EXHIBIT 10.5
MEMORANDUM OF UNDERSTANDING
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THIS MEMORANDUM OF UNDERSTANDING CONSTITUTES A BINDING AGREEMENT made effective
as of the 15th day of September, 2004.
B E T W E E N:
RS GROUP OF COMPANIES, INC., a corporation incorporated under
the laws of Florida (hereinafter as "RSGC");
- and -
INITIATIVES CANADA CORPORATION., a corporation incorporated
under the laws of the Province of Ontario (hereinafter as
"ICC");
- and -
CANADIAN LITERACY INITIATIVES., a corporation incorporated
under the laws of the Province of Ontario (hereinafter as
"CLI");
- and -
SILVER CITY TRADING CORPORATION., a corporation incorporated
under the laws of the Province of Ontario (hereinafter as
"SCTC");
- and -
ICC INITIATIVES CORPORATION., a corporation incorporated under
the laws of the Province of Ontario (hereinafter as "ICC IC").
RECITALS
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WHEREAS ICC and CLI and SCTC and ICC IC (collectively the "Companies") offer a
fair market value program (the "Program");
AND WHEREAS the Companies desire to engage RSGC brokerage services to find and
arrange underwriting services in support of the Program;
NOW THEREFORE in consideration of entering into this Agreement, the mutual
covenants herein contained and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereby
agree as follows:
TERMS AND CONDITIONS
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1. In consideration for its brokerage services, RSGC shall be paid a
one-time only fee of three million seven hundred and fifty thousand
dollars ($3,750,000) by the Companies (the "Fee") in consideration for
finding and arranging underwriting in support of the Program. Said Fee
shall be paid to RSGC as follows:
(a) A non-refundable deposit in the amount of two hundred fifty
thousand dollars ($250,000), to be paid within 30 days of the
effective date of this Agreement, to be applied toward the
total Fee; and
(b) the balance of the Fee shall be paid no later than December
31, 2004.
2. This Agreement shall remain in effective for a minimum term of one (1)
year, unless earlier terminated as provided below. RSGC shall be paid,
by bank draft or cashier's cheque payable, the full Fee owing to RSGC
pursuant to Section 1 above within thirty (30) days of such notice of
such earlier termination hereunder.
(a) Either ICC or CLI or SCTC or ICC IC may terminate this
Agreement for any reason upon ninety (90) days written notice
to the other parties.
(b) RSGC may terminate this Agreement for any reason upon thirty
(30) days written notice to the Companies.
3. Upon the expiration or termination of this Agreement and the full
payment of the Fee due herein, all parties shall promptly return all
proprietary and confidential information (including without limitation
any documents, business plans, client lists, financial information,
files and data in any media form) provided by the disclosing party.
4. The parties acknowledge and agree that they are independent of one
another in the performance of each and every part of this Agreement and
nothing herein shall be construed to be inconsistent with this status.
Each of the parties will be solely and entirely responsible for its
acts and the acts of its partners, agents, subcontractors, third-party
service providers and employees during the performance of this
Agreement. Nothing contained in this Agreement shall be construed as
creating a partnership, joint venture, agency, trust or other
association of any kind, each party being individually responsible only
for its obligations as set forth in this Agreement.
5. Neither RSGC nor the Companies or any of their respective successors,
assigns, directors, officers, shareholders, employees or agents will be
liable to the other or any successor thereto or subsidiary or
shareholder thereof for any conduct or action taken or not taken by it
in the course of its performance of the services required hereunder
unless such conduct, action or inaction was taken in bad faith or with
gross negligence or willful misconduct.
6. This agreement shall be construed in accordance with the laws of the
Province of Ontario and the laws of Canada applicable therein
(exclusive of its conflict of laws provisions). The parties hereby
waive the right to a trial by jury in any proceedings or litigation
brought against the other of them with respect to this Agreement.
7. Each of the parties hereto shall promptly do, make, execute or deliver,
or cause to be done, made, executed or delivered, all such further
acts, documents and things as the other party hereto may reasonably
require from time to time for the purpose of giving effect to this
agreement and shall use reasonable efforts and take all such steps as
may be reasonably within its power to implement to their full extent
the provisions of this Agreement.
8. This Agreement constitutes the entire agreement between the parties
hereto with respect to its subject matter and the parties hereto agree
that there are not and have not been made any statements,
representations, warranties, undertakings or agreements between the
parties hereto with respect to the subject matter of this Agreement
other than as contained herein.
9. The parties hereto agree that the terms set forth herein are reasonable
in the circumstances and further agree that if any provision set forth
above is determined to be illegal or unenforceable in any jurisdiction
such provision shall be severable from this Agreement only to the
extent of such illegality or unenforceability in such jurisdiction
without affecting the remaining provisions hereof.
10. This Agreement and the rights and obligations hereunder shall inure to
the benefit of and be binding upon the parties and their respective
heirs, administrators, successors and assigns (as the case may be).
11. This Agreement shall not be modified or altered in any manner other
than in writing signed by all parties.
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12. Each party represents and warrants to the other that it has all
requisite authority and corporate power to enter into this Agreement
and to perform its obligations hereunder and that this Agreement has
been duly executed and delivered by and constitutes a valid and binding
obligation, enforceable against it in accordance with its terms.
13. This Agreement shall become binding when one or more counterparts taken
together shall have been executed and delivered by each of the parties.
The transmission of an executed copy of this Agreement by fax in the
manner hereby contemplated shall be deemed to constitute execution and
delivery of an original executed copy.
IN WITNESS WHEREOF the parties hereto have executed this agreement as of the
date first written above.
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Acknowledged and Agreed by: Acknowledged and Agreed by:
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Name: Xxxxxx Xxxxx Name: Xxxxxxx Xxxxxxxxxxxxxxx
Title: General Counsel Title:
RS GROUP OF COMPANIES, INC. INITIATIVES CANADA CORPORATION
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Acknowledged and Agreed by: Acknowledged and Agreed by:
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Name: Xxxxxxx Xxxxxxxxxxxxxxx Name: Xxxxxxx Xxxxxxxxxxxxxxx
Title: President Title: President
CANADIAN LITERACY INITIATIVES SILVER CITY TRADING CORPORATION
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Acknowledged and Agreed by:
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Name: Xxxxxxx Xxxxxxxxxxxxxxx
Title: President
ICC INITIATIVES CORPORATION
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