ROBB, PECK, McCOOEY CLEARING CORPORATION
INVESTMENT DIVISION
55 BROADWAY
NEW YORK, N.Y. 10006
(800) 300-6861
FAX (212) 482-3558
MEMBERS:
NEW YORK STOCK EXCHANGE, INC
AND OTHER PRINCIPAL EXCHANGES
SECURITIES INVESTORS PROTECTION CORPORATION (SIPC)
August , 1998
Raja Tuli, President
WideCom Group Inc.
72 Devon Road, Unit 18
Brampton, Ontario
Canada L6T 534
You have advised us that WideCom Group Inc. ("WIDE") desires to retain
Robb, Peck, McCooey Clearing Corporation ("ROBB") as a nonexclusive external
investment banking advisor in connection with the identification, evaluation
and potential closing of an acquisition, merger, joint venture or other like
transactions. This letter, when executed by the parties hereto, will
constitute an agreement between WIDE and ROBB pursuant to which WIDE hereby
retains Robb under the terms and conditions set forth below.
1. WIDE retains ROBB to perform consulting services related to
corporate finance and other financial service matters. In this regard ROBB
shall furnish to WIDE advice and recommendations with respect to such
aspects of the business and affairs of WIDE as WIDE shall, from time to
time, reasonably request upon written notice.
2. In addition, ROBB shall hold itself ready to assist WIDE in
evaluating and negotiating particular contracts or transactions, if
requested to do so by WIDE, upon reasonable written notice, and will
undertake such evaluations and negotiations upon prior written agreement as
to additional compensation to be paid by WIDE to ROBB with respect to such
evaluations and negotiations. Nothing herein shall require WIDE to utilize
ROBB's services in any particular transactions.
3. As compensation for the services described in paragraph 1 above
and as an inducement for ROBB to enter into this agreement, WIDE shall issue
and deliver to ROBB a five-year warrant to purchase 50,000 common shares at
$.75 per share. The warrant shall be prepared in a form acceptable to ROBB.
WIDE shall use its best efforts to register the shares underlying the
warrants in conjunction with the registration statement filed to register
the shares sold in a certain private offering of August 1998 (the
"Offering'). In addition, WIDE shall deliver to ROBB, at the time it
executes this agreement, its check for five thousand dollars, $5,000.00,
(US). This amount shall be a non-refundable payment as an inducement to
enter into this agreement. However such payment shall be applied against any
compensation earned by ROBB under this agreement. WIDE will reimburse ROBB
for any and all reasonable out of pocket expenses incurred by ROBB in the
performance of its duties hereunder, and ROBB shall account for such
expenses to WIDE; provided, however, that any expenses in excess of $1,000
shall require the prior written approval of WIDE, which will not be
unreasonably withheld. Such reimbursement shall accumulate and be offset or
paid monthly.
4. Wide agrees that if the Offering is consummated, Robb shall have
an irrevocable preferential right for a period of three (3) years from the
date the Offering is completed to purchase for its account or to sell for
the account of Wide, or any subsidiary of or successor to Wide, or any of
its directors or officers, any securities of Wide or any such subsidiary or
successor which Wide, any such subsidiary or successor may seek to sell
through an underwriter, placement agent or broker-dealer whether pursuant to
registration under the Act or otherwise. Wide, any such subsidiary or
successor will consult Robb with regard to any such offering and will offer
Robb the opportunity to purchase or sell any such securities on terms not
more favorable to Wide, any such subsidiary or successor than it or they can
secure elsewhere. If Robb fails to accept such offer within 15 business days
after the mailing of a notice containing such offer by registered mail
addressed to Robb, then Robb shall have no further claim or right with
respect to the financing proposal contained in such notice. If, however, the
terms of such proposal are subsequently modified in any material respect,
the preferential right referred to herein shall apply to such modified
proposal as if the original proposal had not been made. Robb's failure to
exercise its preferential right with respect to any particular proposal
shall not affect its preferential rights relative to future proposals.
