Dated: August 16, 2005
Dated:
August 16, 2005
ACI
Global Corporation
00X
Xxxxxx Xxxxxx
London
SW5 9PD
U.K.
Attention:
Xxxxxxx Xxxxxxx, Chairman and CEO
Re:
Retainer for Funding Referral Services
Xx.
Xxxxxxx:
This
letter, when executed by the parties hereto, will constitute an agreement
between ACI Global Corporation (the
“Company”) and Clio General SA (“Clio”), pursuant to which the Company agrees to
retain Clio as an independent consultant and Xxxx agrees to be retained by
the
Company under the terms and conditions set forth below.
1. The
Company has expressed to Clio its desire to obtain equity and/or debt
investments in order to obtain capital for various purposes. Xxxx has agreed
to
introduce to the Company one or more third parties (individually a “Transaction
Party” and collectively the “Transaction Parties”) which have indicated an
interest in negotiating and consummating an investment transaction with the
Company. The transaction may be in the form of an equity and/or debt investment,
including a secured or unsecured loan or similar transaction (collectively
referred to as a “Transaction”). Clio shall use its efforts to initiate a
meeting between principals of the Transaction Parties and the Company to discuss
a possible Transaction. The Company understands that Clio is not guaranteeing
that a Transaction will be consummated, and is not offering to purchase any
securities of the Company.
2. In
consideration for the introduction of the Company to the Transaction Party,
the
Company hereby agrees to pay Clio the compensation as described in this Section
2.
A. Clio
shall be entitled to receive a cash fee equal to 10%
of the
total gross proceeds of the Transaction and Clio shall receive an equal number
of investment warrants to purchase shares of the Company’s common stock as the
investor. Warrant terms shall include a five-year term from date of issuance,
exercise price equal to the same conversion price as the investor, cashless
exercise will be permitted until registration and cash exercising of the
warrants after the registration is declared effective. The previous mentioned
compensation will be due and payable only in the event that the Company and
the
Transaction Party consummate a Transaction. Notwithstanding the foregoing,
in
the event that the Transaction proceeds are received by the Company in
installments, the compensation payable to Clio hereunder shall be due and
payable, in cash, upon receipt by the Company of each installment. Such fee
shall be paid in cash at the closing of the Transaction and shall be payable
whether or not the Transaction involves equity and/or debt securities, or a
combination of equity and/or debt securities and cash, or is made on the
installment sale basis. In the event of a reverse stock split, the Company
shall
issue the same number of warrants on a pre-spilt basis and the exercise price
shall be adjusted accordingly, only if the adjusted exercise price is lower
than
the $3.00 initial basis as an ‘anti-dilutive’ measure. In the event of a forward
stock split, the number of shares and exercise price shall be adjusted in the
customary manner. Warrants shall be issued immediately upon each subsequent
investment tranch. For purposes of this Agreement “total gross proceeds” shall
mean the fair market value of all cash and or securities received by the Company
from the Transaction Party, and shall include any debt repayment, or debt
assumption, all determined in accordance with generally accepted accounting
principles. The Company hereby agrees to issue Clio commitment stock for
services rendered from time to time in the amount of 1 share for every $1 of
services rendered. Clio shall be entitled to “piggy-back” registration rights,
which shall be triggered upon registration of any shares of Common Stock with
respect to the Transaction’s Registration Rights Agreement.
_____/_____
Company/Clio
1
3. Clio
shall hold itself ready to assist the Company in evaluating and negotiating
the
Transaction, if requested to do so by the Company, upon reasonable notice,
and
will undertake such evaluations and negotiations upon prior written agreement
as
to compensation to be paid by the Company to Clio with respect to such
evaluations and negotiations. In this regard, subject to the terms set forth
below, Clio shall furnish to the Company advice and recommendations with respect
to such aspects of the business and affairs of the Company, as the Company
shall, from time to time, reasonably request upon reasonable
notice.
4. Nothing
contained in this Agreement shall limit or restrict the right of Clio or of
any
officer, employee, agent or representative of Clio, to be a partner, director,
officer, employee, agent or representative of, or to engage in, any other
business, whether of a similar nature or not, nor to limit or restrict the
right
of Clio to render services of any kind to any other corporation, firm,
individual or association.
5.
Clio
will
hold in confidence for a period of five years from the date hereof any
confidential information which the Company provides to Clio pursuant to this
Agreement unless the Company gives Clio permission in writing to disclose such
confidential information to a specific third party. Notwithstanding the
foregoing, Clio shall not be required to maintain confidentiality with respect
to information (i) which is or becomes part of the public domain through no
fault or action of Clio; (ii) of which it had independent knowledge prior to
disclosure to it by the Company; (iii) which comes into the possession of Clio
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 Clio by governmental or security regulatory requirements. If Clio is
requested or required (by oral questions, interrogatories, requests for
information or document subpoenas, civil investigative demands, or similar
process) to disclose any confidential information supplied to it by the Company,
or the existence of other negotiations in the course of its dealings with the
Company or its representatives, Clio shall, unless prohibited by law, promptly
notify the Company of such request(s) so that the Company may seek an
appropriate protective order.
