EXHIBIT 10.30
*CONFIDENTIAL PORTIONS OF THIS AGREEMENT HAVE BEEN OMITTED AND
FILED SEPARATELY WITH THE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT.
FINDER'S AGREEMENT
THIS FINDER'S AGREEMENT (this "Agreement") is made as of this 22nd day of June,
2006, by and between Smart Energy Solutions, Inc., a corporation organized and
existing under the laws of the State of Nevada, United States, having its
principal place of business at 000 Xxxxxx Xxxxxx, Xxxxxxx, XX 07011("Company")
and Xxxxxx Group, Inc., a corporation organized and existing under the laws of
the State of Florida, having its principal place of business at 0000 Xxxxxxx
Xxxx Xxxxx, Xxxxxxxxxx, XX 00000 ("Finder")
WITNESSETH; that
WHEREAS, Company is the exclusive owner and has all right, title, and interest
in and to proprietary products currently referred to as the "Battery Brain" (the
"Product");
WHEREAS, Finder is engaged in the business of, among other things, the design,
sales, and marketing of electronic controllers to the automotive and other
industries;
WHEREAS, the parties hereto have reached an understanding pursuant to which
Company will pay Finder a Fee (as defined in Section 3 hereof) in connection
with the execution of any contract, purchase order or other agreement, or
provision of the Products resulting from Finder's referral to Company of Product
sales opportunities with any automobile manufacturers ("Opportunities").
NOW, THEREFORE, in consideration of the premises and the mutual covenants and
agreements herein contained, the parties hereto hereby agree as follows:
1. Appointment of Finder and Term. Company appoints Finder as its exclusive
provider of marketing and sales lead generation services (the "Services") in
connection with Opportunities with the automobile manufacturers set forth in
Exhibit A attached hereto and made a part hereof, which may be amended in
writing from time to time by the parties hereto (individually, "Target OEM").
The Term of this Agreement shall be for a period of eighteen (18) months,
commencing on the date hereof, unless earlier terminated pursuant to Section 7
hereof (the "Term"). The Term may be renewed for successive eighteen (18) month
periods upon mutual written agreement of the parties hereto.
2. Finder's and Company's Obligations. Following the execution of this
Agreement, Finder shall, from time-to-time but in no event less than quarterly,
provide to Company the identity of Opportunities, including introductions to
certain executives and/or employees of the companies or organizations
representing such Opportunities, for the sale of the Product.
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3. Finder's Fee. In the event (i) Company executes a contract with a Target OEM
to provide the Product, or (ii) otherwise provides the Product to a Target OEM
without a written contract, Company shall pay Finder a fee equal to * (the
"Fee") of the gross revenue generated by Company as a result of the Product
provided to any such Target OEM. Payment of the Fee shall be made quarterly,
within ten (10) days following the end of each fiscal quarter of the Company.
4. Confidentiality. Finder and Company shall regard as confidential and
proprietary (i) all information communicated to either of them ("Receiving
Party") by the other ("Disclosing Party") in connection with this Agreement or
the business of Disclosing Party (which information shall at all times be the
property of Disclosing Party), and (ii) all third party confidential information
which has been provided in confidence to Disclosing Party and which is disclosed
to Receiving Party on a need-to-know basis solely for the benefit of Disclosing
Party (such information is hereinafter collectively referred to as
"Information"). Receiving Party shall not, without Disclosing Party's prior
written consent, at any time (a) use the Information for any purpose other than
in connection with Receiving Party's performance hereunder for the benefit of
Disclosing Party or (b) disclose any portion of the Information to third
parties. Receiving Party shall promptly at the termination of this Agreement
return to Disclosing Party all the Information which is in written or tangible
form (including, without limitation, all copies, summaries and notes of the
contents thereof), regardless of the party causing the same to be in such form.
For purposes of this Agreement, Information shall not mean Information
previously known to Receiving Party, or Information provided by a third party
not bound by this Agreement, or Information which otherwise becomes known to
Receiving Party through no unlawful act, or Information that Receiving Party
independently develops outside of the work being performed under this Agreement;
nor shall the disclosure of Information be prohibited, to the extent that the
Information is required to be disclosed by law or regulatory authority.
