April 1, 2009 William P. Danielczyk Chairman Innovative Logistics Techniques
Exhibit
10.36
April 1,
2009
Xxxxxxx
X. Xxxxxxxxxx
Chairman
Innovative
Logistics Techniques
0000
Xxxxxxxxxx Xxxxx
McLean,
VA 22102
Dear Xx.
Xxxxxxxxxx,
This
letter agreement (the “Letter Agreement”) will confirm our understanding of the
terms and conditions under which GCC Capital Group, LLC (“Advisor”) is retained
in this Executive Management Agreement (the “Agreement”) by Innovative Logistics
Techniques (the “Company”) for the purposes of providing certain corporate
management oversight and corporate advisory services in connection with setting
and achieving strategic business objectives. As a part of this
agreement the Company agrees to compensate the Advisor for its
services. This letter agreement is to confirm our mutual
understanding with respect to our agreement.
The
Advisor team will be led by Xxxxxxx Xxxxxxxxxx and will also include other
members of Advisor’s staff and advisors as we deem appropriate from time to
time. Advisor will interact directly with Xxxxx Xxxxxxx as he represents the
Company’s Board of Directors.
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I.
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Services
to Be Provided (not all
inclusive)
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Advisor
will use its best professional efforts to assist the Company by providing
oversight and management expertise to the Company on a daily
basis. In addition to providing corporate management services, the
Advisor will also make available to the Company access to the Advisor’s core
competence of the Capital Markets as needed in accordance with the terms and
conditions of this Agreement. Advisor proposes to offer the following activities
on behalf of the Company, including, but not limited to, the
following:
All
Accounting Services (Payroll, Receivables, Financial Statements, Banking,
etc);
All Human
Resource Services;
All
Financial Assistance;
All
Business Development Services;
Office
Space;
Furniture;
All
Company Restructuring Services;
All
Marketing Support;
All
Information Technology (IT) Support;
All
Corporate Communications Support;
All Debt
Negotiations with Creditors;
Evaluating
all prospective acquisition opportunities for the
Company;
Provide
all Strategic Consultation;
Assist
the Company in securing a Line of Credit (LOC);
Provide
all access to the Capital markets;
Provide
all Advisory Services;
Render
such other advice and services as corporate finance advisors as agreed upon by
Advisor and the Company from time to time;
II. Compensation
Company
agrees to pay Advisor for its Services as follows:
A. Management
Fee
Company
agrees to pay Advisor one hundred thousand dollars ($100,000) on a monthly basis
or an amount not to exceed fifteen percent (15%) of the gross revenue the
Company earned the previous twelve (12) months effective the consummation of
this agreement.
Access to
Advisor’s personnel, including members of its Senior Advisor network, will be
provided at no additional charge to Company. Additionally, ongoing, specifically
identified assignments for such personnel may require individualized direct
contracting by Company with one or more such Advisors, at possible additional
cost, as negotiated from time to time, but only with prior written agreement by
Company. If Advisor elects to terminate this agreement, the fees contemplated
hereby will terminate simultaneously.
GCC
Capital Group will not receive any success fees.
III. Term
of Contract and Termination
The
Company or Advisor may terminate this Agreement, with or without cause, after
the first sixty (60) days from the date of execution of this Agreement,
effective thirty (30) days following receipt by the non-terminating party of
written notice of such termination. Any such termination shall not (except as
otherwise provided herein) affect the reimbursement or compensation or
indemnification provisions set forth herein, all of which will remain in full
force and effect. In the event the Advisor uncovers a material fact
about the Company during the course of this Agreement, which in the sole opinion
of the Advisor would negatively impact the Company if disclosed, then the
Advisor, at its sole discretion, may terminate this Agreement immediately upon
written notice of such termination (“Termination Notice”). This
agreement shall expire on May 1, 2010. The expiration of the
term of the Agreement shall not (except as otherwise provided herein) affect the
compensation or indemnification provisions set forth herein, all of which will
remain in full force and effect.
Information
Provided to Advisor
The
Company will furnish Advisor with such information as Advisor reasonably
requests for this assignment (all such information so furnished being the
“Information”). This includes any information necessary to complete
background checks on the principals of the Company. The Company
recognizes and confirms that Advisor (i) will use and rely primarily on the
Information provided by the Company as well as Information
available from generally recognized public sources in performing services
contemplated by this letter without having independently verified the same, (ii)
does not assume responsibility for the accuracy or completeness of the
Information and (iii) will not make an evaluation or appraisal of any assets of
the Company.
Confidentiality
Advisor
will require any third party to sign a confidentiality agreement in form and
substance satisfactory to the Company prior to furnishing any Information to
such third party.
Observation
Rights
Advisor
will receive observation rights to attend and participate in all meetings and
special meetings of the Company during the period of engagement.
