SALES AGENT AGREEMENT
Exhibit 99.b
This Sales Agent Agreement (the “Agreement”) is made as of the 18th day of April, 2012 by and among Xxxxxx Xxxx Capital Corp., a Delaware corporation, Xxxx Xxxxxxxx (“Xxxxxx Xxxx”), and Xxxxxxxxx Securities Corp., a Nevada corporation (“USC”).
Recitals:
WHEREAS, Xxxxxx Xxxx wishes to retain on a non exclusive basis Xxxxxxxxx to act as selling agent for Xxxx Xxxxxxxx and Xxxxxx Xxxx’x registered securities upon the effectiveness of Xxxxxx Xxxx’x registration statement filed with the SEC in Sept. 2011; and,
WHEREAS, Xxxxxxxxx wishes to serve in such capacity.
NOW, THEREFORE, in consideration of the below described compensation, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
Section 1
Sales Agent. Xxxxxxxxx agrees to act as non exclusive selling agent for Xxxx Xxxxxxxx and Xxxxxx Xxxx’x registered securities upon the effectiveness of Xxxxxx Xxxx’x registration statement filed with the SEC in Sept. 2011.
Section 2
Compensation. Both parties agree that Underhills compensation shall be limited to an 8% sales commission per FINRA regulations. In the event this offering is terminated, the underwriter and related persons will only be entitled to out-of-pocket expenses in compliance with FINRA Rule 5110(f)(2)(D).
Section 3
Term. The term of this Agreement shall be 180 days from the effectiveness of Xxxxxx Xxxx’x registration statement.
Section 4
Representations and Warranties of Xxxxxx Xxxx. Xxxxxx Xxxx hereby represents and warrants to Xxxxxxxxx that the following representations are true and complete as of the date of this Agreement.
Section 5.1
Organization, Good Standing, Corporate Power and Qualification. Xxxxxx Xxxx is a corporation duly organized, validly existing, and in good standing under the laws of the State of Delaware and has all requisite corporate power and authority to carry on its business as presently conducted and as proposed to be conducted. Xxxxxx Xxxx is duly qualified to transact business and is in good standing in each jurisdiction in which the failure to so qualify would have a material adverse effect.
Section 5.2
Authorization. All corporate action required to be taken by Xxxxxx Xxxx’x Board of Directors in order to authorize Xxxxxx Xxxx to enter into this Agreement has been taken prior to or simultaneous with the date of this Agreement. All action on the part of the officers of Xxxxxx Xxxx necessary for the execution and delivery of the Agreement, the performance of all obligations of Xxxxxx Xxxx under the Agreement to be performed prior to or as of the date of this Agreement, have been taken prior to execution of this Agreement. The Agreement, when executed and delivered by Xxxxxx Xxxx, shall constitute valid and legally binding obligations of Xxxxxx Xxxx, enforceable against Xxxxxx Xxxx in accordance with its terms.
Section 5.3
Governmental Consents and Filings. No consent, approval, order or authorization of, or registration, qualification, designation, declaration or filing with, any federal, state or local governmental authority is required on the part of Xxxxxx Xxxx in connection with the consummation of the transaction contemplated by this Agreement other than as disclosed in this Agreement.
Section 5.4
Litigation. There is no claim, action, suit, proceeding, arbitration, complaint, charge, or investigation pending or to Xxxxxx Xxxx’x knowledge, currently threatened against Xxxxxx Xxxx or any officer, director, or Key Employee of Xxxxxx Xxxx that questions the validity of the Agreement or the right of Xxxxxx Xxxx to enter into the Agreement, or to consummate the transactions contemplated by the Agreement.
Section 5.5
Compliance with Other Instruments. Xxxxxx Xxxx is not in violation or default (i) of any provisions of its Articles or Bylaws, (ii) of any instrument, judgment, order, writ, or decree, or (iii) under any lease, agreement, contract, or purchase order to which it is a party or by which it is bound or of any provision of federal or state statute, rule or regulation applicable to Xxxxxx Xxxx, the violation of which would adversely affect the business. The execution, delivery, and performance of the Transaction Agreements and the consummation of the transactions contemplated by the Transaction Agreements will not result in any such violation or be in conflict with or constitute, with or without the passage of time and giving of notice a default under any such provision, instrument, judgment, order, writ, decree, contract, or agreement.
Section 6.
Representations and Warranties of USC. USC hereby represents and warrants to Xxxxxx Xxxx that:
Section 6.1
Authorization. USC has full power and authority to enter into the Agreement. The Agreement to which such USC is a party, when executed and delivered by Xxxxxx Xxxx, will constitute valid and legally binding obligations of USC, enforceable in accordance with their terms.
