BUSINESS DEVELOPMENT AGREEMENT
Exhibit
10.10
THIS
BUSINESS DEVELOPMENT AGREEMENT (“Agreement”) is made
and entered into as of the of 2006, to be effective as
of the “Effective Date” hereinafter defined, by and between
ZBB ENERGY CORPORATION, a corporation organized under the laws
of the State of Wisconsin (hereinafter referred to as the
“Company”), whose address is N93 X00000 Xxxxxxxxx Xxx,
Xxxxxxxxx Xxxxx, Xxxxxxxxx 00000; and 41 BROADWAY ASSOCIATES
LLC, a Delaware limited liability company (hereinafter referred
to as the “Consultant”), having an address c/o Wharton
Equity Partners, LLC, 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000. The Company, the Consultant and its Members who have executed
this Agreement on the signature page hereof are sometimes
collectively referred to herein as the “Parties.”
WHEREAS,
the Company is engaged in the business of developing and
manufacturing distributed energy storage systems and solutions based
upon the Company’s proprietary zinc-bromine rechargeable
electrical energy storage technology (the “ZBB Storage
Systems”); and
WHEREAS,
the Consultant and its members are experienced in assisting public
companies in financial advisory, strategic business planning;
establishment of strategic business alliances and investor relations
services; and
WHEREAS,
the Parties agree, after having a complete understanding of the
services desired and the services to be provided, that the Company
desires to retain Consultant to provide such assistance through its
services for the Company, and the Consultant is willing to provide
such serves to the Company; and
WHEREAS,
the Consultant is desirous of purchasing shares of common stock,
$0.01 par value per share of the Company (the “Common
Stock”) and the Company is willing to sell to the Consultant
or its affiliates certain shares of Common Stock, all upon the terms
and subject to the conditions hereinafter set forth;
NOW,
THEREFORE, in consideration of the mutual covenants and promises
contained herein, the receipt and sufficiency of which is hereby
acknowledged, the Parties agree as follows:
1. Duties
and Involvement.
(a) The
Company hereby engages consultant to provide business development
services related to the development, financing and marketing of the
ZBB Storage Systems and the growth of its revenues, profits and
stockholders’ equity (the “Services”). Such
Services shall include, without limitation: (i) preparation of
one or more business plans for the establishment of international
strategic alliances to market the ZBB Storage Systems to utilities,
government instrumentalities, municipalities and other commercial
users of electricity; (ii) introduction of the Company and its
executive management to potential purchasers and other customers for
ZBB Storage Systems, including recognized experts in the energy
industry and others who can assist
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the Company in developing
strategic manufacturing and marketing relationships; (iii) introducing the Company to utilities, government instrumentalities,
municipalities or other commercial users of electricity in connection
with one or more potential joint ventures, strategic alliances, sales
or installation of ZBB Storage Systems or other transactions, and
coordination the negotiation of such transactions or relationships,
(iv) consulting on purchase orders, strategic alliances, potential
acquisitions or other business combinations; (v) investor support,
strategic business planning, broker relations, conducting due
diligence meetings, attendance at conventions and trade shows,
assistance in the preparation and dissemination of press releases and
stockholder communications; (vi) review and advise on the capital
structure for the Company; (vii) recommending of financing
alternatives and sources; (viii) consultation on corporate finance
and/or investment banking issues; and (ix) arranging for the
preparation of corporate profiles and fact sheets, financial analyst
and newsletter campaigns, conferences, seminars, investor conferences
and institutional conferences and press releases.
(b) The
Consultant will undertake to provide the Company with Services during
the Term of this Agreement that shall have a fair market value of not
less than (U.S.)$625,000.
(c) In
connection with the rendering of the Services, the Company recognizes
that neither the Consultant nor any of its Members is engaged in the
business of stock brokerage, investment advice, underwriting,
banking, or insurance, or other activities that may require
registration under either the Securities Act of 1933, as amended
(hereinafter the “Securities Act”) or the Securities
and Exchange Act of 1934, as amended (hereinafter the
“Exchange Act”), or regulation under other federal
or state securities laws. Accordingly, except for payment of the
“Compensation” hereinafter described the Consultant shall
not be entitled to receive any fees, commissions or other
remuneration based on providing any the aforementioned Services.
(d) Each
of the Consultant and the Company recognize that Consultant’s
Services will include working on various projects that may be
assigned to the Consultant by the Company. Consultant shall obtain
the approval of Company prior to the commencement of a new
project.
2. Purchase of Subject
Shares.
