Martinez-Ayme Securities
Xxxxxxxx-Xxxx
Securities
0000
Xxxxxx Xxxxx, Xxxxx X000
Xxxxx,
XX 00000-0000
305-271-3232
November
9, 2009
Xxxx
Xxxxxxxx
XxXxx
Mobility, Inc.
00000
Xxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxx,
XX 00000
Dear Xx.
Xxxxxxxx:
This
agreement is to confirm our understanding of the engagement of Xxxxxxxx-Xxxx
Securities (“MAS”) as investment banker to assist XxXxx Mobility, Inc. (the
“Company”), specifically to value and raise capital, as well as,
advise, structure, make introductions and use our best efforts to position the
company for a liquidity event. This event may take the form of
registering and listing equity, outright sale of the Company, or licensing
agreement(s) or arrangement(s). Any introductions, for the purpose of
providing a financial investment in the Company, on terms acceptable to the
Company, MAS shall inform the Company of the identity of proposed Investor
whereupon MAS will be protected as to the compensation described below, with
respect to any transaction involving such Investors, for a period of 24 months
from the date of the introduction.
In the
event of a successful transaction with or through Investors introduced by MAS,
directly or indirectly, the company will compensate MAS at closing as
follows: (i) a cash placement fee up to a maximum of 10% of the gross
amount (7% commission and 3% non accountable expenses) of any investment in the
Company by any of the Investors and (ii) one million shares (1,000,000) of the
common stock of the Company at time of closing of this initial
transaction. MAS will also have the right to appoint a board member.
MAS agrees that a minimum of $1,000,000 is the necessary breakpoint for the
equity consideration of the initial transaction capital raise. If a
transaction involves consideration other than cash e.g. equity, the cash
compensation due MAS shall be based on the value of the other consideration
involved in the transaction. MAS shall be entitled to compensation
set forth under (i) and (ii) above with respect to any transaction consummated
within 24 months by any potential investor introduced or identified by MAS to
the Company. The cash fee due MAS shall be paid by wire transfer of
immediate available funds at each closing or any investment by any
investors.
In
addition, this agreement shall commence upon execution and be effective for 12
months thereafter. This agreement shall continue month to month after
the first year and may be terminated by written notice by either party with 30
days prior notice.
The
Company recognizes and confirms that, in advising the Company and in fulfilling
its engagement hereunder, (i) MAS will use and rely on data, material and other
information furnished by the Company to MAS, and (ii) MAS may rely upon such
data, material and other information furnished to MAS by the Company without any
independent investigation or appraisal to verify its accuracy, completeness or
veracity, except to the extent MAS has actual knowledge to the
contrary. Company represents and warrants that all such data,
material and other information provided by the Company will be true and accurate
in all material respects and 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. MAS shall be under no obligation to make independent
appraisals of assets or an independent investigation or inquiry as to any
information regarding, or any representations of, any other participant in a
Transaction or Financing, nor shall MAS have any liability with regard
thereto. If, in MAS’s opinion after completion of its due diligence
process, the condition or prospects of the Company, financial or otherwise, are
not substantially as represented or do not fulfill MAS’s expectations, MAS shall
have the sole discretion to determine its continued participation in any
proposed financing and / or transaction.
Definition
of Financing
Financing,
as used herein, shall mean all amounts furnished to or for the use of the
Company with Investors directed or introduced by, or through the efforts of, MAS
after the date of this Agreement, whether by investment in equity or debt
securities of the Company, loans, loan commitments, guarantees of indebtedness,
leasing, sale and leaseback, joint ventures or licensing.
Payment
of Compensation
The fees
due MAS as set forth above shall be paid by bank or cashier's check at the
closing of Financing. In the event that a portion of the Financing is completed
in delayed increments, the fee shall be paid prorata as each increment is
advanced.
In
the event that this Agreement shall not be renewed, or if this Agreement is
terminated for any reason, then notwithstanding any such non-renewal or
termination, MAS shall be entitled to receive the full fee provided for
hereunder for any transaction for which the discussions or introductions were
initiated during the Term of this Agreement.
Expenses
In
addition to the fees payable hereunder, and regardless of whether any
Transaction or Financing is proposed or consummated, the Company shall reimburse
MAS for all reasonable expenses, including, but not limited to: travel expenses,
legal expenses, and reasonable fees paid to third parties incurred in order to
facilitate the terms of this Agreement or otherwise in connection with the
services performed by MAS pursuant to this Agreement. Any expenses over $3,000
must have prior approval of the Company.
Confidentiality
MAS will
hold in confidence any confidential information which the Company provides to
MAS pursuant to this Agreement, which is designated by an appropriate stamp or
legend as being confidential. Notwithstanding the foregoing, MAS
shall not be required to maintain confidentiality with respect to information
(i) which is or becomes part of the public domain not due to the breach of this
Agreement by MAS; (ii) of which it had independent knowledge prior to
disclosure; (iii) which comes into the possession of MAS 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 MAS by laws, rules or
regulations. If MAS is requested or required to disclose any
confidential information supplied to it by the Company, MAS shall, unless
prohibited by law, promptly notify the Company of such request(s) so that the
Company may seek an appropriate protective order.
Restrictions
Nothing
herein contained shall be construed to limit or restrict MAS in providing
financial services and consulting advice to others, or in rendering advice or
conducting business with any third parties.
Indemnification
The
Company recognizes and confirms that, in advising the Company hereunder, MAS
will use and rely on data, material and other information furnished to MAS by
the Company, without independently verifying the accuracy, completeness or
veracity of same. The Company agrees to indemnify and hold harmless MAS, its
employees, agents, representatives and controlling persons from and against any
and all losses, claims, damages, liabilities, suits, actions, proceedings, costs
and expenses (collectively, “Damages”), including, without limitation,
reasonable attorney fees and expenses, as and when incurred, if such Damages
were directly or indirectly caused by, relating to, based upon or arising out of
the rendering by MAS of services pursuant to this Agreement, so long as MAS
shall not have engaged in intentional or willful misconduct, or acted grossly
negligent in connection with the services provided which form the basis of the
claim for indemnification. This Paragraph shall survive the
termination of this Agreement. The Company hereby agrees that MAS shall not be
liable to the Company for any damages except for those arising from the MAS’s
willful gross negligence, and, MAS’s liability for any such damages shall be
limited to the fees actually collected by MAS.
This
agreement is governed by and construed under the laws of the State of Florida,
and any action brought by either party against the other party to enforce or
interpret this Agreement shall be brought in an appropriate court of such
state. In the event of any such actions, the prevailing party shall
recover all costs and expenses thereof, including reasonable attorney’s fees
from the losing party.
If the
foregoing correctly sets forth our agreement, please sign and return the
enclosed copy of this letter.
Very
truly yours,
|
/s/ Xxxxxxxx X. Xxxxxxxx
|
|
Xxxxxxxx
X. Xxxxxxxx
|
|
President
|
|
Accepted
and agreed to this 9th
day of
|
|
November,
2009
|
|
XxXxx
Mobility, Inc.
|
|
|
By:
|
/s/ Xxxx Xxxxxxxx
|
|
Xxxx
Xxxxxxxx
|
|
|
President
and CEO
|
|
