EXHIBIT 4.13
GLOBALTEX INDUSTRIES INC.
Suite 501 - 000 Xxxxxxx Xxxxxx
Xxxxxxxxx, XX X0X 0X0
Xxxxxx
Xxxxx 00, 0000
Xxxxxx X. X'Xxxxx
And
LOGG Investment Research Inc.
0000 0xx Xxxxxx
Xxxxxx, XX
XXX 00000
Dear Sirs,
Re: Corporate Finance Services Agreement
We are writing to set out the agreement between Globaltex Industries Inc.
(referred to herein as the "Corporation"), LOGG Investment Research Inc.
(referred to herein as "LOGG") and Xxxxxx X. X'Xxxxx ("O'Brien"), a controlling
shareholder and senior officer of LOGG, under which LOGG agrees to provide the
Services (as defined below) to the Corporation in accordance with the terms and
conditions set out below.
1. Interpretation
Certain terms used in this agreement are defined in Schedule A which is
attached to and is part of this agreement.
2. Services
The Corporation hereby engages LOGG to be its non-exclusive agent, and LOGG
agrees to act as the Corporation's agent, to use reasonable commercial efforts
to obtain capital for the Corporation or otherwise arrange for the Corporation
and its shareholders to receive capital or other value added benefits, from:
(a) equity financing; (b) debt financing; or (c) a merger, acquisition,
arrangement, or purchase and sale of assets (collectively, the "Services"),
provided, however, that LOGG provides no assurances that its efforts will be
successful. It is a fundamental term of this agreement that LOGG will furnish
the Services to the Corporation through O'Brien, and neither this agreement nor
any of the Services will be performed by anyone other than O'Brien without the
Corporation's prior written consent.
3. Compensation
In consideration of the mutual promises made under this agreement, the
Corporation agrees to pay to LOGG the compensation described in subsections
3(a), 3(b) and 3(c) below.
(a) If the Corporation completes one or more transactions involving equity or
debt financing of any nature with a person who was introduced to the
Corporation by LOGG within the twelve (12) months immediately prior to the
closing of each such transaction, then the Corporation will pay to LOGG a cash
fee determined as follows: seven percent (7.0%) of the first CAD $1 million of
the aggregate Consideration received by the Corporation from each such person,
and five percent (5.0%) of the balance of such aggregate Consideration.
(b) If the Corporation completes a merger, amalgamation, arrangement,
acquisition, or sale or purchase of substantially all assets of a person, with
a person who was introduced to the Corporation by LOGG within twelve (12)
months immediately prior to the closing of such transaction, then the
Corporation will pay to LOGG cash and/or Securities having a value equal to two
percent (2.0%) of the first CAD $25 million of the aggregate Consideration, and
one percent (1.0%) of the balance of the aggregate Consideration, provided that
the proportion of any payment to LOGG under this subsection (b) that is in
the form of cash will be equal to the proportion of aggregate Consideration for
the applicable transaction that is in the form of cash.
(c) If the Corporation completes a merger, amalgamation, arrangement,
acquisition, or sale or purchase of substantially all assets of a person, with
a person other than a person who was introduced to the Corporation by LOGG (the
"completed transaction") in circumstances where a person introduced to the
Corporation by LOGG within twelve (12) months immediately prior to the closing
of the completed transaction made an offer to the Corporation to complete a
transaction having a structure that was substantially similar to the completed
transaction (the "proposed transaction"), which offer was sufficiently detailed
such that it was capable of acceptance by the Corporation without material
qualifications and the Corporation's directors resolved, prior to approving an
agreement in principle for the transaction that would become the completed
transaction, that it would be reasonable for the Corporation to give full
consideration to the proposed transaction, and such person introduced to the
Corporation by LOGG was introduced to the Corporation prior to the Corporation
reaching an agreement in principle on the transaction that would become the
completed transaction and was substantially ready, willing and able to complete
the proposed transaction, then the Corporation will pay to LOGG cash and/or
Securities having a value calculated as if the completed transaction was a
transaction under subsection 3(b) with a person who was introduced to the
Corporation by LOGG within twelve (12) months prior to the closing of the
completed transaction.
All cash payments due to LOGG pursuant to subsections 3(a), 3(b) and 3(c) will
be determined and paid by Corporation in the same currency in which the cash
Consideration giving rise to the payment was denominated and will be net of
statutory withholding taxes applicable to such payments.