5. WIDE agrees that in the event ROBB shall first introduce to WIDE
another party or entity, and that as a result of such introduction, a
transaction (a "Transaction") is consummated, WIDE shall pay to ROBB a
Transaction fee equal to five percent of the amount of the consideration
paid in such transaction up to $5 million and two and one half percent of
the excess, if any, over $5 million. For purposes hereof, "Transaction"
shall mean a merger, acquisition, business, combination, joint venture or
similar transaction, and "Consideration" shall mean the value of all cash,
securities and other property or other assets paid, received, payable or
receivable, including debt assumed, in connection with a Transaction,
including, without limitation: (a) any distributions made to shareholders
in anticipation of the closing, (b) any employment contract enhancements or
non-competition payments (other than ordinary and customary compensation in
connection with bona fide employment agreements), (c) any payments in
connection with any separate transactions affecting another business entity
or any of its assets or securities (e.g., purchase or lease of any real
estate or other assets, but in the case of a lease, Consideration shall
include only sums in excess of current rentals paid to unrelated or
unaffiliated third parties), (d) any indebtedness for money borrowed,
including receivables, pension liabilities and guarantees, which are
assumed, and (e) other business considerations (e.g. business discounts
and/or credits for services and/or products). For purposes of determining
Consideration, the value of any securities (whether debt or equity) shall be
deemed to be the greater of : (I) the fair market value thereof as of the
day the definitive agreement is executed by all parties, or (ii) the average
of the last reported sales prices of the securities on the twenty (20)
consecutive business days prior to the consummation of the Transaction as
reported on the principal exchange on which the security is listed, or, as
the case may be, the NASDAQ National Market System, provided that the value
of securities that are not freely tradable or have no established public
market shall be the fair market value thereof as reasonably agreed-upon by
the parties hereto. If any part of the Consideration shall be deferred or
contingent upon future earnings or other contingencies, then ROBB shall be
entitled to a Transaction Fee on such additional Consideration, and the term
Consideration shall include such additional compensation which shall be
payable on the basis of the payment when made by the payor. The Transaction
Fee for such Consideration paid or received in the future shall be payable
when such Consideration is paid and shall be calculated using the formula
set forth in Section B (3) by adding this subsequent Consideration to all
other Consideration previously paid.
6. All obligations of ROBB contained herein shall be subject to
ROBB's reasonable availability for such performance, in view of the nature
of the requested service and the amount of notice received. ROBB shall
devote such time and effort to the performance of its duties hereunder as
ROBB shall determine is reasonably necessary for such performance. ROBB may
look to such others for such factual information, investment
recommendations, economic advice and/or research, upon which to base its
advice to WIDE hereunder, as it shall deem appropriate. WIDE shall furnish
to ROBB all information reasonably relevant to the performance by ROBB of
its obligations under this Agreement, or particular projects as to which
ROBB is acting as advisor, which will permit ROBB to know all facts material
to the advice to be rendered, and all material or information reasonably
requested by ROBB. In the event that WIDE fails or refuses to furnish any
such material or information reasonably requested by ROBB, and thus prevents
or impedes ROBB's performance hereunder, any inability of ROBB to perform
shall not be a breach of its obligations hereunder.
7. Nothing contained in this Agreement shall limit or restrict the
right of ROBB or of any partner, employee, agent or representative of ROBB,
to be a partner, director, officer, employee, agent or representative of, or
to engage in, any other business, whether of a similar nature or not, nor to
limit or restrict the right of ROBB to render services of any kind to any
other corporation, firm individual or association.
8. ROBB will hold in confidence any confidential information which
WIDE provides to ROBB pursuant to this Agreement unless WIDE gives ROBB
permission in writing to disclose such confidential information to a
specific third party. Notwithstanding the foregoing, ROBB shall not be
required to maintain confidentiality with respect to information (I) which
is or becomes part of the public domain; (ii) of which it had independent
knowledge prior to disclosure; (iii) which comes into the possession of ROBB
in the normal and routine course of its own business from and through
independent non-confidential sources; or (iv) which is required to be
disclosed by ROBB by governmental requirements. If ROBB is requested or
required (by oral question, interrogatories, requests for information or
document subpoenas, civil investigative demands, or similar process) to
disclose any confidential information supplied to it by WIDE, or the
existence of other negotiations in the course of its dealings with WIDE or
its representatives, ROBB shall, unless prohibited by law, promptly notify
WIDE of such request (s) so that WIDE may seek an appropriate protective
order.
