Contract
Exhibit 10.16
THIS
FINDER’S FEE AGREEMENT (this “Agreement”), entered into this 21st day of
July, 2008, sets forth the arrangement between Aubry Consulting Group, Inc.
(“FINDER”) f/s/o Gils Aubry, with an address at 000 X. 00xx Xxxxxx,
Xxx Xxxx, XX 00000 and Sahara Media, Inc., a Delaware corporation (“Company”),
with its principal place of business located at 00 Xxxxxxxx Xxxxxx, 0xx Xxxxx,
Xxx Xxxx, XX 00000, with respect to compensation to which FINDER may become
entitled under the terms and conditions set forth in this
Agreement.
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1.
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Purpose. In
consideration of FINDER introducing the Company to Mac Filmworks, Inc.
(“MFI”), the Company shall compensate FINDER as provided
herein. FINDER understands and agrees that it was not the sole
finder to introduce the Company to MFI and that Gatwick
Holdings, LLC, will also receive compensation in consideration
of its efforts in introducing the Company to
MFI.
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2.
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FINDER’S
Compensation. On the date hereof, the Company shall pay
to FINDER the aggregate sum of $20,000 pursuant to Section 3
herein. If during the term of this Agreement, the Company
receives financing of at least $8,000,000 (“Funding”) from the direct
placement efforts of Xxxx Xxxxxx Financial, FINDER will be paid $120,000
upon the completion of the Funding. It is agreed and understood
that FINDER shall not participate in the negotiation, structuring,
documentation or any other aspect of the Funding and FINDER’s sole
participation shall be in connection with the introduction of the
placement agent of the Funding to the
Company,
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3.
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Form of
Compensation. FINDER’S compensation shall be paid to
FINDER, according to FINDER’S preference, either in the form of a
certified or cashier’s check, or wire transfer of immediately available
funds pursuant to the instructions provided to the Company by
FINDER.
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4.
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Consummation Required.
In no event
will the Company have any liability for compensation to FINDER pursuant to
this Agreement, unless the Funding closes within twelve months of the date
of this Agreement.
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5.
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Term. The
engagement of FINDER shall commence on July 21, 2008 and shall continue
until the earliest to occur of the
following:
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a)
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July
20, 2009; or
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b)
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Immediately
after the FINDER has been paid a total of $140,000 in accordance with the
terms and conditions of this
Agreement.
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Notwithstanding anything to the
contrary herein, Sections 7, 9, 10, and 11 of this Agreement shall survive the
termination of this Agreement.
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6.
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Agreement Not Exclusive.
Nothing in
this Agreement shall be deemed to prevent Company from authorizing other
parties to locate sources of funding and/or financing for it, and Company
may negotiate for and carry out fundings and/or financings independently
of FINDER, either with or without the assistance of other
intermediaries.
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7.
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Independent Contractor
Relationship. This Agreement is intended to create an
independent contractor relationship between FINDER and Company, which is
described in Section 3508 of the Internal Revenue Service Code, and shall
be interpreted to effectuate such intent between the
parties.
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(a)
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No Taxes Withheld from
Compensation. Company will not
withhold any taxes from any compensation paid to FINDER according to this
Agreement. It is acknowledged and agreed by the parties that Company has
not, is not, and shall not be obligated to make, and that it is the sole
responsibility of FINDER to make, in connection with compensation paid to
FINDER according to this Agreement, all periodic filings and payments
required to be made in connection with any withholding taxes, FICA taxes,
Federal unemployment taxes, and any other federal, state or local taxes,
payments or filings required to be paid, made or
maintained.
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1
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(b)
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FINDER Controls Time and
Effort. It is agreed that
Company is interested only in the ultimate results of FINDER’S activities
pursuant to this Agreement, and that FINDER shall have exclusive control
over the time and effort invested by FINDER pursuant to this Agreement,
and the manner and means of FINDER’S performance under this
Agreement.
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(c)
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Independence from
Company. The parties further agree that FINDER shall
have no control or supervision over Company’s employees, officers,
directors, representatives or affiliates. FINDER will not
represent that it is an employee of Company. FINDER shall at all times
represent himself and be construed as independent of
Company. FINDER shall not, under any circumstances, be deemed
to be a servant or employee of Company for any purpose, including for
Federal tax purposes. FINDER’S relationship to Company is that
of an independent contractor, and nothing in this Agreement shall
constitute this Agreement as a joint venture or partnership between FINDER
and Company. FINDER shall have no authority to bind Company or
any of its employees, officers, directors, representatives or affiliates
by any promise or representation, oral or otherwise, unless specifically
authorized in a writing bearing an authorized signature of a Company
officer, director or representative. All discussions and negotiations with
any source for funding and/or financing shall be conducted by
Company.
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8.
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Notice. All
notices, requests, demands and other communications (collectively, “Notices”) given pursuant
to this Agreement shall be in writing, and shall be sent overnight by
courier to the party at the address set forth in this
Section. Any Notice shall be effective when sent in accordance
with the terms of this Section. Any party may from time to time
change its address for further Notices hereunder by giving notice to the
other parties in the manner prescribed in this Section. Unless
a change of address is effected by any party pursuant to this Section,
Notices should be delivered to the
following:
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If to FINDER:
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If to Company:
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Gils
Aubry
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Xxxxxxxx
Xxxxxxxx XX
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Xxxxx
Consulting Group, Inc.
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Sahara
Media, Inc.
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000
X. 00xx
Xxxxxx
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00
Xxxxxxxx Xxxxxx, 0xx
Xxxxx
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Xxx
Xxxx, XX 00000
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Xxx
Xxxx, XX 00000
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(If to the Company ) With a Copy
To;
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Xxxx
Xxxx, Esq.