Any payment to LOGG in the form of Securities will be subject to the
availability of applicable registration and prospectus exemptions available
under and applicable hold periods imposed by the British Columbia Securities
Act and Rules thereto and, if at any relevant time LOGG is a resident of any
jurisdiction other than British Columbia, the securities laws of such other
jurisdiction. LOGG will consult with its own legal counsel in connection with
the legal restrictions applicable to such Securities.
For greater clarity, for the purpose of calculating the amount, if any, due to
LOGG under subsection 3(a), 3(b) and 3(c), the Consideration received by the
Corporation from the same person in successive transactions or from affiliated
persons in the same or successive transaction(s) will be aggregated and treated
as a single amount.
Under no circumstances will the Corporation be required to pay to LOGG any
additional amounts in the nature of a finder's fee or commission in connection
with any transaction of the kind described in subsections 3(a), 3(b) or 3(c) or
otherwise.
4. Corporate Information
Upon the request of LOGG, the Corporation will provide to LOGG: (a) such
current financial and other information on the business and affairs of the
Corporation as is reasonably necessary for the purpose of LOGG providing the
Services to the Corporation pursuant to section 2 above; and (b) current
information concerning the status and terms of negotiations between the
Corporation or its affiliates and any person who was introduced to the
Corporation by LOGG.
5. Confidentiality
LOGG agrees that:
(a) LOGG will not use any Confidential Information for any purpose whatsoever
except in connection with providing Services to the Corporation pursuant to
this agreement;
(b) LOGG will not disclose any Confidential Information to any person without
first identifying the proposed recipient and a description of the information
to be disclosed to the Corporation and receiving the Corporation's written
consent to the disclosure;
(c) the Corporation, it its sole discretion, may require a proposed recipient
identified pursuant to subsection 5(b) to enter into a confidentiality
agreement as a condition of the Corporation permitting a proposed disclosure of
Confidential Information;
(d) LOGG will take all reasonable steps to minimize the risk of unauthorized
disclosure of the Confidential Information and will treat the Confidential
Information with at least the same level of care with which it treats its own
confidential information;
(e) if LOGG or anyone to whom it transmits Confidential Information pursuant
to this agreement becomes legally compelled to disclose any Confidential
Information, LOGG will provide the Corporation with prompt notice so that the
Corporation may seek a protective order or other appropriate remedy at law or
in equity and/or waive compliance with the provisions of this agreement. If
such a protective order or other remedy is not obtained, or the Corporation
does not waive compliance with the provisions of this agreement, LOGG will
disclose only that portion of the Confidential Information which it is legally
required to disclose;
(f) LOGG acknowledges that it will continue to be bound to hold the
Confidential Information in confidence after the termination of this agreement;
(g) all Confidential Information reduced to writing or otherwise contained on
any recorded media (e.g. a computer disk driver), together with any copies
thereof, will be returned to the Corporation promptly upon the request of the
Corporation;
(h) LOGG acknowledges that the Confidential Information is proprietary and
confidential and that the Corporation would be irreparably damaged if any of
tthe provisions contained in this agreement are not performed in accordance
with the terms set out and, therefore, LOGG agrees that the Corporation, in
addition to and without limiting any other rights or remedies that the
Corporation may have, will have the right to an injunction or other available
equitable relief in any court of competent jurisdiction, enjoining any such
threatened or actual breach of this agreement by LOGG or any of its employees,
professional consultants and advisors. LOGG agrees that the existence of this
right to an injunction or other available equitable relief will not preclude
the Corporation from pursuing any other rights and remedies at law or in equity
which the Corporation may have, including recovery of any and all losses,
damages, liabilities and expenses (including reasonable costs of investigation
and legal fees);
(i) all right, title and interest in and to the Confidential Information will
remain the exclusive property of the Corporation. No interest, licence or any
right respecting the Confidential Information, other than as expressly set out
herein, is granted to LOGG under this agreement, by implication or otherwise;
and
(j) without limiting LOGG's obligations under section 12 below, LOGG will
indemnify and hold harmless the Corporation, its directors, officers, agents,
employees, shareholders, and affiliates from and against any and all losses,
claims, damages, liabilities and expenses (including reasonable costs of
investigation and legal fees) arising out of or based upon any actual or
alleged breach or default of, misrepresentation in, or failure under, any
warranty, representation, or obligation made by or imposed upon LOGG in this
section 5;
(k) provided that the provisions of subsections 5(a) to 5(j), inclusive, will
not apply if the information alleged to be Confidential Information was in the
possession of the receiving party or was in the public domain prior to
disclosure of that information under this agreement, in either such case, in
circumstances and as a result of actions that did not involve any breach of an
obligation to keep the information confidential and without any obligation to
maintain the same in confidence.
