MANAGEMENT SERVICES AGREEMENT
THIS MANAGEMENT AGREEMENT (the
“Agreement”) is
made as of the date set forth on the signature page hereto, by and between LARA MAC INC. (“Lara Mac”),
and TIGER RENEWABLE ENERGY
LTD., a Nevada corporation (the “Company”).
WHEREAS, Lara Mac, by and
through its officers, employees, agents, representatives and affiliates, has
expertise in the areas of corporate management, finance, products and services,
marketing and sales, business strategies, investments, acquisitions and other
business matters; and
WHEREAS, the Company desires
to avail itself of the expertise of Lara Mac in the aforesaid areas, in which
the Company acknowledges the expertise of Lara Mac.
NOW, THEREFORE, in
consideration of the foregoing recitals and the covenants and conditions herein
set forth, the parties hereto agree as follows:
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1.
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Appointment.
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The Company hereby appoints Lara Mac to
render the advisory and consulting services described in Section 2 hereof
for the term of this Agreement and Lara Mac accepts such appointment subject to
the terms and conditions herein.
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2.
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Services.
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(a) During
the term of this Agreement, Lara Mac shall render to the Company, by and through
such of Lara Mac’s officers, employees, agents, representatives and affiliates
as Lara Mac, in its sole discretion shall designate, consulting and other
advisory services in relation to developing strategic plans for inception of
operations, corporate management, the operations of the Company, strategic
planning, domestic and international marketing and sales, financial advice,
including, without limitation, advisory and consulting services in relation to
the selection and retention of candidates for senior management of the Company
and its subsidiaries, prospective strategic alliance partners, preparing
acquisition growth plans, identifying prospective merger and acquisition
candidates, developing value propositions for the Company and acquisition
candidates, analyzing financial implications of potential transactions, advising
on negotiations regarding terms and conditions of transactions, outlining and
managing due diligence issues and due diligence processes, introductions to
prospective customers, selection of investment bankers or other financial
advisors or consultants, and advice with respect to the capital structure of the
Company, equity participation plans, employee benefit plans and other incentive
arrangements for certain key executives of the Company (collectively, the “Services”). All
Services to be rendered hereunder shall be made by Lara Mac solely on a
discretionary basis and solely within the scope of its knowledge and abilities.
Nothing herein shall be construed to xxxx Xxxx Mac to be acting as a fiduciary
to the Company, or an officer or director of the Company, and nothing herein
shall be deemed to supersede the authority of any of the officers or directors
of the Company. The officers and directors of the Company shall at
all times retain sole authority to accept or reject the advice of Lara Mac and
only the officers and directors may bind the Company in respect of any advice
given by Lara Mac.
(b) It
is expressly agreed that the Services do not include “Investment Banking
Services” meaning any and all investment banking services related to mergers,
acquisitions and divestitures made by the Company or any of its subsidiaries,
including, without limitation, (i) the sale of assets of the Company, sale of
equity interests of the Company, by merger or otherwise, and the acquisition or
disposition of any subsidiary or division of the Company, or (ii) the
public or private sale of debt or equity interests of the Company, or any of its
affiliates or any similar financing transactions.
(c) The
Company agrees to undertake any and all of its own due diligence with respect to
any and all recommendations made by Lara Mac and no reliance shall be made upon
introductions made by Lara Mac as having satisfied any and all due diligence
requirements on the part of the Company.
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3.
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Fees.
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(a) In
consideration of the rendering of the Services contemplated by Section 2(a)
hereof, the Company agrees to pay to Lara Mac a fee consisting solely of nine million, five hundred
fifty three thousand, three hundred seventy-seven (9,553,377) shares of
Company restricted common stock (the “Shares”). The
issuance and delivery of the Shares shall be made to Lara Mac within three (3)
business days from the execution and delivery of this Agreement.
(b) The
value of the restricted shares of common stock constituting the Fee is deemed to
be $0.044 per share, which is equivalent to fifty percent of the average closing
trading price of the Company’s common stock during the ninety day period of
February 27, 2009, through May 27, 2009. Such time period is deemed
to constitute an objective public capital market valuation of the Company’s
stock price, having an aggregate value of $410,666.51 (the “Issue
Value”).