Miscellaneous
Notwithstanding
this Agreement, Advisor and the Company agree not to quote or refer to this
Agreement in any document, release or communication prepared, issued or
transmitted without the express written consent of the other party (including
any entity controlled by, or under common control with, the Company and any
director, officer, employee or agent thereof).
This
Agreement shall be binding upon the Company and Advisor and their respective
successors and assigns and shall be governed by and construed in accordance with
the laws of the Commonwealth of Virginia without giving effect to the conflicts
of laws principles thereof. The Company will file application and be
approved for Directors and Officers’ liability (D&O) Insurance to meet with
Advisor’s acceptance within thirty-days from signing of this Engagement
Letter.
If the
foregoing correctly sets forth our understanding, please so indicate by
executing this letter, together with the enclosed duplicate originals, in the
space indicated and returning one (1) of these originals for our
files. By so doing, the Company represents and warrants that it has
obtained, or within 15 calendar days will obtain, Board of Directors' or other
approval of this agreement necessary to cause this Agreement to be duly
authorized, executed and delivered by the Company.
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Regards,
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Accepted
and agreed to, as of the date of this letter:
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GCC
Capital Group LLC
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By:
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Xxxxxxx
X. Xxxxxxx
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Managing
Director
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Innovative
Logistics Techniques
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By:
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Xxxxxxx
X. Xxxxxxxxxx
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Chairman
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Exhibit
A
Indemnification
Agreement
The
following provisions regarding indemnification are an integral part of the
Agreement (the "Agreement") to which they are attached between GCC Capital
Group, LLC, and the Company named therein. Capitalized terms used but
not defined below have the meanings given to them in the Agreement.
Indemnification
by the Company
In
connection with the services which GCC Capital Group, LLC have agreed to render
to the Company in the Agreement, the Company shall indemnify GCC Capital Group,
LLC, each of its directors, officers, employees, and agents and each person, if
any, who controls GCC Capital Group, LLC within the meaning of Section 15 of the
Securities Act of 1933, as amended (the "Act"), and hold GCC Capital Group, LLC
harmless to the fullest extent permitted by law against any and all losses,
claims, damages, and liabilities (and actions in respect thereof) to which GCC
Capital Group, LLC may become subject in connection with (i) GCC Capital Group,
LLC use of information contained in the Memorandum that is materially inaccurate
or alleged to be materially inaccurate in any respect (as a result of
misrepresentation, omission, failure to update or otherwise) that is provided to
GCC Capital Group, LLC by the Company or its representatives, agents, or GCC
Capital Group, LLC, regardless of whether GCC Capital Group, LLC knew or should
have known of such inaccuracy, (ii) the breach of any representation, warranty
or covenant of the Company contained in the Agreement, or (iii) any other aspect
of the rendering by GCC Capital Group, LLC of services under the Agreement,
unless it is finally judicially determined that losses, claims, damages, or
liabilities relating thereto were incurred solely as a result of the bad faith,
intentional wrongdoing, gross negligence or willful misconduct of GCC Capital
Group, LLC. Notwithstanding the foregoing, the Company shall not be
required to indemnify GCC Capital Group, LLC for matters for which the Company
is indemnified by GCC Capital Group, LLC hereafter.
Indemnification by GCC
Capital Group, LLC
GCC
Capital Group, LLC shall indemnify the Company and each person, if any, who
controls the Company within the meaning of Section 15 of the Act, and hold such
persons harmless to the fullest extent permitted by law, against any and all
losses, claims, damages, and liabilities (and actions in respect thereof) to
which such person may become subject if such loss, claim, damage, liability or
action arises out of or is based upon (i) any untrue statement of a material
fact contained in the Memorandum (as amended or supplemented) or the omission to
state therein a material fact necessary to make the statements therein not
misleading, but in each case only to the extent that the untrue statement or
omission was made in reliance upon and in conformity with written information
furnished to the Company by or on behalf of GCC Capital Group, LLC specifically
for inclusion therein, or (ii) any known violation by GCC Capital Group, LLC of
the provisions of Rule 502(c) of Regulation D.
Notice
of Indemnification
Each
party hereto agrees that, upon the service of a summons or other initial legal
process upon it in any action or suit instituted against it, or upon receipt of
written notification of the commencement of any investigation or inquiry of, or
proceeding against, it in respect of which indemnity may be sought hereunder, it
will promptly give written notice (the "Notice") of such service or notification
to the party or parties from whom indemnification may be sought
hereunder. No indemnification otherwise provided for hereunder shall
be available to any party who shall fail so to give the Notice if the party to
whom such Notice was not given was unaware of the action, suit, investigation,
inquiry or proceeding to which the Notice would have related and was prejudiced
by the failure to give the Notice, but the omission so to notify such
indemnifying party or parties of any such service or notification shall not
relieve such indemnifying party or parties from any liability which it or they
may have to the indemnified party for contribution or otherwise than on account
of such indemnity agreement.