6. Timing of Payments
All fees and other compensation due to LOGG under section 3 of this agreement
will be paid by the Corporation to LOGG upon, but not prior to, the closing of
the applicable transaction, including the receipt of all third-party consents
required for the commpletion of the transaction. Under no circumstances will
any payment be due under section 3 in respect of a transaction that does not,
for any reason, close.
7. Expenses to be Reimbursed
The Corporation will reimburse LOGG, up to an aggregate maximum of US $300.00
per month, for its reasonable out-of-pocket expenses incurred in the course of
providing the Services during the term of this agreement. Such out-of-pocket
expenses will include, but are not limited to expenses incurred in connection
with telephone, fax messaging, deliveries, and travel and, with the prior
consent of the Corporation, the fees of legal counsel or other agents or
advisors retained by LOGG in the course of providing the Services. LOGG will
invoice the Corporation monthly for expenses. Any expenses exceeding the
maximum must be pre-approved by the Corporation. Invoices will include a
summary of incurred expenses and a receipt for each expenditure. The
Corporation will pay such invoices within 30 days of receipt in accordance with
the terms of this section 7. Except as expressly provided in this section 7,
LOGG will be solely responsible for all of its expenses incurred in connection
with this agreement including, without limitation, any and all amounts due to
LOGG's agents, consultants, contractors and employees.
8. Introduced by LOGG
For the purposes of this agreement, a person will be considered to have been
"introduced to the Corporation by LOGG" if such a person:
(a) was introduced to the Corporation, its directors, officers, or senior
management employees, as the case may be, substantially through the efforts of
LOGG; and
(b) at the time of the introduction and principally as a result of the pre-
introduction efforts of LOGG, has been fully informed of the material facts of
Corporation's business and affairs, including the status of its major projects
and the material agreements governing those projects, to the extent necessary
to prepare the person to immediately enter into substantive negotiations with
the Corporation concerning (i) equity financing; (ii) debt financing; or (iii)
a merger, acquisition, arrangement, or purchase and sale of assets.
LOGG will introduce to the Corporation any person who discloses to it a
proposal to complete one or more transactions with the Corporation involving
equity or debt financing of any nature, or a merger, amalgamation, arrangement,
acquisition, or sale or purchase of substantially all assets of a person. For
each person introduced to the Corporation by LOGG, LOGG will provide the name
of the person, its contact information and a summary of LOGG's pre-introduction
efforts to qualify the introduction. In each case, the Corporation will have
three (3) business days following the introduction within which to notify LOGG
whether the person introduced is disqualified as a person "introduced to the
Corporation by LOGG" pursuant to this section 8.
Notwithstanding the other provisions of this agreement, the Corporation's
directors, acting in their sole discretion and for any reason, will have the
conclusive authority to determine whether the Corporation will enter into any
discussions or negotiations, conclude any agreement, or complete any
transaction with any person introduced to the Corporation by LOGG or otherwise.
9. Term
This agreement will continue until the later of twelve (12) months from the
date of this agreement and termination by either party, with or without cause,
upon delivery of sixty (60) days' advance written notice by one party to the
other; provided, however, that termination will not limit, modify, or otherwise
affect the rights of LOGG to receive any amounts due to it pursuant to the
terms of section 3 in connection with any transaction completed by the
Corporation with a person who was introduced to the Corporation by LOGG prior
to the termination of this agreement and expenses properly incurred by LOGG
prior to notice of termination being given and due to LOGG pursuant to section
7 above.
10. Compliance with Securities Laws
The Corporation will furnish to LOGG and potential investors in a timely manner
all information and documents, and will otherwise take all actions necessary or
desirable to comply with, Canadian federal and provincial and U.S. federal and
state securities laws and other laws, stock exchange and stock market policies
applicable to transactions undertaken by the Corporation and to which this
agreement applies.
11. No Partnership
In providing Services to the Corporation under this agreement, LOGG will be an
independent contractor, and no party to this agreement will make any
representations or statements indicating or suggesting that any joint venture,
partnership, or other such relationship exist between LOGG and the Corporation.
