CORPORATE ADVISORY AGREEMENT
This
“Corporate Advisory Agreement” is entered into this 9th day of December 2009 by
and between Xxxxxx Xxxxxx or Nominee (“SA” or the “Consultant”) and EGPI
FIRECREEK, INC. (the “Company’).
I. ENGAGEMENT. The Company hereby
engages and retains SA as a Corporate Advisor to perform the Services (as that
term is hereinafter defined) and SA hereby accepts such appointment on the terms
and subject to the conditions hereinafter set forth and agrees to use its best
efforts in providing such Services.
II. INDEPENDENT
CONTRACTOR.
SA shall be, and in all
respects shall be deemed to be, an independent contractor in the performance of
its duties hereunder, any law of any jurisdiction to the contrary
notwithstanding. SA shall be solely responsible for making all payments to
and on behalf of its employees and subcontractors, including those required by
law, and the Company shall in no event be liable for any debts or other
liabilities of SA. SA shall not, by reason of this Agreement or the
performance of the Services, be or be deemed to be, an employee, agent, partner,
co-venture or controlling person of the Company and SA shall have no power to
enter into any agreement on behalf of, or otherwise bind the Company Subject to
the following sentence, SA shall not have or be deemed to have, fiduciary
obligations or duties to the Company and shall be free to pursue, conduct and
carry on for its own account (or for the account of others) such activities,
employments, ventures, businesses and other pursuits as SA in its sole, absolute
and unfettered discretion, may elect. Notwithstanding the above, no
activity, employment, venture, business or other pursuit of SA during the term
of this Agreement shall conflict with SA’s obligations under this Agreement or
be adverse to the Company’s interests during the term of this
Agreement.
III. SERVICES.
1.
Services. SA
agrees to provide Corporate Advisory services to the Company, which shall
include, but not be limited to, the following services (hereafter collectively
referred to as the “Services”):
(a)
Advise
and assist EGPI FIRECREEK, INC. in identifying one or more individuals,
firms or entities (the “Candidate(s)”) who may have an interest in providing
debt or investment capital in the form of bridge Financing, private placement
Financing, public equity Financing, any other sale of Securities or in pursuing
a Business Transaction with the Company. As used in this Agreement, the term
“Business Transaction” shall be deemed to mean any form of merger, acquisition,
joint venture, licensing agreement, product sales and/or marketing agreement,
distribution agreement, combination and/or consolidation, involving the Company
and/or any of its affiliates and any other entity. For the purposes of
this Agreement, "Security" shall mean:
(i) any stock or other security or ownership interest of the Company (or
entity succeeding or surviving the Company in the case of an M&A
Transaction) of the class, series and with the same terms as is issued in
connection with a Financing or M&A Transaction (as defined below), as the
case may be, or (ii) if no such stock, security or ownership interest is issued
in connection with a Financing or M&A Transaction, the existing common stock
or unit of ownership interest of the Company (or entity succeeding or surviving
the Company in the case of an M&A Transaction).
(b)
Assist
the Company in preparing presentations to potential institutional investors,
merchant bankers, investment bankers or other institutions that may have an
interest in participating in a Business Transaction with the Company Such
assistance shall include assisting the Company in assembling all internal
financial and operational information that a third party would expect to review
in connection with its due diligence review of the Company, preparing an
analysis of the Company’s industry; preparing an executive summary of the
Company’s business plan and financial forecasts. It is understood that the
Company shall be the Author of all such materials, but that SA will assist
management of the Company in preparing this information.
(c)
Assist
the Company in the selection and retention of one or more investor relations
firms which may be retained by the Company to provide information concerning the
Company to a variety of third parties through various media.
(d)
Advise
the Company on technical, legal and accounting due diligence aspects of
acquiring related businesses, to enable well informed decision making
methodology. Additionally, introduce appropriate interim strategies to
efficiently merge cultural differences in rapidly changing financial
structures.
(e)
Introduce
the Company to potential targets for acquisition.
(f)
Identify,
analyze, structure and/or negotiate sales and/or acquisitions of other
businesses, including without limitation, through merger, stock purchase, and
any other structure relating to such sales or acquisitions
SA shall
not perform any services that would require it to hold a securities
broker-dealer license or to register in any capacity with the U.S. Securities
and Exchange Commission, the California Department of Corporations, or any other
regulatory agency or SRO.
