Exhibit 10.1
Financial and Strategic Consulting Agreement
Prepared for
World Energy Solutions
By
Xxxx Capital Partners, Inc.
Private Investment Banking Group
April 3, 2006
Financial and Strategic Consulting Agreement
This Financial and Strategic Consulting Agreement (the "Agreement") is by and
between World Energy Solutions, Inc. ("WEGY", "Company" or "Client") and Xxxx
Capital Partners, Inc. ("GCP" or "Consultant") dated as of the 3rd day of April
2006. The Agreement is subject to the following terms and conditions as set
forth herein.
DUTIES AND RESPONSIBILITIES OF GCP
1. Equity and Debt Finder: GCP shall make introductions to prospective capital
sources and actively assist WEGY with negotiations, terms and structuring
for equity, senior or sub-debt, convertible debt instruments and/or
commercial credit lines ("Investor Introductions") of up to a maximum of:
a. Equity: $10,000,000 (TEN MILLION DOLLARS), including but not limited
to a "Qualified Equity Financing" in accordance with the attached
Exhibit "A" (referred to hereinafter as the "Qualified Equity
Financing"), for use by WEGY in the execution of its business plan and
acquisitions, on a best efforts basis, and;
b. Project Financing: $100,000,000 (ONE HUNDRED MILLION DOLLARS),
including but not limited to senior secured debt secured by
receivables and contracts in accordance with the attached Exhibit "B"
(referred to hereinafter as Project Financing"), for use by WEGY in
the execution of client contracts related to its business plan, on a
best efforts basis.
GCP shall have to facilitate or engage in Investor Introductions following
the Qualified Equity Funding in accordance with the attached Exhibit A and
the Project Financing in accordance with the attached Exhibit B.
The Qualified Equity Financing and the Project Financing may be referred to
hereinafter individually or collectively as the "Financings").
2. Financial Consulting Engagement: GCP shall assist the Company with the
development of financial projections, presentation materials and customized
proposals for:
a. Strategic alliances, partnerships and transactions, including
i. Merger & Acquisition targets.
ii. Venture Capital Funds, Hedge Funds, Underwriters, Market Makers;
iii. Equity Investment Prospectus; and
iv. Debt Presentation Package (including senior debt, sub-debt, lines
of credit and receivables financing).
3. Strategic Consulting Engagement: GCP shall assist WEGY with the strategic
development and deployment of its unique business model (the "Project").
COMPENSATION TO GCP
4. COMPENSATION: GCP agrees that it shall receive as its sole compensation for
its services the following good and valuable consideration as follows:
a. Six million, three hundred and nine thousand (6,309,000) unregistered
shares of Common Stock of World Energy Solutions, Inc., (the
"Securities") which are restricted under Rule 144 of the Securities
Act of 1933 as amended, (the "Securities Act") and which shall be
delivered to GCP within ten (10) days of the date of this Agreement,
and
b. GCP shall receive piggy-back registration rights for any and all of
the Company's securities owned by GCP (the "Securities") in any
registration filed by the Company under terms not less than those of
all other securities of the Company being registered. The registration
of the Securities on behalf of GCP by WEGY shall be accomplished at
the Company's sole expense.
c. Termination: WEGY and/or GCP may terminate this Agreement with or
without cause, as follows:
i. Any Cancellation or amendment of this Agreement may only be made
in writing.
ii. Either party may terminate this Agreement with thirty (30) days
prior written notice, after sixty (60) days from the date of the
Agreement. During the first sixty (60) days of the Agreement,
neither party may terminate the Agreement.
5. EXPENSE REIMBURSEMENT. Upon execution of this Agreement, WEGY shall pay to
GCP a one-time expense deposit of $5,000 (Five Thousand Dollars). GCP shall
invoice WEGY for approved expenses incurred on behalf of WEGY including
travel costs where such travel is requested by the Company. Travel costs
and other WEGY related expenses shall be advanced by GCP and typically
billed monthly net 30 days from receipt. GCP shall be entitled to
reimbursement of ordinary, direct expenses (excluding legal, accounting or
other third party professional service fees) incurred in the normal course
of its performance of this Agreement. Such expenses shall include, but not
be limited to, shipping fees, copying, meals and entertainment related to
WEGY meetings. Expenses in excess of $500 incurred by GCP must be approved
by WEGY in advance to be considered an approved expense item.