5. Exclusivity. During the term of this Agreement, Finder will not enter into
any activity, employment or business arrangement which conflicts with Company's
interests or the Finder's obligations under this Agreement, without the prior
written consent of Company. Finder will advise Company of its position with
respect to any activity, employment or business arrangement contemplated by it,
which may be relative to this paragraph, and Finder agrees to disclose any such
plans to Company prior to implementation thereof. Likewise, during the term of
this Agreement, Company will not, directly or indirectly, market the Product to
Target OEMs, or engage any other person or entity either as a "finder",
manufacturer's representative, distributor, or otherwise to market or sell the
Product to Target OEMs.
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* Omitted pursuant to a request for confidential treatment and filed separately
with the Securities and Exchange Commission.
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6. Finder's Representations and warranties. Finder represents and warrants to
Company that (i) it has and will have full power and authority to enter into,
and fully to perform, this Agreement and that no agreement or understanding with
any other person, firm, or corporation exists or will exist which would
interfere with Finder's obligations hereunder or which would violate any
agreement or understanding with any other person, firm or corporation; (ii) the
disclosure to Company of any information by Finder in connection with Finder'
performance pursuant to this Agreement does not contravene any confidentiality
obligation Finder may have to any third party; and (iii) all payments made under
this Agreement constitute compensation for the services performed by Finder
hereunder.
7. Company's Representations and Warranties. Company represents and warrants to
Finder that (i) he has and will have full power and authority to enter into, and
fully to perform, this Agreement and that no agreement or understanding with any
other person, firm, or corporation exists or will exist which would interfere
with Company's obligations hereunder or which would violate any agreement or
understanding with any other person, firm or corporation; and (ii) Company has
all applicable and necessary license to perform the Services, and the Services
provided by Company do not contravene any applicable law.
8. Right to Review Records. Each party shall have the right to review during
normal business hours records of the other party pertaining to the performance
of this Agreement, regardless of the manner or form in which such records are
maintained by such party.
9. Termination. Either party may terminate this Agreement upon one hundred
eighty (180) days written notice by either party delivered to the
non-terminating party at the address listed in paragraph 12, or immediately if a
Default (as defined below) by the other party has occurred and is continuing by
giving written notice thereof to the defaulting party. Except as otherwise
specifically provided herein, the termination of this Agreement shall not
relieve the parties of any obligation accruing with respect to this Agreement
prior to such termination. The term "Default" shall mean any of the following
events:
(a) failure by a party to comply with or to perform any provision
of this Agreement and continuance of such failure for ten (10)
days after notice thereof to such party;
(b) a party becomes insolvent, is unable to pay its debts as they
mature or is the subject of a petition in bankruptcy, whether
voluntary or involuntary, or of any other proceeding under
bankruptcy, insolvency or similar laws; or makes an assignment
for the benefit of creditors; or is named in, or its property
is subjected to, a suit for the appointment of a receiver; or
is dissolved or liquidated; or
(c) any warranty or representation made by a party is this
Agreement is breached or is false or misleading in any
material respect.
In the event of termination of this Agreement, such termination shall not
relieve the parties of any obligation accruing with respect to this Agreement
prior to such termination. Provided, however, that to the extent Company
continues to provide the Product to a Target OEM, then Finder shall remain
entitled to receive the Fee associated therewith for so long as such Target OEM
remains a customer of Company; provided, further, that in the event Company
enters into a contract or otherwise commences to provide the Product to a Target
OEM within twenty-four (24) months after the termination of this Agreement, then
Finder shall be entitled to the Fee in connection such Opportunity.
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10. Assignment. This Agreement may not be assigned by either party without the
prior written consent of the other party.
11. Entire Agreement; Amendments. This Agreement constitutes the entire
agreement of the parties with respect to its subject matter and supersedes all
prior agreements and understandings of the parties, written or oral, with
respect thereto. This Agreement may only be amended or modified pursuant to a
written instrument duly executed by both parties.