(d) The
parties hereto acknowledge that Lara Mac may render other services beyond the
scope of activities which the parties contemplate as part of the Services
herein, as to which Lara Mac shall be entitled to separate compensation that
shall be negotiated in good faith by the parties on a case-by-case
basis.
(c) Notwithstanding
anything to the contrary herein, in the event that the Company is not generating
organic revenues (excluding interest and investment income) as of the first
anniversary of the date of this Agreement, then all of the Shares constituting
the Fee shall be subject to repurchase in the entirety by the Company at a
repurchase price equal to the Issue Value.
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4.
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Out-of-Pocket
Expenses
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In addition to the compensation payable
to Lara Mac pursuant to Section 3 hereof, the Company shall, at the request
of Lara Mac, upon presentation of reasonable receipts and documentation
evidencing Out-of-Pocket Expenses, pay directly, or reimburse Lara Mac for, its
reasonable Out-of-Pocket Expenses. For the purposes of this Agreement, the term
“Out-of-Pocket
Expenses” shall mean the amounts actually paid by Lara Mac in cash in
connection with its performance of the Services, including, without limitation,
reasonable (i) fees and disbursements of any independent accountants,
outside legal counsel, consultants, investment bankers, financial advisors and
other independent professionals and organizations, (ii) costs of any
outside services or independent contractors such as financial printers,
couriers, business publications or similar services and
(iii) transportation, per diem, telephone calls, word processing expenses
or any similar expense not associated with its ordinary operations. All
reimbursements for Out-of-Pocket Expenses shall be made promptly upon or as soon
as practicable after presentation by Lara Mac to the Company of the statement in
connection therewith. Any and all Out-of-Pocket Expenses in excess of
$5,000 per month shall require pre-approval in writing of a duly authorized
officer of the Company.
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5.
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Indemnification
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The Company will indemnify and hold
harmless Lara Mac and its officers, employees, agents, representatives, members
and affiliates (each being an “Indemnified Party”)
from and against any and all losses, costs, expenses, claims, damages and
liabilities (the “Liabilities”) to
which such Indemnified Party may become subject under any applicable law, or any
claim made by any third party, or otherwise, to the extent they relate to or
arise out of the performance of the Services contemplated by this Agreement or
the engagement of Lara Mac pursuant to, and the performance by Lara Mac of the
Services contemplated by, this Agreement. The Company will reimburse any
Indemnified Party for all reasonable costs and expenses (including reasonable
attorneys’ fees and expenses) as they are incurred in connection with the
investigation of, preparation for or defense of any pending or threatened claim
for which the Indemnified Party would be entitled to indemnification under the
terms of the previous sentence, or any action or proceeding arising therefrom,
whether or not such Indemnified Party is a party hereto, provided that, subject
to the following sentence, the Company shall be entitled to assume the defense
thereof at its own expense, with counsel satisfactory to such Indemnified Party
in its reasonable judgment. Any Indemnified Party may, at its own expense,
retain separate counsel to participate in such defense, and in any action, claim
or proceeding in which the Company, on the one hand, and an Indemnified Party,
on the other hand, is, or is reasonably likely to become, a party, such
Indemnified Party shall have the right to employ separate counsel at the
Company’s expense and to control its own defense of such action, claim or
proceeding if, in the reasonable opinion of counsel to such Indemnified Party, a
conflict or potential conflict exists between the Company, on the one hand, and
such Indemnified Party, on the other hand, that would make such separate
representation advisable. The Company agrees that it will not, without the prior
written consent of the applicable Indemnified Party, settle, compromise or
consent to the entry of any judgment in any pending or threatened claim, action
or proceeding relating to the matters contemplated hereby (if any Indemnified
Party is a party thereto or has been actually threatened to be made a party
thereto) unless such settlement, compromise or consent includes an unconditional
release of the applicable Indemnified Party and each other Indemnified Party
from all liability arising or that may arise out of such claim, action or
proceeding. Provided that the Company is not in breach of its indemnification
obligations hereunder, no Indemnified Party shall settle or compromise any claim
subject to indemnification hereunder without the consent of the Company. The
Company will not be liable under the foregoing indemnification provision to the
extent that any loss, claim, damage, liability, cost or expense is determined by
a court, in a final judgment from which no further appeal may be taken, to have
resulted solely from the gross negligence or willful misconduct of Lara Mac. If
an Indemnified Party is reimbursed hereunder for any expenses, such
reimbursement of expenses shall be refunded to the extent it is finally
judicially determined that the Liabilities in question resulted solely from the
gross negligence or willful misconduct of Lara Mac.
