October 8, 1997
Xx. Xxxxxx Xxxxxxxx
Xxxxxxxx Pacific Corporation
0000 Xxxxx Xxx. Tower, 25th Fl.
Xxxxxxx, XX 00000
Dear Xxxxxx:
This letter agreement (the "Agreement") will confirm the terms and
conditions of our mutual understanding concerning the engagement of Xxxxx &
Associates, LLP ("Consultant") by your firm, Barretto Pacific Corporation,
("Barretto") to do the following and to act in the following capacities:
1. Prepare and file Articles of Incorporation, prepare Bylaws, draft
appropriate minutes and board resolutions for a Maryland corporation
by the name of Xxxxxxx Industries, Inc. ("Xxxxxxx" or the "Company")
or such other name as available in the State of Maryland and agreed
upon by Barretto or its employees.
2. Prepare a draft offering circular ("Xxxxxxx Offering Circular") in
compliance with Regulation E of the Securities Act of 1933, for a
direct public offering of securities ("Xxxxxxx Securities") by
Xxxxxxx, its agents, assigns, or designees;
3. Prepare and file all appropriate forms with the Securities and
Exchange Commission in connection with the Xxxxxxx Offering Circular;
4. Prepare and file all appropriate forms and notice applications needed
to comply with the United States Blue Sky Laws concerning initial
issuer transactions in each of the States in which the Xxxxxxx
Offering Circular will be presented;
5. Prepare and file all appropriate forms and notice applications needed
to comply with the Canadian Securities Laws and other appropriate
Provincial laws and regulations as they may apply in each of the
respective provinces in which the Xxxxxxx Offering Circular will be
presented for the sale of Xxxxxxx Securities.
6. To act as Interim Corporate Secretary or Assistant Secretary of
Xxxxxxx for such period as may be reasonably necessary for Xxxxxxx to
find, hire and train a Corporate Secretary, where said appointment
shall not exceed three months from the date of completion of the
Xxxxxxx Offering Circular.
All of the above tasks and understandings together shall be described
hereinafter as "Consulting Work". All references herein to dollars shall refer
to United States currency.
In exchange for covenanting to faithfully performing the aforementioned
Consulting Work, Xxxxxxx shall agree to the following;
7. Compensation: In exchange for providing a significant amount of
existing work product to Barretto and Xxxxxxx consisting of adapting
the contents of an offering circular which has been developed over the
past six months for a different company by Consultant and where said
offering circular will be used as a template for the Xxxxxxx Offering
Circular, Xxxxxxx, upon formation, and Barretto as third party
guarantor, agrees to the following terms of employment of Consultant:
a) Consultant shall receive the sum of $7,000 as an initial retainer
to commence the Consulting Work;
b) Consultant shall receive the sum of $10,000 within one business
day of delivering the first completed draft of the Xxxxxxx
Offering Circular to Barretto for initial review.
c) Consultant shall receive the sum of $8,000 upon completion of and
on the same business day of filing the Xxxxxxx Offering Circular
and all accompanying exhibits as required by Form 1-E with the
United States Securities and Exchange Commission.
d) Consultant shall receive an additional $115,000 as additional
compensation for the preparation and completion of the Consulting
Work, payable as follows:
(i) $50,000 will be disbursed to Consultant within one business
day after receipt of the first $100,000 of funds received by
Xxxxxxx, its associates, assigns, or designees pursuant to
the Xxxxxxx Offering Circular or any variation thereof hence
adapted;
(ii) $45,000 disbursed to Consultant within one business day
after receipt of the second $100,000 of funds received by
Xxxxxxx, its associates, assigns or designees pursuant to
funds raised in connection with the Xxxxxxx Offering
Circular or any variation thereof hence adapted;
(iii)$20,000 disbursed to Consultant within one business day
after receipt of the third $100,000 received by Xxxxxxx, its
associates, assigns or designees pursuant to funds raised in
connection with the Xxxxxxx Offering Circular or any
variation thereof hence adapted;
All disbursements pursuant to paragraphs 8(d)(i)-(iii) above shall be made
on receipt of funds by Xxxxxxx whether said funds so received by Xxxxxxx are in
the form of cash, cash equivalents, or free trading marketable securities. In
the event that Xxxxxxx receives free trading marketable securities, Consultant
agrees to receive compensation in the form of such securities, where the market
value of said securities will be determined and based on the bid price of said
securities one day prior to the due date of each payment.
Additional Covenants and Representations:
8. We represent and warrant that the services will be performed in a
competent and efficient manner and that they will at all times be performed in
compliance with all applicable laws and legal requirements. We further agree to
provide Barretto with a time line estimate of the approximate time each part of
the Consulting Work will be completed;
9. You agree to provide us with monthly statements of the account in which
you will deposit all proceeds received pursuant to the offering contemplated
herein. You shall use your bona fide efforts to promote the interests of Xxxxxxx
and shall, during the term of the Agreement, devote as much time, attention and
ability to the promotion of the business of Xxxxxxx as is necessary to provide
effective promotion of Xxxxxxx and the sale of its initial public offering of
securities pursuant to the Xxxxxxx Offering Circular;
10. Any notice required or permitted to be given by this Agreement shall be
in writing and may be given by personal delivery or postage prepaid, registered
or certified mail. Such notices shall be addressed to the receiving party at our
respective addresses set forth above or at such other addresses as either of us
may, by notice, designate. Notices personally given shall be deemed to be given
as of the date of delivery and electronic and/or mailed notices shall be deemed
to be given as of the date of delivery;
11. This Agreement shall inure to the benefit of and be binding upon the
parties hereto and their respective successors and permitted assigns, as the
case may be;
12. Each provision and paragraph of this Agreement is declared to
constitute a separate and distinct covenant and to be severable from all other
such separate and distinct covenants under this Agreement. If any covenant or
provision herein contained is determined to be void or unenforceable, in whole
or in part, such determination shall not affect or impair the validity or
enforceability of any other covenant or provision contained in this Agreement
and the remaining provisions of this Agreement shall be valid and enforceable to
the fullest extent provided by law;
13. This Agreement may not be assigned;
14. This Agreement replaces, supersedes, and cancels all prior Agreements,
representations, and understandings between the Company and yourselves in
respect of the subject matter of this Agreement;
15. The provisions of this Agreement and the relationship between the
parties shall be construed in accordance with and governed by the laws of the
State of California. The parties hereby attorn to the jurisdiction of the courts
of the State of California, venue of San Francisco County;
16. No amendment or waiver of any provision of this Agreement shall be
binding upon a party unless made in writing and signed by such party;
17. The parties will execute and deliver all such further documents and
instruments and do all such further acts and things as may be required to carry
out the full intent and meaning of this Agreement.
18. The parties agree that facsimile counterparts of this agreement shall
constitute originals as that term is defined by the United States Federal Rules
of Evidence Code Section 800, et. seq. and that the parties herein agree to
receipt of and treatment of facsimile initials and signatures a constituting an
original acknowledgement herein.
If the foregoing meets your approval, please sign a copy of this letter
agreement and return a copy thereof in non-electronic format to me at your
earliest convenience.
Yours Very Truly,
/s/ Xxxx X. Xxxxx
Xxxx X. Xxxxx, Esq.
Managing Partner
Xxxxx & Associates, L.L.P.
Agreed to By:
/s/ Xxxxxx Xxxxxxxx
Xxxxxx Xxxxxxxx
Xxxxxxxx Pacific Corporation
President & CEO