(a) In
consideration for the payment made pursuant to Section 2(b)
below and the Services to be rendered to the Company during the Term of
this Agreement, the Consultant shall be entitled to receive from the
Company up to an aggregate of (i) 10,000,000 shares of
Common Stock of the Company, less (ii) that number of shares of
Common Stock representing 75% of any shares of Common Stock of
the Company that may be issued to Xxxx Xxxx in connection with a
$500,000 secured loan made by such Person to the Company prior to the
Effective Date (the “Subject Shares”). The Subject
Shares shall be evidenced by one or more stock certificates of the
Company registered in the name of the Consultant or the holders of
members’ equity interests in the Consultant (the
“Members”), as the Consultant may direct the
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Company in writing. On the Effective Date of this Agreement the
Company shall issue to the Consultant or its designated Members
an aggregate of 5,000,000 of the Subject Shares which shall be
deemed to be fully paid and earned by the Consultant.
(b) The purchase price for all of the Subject Shares shall
be sum of (U.S.)$625,000 (the “Purchase
Price”). Such Purchase Price shall be paid by the
Consultant as follows: (i) (U.S.)$62,500 shall be paid in
cash to the Company on the Effective Date of this Agreement by
one or more checks payable to the Company, and
(ii) (U.S.)$562,500 shall be paid by the Consultant
rendering the Services contemplated by this Agreement.
(c) The balance of the Subject Shares shall be issued by
the Company on the Effective Date, but shall be held in escrow
by the Company (the “Escrowed Subject Shares”)
and shall be subject to redemption by the Company, for $0.001
per share (the “Redemption Price”), pursuant to
the provisions of Section 4 of this Agreement.
(d) On the Effective Date, the Consultant and its Members
shall execute and deliver to the Company a proxy coupled with an
interest to vote the Escrowed Subject Shares in such manner as a
majority of the board of directors of the Company shall
determine, until such time as the Escrowed Subject Shares, or
portions thereof, shall have been released from escrow and
delivered to the Consultant or its Members.
(e) This agreement is subject to approval of the
Company’s stockholders at a Stockholders Meeting in
accordance with the listing rules of the Australian Stock
Exchange Limited.
3. Expense
Allowance and Success Fee.
(a) On the Effective Date of this Agreement, the Company
shall pay to the Consultant the sum of $100,000 as a
non-accountable expense allowance in connection with the fees
and other expenses to be incurred by the Consultant in
performing its Services throughout the Term of this Agreement.
(b) In the event that during the Term of this Agreement, or
within one year after the expiration of the Term of this
Agreement, the Company shall consummate one or more of the
transactions described herein (a “Listed
Transaction”) from a source directly or indirectly
introduced to the Company by the Consultant or any of its
Members, in addition to the Subject Shares, the Company shall pay
to the Consultant, or any Member(s) thereof as directed by the
Consultant, a cash success fee equal to seven percent (7%) of
the gross proceeds actually received by the Company or gross
revenues actually generated by the Company or any Affiliate of
the Company from such Listed Transaction, up to a maximum cash
success fee of $250,000 (the “Success Fee”). As
used herein the term “Listed Transaction” shall mean
and include: (i) the consummation of a senior secured or
mezzanine debt financing; or (ii) the consummation of
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any joint venture, strategic alliance, sales order or other
transaction with a utility, government instrumentality,
municipality or other commercial user of electricity, involving
the sale or installation of ZBB Storage Systems. In addition, a
“Listed Transaction” may include such other services
or arrangements (including the amount and method of payment of
the Success Fee) as may, from time to time, be mutually agreed
upon between the Company and the Consultant or any Member
thereof. Notwithstanding the foregoing provisions of this
Section 3(b), any of the above Listed Transaction(s) shall
be entered into and consummated by the Company only upon such
terms and conditions as shall be acceptable to the board of
directors of the Company in the exercise of its sole and
absolute discretion, and no Success Fee shall be payable
hereunder unless the Company so elects to consummate a Listed
Transaction.
4. Redemption
of Certain Subject Shares.
(a) Subject at all times to the provisions of
Section 4(b) below, the Escrowed Subject Shares shall be
subject to redemption by the Company, at the Redemption Price,
at any time during the thirty (30) day period commencing
January 1, 2007 and ending January 31, 2007 (the
“Redemption Period”) if, in the exercise of the sole
and good faith discretion of the Board of Directors of the
Company, the fair value of all of the Services actually provided
by the Consultant to the Company during the 12 consecutive
months following the Effective Date of this Agreement shall be
less than $625,000. The fair value of the Services shall be
before giving effect to any discount in the value of the Subject
Shares by reasons of their restrictions on sale and risk of
forfeiture.