6. Each
of
the Company and Clio agrees to indemnify and hold harmless each other, and
their
respective partners, employees, agents, representatives and controlling persons
(and the officers, directors, employees, agents, representatives and controlling
persons of each of them) from and against any and all losses, claims, damages,
liabilities, costs and expenses (and all actions, suits, proceedings or claims
in respect thereof) and any legal or other expenses in giving testimony or
furnishing documents in response to a subpoena or otherwise (including, without
limitation, the cost of investigating, preparing or defending any such action,
suit, proceeding or claim, whether or not in connection with any action, suit,
proceeding or claim in which Clio or the Company is a party), as and when
incurred, directly or indirectly, caused by, relating to, based upon or arising
out of Clio's service pursuant to this Agreement, including, without limitation,
any suit based upon the terms and conditions of a Transaction or information,
representations or warranties provided by the Company to a Transaction Party
by
the Company. The Company further agrees that Clio shall incur no liability
to
the Company or any other party on account of this Agreement or any acts or
omissions arising out of or related to the actions of Clio relating to this
Agreement or the performance or failure to perform any services under this
Agreement except for (i) Clio’s intentional or willful misconduct or (ii)
information regarding Clio which is provided by Clio to the Company or to a
Transaction Party. Further, in no event shall Clio shall be liable to the
Company or to any third party for an amount in excess of the cash compensation
received by it pursuant to Section 2 hereof. This Section 6 shall survive the
termination of this Agreement. Notwithstanding the foregoing, no party otherwise
entitled to indemnification shall be entitled thereto to the extent such party
has been determined to have acted in a manner which has been deemed gross
negligence or willful misconduct regarding the matter for which indemnification
is sought herein.
7. This
Agreement may not be transferred, assigned or delegated by any of the parties
hereto without the prior written consent of the other party hereto.
_____/_____
Company/Clio
2
8. This
Agreement shall remain in effect for a period of 3 years from the date hereof.
Clio and the Company shall have the right to terminate this agreement upon
30
days prior written notice to the Company. Notwithstanding termination of this
Agreement, Clio shall be entitled to receive compensation under Section 2 hereof
in the event the Company and a Transaction Party consummate a Transaction at
anytime during the period commencing on the date hereof and ending 36 months
from the date of introduction of the Transaction Party to the Company. Sections
2, 5, 6 and 8 shall survive termination of this Agreement.
9. This
Agreement has been made in the State of New York and shall be construed and
governed in accordance with the laws thereof without giving effect to principles
governing conflicts of law. The Company and Clio (a) agree that any legal suit,
action or proceeding arising out of or relating to this Agreement shall be
instituted exclusively in New York State Supreme Court, County of New York,
or
in the United States District Court for the Southern District of New York,
(b)
waive any objection which the Company or Clio may have now or hereafter to
the
venue of any such suit, action or proceeding, and (c) irrevocably consent to
the
jurisdiction of the New York State Supreme Court, County of New York and the
United States District Court for the Southern District of New York in any such
suit, action or procedure. Each of the Company and Clio further agrees to accept
and acknowledge service of any and all process which may be served in any suit,
action or proceeding in the New York State Supreme Court for the Southern
District of New York, and agrees that service of process upon the Company or
Clio mailed by certified mail to their respective principal offices shall be
deemed in every respect effective service of process upon them in any such
suit,
action or proceeding. In the event of litigation between the parties arising
hereunder, the prevailing party shall be entitled to costs and reasonable
attorney's fees.
10. This
Agreement contains the entire agreement between the parties, may not be altered
or modified, except in writing and signed by the party to be charged thereby,
and supersedes any and all previous agreements between the parties relating
to
the subject matter hereof.
11.
This
Agreement may be executed in counterparts, each of which shall constitute an
original and all of which, when taken together, shall constitute one
agreement.
12.
Each
of the Company and Clio represent and warrant to each other that:
A. this
Agreement has been duly authorized by its board of directors;
B. this
Agreement constitutes a valid and binding agreement;
C. this
Agreement has been duly executed by a duly authorized officer; and
D.
each
Transaction Party shall be notified of the terms of this Agreement prior to
consummation of any Transaction.
If
you
are in agreement with the foregoing, please execute two copies of this letter
in
the space provided below and return them to the undersigned.
| Very truly yours, | ||
| CLIO GENERAL SA. | ||
| |
|
|
| By: | ||
|
Name: |
||
| Clio General SA | ||
ACCEPTED
AND AGREED TO AS OF
THE
DATE
FIRST ABOVE WRITTEN
_____/_____
Company/Clio
3