9. In consideration of ROBB signing this Agreement and agreeing to
perform services as WIDE's financial advisor under this Agreement, WIDE
agrees to indemnify and hold harmless ROBB and each of its directors,
officers, agents, employees and controlling person (within the meaning of
the Securities Act of 1933, as amended) to the extent and as provided in
Exhibit A attached hereto and incorporated herein by reference.
10. WIDE further agrees that ROBB shall incur no liability to WIDE
or any other party on account of this Agreement for any acts or omissions
arising out of or related to the actions of ROBB relating to this Agreement
or the performance or failure to perform any services under this Agreement
except for ROBB's intentional or willful misconduct as provided for in
Exhibit A. Neither termination nor completion of the engagement of ROBB
referred to above shall affect these indemnification provisions which shall
remain operative and in full force and effect and this paragraph and Exhibit
A shall survive the termination of this Agreement.
11. This Agreement may not be transferred, assigned or delegated by
any of the parties hereto without the prior written consent of the other
party hereto.
12. The failure or neglect of the parties hereto to insist, in any
one or more instances, upon the strict performance of any of the terms or
conditions of this Agreement, or their waiver of strict performance of any
of the terms or conditions of this Agreement, shall not be construed as a
waiver or relinquishment in the future of such term or condition, but the
same shall continue in full force and effect.
13. This Agreement is for a term of 12 months and may be terminated
by WIDE or by ROBB at any time upon 30 days' notice. Paragraphs 4, 7 and 8
shall survive the expiration or termination of this Agreement under all
circumstances.
14. Any notices hereunder shall be sent to WIDE and to ROBB at their
respective addresses set forth above. Any notice shall be given by
registered or certified mail, postage prepaid, and shall be deemed to have
been given when deposited in the United States mail. Either party may
designate any other address to which notice shall be given, by giving
written notice to the other of such change of address in the manner herein
provided.
15. This Agreement has been made in the State of New York and shall
be construed and governed in accordance with the laws thereof without giving
effect to principles governing conflicts of law.
16. This Agreement contains the entire agreement between the
parties, may not be altered or modified, except in writing and signed by the
party to be charged thereby, and supersedes any and all previous agreements
between the parties relating to the subject matter hereof.
17. This Agreement shall be binding upon the parties hereto, the
indemnified parties referred to in Section 8, and their respective heirs,
administrators, successors and permitted assigns.
If you are in agreement with the foregoing, please execute two copies
of this letter in the space provided below and return to the undersigned.
Very truly yours,
ROBB, PECK, MCCOOEY CLEARING
CORPORATION
By:_________________________________
An Authorized Representative
ACCEPTED AND AGREED TO AS OF
THE DATE FIRST ABOVE WRITTEN
WIDECOM GROUP INC.
By:________________________________
Name:
EXHIBIT A
WIDE agrees to indemnify and hold harmless ROBB, its officers,
directors, partners, employees, agents, and counsel, and each person, if
any, who controls ROBB within the meaning of Section 15 of the Act or
Section 20(a) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), against any and all losses, claims, damages, obligation,
penalties, judgments, awards, liabilities, costs expenses and disbursements
(and any and all actions, suits, proceedings and investigations in respect
hereof and any and all legal and other costs, expenses and disbursements in
giving testimony or furnishing documents in response to a subpoena or
otherwise), including, without limitation, the costs, expenses and
disbursements, as and when incurred, of investigating, preparing or
defending any such action, suit, proceeding or investigation (whether or not
in connection with litigation in which ROBB is a party), directly or
indirectly, caused by, relating to, based upon, arising out of, or in
connection with (a) any untrue statement or alleged untrue statement of a
material fact contained in, or omissions from any offering document,
including any amendment thereof or supplement thereto, or similar statements
or omissions in or from any other information furnished by WIDE to ROBB or
any prospective participant in a Transaction or purchaser of the WIDE's
securities; (b) violation or breaches of any representation, warranty,
covenant or agreement contained or incorporated in the Agreement or in any
instrument, document, agreement or certificate delivered by WIDE to ROBB or
any prospective participant in a Transaction or purchaser or the WIDE's
securities; (c) ROBB's acting for WIDE, including, without limitation, any
act or omission by ROBB in connection with its acceptance of or the
performance or non-performance of its obligations under the agreement to
which this exhibit is attached (the "Agreement"), and (d) any offering of
any security of WIDE by ROBB. WIDE also agrees that ROBB shall not have any
liability (whether direct or indirect, in contract or tort or otherwise) to
WIDE for or in connection with the engagement of ROBB or the Agreement,
except where such loss has been judicially determined to be solely due to
ROBB's gross negligence or willful misconduct.
