IR/PR-Services Agreement
This
IR/PR-Services Agreement (“Agreement”) is entered this 15th day of
January 2008, (“Effective Date”) by and between
FiveMore
Fund, Ltd.
(“Consultant”),
a US and European Consulting Company, and
Alliance
Recovery Corporation
(“Client”),
a publicly listed U.S. Bulletin Board Company (ARVY) with reference to the
following:
RECITALS
A. Client
desires to be assured of the services of Consultant in order to avail itself of
Consultant’s experience, skills, knowledge, abilities and background in the
fields of business development, financial consulting, and investor relations
(see Appendix 1 for strategic details).
B. Client
is therefore willing to engage Consultant upon the terms and conditions set
forth herein, and Consultant agrees to be engaged and retained by Client upon
the terms and conditions set forth herein.
NOW
THEREFORE, in consideration of the foregoing, of the mutual promises herein set
forth and for other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties agree as follows:
1. Engagement. Client
hereby engages Consultant on a non-exclusive basis, and Consultant hereby
accepts the engagement to become a strategic and financial consultant to Client
and to render such advice, consultation, information and services to Client
regarding general investor relations, potentially a secondary listing in
Germany, corporate finance, mergers and acquisitions and business development,
including but not limited to the following (see Appendix 2 for more information
on available Consultant Services):
Consultant
intends to (a) advise Client with respect to its plans and strategies for
raising capital; (b) aid Client in developing a marketing plan directed at
informing the investing public as to the business of Client; (c) assist Client
in its discussions with underwriters, investors, brokers and institutions and
other professionals retained by Client; (d) inform Client about US and
international banks offering stock based credit line facilities; (e) assist
Client with identifying possible acquisitions or merger candidates; (f) advise
and assist Client with public relations and promotion matters; (g) assist Client
with a potential
listing
at Frankfurt Stock Exchange; and (h) introduce members of Client’s management to
US and European securities dealers and market makers, if Client so
desires. At no time will Consultant provide services which would
require Consultant to be registered and licensed with any federal or state
regulatory body or self-regulating agency.
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2. Term. The
term of this Agreement (“Term”) shall commence on the date hereof and continue
for a period of six (6) months as follows: Investor relations, public
relations and corporate finance services will begin immediately upon receipt of
IR/ PR costs and fees, and will continue for a period of three (3)
months. Professional maintenance of such services and continuing
communication with the established network will continue thereafter for an
additional three (3) months.
3. Compensation. In
connection with the appointment of Consultant hereunder and as consideration for
Consultant entering into this Agreement, Client and Consultant agree to the
following (please request transfer and wiring instructions after execution of
this Agreement):
a. PR/IR costs & Fees: For
the performance of its consulting services and implementation of PR/ IR
marketing program hereunder Client shall make available to Consultant 1,500,000
restricted shares of Client’s common stock immediately following execution of
this Agreement, which shall be registered in a registration statement with the
Securities and Exchange Commission (“SEC”) deemed effective by the SEC within
six (6) months from the date of this Agreement. Notwithstanding the
above, the Company shall use its best efforts to have the registration statement
declared effective by the SEC as soon as practicable.
b. Finder’s
Fee: Except as set forth differently in this Agreement, Client
will pay a commission or success fee of 10% to Consultant in connection with any
financing, acquisitions projects, or any other findings or transactions
involving products, commodities, services, currencies, additions, renewals,
extensions, rollovers, amendments, new contracts, re-negotiations, parallel
contracts or agreements or third party assignments hereof.
4. Non-Circumvention. Client
and Consultant expressly agree that this Agreement constitutes a binding
contract. Client, intending to be legally bound, hereby irrevocably
agrees not to circumvent, avoid, bypass, or obviate Consultant, directly or
indirectly, to avoid payments or fees, commissions, or any other form of
compensations to Consultant in any transaction with any corporation,
partnership, or individual, revealed by either party to the other, in connection
with any projects, or currency exchanges, or any loans or collaterals, or any
findings, or any financings, or any other transactions involving products,
commodities, services, additions, renewals, extensions, rollovers, amendments,
new contracts, re-negotiations, parallel contracts or agreements or third party
assignments hereof. Therefore Client shall not contact any investors
or lenders or other individuals or entities introduced by Consultant during the
term of this Agreement without prior written consent from
Consultant. If a transaction of any kind is consummated within twenty
four (24) months of the termination of this Agreement whether debt or equity
financing or any other transaction with an investor or lender or other
individual or entity introduced directly or indirectly by Consultant to Client
and/or Client enters into an agreement to acquire or be acquired by an entity or
individual introduced directly or indirectly by Consultant to Client during the
term of this Agreement, then that transaction shall be deemed to have been
arranged by Consultant under this Agreement and Client shall remunerate
Consultant as specified in Paragraph 3. This article survives the
expiration or termination of this Agreement for any reason.
