the Convertible Preferred Stock or upon exercise of warrants to be issued
pursuant to this Agreement, the First Stock Purchase Agreement or the
Second Stock Purchase Agreement or upon exercise of options and warrants
issued and outstanding as of the date of this Agreement; (2) securities
issuable upon conversion or exercise of New Securities which were offered
to Infusion in accordance with this Agreement; or (3) shares issued in
connection with any stock split, stock dividend or recapitalization of
Premier.
[intentionally left blank]
(iii) "Offer Notice" means a written notice given by Premier
stating its intention to sell New Securities, describing the type of
securities, the price, the proposed recipients (to the extent known), and
the terms of sale and providing all other information which Infusion would
reasonably consider material to its decision whether or not to exercise its
preemptive rights.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date and year first written above.
PREMIER CONCEPTS, INC.
By:
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, President and CEO
Address for Notices:
▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
INFUSION CAPITAL PARTNERS, L.L.C.
By:
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▇▇▇▇▇ ▇. ▇. ▇▇▇▇▇▇, President
Address for Notices:
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Exhibit A
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Form of Infusion Warrant
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See attached pages.
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