PaineWebber
November 19. 1997
Confidential
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World Wireless Communication, Inc.
150 Wright Brothers Drive/Suite 560
Salt Lake City, Utah
84116
Attention: David Singer
Gentlemen:
This will confirm the engagement of PaineWebber Incorporated
("PaineWebber") as exclusive financial advisor to World Wireless Communications,
Inc. (the "Company") to perform such general investment banking services as
PaineWebber and the Company may agree upon from time to time. PaineWebber's
engagement hereunder shall extend through December 31, 1998, and may be extended
by mutual agreement. The provisions of this Agreement relating to the payment of
fees and expenses and indemnification and contribution will survive any
expiration, termination or supersession of this Agreement.
As compensation for PaineWebber's services, the Company will pay
PaineWebber fees, collectively, ("Advisory Fees") as follows: (i) $25,000 upon
execution of this Agreement, (ii) $25,000 payable on December 31, 1997 and (iii)
$50,000 payable on each of the last business days of January, February, March
and April, 1998. Fees payable to PaineWebber for additional services will be
mutually agreed upon, and where appropriate, will be the subject of separate
engagement letters. The Company will reimburse PaineWebber for its out-of-pocket
expenses, including, without limitation, fees, disbursements and other charges
of its legal counsel, and will indemnify PaineWebber pursuant to the attached
standard Indemnification Agreement.
As the Company's financial advisors, PaineWebber may from time to time
introduce the Company to potential investors ("Investors") who may elect to
purchase securities issued by the Company or any of its subsidiaries or
affiliates on a private basis (a "Security Sales Transaction") or may provide
financing to, or make an investment in, the Company or any of its subsidiaries
or affiliates. To the extent that any Investor introduced by PaineWebber
purchases securities in a Security Sales Transaction or otherwise provides
financing to, or makes an investment in, the Company or any of its subsidiaries
or affiliates, PaineWebber will receive a
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transaction fee ("Transaction Fee") in an amount equal to 6.0% of the Aggregate
Consideration received by the Company or any of its stockholders or its
affiliates, upon their receipt of the Aggregate Consideration. The Company
understands that PaineWebber will in no way be obligated to introduce any
Investors to the Company nor is PaineWebber obligated in any way to assist the
Company in arranging for the sale of Company securities through a private
placement or other means or to provide or arrange for financing of any kind for
the Company.
The Company shall pay to PaineWebber all fees as described in the
immediately preceding paragraph in the event that at any time during this
engagement and for a period of 12 months after the termination or expiration of
this Agreement any Security Sales Transaction, financing or investment occurs
with any investor identified or contacted by the Company or PaineWebber during
the term of this Agreement.
If a Security Sales Transaction, financing or investment has been
consummated and one or more additional Security Sales Transactions,
financings or investments ("Additional Transactions") are consummated by the
Company (or any affiliate or subsidiary thereof) within 12 months from the
closing date of the initial Security Sales Transaction, financing or investment
with any investor who purchased securities or provided financing to or made an
investment in the Company during the term of this Agreement, PaineWebber shall
be entitled to receive an additional fee (the "Additional Fees") in an amount
equal to 3% of the Aggregate Consideration received by the Company or any of its
stockholders or its affiliates upon their receipt of the Aggregate
Consideration.
The definition of "Aggregate Consideration" for purposes of calculating
PaineWebber's fee shall be deemed to include: (i) the total fair market value of
all cash and other consideration paid for securities in a Security Sales
Transaction by any investors, as well as any amounts paid in escrow and amounts
payable in the future and (ii) the gross proceeds of any financing or investment
received by the Company or any of its stockholders or affiliates as well as any
amounts paid in escrow and amounts payable in the future. The portion of
PaineWebber's fee relating to any future payments shall be calculated and paid
when and as such future payments are made. The fair market value of any
consideration other than cash will be determined by PaineWebber and the Company.
Up to $50,000 of Transaction Fees shall be offset against Advisory Fees
paid or payable to PaineWebber during the term of this Agreement. In addition,
if, prior to April 30, 1998, any fees or underwriting discounts and commissions
have been paid or are payable to PaineWebber for performing any of the
additional services described in the immediately following paragraph of this
Agreement, the $50,000 Advisory Fee payable on April 30, 1998 shall no longer be
payable.
As a further inducement to PaineWebber for accepting this engagement,
the Company agrees that during the term of this Agreement and for a period
of 24 months after the termination of this Agreement, the Company shall notify
PaineWebber of any plans the Company may have to consummate any (1) acquisition
with respect to which the Company will engage a financial advisor, (2)
disposition for which the Company will engage a financial advisor, (3) private
placement of securities, (4) financing with any bank, insurance company or other
financial institution, or (5) public offering of securities, and shall grant to
PaineWebber the opportunity to act as exclusive financial advisor, lead
placement agent or managing underwriter in connection
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with any of the foregoing, as the case may be, at fees and/or discounts which
are mutually acceptable to the Company and PaineWebber; provided, however, that
if PaineWebber indicates that it is willing to act as exclusive financial
advisor, lead placement agent or managing underwriter in connection with any of
the foregoing, but PaineWebber and the Company are unable to agree upon an
acceptable fee and/or discount, the Company may engage any other appropriate
financial institution to act as exclusive financial advisor, lead placement
agent or managing underwriter in connection therewith, but only if (a) the fees
payable to such other institution or the underwriting discount which would be
earned by such other institution, will be less than those which PaineWebber
indicated it would accept, and (b) prior to engaging such other financial
institution, the Company offers PaineWebber the opportunity to act as exclusive
financial advisor, lead placement agent or managing underwriter as the case may
be, on the same financial terms that such other financial institution had agreed
to accept. The foregoing notwithstanding, under no circumstance shall
PaineWebber be obligated to accept any offer to act as the Company's advisor,
placement agent or underwriter, and nothing contained herein shall constitute
the agreement of PaineWebber to so act.
