FINDER'S AGREEMENT
FINDER'S
AGREEMENT
This
Agreement is made and entered into as of June 2, 2009, by and between Qnective,
Inc., a Nevada corporation (the “Company”), and Xxxxx Xxxxxxx, an individual,
having a business address at 0 xxxxx xx xxxx xxxx, 00000 Ville d’Avray, France
(“Consultant”).
In
consideration of and for the mutual promises and covenants contained herein and
for other good and valuable consideration, the receipt of which are hereby
acknowledged, the parties hereby agree as follows:
1. Purpose: The
Company hereby retains Consultant to assist on a non-exclusive basis in its goal
to raise up to USD 200 Mio, and to perform various services for the Company
during the term specified to assist the Company in its goal of raising equity
capital for the Company.
2. Term: This
Agreement shall be effective for a period of twelve months (12) commencing on
the date hereof, unless extended in writing by both parties.
3. Services
of Consultant: (a) At the request of the Company, Consultant will provide
the following services on a “commercially reasonable” basis:
(i)
Familiarize himself with the business, operations, properties, financial
condition, and prospects of the Company;
(ii)
Identify and contact prospective investors and coordinate the delivery of
information to such investors;
(iii)
Coordinate meetings or telephone discussions with prospective investors and
assist the Company in coordinating the due diligence review;
(iv)
Advise the Company during negotiations with investors on the terms of a
prospective transaction;
(v) Assuming
an agreement in principle is reached, assist the Company in the negotiations,
documentation, and closing of a transaction with such prospective
investors.
(b) Consultant
shall provide to Company a notification letter executed by each prospective
investor (a "Notification Letter") that Consultant approaches.
(c) Except
as set forth above, there are no other tasks, duties or obligations which
Consultant is required to perform pursuant to this Agreement.
(d) The
Company acknowledges that Consultant is performing this undertaking on a
"commericially resonable" basis without a warranty or promise that a specific
result or outcome will necessarily be achieved.
4. Compensation:
(a) In consideration of the
performance of the services set forth above, the Company shall compensate
Consultant if a financing transaction is consummated during the term of this
Agreement, or within six (6) months after termination of this Agreement with a
third-party investor for whom a Notification Letter has been submitted to the
Company by Consultant.
(b) Upon the closing of any
transaction contemplated hereunder Company shall pay to Consultant (i) a total
amount equal to two (2%) percent of all gross proceeds, in cash, received by or
paid for, the benefit of Company or any of its affiliates or assignees in the
transaction, plus that number of shares of the Company's common stock equal to
four (4%) percent of the gross proceeds.
(c) It is understood and agreed by
the parties that the Company is not obligated or required to accept any offer of
any kind from any prospective investor and may refuse to consummate any
financing without liability to the Company.
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5. Representations
and Warranties:
(a) Consultant represents,
warrants, and agrees with the Company as follows:
(i) Offers and sales of
securities by Consultant will be made in accordance with the laws of the
jurisdiction in which such offers and sales are made.
(ii) Consultant
will not make any untrue statement of a material fact or omit to state a
material fact required to be stated, or necessary to make any statement made, by
Consultant not misleading concerning the offering of the Company’s shares of
common stock or any matters set forth in, or contemplated by, the offering
documents, it being understood that the statements made in the offering
documents are deemed to be made by the Company and not Consultant, except for
information set forth therein based upon written information provided by, or on
behalf of, Consultant.
(iii) Consultant
has not and will not engage, directly or indirectly, in any act or activity
which will be in violation of the securities laws of the U.S. or any other
jurisdiction in which shares of the Company's common stock may be offered for
sale or sold.
6. Indemnification: Each
party agrees to indemnify and hold the other party harmless from any and all
claims, losses, costs, or damages, including reasonable attorneys’ fees and
court costs, resulting from any breach of its representations, warranties or
covenants set forth herein, whether or not such claims are settled or reduced to
judgment.