Section 6.2
Indemnification and Hold Harmless. Xxxxxx Xxxx, and its Affiliates, hereby agrees to indemnify and hold USC, its officers, directors, employees, independent contractors and shareholders, harmless from any and all liabilities, damages, business interruptions, delays, losses, claims, judgments or any kind whatsoever, including, all costs, attorneys’ fees, and expenses incidental thereto, which may be suffered by, or charge to USC related to the business activities of Xxxxxx Xxxx and its Affiliates. USC shall have the sole right to select its legal representation and other advisors for matters related to this Section 8 which shall be paid solely by Xxxxxx Xxxx.
Section 6.3
Indemnification and Hold Harmless. USC, and its Affiliates, hereby agrees to indemnify and hold Xxxxxx Xxxx, its officers, directors, employees, independent contractors and shareholders, harmless from any and all liabilities, damages, business interruptions, delays, losses, claims, judgments or any kind whatsoever, including, all costs, attorneys’ fees, and expenses incidental thereto, which may be suffered by, or charge to Xxxxxx Xxxx related to the business activities of USC and its Affiliates. Xxxxxx Xxxx shall have the sole right to select its legal representation and other advisors for matters related to this Section 9 which shall be paid solely by USC.
Section 7.
Miscellaneous.
Section 7.1
Survival of Warranties. Unless otherwise set forth in this Agreement, the representations and warrants of Xxxxxx Xxxx or USC contained in or made pursuant to this Agreement shall survive the execution and delivery of this Agreement and shall in no way be affected by any investigation of the subject matter thereof made by or on behalf of any beneficiary of such representations and warranties, unless for any representation or warranty that any such beneficiary knew to be untrue.
Section 7.2
Transfer; Successors and Assigns. The terms and conditions of this Agreement shall inure to the benefit of and be binding upon the respective successors and assigns of the parties. Nothing in this Agreement, express or implied, is intended to confer upon any party other than the parties hereto or their respective successors and assigns any rights, remedies, obligations, or liabilities under or by reason of this Agreement, except as expressly provided in this Agreement.
Section 7.3
Governing Law. This Agreement shall be governed by and construed in accordance with the General Corporation Law of the State of Nevada as to matters within the scope thereof, without regard to its principles of conflicts of laws.
Section 7.4
Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. This Agreement may also be executed and delivered by facsimile signature and in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
Section 7.5
Titles and Subtitles. The titles and subtitles used in this Agreement are used for convenience only and are not to be considered in construing or interpreting this Agreement.
Section 7.6
Notices. All notices and other communications given or made pursuant to this Agreement shall be in writing and shall be deemed effectively given: (i) upon personal delivery to the party to be notified, (ii) when sent by confirmed electronic mail or facsimile if sent during normal business hours of the recipient, and if not so confirmed, then on the next business day, (iii) five (5) days after having been sent by registered or certified mail, return receipt requested, postage prepaid, or (iv) one (1) day after deposit with a nationally recognized overnight courier, specifying next day delivery, with written verification of receipt. All communications shall be sent to the respective parties at their address as set forth on the signature page, or to such e-mail address, facsimile number or address as subsequently modified by written notice given in accordance with this Section 10.6.
Section 7.7
Attorney’s Fees. If any action at law or in equity (including arbitration) is necessary to enforce or interpret the terms of any of this Agreement, the prevailing party shall be entitled to reasonable attorney’s fees, costs, and necessary disbursements in addition to any other relief to which such party may be entitled.
Section 7.8
Amendments and Waivers. Any term of this Agreement may be amended, terminated, or waived only with the written consent of both Stuart and USC.
Section 7.9
Severability. The invalidity or unenforceability of any provision hereof shall in no way affect the validity or enforceability of any other provision.
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Section 7.10
Delays or Omissions. No delay or omission to exercise any right, power, or remedy accruing to any party under this Agreement, upon any breach or default of any other party under this Agreement, shall impair any such right, power, or remedy of such non-breaching or non-defaulting party nor shall it be construed to be a waiver of any such breach or default, or an acquiescence therein, or of or in any similar breach or default thereafter occurring; nor shall any waiver of any single breach or default be deemed a waiver of any other breach or default theretofore or thereafter occurring. Any waiver, permit, consent, or approval of any kind or character on the part of any party of any breach or default under this Agreement, or any waiver on the part of any party of any provisions or conditions of this Agreement, must be in writing and shall be effective only to the extent specifically set forth in such writing. All remedies, either under this Agreement or by law or otherwise afforded to any party, shall be cumulative and not alternative.
Section 7.11
Entire Agreement. This Agreement constitute the full and entire understanding and agreement between the parties with respect to the subject matter hereof, and any other written or oral agreement relating to the subject matter hereof existing between the parties are expressly canceled.
The parties have executed this Sales Agent Agreement as of the date first written above.
Xxxxxx Xxxx Capital Corp.
Xxxxxxxxx Securities Corp.
By: /s/ Xxxx Xxxxxxxx
By: /s/ Xxxxx Xxxxxxxxx
Xxxx Xxxxxxxx, President
Xxxxx Xxxxxxxxx, President
Xxxx Xxxxxxxx
By: /s/ Xxxx Xxxxxxxx
Xxxx Xxxxxxxx, Individually
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