12. Notices. All notices and other communications under this Agreement shall be
in writing and shall, unless otherwise expressly provided, be deemed given if
delivered personally or transmitted by telecopy or mailed by registered or
certified first class mail to the persons at the following addresses, changes to
which each party shall specify by like notice to the other party:
If to Finder, to Xxxxxx Group, Inc., 0000 Xxxxxxx Xxxx Xxxxx, Xxxxxxxxxx, XX
00000. Attention: President.
If to Company, to Smart Energy Solutions, Inc., 000 Xxxxxx Xxxxxx, Xxxxxxx,
XX 00000. Attention: President.
13. Waivers. No failure or delay to exercise any power, right or remedy under
this Agreement shall operate as a waiver, nor shall the waiver of a breach of
any provision of this Agreement operate as a waiver of any subsequent breach.
Any and all remedies which either party may have under this Agreement shall be
in addition to, and not in lieu of any other remedies, all such remedies being
cumulative.
14. Severability. If any provision of this Agreement shall to any extent be held
invalid or unenforceable, such invalidity and unenforceability shall not affect
the remaining provisions hereof which shall remain in full force and effect.
15. Governing Law. This Agreement and the rights and obligations of the parties
under it shall be governed by, construed and interpreted in accordance with, the
laws of the State of New Jersey.
16. Dispute Resolution; Arbitration; Waiver of Jury Trial.
(a) Initial Dispute Resolution. In the event of any dispute relating to
this Agreement or the breach, termination or validity thereof, the party making
the claim will give notice to the other party setting forth the matters in
dispute. The parties shall negotiate in good faith to resolve such dispute for
thirty (30) days following the receiving party's receipt of such notice of
dispute. If the parties hereto shall not have resolved the dispute within such
thirty (30) day period, the items in dispute will be exclusively and finally
determined and settled by binding arbitration in accordance with this Section
16, in which case either party may submit the dispute to arbitration in
accordance with the procedures set forth below.
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(b) Arbitration Rules. Any claim, controversy or dispute concerning
questions of fact or law arising out of or relating either to this Agreement in
connection with the performance by either party hereto, or to the threatened,
alleged, or actual breach thereof by either party hereto which is not disposed
of by mutual agreement pursuant to Section 16(a) hereof, shall be settled by
arbitration, to be held in New York City in accordance with the Commercial
Arbitration Rules of the American Arbitration Association ("AAA"), before an
arbitrator jointly selected by Company and Finder. If the parties are unable to
agree upon a single arbitrator, each party will select one arbitrator from the
AAA list and the two arbitrators shall select a third arbitrator from the AAA
list. The decision of the arbitrator shall be final, conclusive, and binding
upon the parties hereto. Judgment upon an award rendered by the arbitrator may
be entered in any court of competent jurisdiction. Except as otherwise
specifically provided in this clause, neither party hereto shall institute any
action or proceeding against the other party hereto in any court with respect to
any dispute which is or could be the subject of a claim or proceeding pursuant
to this clause. The law to be applied in any such arbitration shall be that law
referenced in Section 15 hereof.
(c) Waiver of Jury Trial. THE PARTIES AGREE AND ACKNOWLEDGE THAT THEY
HEREBY WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF
ACTION ARISING OUT OF OR RELATED TO THIS AGREEMENT. The scope of this waiver is
intended to be all-encompassing of any and all disputes, including, without
limitation, contract claims, tort claims, and all other common law and statutory
claims. This waiver is irrevocable, and shall apply to any subsequent
amendments, renewals, or modifications to this Agreement or any Exhibit to this
Agreement.
17. Counterparts. This Agreement may be executed in one or more counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same document.
18. Public Announcements; Disclosure. Each party hereto shall consult with the
other party prior to making any such press release, public announcement or
public confirmation or disclosure regarding this Agreement as it relates to the
other party, and no such press release, public announcement or public
information or disclosure shall be made without prior written consent and
approval of the other party. The foregoing shall not preclude either party from
making any disclosure that a party reasonably believes is required by operation
of law, rule or regulation or disclosing that the parties have a working
relationship to prospective clients.
[signature page follows]
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed
as of the date first above written.
SMART ENERGY SOLUTIONS, INC. XXXXXX GROUP, INC.
By: /s/ Xxxx Xxxxxx By: /s/ Xxxxx Xxxxxx
--------------- ----------------
Its: CEO Its: CEO
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EXHIBIT A
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Target OEMs
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Ford
General Motors
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