6. CONFIDENTIALITY. WEGY and GCP mutually agree to keep confidential the
proprietary, non-public information of the other, as follows:
a. As used herein, "Proprietary Information" means any and all
information, material and know-how regarding technology, business
plan, prospective customers, businesses, intellectual property,
operations, finances, prospects, vendors, personnel, products and
services (whether developed or future), non-public financial or
business information and the business and intellectual property of the
Company, and/or each of its representatives, affiliates, vendors,
investments, prospective investments, customers and prospects that (a)
is proprietary or trade secret; or (b) has economic value, actual or
potential, from not being generally known to or readily ascertainable
by others who can obtain economic value from its disclosure or use and
is subject to efforts by Company, as applicable, to maintain its
secrecy, including without limitation (i) marking any written
information or material with a legend identifying its confidential
nature, (ii) identifying any presentation or communication, whether
oral or written, as confidential immediately before, during or after
its presentation or communication; or (iii) otherwise treating such
information, material and know-how as confidential. Proprietary
Information shall specifically include, but is not limited to, all
discussions held and information disclosed by the Company, and/or each
of its representatives regarding the Activity and its subject matter;
all proposals, correspondence, offers and related disclosures
regarding the Activity and its subject matter; and the existence,
nature and details of discussions between the Parties.
b. All Proprietary Information disclosed to or known by the GCP in
connection with its dealings with the Company shall remain the
property of the Company, shall be used by GCP only for the stated
Activity and shall be maintained in confidence by the GCP using the
same care and discretion (but in no event less than reasonable) to
protect and prevent disclosure as it employs with its similar
information. GCP acknowledges and agrees that no information or
material disclosed to Company by GCP shall be considered confidential
or proprietary and that the Company shall have no obligation to keep
confidential or not use such information or material. Proprietary
Information shall not be used, reproduced, distributed or disclosed by
the GCP except as authorized by the Company and then only to such
persons authorized by the Company who have a specific need to know it;
such persons shall be obligated to hold the Proprietary Information in
confidence to the same degree as required of GCP and shall be
otherwise required to comply with the terms of this Agreement. The GCP
shall diligently monitor all access to Proprietary Information, and
upon request by the Company, promptly furnish to the Company a list of
individuals having had access to the Proprietary Information of the
Company. At the earlier of (i) the request of the Company, (ii)
termination of this Agreement, or (iii) the failure to reach a
definitive arrangement between the Parties regarding the Activity
within six (6) months of the Effective Date of this Agreement, the GCP
will (i) promptly return to the Company all Proprietary Information
(including all copies, extracts or other reproductions thereof) and
other materials belonging to (or provided by) the Company or its
representatives, and (ii) destroy any and all notes, memorandum,
projections, reports or other documents prepared by or for the GCP
that contain or otherwise reflect Proprietary Information.
c. GCP acknowledges that unauthorized disclosure or use of Proprietary
Information by GCP may cause the Company irreparable harm and
significant injury that may be difficult to ascertain. Accordingly,
the Parties agree that the Company shall have the right to seek and
obtain immediate injunctive relief from any breach of this Agreement
by GCP, which right shall be in addition to any other rights and
remedies that it may have available. GCP agrees to reimburse,
indemnify and hold harmless the Company and each of its officers,
directors, employees and representatives from any and all liability,
damage, loss or expense, including (without limitation) reasonable
attorney fees, incurred as a result of breach of this agreement by GCP
or its representatives.
7. INDEMNIFICATION. WEGY and its agents or assigns hereby agree to indemnify
and hold GCP harmless from and against all losses, claims, damages,
liabilities, costs or expenses (including reasonable attorney's fees,
collectively the "Liabilities"), joint and several, arising from the
performance of this Agreement, whether or not GCP is party to such dispute.
This indemnity shall not apply, however, and GCP and its affiliates shall
indemnify and hold WEGY, its affiliates, control persons, officers,
employees and agents harmless from the against all liabilities, where a
court of competent jurisdiction has made a final determination that GCP
engaged in willful misconduct in the performance of its services hereunder
which gave rise to the loss, claim, damage, liability, cost or expense
sought to be recovered hereunder.
Pending any such final determination, the indemnification and reimbursement
provision of this Agreement shall apply and WEGY shall perform its
obligation hereunder to reimburse GCP for its expenses. The provisions of
this Paragraph shall survive the termination and expiration of this
Agreement.