Defense
by Indemnifying Party
Any
indemnifying party shall be entitled at its own expense to participate in the
defense of any action, suit or proceeding against, or investigation or inquiry
of, an indemnified party. Any indemnifying party shall be entitled,
if it so elects by giving written notice (the "Notice of Defense") to the
indemnified party within a reasonable time after receipt of the Notice, to
assume (alone or in conjunction with any other indemnifying party or parties)
the entire defense of such action, suit, investigation, inquiry or proceeding,
in which event such defense shall be conducted, at the expense of the
indemnifying party or parties, by counsel chosen by such indemnifying party or
parties and reasonably satisfactory to the indemnified party or parties;
provided, however, that (i) if the indemnified party or parties reasonably
determine that there may be a conflict between the positions of the indemnifying
party or parties and of the indemnified party or parties in conducting the
defense of such action, suit, investigation, inquiry or proceeding or that there
may be legal defenses available to such indemnified party or parties different
from or in addition to those available to the indemnifying party or parties,
then counsel for the indemnified party or parties shall be entitled to conduct
the defense to the extent reasonably determined by such counsel to be necessary
to protect the interests of the indemnified party or parties, and (ii) in any
event, the indemnified party or parties shall be entitled to have counsel chosen
by such indemnified party or parties participate in, but not conduct,
the defense.
If,
within a reasonable time after receipt of the Notice, an indemnifying party
gives a Notice of Defense, and counsel chosen by the indemnifying party or
parties is reasonably satisfactory to the indemnified party or parties, the
indemnifying party or parties will not be liable for any legal or other expenses
subsequently incurred by the indemnified party or parties in connection with the
defense of the action, suit, investigation, inquiry or proceeding, except that
(x) the indemnifying party or parties shall bear the legal and other expenses
incurred in connection with the conduct of the defense as referred to in clause
(i) of the proviso to the preceding paragraph, and (y) the indemnifying party or
parties shall bear such other expenses as it or they have authorized to be
incurred by the indemnified party or parties. If, within a reasonable
time after the receipt of the Notice, no Notice of Defense has been given, the
indemnifying party or parties shall be responsible for any legal or other
expenses incurred by the indemnified party or parties in connection with the
defense of the action, suit, investigation, inquiry or
proceeding. The indemnifying party shall not be liable for settlement
of any such action effected without its written consent, but if settled with its
written consent, or if there be a final judgment for the plaintiff in any such
action, the indemnifying party shall indemnify with respect to such settlement
or judgment.
Contribution
if Indemnification Not Available
If for
any reason the foregoing indemnity is unavailable to the indemnified party or
insufficient to hold the indemnified party harmless, then the indemnifying party
shall contribute to the amount paid or payable by the indemnified party as a
result of such claims, liabilities, losses, damages or expenses, in such
proportion as is appropriate to reflect not only the relative benefits received
by the indemnifying party, on the one hand, and the indemnified party, on the
other hand, but also the relative fault of the indemnifying party and the
indemnified party, as well as any relevant equitable
considerations. Notwithstanding any contrary provisions in this
agreement, the aggregate contribution of GCC Capital Group, LLC to all claims,
liabilities, losses, damages, and expenses shall not exceed the amount of fees
actually received by GCC Capital Group, LLC pursuant to its engagement by the
Company. It is hereby further agreed that the relative benefits to
the Company, on the one hand, and Placement Agent, on the other hand, with
respect to the transaction contemplated in the Agreement shall be deemed to be
in the same proportion as (i) the net proceeds actually received by the Company
resulting from the sale of the Securities bears to (ii) the fees paid to
Placement Agent with respect to such sale. The indemnifying party
agrees that its indemnification commitments herein set forth shall apply whether
or not the indemnified party is a formal party to any such actions or other
proceedings, that such commitments shall be in addition to any liability that
the indemnifying party may have to the indemnified party at common law or
otherwise, and that such commitments shall survive any termination of the
Agreement.
Survival
and Effect
This
indemnity agreement and the representations and warranties of the parties
contained in the Agreement shall remain in full force and effect regardless of
any investigation made by or on behalf of GCC Capital Group, LLC, and shall
survive any termination of such Agreement or the issuance and delivery of the
Securities.
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AGREED
AND ACCEPTED:
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GCC
Capital Group, LLC
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Xxxxxxx
X. Xxxxxxx
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Managing
Director
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Date
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Innovative
Logistics Techniques
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Xxxxxxx
X. Xxxxxxxxxx
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Chairman
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Date
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