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5. Remedy. If
Client breaches any term of this Agreement or violates any of his obligations
under this Agreement, e.g. any compensation or fee payments or the
Non-Circumvention clause or the Confidentiality clause or any other term,
Consultant may seek all remedies and appropriate equitable relief allowed by
law, and Consultant shall be entitled to a legal monetary penalty and equitable
remedies equal to the maximum fees allowed by a competent court, at law or in
equity, including all legal and other expenses, and Consultant may also, at its
option, terminate or suspend all performances or services remaining to be
rendered by Consultant under this Agreement without being obligated to pay back
or reimburse any compensation or fee payments previously received by Consultant
under this Agreement. Client agrees that a breach of any of the
covenants contained in this Agreement will cause irreparable injury to
Consultant, that Consultant might not have adequate remedy at law in respect of
such breach and, as a consequence, that each and every covenant contained in
this Agreement shall be specifically enforceable against Client, and Client
hereby waives and agrees not to assert any defenses against an action for
specific performance of such covenants except for a defense that no event of
default has occurred. Client acknowledges that it will be impossible
to measure in money the damage to Consultant caused by any failure to comply
with the covenants set forth in this Agreement, that each such covenant is
material, and that in the event of any such failure, Consultant will not have an
adequate remedy at law or in damages. Therefore, the parties consent
to the issuance of an injunction or the enforcement of other equitable remedies
against Client at the suit of Consultant, without bond or other security, to
compel performance of all of the terms of this Agreement, and waive the defense
of the availability of relief in damages. This article survives the
expiration or termination of this Agreement for any reason.
6. Standard
of Care. Consultant warrants that it services shall be
performed by personnel possessing competency consistent with applicable industry
standards. No other representation, express or implied, and no
warranty or guarantee are included or intended in this Agreement, or in any
report, opinion, deliverable, work product, document or
otherwise. Furthermore, no guarantee is made as to the efficacy or
value of any services performed or software developed. This section
sets forth the only warranties provided by Consultant concerning the services
and related work product. This warranty is made expressly in lieu of
all other warranties, express or implied, including without limitation any
implied warranties of fitness for a particular purpose, merchantability,
non-infringement, title or otherwise. This article survives the
expiration or termination of this Agreement for any reason.
7. Limitation
of Liability. Consultant’s liability, including but not
limited to Client’s claims of contributions and indemnification related to third
party claims arising out of services rendered by Consultant, and for any losses,
injury or damages to persons or properties or capitals or belongings or goods or
assets or work performed arising out of or in connection with this Agreement and
for any other claim, shall be limited to the lesser of (i) Twenty Five Thousand
Dollars (US$25,000) or (ii) payment received by Consultant from Client for the
particular service provided giving rise to the claim. Notwithstanding
anything to the contrary in this Agreement, Consultant shall not be liable for
any special, indirect, consequential, lost profits, or punitive
damages.
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Client
agrees to limit Consultant’s liability to Client and any other third party for
any damage on account of any error, omission or negligence to a sum not to
exceed the lesser of (i) Twenty Five Thousand Dollars (US$25,000) or (ii) the
payment received by the Company for the particular service provided giving rise
to the claim. The limitation of liability set forth herein is for any
and all matters for which Consultant may otherwise have liability arising out of
or in connection with this Agreement, whether the claim arises in contract,
tort, statute, or otherwise. Client shall give Consultant written
notice within thirty (30) days of obtaining knowledge of the occurrence of any
claim or cause of action which Client believes that it has, or may seek to
assert or allege, against Consultant, whether such claim is based in law or
equity, arising under or related to this Agreement or to the transactions
contemplated hereby, or any act or omission to act by Consultant with respect
hereto. If Client fails to give such notice Consultant with regard to
any such claim or cause of action and shall not have brought legal action for
such claim or cause of action within said time period, Client shall be deemed to
have waived, and shall be forever barred from bringing or asserting such claim
or cause of action in any suit, action or proceeding in any court or before any
governmental agency or authority or any arbitrator. All notices or
other communications hereunder shall be in writing, sent by courier or the
fastest possible means, provided that recipient receives a manually signed copy
and the transmission method is scheduled to deliver within 48 hours, and shall
be deemed given when delivered to the principal office address or such other
address as may be specified in a written notice in accordance with this
section. Any party may, by notice given in accordance with this
Section to the other parties, designate another address or person or entity for
receipt of notices hereunder. This article survives the expiration or
termination of this Agreement for any reason.