These indemnification provisions shall be in addition to any liability
which WIDE may otherwise have to ROBB or the persons indemnified below in
this sentence and shall extend to the following: ROBB, its affiliated
entities, partners, employees, legal counsel, agents and controlling persons
(within the meaning of the federal securities laws), and the officer,
directors, employees, legal counsel, agents and controlling persons of any
of them. All references to ROBB in these indemnification provisions shall be
understood to include any and all of the foregoing.
If any action, suit, proceeding or investigation is commenced, as to
which ROBB proposes to demand indemnification, it shall notify WIDE with
reasonable promptness (provided, however, that any failure by ROBB to notify
WIDE shall not relieve WIDE from its obligations hereunder), and WIDE shall
have the right to assume the defense of such action. ROBB shall have the
right to retain counsel of its own choice to represent it, but the fees and
expenses of such counsel shall be at its expense unless the employment of
such counsel shall have been authorized in writing by WIDE in connection
with the defense of such action or WIDE shall not have promptly employed
counsel reasonably satisfactory to ROBB to have charge of the defense of
such action or ROBB shall have reasonably concluded that there may be one or
more legal defenses available to it which are different from or additional
to those available to WIDE, in any of which events such fees and expenses
shall be borne by WIDE. Any such counsel of ROBB shall, to the extent
consistent with its professional responsibilities, cooperate with WIDE and
any counsel designated by WIDE. WIDE shall be liable for any settlement of
any claim against ROBB made with WIDE's written consent, which consent shall
not be unreasonably withheld. WIDE shall not, without the prior written
consent of ROBB, settle or compromise any claim, or permit a default or
consent to the entry of any judgment in respect thereof, unless such
settlement, compromise or consent includes, as a unconditional term thereof,
the giving by the claimant to ROBB of an unconditional release from all
liability in respect of such claim.
In order to provide for just and equitable contribution, if a claim
for indemnification pursuant to these indemnification provisions is made but
it is found in a final judgment by a court of competent jurisdiction (not
subject to further appeal) that such indemnification may not be enforced in
such case, even though the express provisions hereof provide for
indemnification in such case, then WIDE, on the one hand, and ROBB, on the
other hand, shall contribute to the losses, claims, damages, obligations,
penalties, judgments, awards, liabilities, costs expenses and disbursements
to which the indemnified person may be subject in accordance with the
relative benefits received by WIDE, on the one hand, ROBB, on the other
hand, and also the relative fault of WIDE, on the one hand, and ROBB, on the
other hand, in connection with the statements, acts or omissions which
resulted in such losses, claims, damages, obligations, penalties, judgments,
awards, liabilities, costs, expenses or disbursements and the relevant
equitable considerations shall also be considered. No person found liable
for a fraudulent misrepresentation shall be entitled to contribution from
any person who is not also found liable for such fraudulent
misrepresentation. Notwithstanding the foregoing, ROBB, shall not be
obligated to contribute any amount hereunder that exceeds the amount of fees
previously received by ROBB pursuant to the Agreement.
Neither termination nor completion of the engagement of ROBB referred
to above shall affect these indemnification provisions which shall remain
operative and in full force and effect and this paragraph shall survive the
termination of this agreement. WIDE further agrees that ROBB shall incur no
liability to WIDE or any other party on account of this Agreement for any
acts or omissions arising out of or related to the actions of ROBB relating
to this Agreement or the performance or failure to perform any services
under this Agreement except for ROBB's intentional or willful misconduct.