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Sichenzia
Xxxx Xxxxxxxx Xxxxxxx LLP
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00
Xxxxxxxx, 00xx
Xxxxx
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Xxx
Xxxx, XX 00000
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or to
such other address as any party may have furnished to the other in writing in
accordance with this Section.
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9. Law and
Jurisdiction. This Agreement
shall be interpreted and performed in accordance with the laws of the
State of New York, and the parties agree, notwithstanding the principles
of conflicts of law, that the internal laws of the State of New York shall
govern and control the validity, interpretation, performance, and
enforcement of this Agreement. Any action brought by either
party against the other concerning the transactions contemplated by this
Agreement shall be brought only in the state courts of New York or in the
federal courts located in the state of New York. The Company,
the FINDER, and the individuals executing this Agreement on
behalf of the Company and/or the FINDER agree to submit to the
jurisdiction of such courts and waive trial by
jury.
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2
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10.
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Indemnification. FINDER
shall indemnify and hold harmless the Company, its employees, legal
counsel, agents and affiliates (all of such persons being hereinafter
collectively referred to as the “Indemnified Parties”) against any and all
losses, claims, damages, obligations, penalties, judgments, awards,
liabilities, costs, expenses and disbursements (and any and all actions,
suits, proceedings and investigations in respect thereof and any and all
legal and other costs, expenses and disbursements reasonably incurred in
giving testimony or furnishing documents in response to a subpoena or
otherwise), including, without limitation, the reasonable costs, expenses
and disbursements, as and when incurred, of investigating, preparing or
defending any such action, suit, proceeding or investigation (whether or
not in connection with litigation in which an Indemnified Party is a
party), directly or indirectly caused by, relating to, based upon, arising
out of or in connection with (i) FINDER acting for the Company, including
without limitation, any act or omission by FINDER in connection with
acceptance of or the performance or nonperformance of its
obligations under this Agreement, as it may be amended from time to time;
(ii) any untrue statement or alleged untrue statement of material fact
contained in, or omissions or alleged omissions from, any information
furnished to an Indemnified Party, an investor, a potential
investor, lender, potential lender, provider of funding to the Company or
any party to the Funding; or (iii) the Funding, provided, however, the
foregoing indemnity shall not apply to any portion of any such loss,
claim, damage, obligation, penalty, judgment, award, liability, cost,
expense or disbursement to the extent it is found in a final
judgment by a court of competent jurisdiction (not subject to further
appeal) to have resulted primarily and directly from the willful
misconduct or gross negligence of the particular
Indemnified Party
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11.
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Release. In
consideration of the mutual agreements contained herein and for other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, FINDER and Xxxxx Xxxxx, in his individual capacity as well
as in his corporate capacity on behalf of FINDER, and their successors,
assigns, and other legal representatives, hereby absolutely,
unconditionally and irrevocably release, remise and forever discharge the
Company and its successors, assigns, officers, directors, employees,
agents and other representatives (the Company and all such other persons
being hereinafter referred to, collectively, in this Section 11 as the
“Releasees” and individually as a “Releasee”), of and from all demands,
actions, causes of action, suits, covenants, contracts, controversies,
agreements, promises, sums of money, accounts, bills, reckonings, damages
and any and all other claims, counterclaims, defenses, rights of set-off,
demands and liabilities whatsoever (individually, a “Claim” and
collectively “Claims”) of every name and nature, known or unknown,
suspected or unsuspected, both at law and in equity, which FINDER and/or
Gils Aubry, or any of their successors, assigns or other legal
representatives may now or hereafter own, hold, have or claim to have
against the Releasees or any of them for, upon, or by reason of any
circumstance, action, cause or thing whatsoever which arises at any time
on or prior to the day and date of this Agreement; provided, however, that
this release does not release, waive, impair or diminish the parties’
rights under this Agreement.
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12.
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Severability. If the law does
not allow a provision of this Agreement to be enforced, such unenforceable
provision shall be amended to become enforceable and reflect the intent of
the parties, and the rest of the provisions of this Agreement shall remain
in effect.
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13.
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Waiver. The failure of any
party, in any instance, to insist upon strict enforcement of the
provisions of this Agreement shall not be construed to be a waiver or
relinquishment of enforcement in the future, and the terms of this
Agreement shall continue to remain in full force and
effect.
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14.
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Assignability. This Agreement
shall not be assignable by either
party.
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15.
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Amendment. This Agreement may
only be amended or modified in a writing signed by both of the parties and
referring to this Agreement.
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16. Entire Agreement. This Agreement
constitutes the entire agreement and final understanding of the parties
with respect to the subject matter of this Agreement and supersedes and
terminates all prior and/or contemporaneous understandings and/or
discussions between the parties (except the Non-Disclosure Agreement
between the Company and Aubry Consulting Group, Inc., dated July 10, 2008,
which shall continue to be binding in accordance with its terms) whether
written or verbal, express or implied, relating in any way to the subject
matter of this Agreement.
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17. Execution in
Counterparts. This Agreement may be executed in one or
more counterparts (by facsimile, computer image file (e.g., PDF-file) or
in the original), each of which shall be deemed an original, but all of
which taken together shall constitute one in the same
instrument. Confirmation of execution by electronic
transmission of a facsimile signature shall be binding on the confirming
party.
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3
SIGNING
THIS AGREEMENT INDICATES ACCEPTANCE OF THE TERMS OF THIS AGREEMENT.
| FINDER: | Company: | |||
| Aubry Consulting Group, Inc. | Sahara Media, Inc. | |||
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/s/Gils
Aubry
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/s/
Xxxxxxxx Xxxxxxxx XX
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Gils
Aubry
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Xxxxxxxx
Xxxxxxxx XX
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Chief
Executive Officer and President
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