8. Indemnification. Client
agrees to save harmless, indemnify and defend Consultant, its agents and
employees from and against any cost, loss, damage, liability, judgment and
expense whatsoever, including attorney’s fees, suffered or incurred by it by
reason of, or on account of, any misrepresentation made to it or its status or
activities as Consultant under this Agreement. In the event any
litigation or controversy arises out of or in connection with this Agreement
between the parties hereto, Consultant shall be entitled to recover from Client
all reasonable attorney's fees, expenses and suit costs, including those
associated within the appellate or post-judgment collections
proceedings. Client further agrees to indemnify Consultant’s
officers, directors, agents, and representatives against all losses, claims,
damages, liabilities, and expenses arising out of or based upon any untrue or
alleged untrue statement of material fact contained in any registration
statement, prospectus, or preliminary prospectus or any amendment thereof or
supplement thereto or any omission or alleged omission of a material fact
required to be stated therein or necessary to make the statements therein not
misleading, and shall reimburse Consultant and such officers, directors, agents,
and representatives for any legal or other expenses reasonably incurred by
Consultant and such officers, directors, agents, and representatives in
connection with the investigation or defense of such loss, claim, damage,
liability or expense. This article survives the expiration or
termination of this Agreement for any reason.
9. Representation. Client
hereby represents and warrants to Consultant that it is duly organized and in
good standing under State Law and under Federal Law, is current in its filings
and disclosures with the appropriate regulatory bodies and has all requisite
power and authority to carry on business as now conducted and as contemplated
herein. Client represents and warrants that each person signing this
Agreement on behalf of Client is duly authorized and has legal capacity to
execute and deliver this Agreement.
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Client
further represents and warrants to Consultant that the execution and delivery of
the Agreement and the performance of obligations hereunder have been duly
authorized and that the Agreement is a valid and legal agreement binding on such
party and enforceable in accordance with its terms. Client further
represents to Consultant that to the best knowledge of the Officers and
Directors of Client, all statements, either written or oral, made by Client to
Consultant are true and accurate, and contain no material misstatements, or
omission fact. Client acknowledges that estimates of performance made
by Client are based upon the best information available to Client officers at
the time of said estimates of performance. Client further
acknowledges that the information it delivers to Consultant will be used by
Consultant in preparing materials regarding Client’s business, including but not
necessarily limited to, its financial condition, for dissemination to the
public. Therefore, in accordance with other paragraphs of this
Agreement, Client shall hold the Consultant harmless from any and all errors,
omissions, misstatements in connection with all information furnished by Client
to Consultant. This article survives the expiration or termination of
this Agreement for any reason.
10. Termination. Either
party upon the giving of not less than ninety (90) days written notice may
terminate this Agreement, delivered to the parties at their principal business
address or addresses. Any such notice shall be deemed to be properly given when
transmitted by way of registered mail. The ninety (90) days termination
period shall not begin until the other party has received or is deemed to have
received the notice of termination. Anything herein to the contrary
notwithstanding, in the event that Consultant determines in good faith that its
relationship with Client subjects Consultant or any of its employees or agents
to potential violations of any applicable law, regulation, or order, then this
Agreement, and all obligations of Consultant hereunder, shall expire immediately
upon Consultant giving notice to Client of such determination. This
Agreement may be terminated at any time without notice by Consultant (i) for
illegal acts or willful neglect on the part of Client or Client’s management,
agents or employees or (ii) in the event any representation, warranty, covenant,
or agreement of Client contained in this Agreement shall prove to be inaccurate
in whole or in part. Upon termination, regardless of the reason of
such termination, Consultant shall have no obligation to pay back to Client or
reimburse Client any compensation or fee payments previously received under this
Agreement.
11. Exclusivity
and Performance. The services of Consultant hereunder
shall not be exclusive, and Consultant and its agents may perform similar or
different services for other persons or entities whether or not they are
competitors of Client. Consultant shall be required to expend only
such time as is necessary to service Client in a commercially reasonable
manner. Consultant will determine the method, details, and means of
performing the above-described services. Consultant may, at
Consultant’s own expense, use any employees or subcontractors as Consultant
deems necessary to perform the services required of Consultant by this
Agreement. Client may not control, direct, or supervise Consultant’s
employees or subcontractors in the performance of those services.
12. Confidentiality. Client and Consultant
acknowledge and agree that confidential and valuable information proprietary to
either one party and obtained during its business relationship with either one
party, shall not be, directly or indirectly, disclosed without the prior express
written consent of the other party, unless and until such information is
otherwise known to the public generally or is not otherwise secret and
confidential. All such confidential information provided to either one party by
the other shall be clearly and conspicuously marked with the word
“Confidential”. Consultant may disclose Client’s confidential
information pursuant to applicable laws or regulations, provided that Consultant
may disclose only information required for services and performances
hereunder.