7. Independent
Contractor: Consultant is engaged by the Company solely for
the purposes and to the extent set forth in this Agreement, and Consultant’s
relationship to the Company shall during the period of engagement hereunder be
that of an independent contractor. Consultant shall not be considered
as an agent or employee of the Company; and the Company shall not be liable in
any manner whatsoever for the acts or omissions of Consultant, his agents, or
employees.
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8. Governing
Law: This Agreement shall be governed by and construed
in accordance with the laws of the State of New York applicable to agreements
made and to be performed solely within such State without giving effect to the
principles of conflicts of laws thereof.
9. Dispute
Resolution: Any dispute, controversy, or claim between the
parties arising out of or relating to this Agreement, including the validity,
invalidity, breach or termination thereof, shall be resolved by arbitration
before one (1) arbitrator in accordance with the Swiss Rules of International
Arbitration of the Swiss Chamber of commerce (the "Rules") in force on the date
when the Notice of Arbitration is submitted in accordance with the
Rules. Judgment upon any award rendered by the arbitrator may be
entered in any court of competent jurisdiction and the arbitrator shall have
authority to award reasonable costs, legal fees, and disbursements to the
prevailing party. The seat of the arbitration shall be Zurich,
Switzerland. The right to fees, costs, and expenses may
be enforced by separate plenary action.
10. Entire
Agreement: This Agreement constitutes the entire Agreement and
understanding between the parties pertaining to the subject matter of this
Agreement. This Agreement supersedes all prior agreements, if any,
including any prior understandings, negotiations, or discussions, whether oral
or written. No supplement, modification, or waiver of this Agreement
shall be binding unless executed by the party to be bound hereby.
11. Confidential
Information:
(a) Consultant acknowledges
that by virtue of the relationship created by this Agreement Consultant may have
access to Confidential Information regarding the business and operations of the
Company. For purposes of this Agreement the term “Confidential
Information” shall include but not be limited to information regarding products
or services not yet available, technical information, financial information,
trade secrets, business plans, and policies related to the Company's products
and services and not generally available in the public domain other than by
breach of this Agreement.
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(b) Consultant agrees to
maintain the confidentiality of the Company's Confidential Information and
agrees not at any time to disclose to any third party or use for Consultant's
benefit or the benefit of any third party any Confidential Information disclosed
to it by the Company. Consultant agrees not to purchase or sell any
securities of the Company at any time that Consultant is in possession of
Confidential Information. Additionally Consultant agrees that
Consultant will take reasonable steps designed to ensure that Consultant’s
employees, agents, and representatives will not disclose to any third party, or
use for their own benefit or for the benefit of any third party, any
Confidential Information. If Consultant’s employees, agents, or
representatives disclose Confidential Information to any third party, Consultant
will be responsible for all losses, claims and damages that result from such
disclosure.
(c) Consultant
acknowledges and agrees that the restrictions set forth in this Paragraph 11 are
necessary for the protection of the Company and the breach thereof may cause
irreparable damage for which there may be no adequate remedy at law; and,
therefore, Consultant agrees that, in addition to any other remedies available,
any equitable remedy may be invoked by the Company to enforce performance or
enjoin any breach of this Paragraph 11.
12. Assignability: This
Agreement is not assignable by either party without the prior written consent of
the other party.
13. Expenses: Consultant
will be responsible for, and pay all of his own expenses incurred in connection
with his activities under this Agreement, and the Company will be under no
obligation to reimburse Consultant for such expenses unless parties have agreed
upon such expenses in writing in advance
14. Successors
and Assigns: This Agreement shall be binding upon and inure to
the benefit of the parties and their respective successors, assigns, heirs, and
legal representatives, as the case may be; provided, however, that this
Agreement may not be assigned by Consultant.
AGREED
AND ENTERED INTO as of the date first written above:
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By:
/s/ Xxxxxx
Xxxxx
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Xxxxxx
Xxxxx
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Chief
Executive Officer
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/s/ Xxxxx
Xxxxxxx
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Xxxxx
Xxxxxxx
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