For
purposes of this Agreement, a “Financing” shall mean any purchase of any debt or
equity securities of the Company. An “M&A Transaction” shall mean (i)
any merger, consolidation, reorganization or other business combination pursuant
to which the businesses of a third party are combined with that of the Company,
(ii) the acquisition, directly or indirectly, by the Company of all or a
substantial portion of the assets or common equity of a third party by way of
negotiated purchase or otherwise, (iii) the acquisition, directly or indirectly,
by a third party of all or a substantial portion of the assets or common equity
of the Company by way of negotiated purchase or otherwise, or (iv) any joint
venture, licensing agreement, royalty agreement, distribution agreement or any
similar transaction to which the Company is party.
2.
Best Efforts. SA shall devote
such time and effort, as both parties deems commercially reasonable and adequate
under the circumstances, to the affairs of the Company to render the Services
contemplated by this Agreement. SA is not responsible for the performance
of any Services that may be rendered hereunder without the Company providing the
necessary information in writing prior thereto, nor shall SA provide any
services that constitute the rendering of any legal opinions or performance of
work that is in the ordinary purview of the certified public accountant.
SA cannot guarantee results on behalf of the Company, but shall pursue all
reasonable avenues available through its network of contacts. At such time
as an interest is expressed by a third party, SA shall notify the Company and
advise it as to the source of such interest and any terms and conditions of such
interest. The acceptance and consummation of any transaction is subject to
acceptance of the terms and conditions by the Company in its sole discretion.
It is understood that a portion of the compensation paid hereunder is
being paid by the Company have SA remain available to advise it on transactions
on an as-needed basis.
3.
Availability of SA.
In conjunction with the Services, SA agrees to:
(a)
Make
himself available to the officers of the Company at a mutually agreed upon place
during normal business hours unless mutually acceptable for reasonable periods
of time, subject to reasonable advance notice and mutually convenient
scheduling, for the purpose of advising the Company in the preparation of such
reports, summaries, corporate and/or transaction profiles, due diligence
packages and/or other material and documentation (“Documentation”) as shall be
necessary, in the opinion of SA, to properly present the Company to other
entities and individuals that could be of benefit to the
Company.
(b)
Make
himself available for telephone conferences with the principal sales and/or
operating officer(s) of the Company during normal business
hours.
4.
Authority to Engage Other
Service Providers. SA shall have the authority to engage other
third parties to assist it in providing services to the Company, and to pay
compensation to such third parties, including but not limited to portions of its
compensation to be received under this Agreement. the Company shall not be
responsible for the fees or other charges of such third parties unless and to
the extent that the Company otherwise agrees with SA or such third party by its
written signed authorization acknowledged by SA or such third
party.
IV. EXPENSES.
1.
General Expenses.
It is expressly agreed and understood that each party shall be responsible
for its own normal and reasonable out-of-pocket expenses which shall include,
but shall not be limited to, accounting, long distance communication, and the
printing and mailing of materials between the parties hereto; provided, however,
that this shall not include expenses incurred by SA in connection with the
reproduction, printing or special delivery of Business Plans, Corporate Profiles
or other similar documents, and such expenses shall be approved in advance and
in writing by the Company.
2.
Travel Expenses.
Any travel expenses incurred by SA in the rendering of its Services
hereunder shall be reimbursed by the Company on a monthly basis. This
shall only apply to travel that is requested by or approved in advance and in
writing by the Company.
V. COMPENSATION. In consideration for
the Services rendered pursuant to this Agreement, the Company that SA shall
receive the following compensation:
1.
Equity Compensation.
SA (or any designee) shall receive equity compensation in the amount of
four million (4,000,000) common restricted shares of the Company upon signing
this agreement. SA agrees to file a 13D or other regulatory filing as or if
required and where applicable.
2.
RESTRICTIONS.
a. INVESTMENT
INTENT. It is agreed by SA that the shares being issued pursuant to this
agreement may be sold, pledged, assigned, hypothecate or otherwise transferred,
with or without consideration (a “Transfer”), only pursuant to an effective
registration statement under the 1933 Act, or pursuant to an exemption from
registration under the 1933 Act, the availability of which is to be established
to the satisfaction of Company.