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Furthermore
Client acknowledges and agrees that the existence of this Agreement and the
Agreement itself, including single paragraphs, terms, provisions, conditions
and/or any other section of the Agreement, shall not be, directly or indirectly,
in total or in parts, disclosed to any third party without the prior express
written consent of Consultant.
13. Independent
Contractor. In its performance hereunder, Consultant and
its agents shall be an independent contractor. Consultant shall
complete the services required hereunder according to its own means and methods
of work, shall be in the exclusive charge and control of Consultant and shall
not be subject to the control or supervision of Client. Client
acknowledges that nothing in this Agreement shall be construed to require
Consultant to provide services to Client at any specific time, or in any
specific place or manner, unless otherwise mutually agreed.
14. Jurisdiction,
Governing Law and Arbitration. This
Agreement shall be construed under and in accordance with the laws of the state
of New York. Both parties hereby consent to New York as the proper
jurisdiction for any such proceeding if applicable. In connection
with any Client claim against Consultant arising out of or relating to this
Agreement, Client agrees that such controversy or claim shall be submitted to
arbitration, and shall be conducted in accordance with the rules of the state of
New York. Any judgment rendered as a result of the arbitration of any
Client claim or dispute shall upon being rendered by the arbitrators be
submitted to a court of competent jurisdiction in the state of New
York. The aforementioned choice of venue is intended by the parties
to be mandatory and not permissive in nature, thereby precluding the possibility
of litigation between the parties with respect to or arising out of this
Agreement in any manner or jurisdiction other than that specified in this
paragraph. Client hereby waives any right it may have to assert the
doctrine of forum non convenes or similar doctrine or to object to venue with
respect to any proceeding brought in accordance with this paragraph, and
stipulates that the courts located in the state of New York shall have
jurisdiction and venue over Client for the purpose of litigating any dispute,
controversy, or proceeding arising out of or related to this
Agreement. To the fullest extent permitted by law, and as separately
bargained-for-consideration, Client hereby waives any right to trial by jury in
any action, suit, proceeding, or counterclaim of any kind arising out of or
relating to this Agreement.
15. Miscellaneous. No
waiver of any of the provisions of this Agreement shall be deemed or shall
constitute a waiver of any other provision and no waiver shall constitute a
continuing waiver. No waiver shall be binding unless executed in
writing by the party making the waiver. No supplement, modification,
or amendment of this Agreement shall be binding unless executed in writing by
all parties. This Agreement constitutes the entire agreement between
the parties and supersedes any prior agreements or negotiations. This
Agreement may, if required, be signed in counterparts, or by
facsimile. Neither party assumes any responsibilities or obligation
whatsoever, other than the responsibilities and obligations expressly set forth
in this Agreement or a separate written agreement between Client and
Consultant. Neither party shall be liable under the provisions of
this Agreement for damages on account of accidents, fires, acts of God,
government actions, state of war, or any other causes beyond the control of the
party whether or not similar to those enumerated. In the event of a
conflict between this Agreement and any future agreements executed in connection
herewith, the provisions of this Agreement shall generally
prevail.
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It is
acknowledged and agreed by Client and Consultant that should any provision of
this Agreement be declared or be determined to be illegal or invalid by final
determination of any court of competent jurisdiction, the validity of the
remaining parts, terms or provisions of this Agreement shall not be affected
thereby, and the illegal or invalid part, term or provision shall be deemed not
to be a part of this Agreement. Time is of the essence in respect to
all provisions of this Agreement that specify a time for performance; provided,
however, that the foregoing shall not be construed to limit or deprive a party
of the benefits of any grace or use period allowed in this
Agreement. Except as otherwise expressly provided in this Agreement,
Client’s representations, Client’s warranties, Client’s indemnification of
Consultant, and covenants contained in this Agreement, or in any instrument,
certificate, exhibit, or other writing intended by the parties to be a part of
this Agreement, shall survive for twenty five (25) years after the date of this
Agreement. Each party and its counsel have participated fully in the
review and revision of this Agreement. Any rule of construction to the effect
that ambiguities are to be resolved against the drafting party shall not apply
in interpreting this Agreement. The language in this Agreement shall
be interpreted as to its fair meaning and not strictly for or against any
party. Headings used throughout this Agreement are for reference and
convenience and in no way define by presentation, limit or describe the scope or
intent of this Agreement.
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IN
WITNESS WHEREOF, the parties hereto have entered into this Agreement on the date
first written above.
Client:
Signature: _____________________________________
Name:
_____________________________________
Title:
_____________________________________
Consultant:
Signature: _____________________________________
Name:
_____________________________________
Title:
_____________________________________