The Company will furnish PaineWebber with such information as
PaineWebber believes appropriate to its assignment (all such information so
furnished being the "Information"). The Company recognizes and confirms that
PaineWebber (a) will use and rely primarily on the Information and on
information available from generally recognized public sources in performing
the services contemplated by this Agreement without having independently
verified the same, (b) does not assume responsibility for the accuracy or
completeness of the Information and such other information and (c) will not make
any appraisal of any assets of the Company. To the best of the Company's
knowledge, the Information to be furnished by the Company when delivered, will
be true and correct in all material respects and will not contain any material
misstatement of fact or omit to state any material fact necessary to make the
statements contained therein not misleading. The Company will promptly notify
PaineWebber if it learns of any material inaccuracy or misstatement in, or
material omission from, any Information theretofore delivered to PaineWebber.
It is understood that PaineWebber is being engaged hereunder solely to
provide the services described above to the Company and that PaineWebber is not
acting as an agent or fiduciary of, and shall have no duties or liability to,
the equity holders of the Company or any other third party in connection with
its engagement hereunder, all of which are hereby expressly waived.
The Company agrees to the indemnification and other agreements set
forth in the Indemnification Agreement attached hereto, the provisions of which
are incorporated herein by reference and shall survive the termination,
expiration or supersession of this Agreement.
PaineWebber's engagement hereunder may be terminated by either the
Company or PaineWebber at any time upon written notice to that effect to the
other party, it being understood that the provisions relating to the payment of
fees and expenses, the right of first refusal with respect to certain future
transactions that may be undertaken by the Company and indemnification and
contribution will survive any such termination.
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THIS AGREEMENT WILL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE
PERFORMED ENTIRELY IN SUCH STATE.
EACH OF THE COMPANY AND PAINEWEBBER AGREE THAT ANY ACTION OR PROCEEDING
BASED HEREON, OR ARISING OUT OF PAINEWEBBER'S ENGAGEMENT HEREUNDER, SHALL BE
BROUGHT AND MAINTAINED EXCLUSIVELY IN THE COURTS OF THE STATE OF NEW YORK
LOCATED IN THE CITY AND COUNTY OF NEW YORK OR IN THE UNITED STATES DISTRICT
COURT FOR THE SOUTHERN DISTRICT OF NEW YORK. THE COMPANY AND PAINEWEBBER EACH
HEREBY IRREVOCABLY SUBMIT TO THE JURISDICTION OF THE COURTS OF THE STATE OF NEW
YORK LOCATED IN THE CITY AND COUNTY OF NEW YORK AND OF THE UNITED STATES
DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK FOR THE PURPOSE OF ANY SUCH
ACTION OR PROCEEDING AS SET FORTH ABOVE AND IRREVOCABLY AGREE TO BE BOUND BY ANY
JUDGMENT RENDERED THEREBY IN CONNECTION WITH SUCH ACTION OR PROCEEDING. EACH OF
THE COMPANY AND PAINEWEBBER HEREBY IRREVOCABLY WAIVE, TO THE FULLEST EXTENT
PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY HAVE OR HEREAFTER MAY HAVE TO THE
LAYING OF VENUE OF ANY SUCH ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT
REFERRED TO ABOVE AND ANY CLAIM THAT ANY SUCH ACTION OR PROCEEDING HAS BEEN
BROUGHT IN AN INCONVENIENT FORUM.
The Company (for itself, anyone claiming through it or its name, and on
behalf of its equity holders) and PaineWebber each hereby irrevocably waive any
right they may have to a trial by jury in respect of any claim based upon or
arising out of this Agreement or the transactions contemplated hereby. This
Agreement may not be assigned by either party without the prior written consent
of the other party.
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This Agreement (including the attached Indemnification Agreement)
embodies the entire agreement and understanding between the parties hereto and
supersedes all prior agreements and understandings relating to the subject
matter hereof. If any provision of this Agreement is determined to be invalid or
unenforceable in any respect, such determination will not affect such provision
in any other respect or any other provision of this Agreement, which will remain
in full force and effect. This Agreement may not be amended or otherwise
modified or waived except by an instrument in writing signed by both PaineWebber
and the Company.
Please confirm that the foregoing correctly sets forth our agreement by
signing and returning to PaineWebber the enclosed original copy of this
Agreement and the Indemnification Agreement.
Very truly yours,
PAINEWEBBER INCORPORATED
By /s/ Thomas D. Dale
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Thomas D. Dale
First Vice President
Accepted and Agreed to as of
the date first written above:
World Wireless Communication, Inc.
By:/s/ David Singer
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David Singer
Chairman and President
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