(b) Notwithstanding the provisions of Section 4(a)
above, in the event that at any time during the 12 month
period following the Effective Date of this Agreement, directly
or indirectly through the performance of the Services by the
Consultant or its Members, the stockholders’ equity of the
Company as at January 31, 2006 shall be increased during
the Term of this Agreement by (U.S.) six million dollars
($6,000,000) or more, whether through one or more financings on
terms and conditions satisfactory to the Board of Directors of
the Company, joint ventures, revenues from operations or other
means, then and in such event, none of the Escrowed Subject
Shares shall be subject to redemption and all Escrowed Shares
shall be promptly delivered to the Consultant or its Members.
(c) As used in this Section 4 and elsewhere in this
Agreement, the term “stockholders’ equity” shall
mean the consolidated stockholders’ equity and net worth of
the Company and all of its subsidiaries, representing its total
consolidated assets less its total consolidated liabilities;
provided, that for purposes of calculated such
“stockholders’ equity” (i) extraordinary
gains or extraordinary or non-recurring losses from the sale or
write-off of tangible or intangible assets, and
(ii) charges to earnings resulting from the value of the
Services provided in this Agreement shall be excluded.
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(d) The Consultant acknowledges and agrees that in the
event that (i) there is currently no public market for the
Company’s Common Stock in the United States, and
(ii) none of the Subject Shares may be sold by the
Consultant or its Members on the Australian Stock Exchange for a
minimum period of two (2) years following the Effective
Date, and then only with the prior approval of the ASX. The
Consultant further acknowledges that none of the shares of
Common Stock issued to it or its Members under this Agreement
have been registered under the Securities Act and that such
Common Stock may not be sold absent a registration statement
declared effective by the SEC under the Securities Act or an
opinion of counsel to the Company that such sales or transfers
may be effected without registration under the Securities Act.
In addition, all stock certificates evidencing the Subject
Shares shall bear the following legend:
The securities represented by this certificate have not been
registered under either the Securities Act of 1933 or applicable
state securities laws and may not be sold, transferred,
assigned, offered, pledged or otherwise distributed for value
unless there is an effective registration statement under such
Act and such laws covering such securities, or the Company
receives an opinion of counsel acceptable to the Company stating
that such sale, transfer, assignment, offer, pledge or other
distribution for value is exempt from the registration and
prospectus delivery requirements of such Act and such laws.
(d) Each of the Members of the Consultant, by their
execution of this Agreement, severally acknowledges to the
Company that he is an individual with a net worth, or a joint
net worth together with his spouse, in excess of $1,000,000, or
is an individual who had an individual income in excess of
$200,000 in each of the prior two years and reasonably expects
an income in excess of $200,000 in the current year; or is an
individual who had with his/her spouse joint income in excess of
$300,000 in each of the prior two years and reasonably expects
an income in excess of $300,000 in the current year.
5. Relationship
Among the Parties.
(a) The Consultant acknowledges that: (i) neither it
nor any of its Members is currently an officer, director or
agent of the Company, (ii) it is not, and will not, be
responsible for any management decisions on behalf of the
Company, and (iii) it may not commit the Company to any
action. The Company represents that the Consultant does not
have, through stock ownership or otherwise, the power to control
the Company, nor to exercise any dominating influence over its
management.
(b) The Consultant understands and acknowledges that this
Agreement shall not create or imply any agency relationship
among the Parties, and that the Consultant has no express or
implied power or authority to commit the Company to any
agreement, obligation or transaction in any manner whatsoever.
The Company and the Consultant agree that the relationship among
the Parties shall be that of independent contractor. The
Consultant agrees that its Members, employees and subcontractors
will be bound by the terms herein.
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6. Effective Date, Term and Termination.
The “Term of this Agreement” shall commence and be effective as of September 15, 2005 (the “Effective Date”) and shall
terminate on December 31, 2006, unless the Term of this Agreement shall be extended by mutual agreement of the Consultant and the Company.
7. Payment of Expenses.
The Company agrees to pay for or reimburse the Consultant for all actual out-of-pocket direct costs and expenses incurred by the Consultant
in connection with rendering Services hereunder, including lodging, meals and travel as necessary; provided, that no expenditures in excess
of $500 on any single occasion may be made by the Consultant without the prior approval of a member of the executive management of the Company.
All authorized expenditures shall be reimbursed only upon presentation to the Company of vouchers and invoices evidencing such expenditures
and their nature and purpose.
8. Services Not Exclusive.
The Consultant shall devote such of its time and effort necessary to the discharge of its duties hereunder. The Company acknowledges that Consultant
and its Members are engaged in other business activities, and that such other activities will continue during the Term of this Agreement.