b. RESTRICTED
SECURITIES. SA understands common shares underlying this Agreement will be
deemed as "restricted securities” under applicable U.S. federal and state
securities laws inasmuch as they are being acquired from the Company in a
transaction not involving a public offering and that pursuant to these laws and
applicable regulations, the Lender must hold the Shares unless they are
registered with the Securities and Exchange Commission and qualified by state
authorities, or an exemption from such registration and qualification
requirements is available. The Lender further acknowledges that if an exemption
from registration or qualification is available, it may be conditioned on
various requirements including, but not limited to, the time and manner of sale,
the holding period for the Shares, and on requirements relating to the Lender
which are outside of the Company’s control, and as to which the Company is under
no obligation and may not be able to satisfy. In this connection, the Lender
represents that it is familiar with SEC Rule 144, as presently in effect, and
understands the resale limitations imposed thereby and by the Securities
Act.
c. REGISTRATION
RIGHTS. The Company agrees to include 4,000,000 shares under the current
agreement registration statement being filed and SA shall be granted piggy back
rights as well.
d. VOTING.
To the extent available under Nevada Revised Statutes SA agrees to Vote with and
for Management, including at elections, and issues presented to a vote of the
Shareholders, from time to time, and therefore to be consistent in its voting
with various terms of Voting Agreements in place with Management, and other
Shareholders providing similar consent action by specific proxy or other
acceptable written method.
VI. REPRESENTATIONS, WARRANTIES
AND COVENANTS.
1.
Disclosure of
Information.
The Company covenants that it will provide SA to the best of its
ability with complete, accurate and truthful information and with all material
facts that will enable SA to assist the Company in the preparation of due
diligence materials and reports that accurately describe the Company, its
financial condition and business operations and does not contain any misleading
information or omissions to state information that would make such materials or
reports misleading. SA covenants that it will disclose information concerning
the Company only as required to perform its services hereunder or as approved by
the Company.
2.
Cooperation and Delivery of
Corporate Information. The Company will cooperate with SA, and will
promptly provide SA with all pertinent materials and requested information in
order for SA to perform its Services pursuant to this Agreement
3.
Timely Information and
Updates. The Company shall use its commercially reasonable efforts
to keep SA up to date and apprised of all business, market and legal
developments related to the Company and its operations and management, including
the following:
(a)
copies of
all amendments, revisions and changes to its business and marketing plans,
banking agreements or debt facilities, bylaws, articles of incorporation,
private placement memoranda, key contracts, employment and consulting agreements
and other operational agreements;
(b)
copies of
all communications, forms, reports and registration statements filed with any
state or federal securities administrator, including without limitation, the
Securities and Exchange Commission (the “SEC”), and the National Association of
Securities Dealers, Inc. (“NASD”);
(c)
monthly,
quarterly and annual financial statements, including balance sheets, income
statements, cash flows and all other documents provided or generated by the
Company in the normal course of its business and requested by SA from time to
time.
4.
Corporate Authority.
Both the Company and SA have full legal authority to enter into this
Agreement and to perform their respective obligations as provided for in this
Agreement. The individuals whose signatures appear below are authorized to
sign this Agreement on behalf of their respective corporations.
5.
SA Ability. SA
represents and warrants to the Company that (a) it has the experience and
ability as may be necessary to perform all the required Services with a high
standard of quality, (b) all Services will be performed in a professional
manner, and (c) all individuals it provides to perform the Services will be
appropriately qualified and subject to appropriate agreements concerning the
protection of trade secrets and confidential information of the Company which
such persons may have access to over the term of this Agreement.
6.
Non-solicitation.
Pursuant to this Agreement, it is contemplated that SA shall supply to the
Company and its officers and directors certain information concerning investors.
Neither the Company, nor any of its majority owned or controlled entities,
or any of their officers and directors, or any affiliates, associates,
employees, consultants, or other related parties, shall, without the prior
written consent of SA, contact any of such investors and other entities
introduced directly or indirectly by SA to the Company for the purpose of an
investment in the Company or an investment in any other entity or enterprise
controlled by or affiliated with the Company or its directors, officers or
employees. the Company, its controlled entities, officers,
directors, affiliates, employees or other related parties shall not, either
directly or indirectly, whether with or through any person, firm, partnership,
corporation or other entity or venture now existing or hereafter created,
solicit or employ, or attempt to solicit or employ, any person who is or has
been within the preceding twelve (12) months an officer, director, partner,
manager, agent, employee, subcontractor or consultant of SA.
7.
Ex Officio Relationship with
the Company. Pursuant to this Agreement, SA agrees to become Ex Officio
member of the Board of Directors of the Company Pursuant to the Company’s then
required nomination and approval processes SA would agree to become a member of
the Board of Directors subject to D&O insurance suitable to and approved by
SA.
VII.
TERM AND
TERMINATION.
1.