8. INDEPENDENT CONTRACTOR. GCP and WEGY hereby acknowledge that GCP is an
independent contractor. GCP shall not hold itself out as, nor shall it take
any action from which others might infer that it is an agent of or a joint
venture of WEGY.
9. TERM. The Term of this Agreement shall be for a period of twelve months
(April 3, 2006 - April 3, 2007) unless otherwise extended by mutual
agreement of the parties (the "Term"), or unless terminated in accordance
with the terms included herein. This Agreement may be terminated by either
party only in accordance with paragraph 4c. or Exhibits "A" and "B" or by
mutual agreement of the parties in writing.
10. MISCELLANEOUS. This Agreement sets forth the entire understanding of the
parties relating to the subject matter hereof, and supersedes and cancels
any prior communications, understandings and agreements between the
parties. This Agreement is exclusive and cannot be modified or changed, nor
can any of its provisions be waived, except by written agreement signed by
all parties. The laws of the State of Florida shall govern this Agreement
without reference to the conflict of law principles thereof. The parties
agree that any and all disputes arising from this Agreement, the
performance or breach thereof or relating to any subject matter whatsoever
shall be submitted to arbitration before the American Arbitration
Association utilizing its commercial rules with venue for such arbitration
being in St. Petersburg, Pinellas County, Florida. The courts of competent
jurisdiction in St. Petersburg, Pinellas County, Florida shall have
concurrent jurisdiction with the American Arbitration Association for
purposes of entering temporary and/or permanent injunctive relief and
post-arbitration proceedings. In the event of any dispute as to the terms
of this Agreement, the prevailing party in any litigation shall be entitled
to reasonable attorneys' fees.
11. NOTICES. Any notice required or permitted hereunder shall be given in
writing (unless otherwise specified herein) and shall be deemed effectively
given upon (a) personal delivery or (b) seven business days after deposit
in the United States Postal Service, Certified Mail, Return Receipt
requested, postage prepaid, or (c) facsimile transmission with confirmation
of receipt or transmission, or (d) overnight mailing by a nationally
recognized overnight express courier, with postage and fees prepaid,,
addressed to each of the other Parties thereunto entitled at the following
addresses, or at such other addresses as a Party may designate by ten days
advance written notice to each of the other Parties hereto:
Company: World Energy Solutions
0000X 00xx Xxxxxx Xxxxx
Xx. Xxxxxxxxxx, XX 00000
Attention: Xx. Xxx Xxxxxxx, CEO
Facsimile No.:
Consultant: Xxxx Capital Partners, Inc.
Private Investment Banking Group
0000 Xxxxx Xxxxx Xxxxxxx
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxx X. Xxxx
Facsimile Transmission No.:000-000-0000
12. ENTIRE AGREEMENT. This is the entire Agreement by and between the parties
and any modifications to said Agreement, shall only be valid if made in
writing and executed by both parties hereto.
AGREED AND ACCEPTED FOR: AGREED AND ACCEPTED FOR:
World Energy Solutions, Inc. Xxxx Capital Partners, Inc.
/s/ Xxx Xxxxxxx /s/ Xxxx X. Xxxx
----------------------------- -----------------------------
Xxx Xxxxxxx - CEO Xxxx X. Xxxx - CEO
Exhibit "A"
Qualified Equity Financing Term Sheet
Private Placement $10,000,000
Price Per Share $1.00 per share
Restrictions Restricted under Rule 144
Discounts The first $ 2,500,000 or 5,000,000 shares
sold pursuant to this Private Placement
shall receive a 50% discount or a share
purchase price of $0.50 (Fifty Cents) per
share.
Fees & Commissions The Company may elect to
engage an NASD broker dealer as placement
agent for this offering. Shares sold by a
placement agent may be subject to a
commission and/or expense reimbursement and
the Company would receive the net proceeds
less the placement agent fees.
Private Placement
Memorandum The Private Placement of the Company's
securities shall be made pursuant to a
Private Placement Memorandum ("PPM") and the
terms and conditions related to the purchase
of any WEGY securities shall be governed by
the PPM.
Not An Offer This term sheet is not an offer to buy
or sell securities, but is incorporated
herein for informational purposes only.
Exhibit "B"
Project Financing Terms
To Be Determined