Subject only to the provisions of Section 9 and Section 10 below, the Consultant and its Members shall not be restricted from engaging in other business
activities during the Term of this Agreement.
9. Confidentiality and Intellectual Property.
(a) The Consultant and its Members who are signatories to this Agreement, each acknowledge that it or they may have access to confidential information
regarding the Company and its business. Each of the Consultant and its Members agrees that it and they will not, during or subsequent to the Term of this
Agreement, divulge, furnish or make accessible to any person (other than with the written permission of the Company) any knowledge or information
or plans of the Company with respect to the Company or its business, including, but not by way of limitation, the technology, intellectual property, or products
of the Company, whether in the concept or development stage, or that may be marketed by the Company on the Effective Date of this Agreement or during
the Term hereof. The Company recognizes that the Consultant and its Members has and will have the following information: inventions, products,
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prices, costs, discounts, future plans, business affairs,
patents, patent applications, trademarks, process information,
trade secrets, technical information, customer lists, product
design information, copyrights, and other proprietary
information (collectively, “Proprietary
Information”) which are valuable, special and unique
assets of the Company and need to be protected from improper
disclosure. In consideration for the disclosure of the
Proprietary Information, the Consultant and each of its Members
severally agree that they shall not at any time or in any
manner, either directly or indirectly, use any Proprietary
Information for their own benefit, or divulge, disclose, or
communicate in any manner any Proprietary Information to any
third party without the prior written consent of the Company.
Each of the Consultant and its Members will protect the
Proprietary Information and treat it as strictly confidential. A
violation of this Section 9 shall be a material violation
of this Agreement. The confidentiality provisions of this
Agreement shall remain in full force and effect after the
termination of this Agreement.
| 10. | Covenant Not to Compete. |
During the Term of this Agreement, the Consultant and each of its
Members warrants, represents and agrees that none of them nor
any of their affiliates will, directly or indirectly, whether as
an officer, director, employee, consultant or owner of more than
5% of the capital stock or other equity of any person, firm or
corporation, engage in any activity in direct competition with
the ZBB Storage Systems.
| 11. | Indemnification. |
The Company agrees to indemnify and hold harmless the Consultant
and its Members, agents and employees (collectively,
“Consultant Affiliates”), against any losses,
claims, damages or liabilities, joint or several, to which
either party, or any such other person, may become subject,
insofar as such losses, claims, damages or liabilities (or
actions, suits or proceedings in respect thereof) arise out of
or are based upon any untrue statement or alleged untrue
statement of any material fact contained in the registration
statement, any preliminary prospectus, the prospectus, or any
amendment of supplement thereto; or arise out of or are based
upon the omission or alleged omission to state therein a
material fact required to be stated therein, or necessary to
make the statements therein not misleading; and will reimburse
the Consultant or any such other Consultant Affiliates, for any
legal or other expenses reasonably incurred by the Consultant or
any such Consultant Affiliates, in connection with investigation
or defending any such loss, claim, damage, liability, or action,
suit or proceeding.
| 12. | Miscellaneous Provisions |
(a) This Agreement or any section thereof shall not be
construed against any party due to the fact that said Agreement
or any section thereof was drafted by said party.
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(b) All article, section and paragraph titles or
captions contained in this Agreement are for convenience only
and shall not be deemed part of the context nor affect the
interpretation of this Agreement.
(c) All pronouns and any variations thereof shall be
deemed to refer to the masculine, feminine, neuter, singular or
plural as the identity of the Person or Persons may require.
(d) The parties hereto shall execute and deliver all
documents, provide all information and take or forbear from all
such action as may be necessary or appropriate to achieve the
purposes of this Agreement.
(e) The Parties hereto covenant, warrant and
represent to each other good faith, complete cooperation, due
diligence and honesty in fact in the performance of all
obligations of the Parties pursuant to this Agreement.
(f) If any provision of this Agreement, or the
application of such provision to any person or circumstance,
shall be held invalid, the remainder of this Agreement, or the
application of such provision to persons or circumstances other
than those as to which it is held invalid, shall not be affected
thereby.
(g) This Agreement may not be assigned by either
party hereto without the written consent of the other, but shall
be binding upon the successors of the Parties.