From the date this
Agreement is fully executed, the “Term” of this Agreement shall be twelve (12)
months, unless terminated by either party, with or without cause, upon delivery
of a 30 day written notice by one party to the other; provided, however, the
termination or expiration of this Agreement shall not in any way limit, modify,
or otherwise affect the rights of SA to: (i) receive its entire compensation
pursuant to the terms of this Agreement in connection with a Financing or
M&A Transaction introduced or provided by SA involving the Company during
the Term of this Agreement or subsequent to the termination or expiration of
this Agreement, (ii) receive reimbursement of approved expenses incurred by SA
up to the date of termination or expiration of this Agreement pursuant to the
terms of Section V and VI hereof, and (iii) be protected by the indemnification
rights, waivers and other provisions of this Agreement. The Company hereby
covenants and agrees that it shall not enter into any M&A Transaction unless
the entity succeeding or surviving such M&A Transaction agrees in writing to
be bound by all terms and conditions of this Agreement applicable to the
Company, including, without limitation, the payment of all fees and expenses as
provided herein.
2.
In the event of early termination for any reason other
than a breach of this Agreement by SA, the Company shall pay any compensation
earned under the terms of this Agreement which has not yet been paid by the
Company to SA, if any, including payment for all merger and acquisition activity
as forth in Article VI, and reimburse SA for all reasonable expenses incurred by
SA until the date of termination.
VIII. CONFIDENTIAL
DATA.
1.
SA shall not divulge to others, and shall
cause its affiliates not to disclose to others, any trade secret or confidential
information, knowledge, or data concerning or pertaining to the business and
affairs of the Company, obtained by SA as a result of its engagement hereunder,
except to the extent necessary for SA to perform its services or as otherwise
authorized in writing by the Company. SA represents and warrants that it has
established appropriate internal procedures for protecting the trade secrets and
confidential information of the Company, including, without limitation,
restrictions on disclosure of such information to employees and other persons
who may be engaged in rendering services to any person, firm or entity which may
be a competitor of the Company.
2.
The Company shall not divulge to others, any trade secret or
confidential information, knowledge, or data concerning or pertaining to the
business and affairs of SA, obtained as a result of its engagement hereunder,
unless authorized, in writing by SA.
3.
SA shall not be required in the performance of its duties to
divulge to the Company, or any officer, director, agent or employee of the
Company, any secret or confidential information, knowledge, or data concerning
any other person, firm or entity, which SA may have or be able to obtain other
than as a result of the relationship established by this Agreement. SA
shall notify the Company of any arrangement(s) that is or could be considered
competitive.
4.
The Company agrees that all work product and
materials generated by SA, to be identified and acknowledged by SA and the
Company and further acknowledged in writing for each required instance, are
based on methodologies, processes and systems which are proprietary to SA and
constitute trade secrets of SA. As a result, the Company shall not use and
return all identified and agreed SA work product and other SA materials to SA
upon termination of this Agreement.
5.
The Company acknowledges that all advice (written or
oral) given by SA to the Company in connection with SA 's engagement hereunder
is intended solely for the benefit and use of the Company and its Board of
Directors in considering a Financing or M&A Transaction to which the advice
relates, and the Company agrees that no person or entity, including without
limitation, the Company after the termination of this Agreement, shall be
entitled to make use of or rely upon the advice of SA, and no such opinion or
advice shall be used for any other purpose or reproduced, disseminated, quoted
or referred to at any time, in any manner or for any purpose, nor may the
Company make any public references to SA, or use SA 's name in any annual
reports or any other reports or releases of the Company without SA 's prior
written consent and unless SA remains engaged as a consultant by the Company. It
is understood that a Form 8-K filing for any Restricted Stock Compensation
received hereunder is required for disclosure by the Company (Registrant) under
the rules and regulations of the Securities and Exchange
Commission.
IX. OTHER MATERIAL TERMS AND
CONDITIONS.
1.
Indemnity.
(a)
Indemnification by the
Company. The Company agrees to indemnify and hold harmless SA from any
claims, lawsuits or litigation arising from disputes between the Company and any
third parties other than those arising from the gross negligence or willful
misconduct of SA.
(b)
Indemnification by
SA. SA agrees to indemnify and hold harmless the Company from any
claims, lawsuits or litigation arising from disputes between SA and any third
parties other than those arising from the gross negligence or willful misconduct
of the Company.
2.
Arbitration.