LOGG will not be entitled to engage agents, make any commitments or create any
obligations on behalf of the Corporation without the Corporation's prior
written consent. LOGG will make such lack of authority clear to all persons
with whom it deals in the course of carrying on business in connection with
this agreement.
LOGG will have no right to participate in any discussions or negotiations
between the Corporation and a person introduced to the Corporation by LOGG
after LOGG has made the introduction.
12. Indemnities
Each party hereto (the "indemnifying party") agrees to indemnify and hold
harmless the other party hereto, its directors, officers, agents, employees,
shareholders, and affiliates, and each person who controls any such indemnified
parties from and against any and all losses, claims, damages, liabilities and
expenses (including reasonable costs of investigation and legal fees) arising
out of or based upon any actual or alleged breach or default of,
misrepresentation in, or failure under, any warranty, representation, or
obligation made by or imposed upon the indemnifying party in this agreement or
in connection with any transaction contemplated hereunder.
13. Corporate Authority
The Corporation hereby represents and warrants to LOGG that:
(a) the Corporation has the corporate power and capacity to enter into this
agreement and to perform its obligations hereunder;
(b) the execution and delivery of this agreement and the performance by the
Corporation of its obligations hereunder, will not conflict with, violate, or
result in a breach of its constating documents, any material provision of any
agreement or other document to which it is party and which is material to it,
or any provincial, state, federal or local ordinance, statute or other law to
which the Corporation is bound or subject; and
(c) this agreement has been duly authorized, executed and delivered by the
Corporation, and is a legal, valid and binding obligation of Corporation,
enforceable against it in accordance with its terms.
14. Survival
The provisions of sections 3, 5, 6, 7, 9, and 12 herein will survive the
termination of this agreement.
15. Corporate Authority
LOGG hereby represents and warrants to the Corporation that:
(a) LOGG has the corporate power and capacity to enter into this agreement and
to perform its obligations hereunder;
(b) the execution and delivery of this agreement and the performance by LOGG
of its obligations hereunder, will not conflict with, violate, or result in a
breach of its constating documents, any material provision of any agreement or
other document to which it is party and which is material to it, or any
provincial, state, federal or local ordinance, statute or other law to which
LOGG is bound or subject; and
(c) this agreement has been duly authorized, executed and delivered by LOGG,
and is a legal, valid and binding obligation of LOGG, enforceable against it in
accordance with its terms.
16. Assignment
This agreement will inure to the benefit of and be binding upon LOGG, O'Brien
and the Corporation and, as applicable, any of their respective heirs,
successors and permitted assigns. This agreement may not be assigned without
the prior written consent of all parties hereto.
17. Entire Agreement
This agreement constitutes the entire agreement between the Corporation, LOGG
and O'Brien with respect to the subject matter of this agreement, and contains
all of the covenants and agreements of the Corporation, LOGG and O'Brien with
respect thereto. Each of the Corporation, LOGG and O'Brien hereby acknowledge
that no representations, inducements, promises or agreements, oral or written,
have been made by them, or anyone acting on their behalf, which are not
contained herein, and any prior agreements, promises, negotiations, or
representations with respect to the subject matter hereof, whether written or
oral, not expressly set forth in this agreement are of no force or effect.
This agreement may be amended or modified only by an amendment in writing
signed by all parties hereto.
18. Governing Law
All questions regarding the validity, interpretation, performance and
enforcement of the provisions of this agreement will be governed by the laws of
the Province of British Columbia and the laws of Canada applicable therein, and
all disputes and claims relating thereto will be determined before the courts
of British Columbia and by execution of this agreement, each of the parties
irrevocably attorns to the jurisdiction of such courts.
19. Notices
All notices required or permitted to be given to either party will be in
writing and will be given by delivery or facsimile transmission to the party at
the address set forth below, and all such notices will only be deemed given
upon actual delivery or completed facsimile transmission. Either party may
change its address for notice by giving notice to the other party in the manner
set forth above.
To Corporation:
#000 - 000 Xxxxxxx Xxxxxx
Xxxxxxxxx, XX X0X 0X0
Attention: President
Fax: (000) 000-0000
To LOGG and O'Brien:
0000 0xx Xxxxxx
Xxxxxx, XX
XXX 00000
Fax: 0-000-000-0000
20. Further Assurances
The parties will promptly execute and deliver all such further assurances and
other documents and instruments and do such further and other things as may be
necessary or desirable to implement and carry out the intent of this agreement.