(h) If a dispute arises out of or relates to this
Agreement, or the breach thereof, and if said dispute cannot be
settled through direct discussion, thereafter, any unresolved
controversy or claim arising out of or relating to this
Agreement or a breach thereof shall be settled by arbitration in
accordance with the rules of the American Arbitration
Association, and judgment upon the award rendered by the
Arbitrator may be entered in any court having jurisdiction
thereof. Any provisional remedy which would be available from
a court of law shall be available to the Parties to this
Agreement from the Arbitrator pending arbitration. The situs of
the arbitration shall be Milwaukee, Wisconsin. In the event that
a dispute results in an arbitration, the Parties agree that the
prevailing party shall be entitled to reasonable attorneys fees
to be fixed by the arbitrator.
(i) All notices required or permitted to be given
under this Agreement shall be given in writing and shall be
delivered, either personally or by express delivery service, to
the party to be notified. Notice to each party shall be deemed to have
been duly given upon delivery, personally or by courier (such as
Federal Express or similar express delivery service), addressed
to the attention of the officer at the address set forth
heretofore, or to such other officer or addresses as either
party may designate, upon at least ten (10) days’
written notice, to the other party.
(j) The Agreement shall be construed by and enforced
in accordance with the laws of the State of Wisconsin.
(k) This Agreement contains the entire understanding
and agreement among the Parties and supercedes in its entirety
all prior agreements and understandings among any or all of the
Parties and their affiliates with respect to the subject matter
hereof, including, without limitation, a consulting agreement
dated as of September 28, 2005 between Xxxxxxx Equity
Partners, LLC and the Company (the “Wharton Consulting
Agreement”); provided, that the indemnification provisions
of such Wharton Consulting Agreement shall remain in full force
and effect and are incorporated herein by this reference. Except
as aforesaid, there are no other agreements, conditions or
representations, oral or written, express or implied, with
regard thereto. This Agreement may be amended only in writing
signed by all Parties.
(l) A delay or failure by any party to exercise a
right under this Agreement, or a partial or single exercise of
that right, shall not constitute a waiver of that or any other
right.
(m) This Agreement may be executed in duplicate
counterparts, each of which shall be deemed an original, but all
of which together shall constitute one and the same Agreement.
The Parties agree that facsimile signatures shall be binding
upon all Parties to this agreement as though the signature was
an original.
(n) the provisions of this Agreement shall be binding
upon all Parties, their successors and assigns.
[The Balance of this Page is intentionally Left Blank]
IN WITNESS WHEREOF, the Parties hereto have executed and
delivered this Agreement to be effective as of the day and year
provided herein.
CONSULTANT:
41 BROADWAY ASSOCIATES, LLC
| By: |
/s/ Xxxxx
Xxxxxxxxx
|
Xxxxx Xxxxxxxxx, Managing Member
COMPANY:
ZBB ENERGY CORPORATION
| By: |
/s/ Xxxxxx
Xxxxx
|
Xxxxxx Xxxxx, Chief Executive Officer
Accepted and Agreed to as
Holders of 100% of the Members
Interest in 41 Broadway Associates, LLC:
THE XXXXX FAMILY IRREVOCABLE STOCK TRUST
| By: |
|
Xxxxxxx Xxxxx, Trustee
BROOKBRIDGE ASSOCIATES, L.P.
| By: |
|
Xxxxx Xxxxx, General Partner
THE XXXXX XXXXXXXXX TRUST
| By: |
/s/ Xxxxx
Xxxxxxxxx
|
Xxxxx Xxxxxxxxx, Trustee
IN WITNESS WHEREOF, the Parties hereto have executed and
delivered this Agreement to be effective as of the day and year
provided herein.
CONSULTANT:
BROADWAY ASOSCIATES, LLC
| By: |
|
Xxxxx Xxxxxxxxx, Managing Member
COMPANY:
ZBB ENERGY CORPORATION
| By: |
|
Xxxxxx Xxxxx, Chief Executive Officer
Accepted and Agreed to as
Holders of 100% of the Members
Interest in ZBB Broadway Associates, LLC:
THE XXXXX FAMILY IRREVOCABLE STOCK TRUST
| By: |
/s/ Xxxxxxx
Xxxxx, Trustee
|
Xxxxxxx Xxxxx, Trustee
BROOKBRIDGE ASSOCIATES, L.P.
| By: |
|
Xxxxx Xxxxx, General Partner
THE XXXXX XXXXXXXXX TRUST
| By: |
|
Xxxxx Xxxxxxxxx, Trustee
/s/ Xxxxx
Xxxxxxxxx
EIS ASSOCIATES, LLC
| By: |
|
Xxxxx Xxxxxxxxx
BRISTOL ASSOCIATES LLC
| By: |
/s/ Xxxxxxx
Xxxxxx, Manager
|
Xxxxxxx Xxxxxx, Manager
Xxxx Xxxx