The Parties hereto agree and acknowledge that this agreement is
subject to the provisions of the Federal Arbitration Act. Except to the extent
described in the last sentence of this paragraph, any controversy or claim
arising out of or relating to this engagement agreement, or the breach thereof,
shall be settled by arbitration administered by the American Arbitration
Association under its Commercial Arbitration Rules, and judgment on the award
rendered by the arbitrator may be entered in any court having jurisdiction
thereof. Any arbitration proceedings will be conducted in Orange or Los
Angeles Counties, California. The arbitrator shall have no authority to
award punitive damages or any other damages not measured by the prevailing
party’s actual damages, and may not make any ruling, finding or award that does
not conform to the terms and conditions of this engagement agreement.
Notwithstanding the foregoing, nothing contained in this engagement agreement
shall be construed to restrict in any way the right of any party hereto to seek
injunctive or similar equitable relief in any court of competent jurisdiction
with respect to any threatened breach of the provisions of this agreement or any
of the respective parties’ obligations hereunder.
3.
Attorneys Fees. In
the event any of the parties hereto are required to commence any action or
proceeding in order to enforce the obligations of the other parties hereto, then
the prevailing party shall be entitled to reasonable attorney fees and costs
incurred in any such action.
4.
Provisions.
Neither termination nor completion of the assignment shall affect the
provisions of this Agreement, which shall remain operative and in full force and
effect.
5.
Additional
Instruments. Each of the parties shall from time to time, at the
request of others, execute, acknowledge and deliver to the other party any and
all further instruments that may be reasonably required to give full effect and
force to the provisions of this Agreement.
6.
Entire Agreement.
Each of the parties hereby covenants that this Agreement, together with
the exhibits attached hereto as earlier referenced, is intended to and does
contain and embody herein all of the understandings and agreements, both written
or oral, of the parties hereby with respect to the subject matter of this
Agreement, and that there exists no oral agreement or understanding or expressed
or implied liability, whereby the absolute, final and unconditional character
and nature of this Agreement shall be in any way invalidated, empowered or
affected. There are no representations, warranties or covenants other than
those set forth herein.
7.
Laws of the State of
California. This Agreement shall be deemed to be made in, governed
by and interpreted under and construed in all respects in accordance with the
laws of the State of California, irrespective of the country or place of
domicile or residence of either party.
8.
Assignment.
This Agreement shall inure to the benefit of and be binding upon the
parties hereto and their respective successors and assigns; provided, however,
that SA may not assign any or all of SA’s rights or duties hereunder without the
prior written consent of the Company, which consent shall not be unreasonably
withheld. Notwithstanding the foregoing, SA may assign any portion of its
Compensation as outlined herein to its employees, affiliates, sub-contractors or
subsidiaries in its sole discretion. The Company agrees that it shall require,
as a condition of closing any Business Transaction in which the Company is not
the surviving entity but the shareholders of the Company receive a majority of
the voting interests of the surviving entity, that the surviving entity agree to
assume the obligations of the Company under this Agreement.
9.
Originals. This
Agreement may be executed in any number of counterparts, each of which so
executed shall be deemed an original and constitute one and the same agreement.
Facsimile copies with signatures shall be given the same legal effect as
an original.
10. Notices. Each
party shall at all times keep the other informed of its principal place of
business if different from that stated herein, and shall promptly notify the
other of any change, giving the address of the new place of business or
residence. Notices provided under this Agreement shall be provided in
writing and delivered by hand, by facsimile transmission or by overnight
courier. Notices shall be deemed received upon personal receipt if
personally delivered, upon completion of facsimile transmission with electronic
evidence of receipt, or upon delivery with evidence of delivery. Notices
shall be delivered to the information set forth below the signatures of each
party hereto, or to such other address, as a party shall have provided in
writing to the other party.
11. Modification and
Waiver. A modification or waiver of any of the provisions of this
Agreement shall be effective only if made in writing and executed with the same
formality as this Agreement. The failure of any party to insist upon
strict performance of any of the provisions of this Agreement shall not be
construed as a waiver of any subsequent default of the same or similar nature or
of any other nature.
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date
first written above.
| XXXXXX XXXXXX OR NOMINEE | EGPI FIRECREEK, INC. | |||
|
/s/Xxxxxx
Xxxxxx
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/s/Xxxxxx
X. Xxxxxxxxx
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|
By:
Xxxxxx Xxxxxx or Nominee
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By:
Xxxxxx X. Xxxxxxxxx
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| Its: Chairman, CEO, CFO |