Further, O'Brien hereby assures and personally guarantees to the Corporation
the due, punctual and complete performance by LOGG of each and all of its
covenants, agreements and obligations set forth in this agreement.
20. CDNX Approval
Notwithstanding the foregoing:
(a) this agreement and the transactions contemplated hereunder, including any
equity or debt financing, a merger, acquisition, or arrangement involving the
Corporation; or purchase and sale of all or substantially all of the assets of
the Corporation is or will, as the case may be, subject to acceptance for
filing by the Canadian Venture Exchange ("CDNX");
(b) in the event that any payment due to LOGG under this agreement exceeds the
amount acceptable to the CDNX in the circumstances, the amount due will be
reduced to the maximum amount acceptable to the CDNX; and
(c) in the event that the form any payment due to LOGG under this agreement,
as between cash and Securities or types of Securities, is not acceptable to the
CDNX, the for of the payment will be amended, at the discretion of the
Corporation, to the extent necessary to satisfy the CDNX.
21. Time for Acceptance
This letter agreement will be of no force or effect unless the President of the
Corporation has received a copy hereof executed by LOGG and O'Brien by March 29
2002.
If this letter correctly sets forth your understand of the agreement between
LOGG, O'Brien and the Corporation with respect to the foregoing, please so
indicate by signing below, at which time this letter will become a binding
contract.
Sincerely,
Globaltex Industries Inc.
Per: Xxxx Xxxxxx
President
Accepted and agreed as of the 25 day of March, 2002.
LOGG Investment Research Inc.
Per: "Xxxxxx X'Xxxxx "
Accepted and agreed as of the 25 day of March, 2002.
Xxxxxx X'Xxxxx "
Xxxxxx X. X'Xxxxx
(to be executed under seal)
Schedule A
Defined Terms
For the purposes of this agreement:
(a) one person is affiliated with another person if one of them is the
ssubsidiary of the other or both are subsidiaries of the same person or each of
them is controlled by the same person; and if two persons are affiliated with
the person at the same time, they are deemed to be affiliated with each other;
(b) "Confidential Information" means, subject to the exclusions in section 5,
information concerning the business and affairs of the Corporation provided by
the Corporation and identified as being confidential in nature, and any other
information provided by the Corporation concerning its business and affairs
which by its nature or the circumstances in which it is provided would be
understood by a reasonable person to be confidential;
(c) "Consideration" means the aggregate amount of all cash, plus the Fair
Market Value of all securities, and other property and value added benefits,
received by the Corporation, its affiliates, and shareholders in connection
with a transaction, of any nature, arising, directly or indirectly, from the
provision of the Services to the Corporation as contemplated in this agreement;
(d) "Fair Market Value" means: (i) in the case of any share or other security
listed on a public stock exchange or market, the average of the published
closing prices of such share or other security on such stock exchange or market
over the ten (10) trading days immediately preceding the closing of the
applicable transaction or, if such a valuation is not permitted by the stock
exchange or market policies applicable to the Corporation's securities, the
highest price permitted under the such policies; and (ii) in the case of any
share or other security which is not listed on a public stock exchange or
market, or where property other than securities is the subject of a transaction
covered by this agreement, the fair market value of such share, other security
or other property, determined by mutual agreement between the parties or, if no
such agreement is arrived at within 30 days of the day of closing of the
applicable transaction, as determined by a chartered business valuator
acceptable to the Corporation and LOGG acting reasonably;
(e) "person" means any natural person, sole proprietorship, partnership,
corporation, trust, joint venture, governmental authority and any incorporated
or unincorporated entity or association of any nature;
(f) "Securities" means: (i) shares or other securities representing an equity
ownership interest in the Corporation, or the entity succeeding or surviving
the Corporation following a merger, amalgamation, reorganization or arrangement
transaction, as the case may be, of the class and having the same terms as the
securities issued in connection with the applicable transaction, or (ii) if no
such securities are issued in connection with such transaction, shares of the
existing common stock or equivalent securities representing an equity ownership
interest in the Corporation or the entity succeeding or surviving the
Corporation following the transaction as the case may be;
(g) "Services" has the meaning given to it in section 2 to this agreement.