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6.
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Term
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This Agreement shall be in effect on
the date hereof and shall continue until the third anniversary of the date
hereof (the “Initial Term”). This Agreement shall automatically renew
on each anniversary thereafter and continue and remain in effect for additional
one year periods (each a “Renewal Term”) unless either party gives not less than
ninety (90) days’ advance written notice. This Agreement may be
terminated at any time upon mutual consent of the parties. This
Agreement may be terminated by the Company upon determination of (i) any act of
fraud or dishonesty, willful misconduct or gross negligence by Lara Mac in
connection with its obligations under this Agreement (ii) breach of any
contractual duty of Lara Mac to the Company under this
Agreement. This Agreement may be terminated by Lara Mac in the event
of any non-performance of the duties and obligations of the
Company. This Agreement may be terminated at any time for any reason
by Lara Mac upon not less than thirty (30) days’ advance written notice to the
Company. The provisions of Sections 5, 7 and 8 and otherwise as
the context so requires shall survive the termination of this
Agreement.
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7.
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Other
Activities
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Nothing herein shall in any way
preclude Lara Mac or its officers, employees, agents, representatives, members
or affiliates from engaging in any business activities or from performing
services for its or their own respective account or for the account of others,
including for companies that may do business with the Company or have interests
which are substantially similar to the business conducted by the
Company. Where Lara Mac has an ownership interest in any companies or
organizations with whom the Company directly engages in business relationships
(“Interested Transactions”) Lara Mac undertakes to disclose such relationships
in writing to the corporate governance officer of the Company or another duly
authorized officer of the Company. Nothing herein shall be construed
as an undertaking of unique or exclusive services of Lara Mac solely on behalf
of the Company. The Company expressly waives any and all actual or
potential conflicts with respect to Lara Mac’s past, present or future
relationships of any nature or kind with any and all Company officers,
directors, shareholders, agents, accountants, counsel or third parties and their
respective affiliates with whom Lara Mac has, or has had, dealings or business
relationships of any nature or kind.
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8.
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General.
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(a) No
amendment or waiver of any provision of this Agreement, or consent to any
departure by either party from any such provision, shall be effective unless the
same shall be in writing and signed by the parties to this Agreement, and, in
any case, such amendment, waiver or consent shall be effective only in the
specific instance and for the specific purpose for which given.
(b) This
Agreement and the rights of the parties hereunder may not be assigned without
the prior written consent of the parties hereto.
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(c) Any
and all notices hereunder shall, in the absence of receipted hand delivery, be
deemed duly given upon confirmation of receipt or refusal of delivery, if the
same shall be sent by registered or certified mail, return receipt requested, or
by internationally recognized courier and the mailing date shall be deemed the
date from which all time periods pertaining to a date of notice shall run.
Notices shall be addressed to the parties at the registered address of record at
the Company and may be changed upon Notice as provided herein to the other party
regarding such change of address.
(d) This
Agreement shall constitute the entire agreement between the parties with respect
to the subject matter hereof, and shall supersede all previous oral and written
(and all contemporaneous oral) negotiations, commitments, agreements and
understandings relating hereto.
(e) All
controversies arising out of or in connection with this Agreement shall be
finally settled under the Rules of Arbitration of the American Arbitration
Association by a single arbitrator appointed in accordance with the said Rules.
The place of arbitration shall be New York City. The arbitration
shall be conducted in the English language. The prevailing party in
any such arbitration shall be awarded reimbursement of any and all fees, costs,
expenses and disbursements incurred with respect to such
arbitration. The award of any such arbitration may be entered by any
court of competent jurisdiction. In the event of any doubt regarding
the enforceability of the arbitration provisions herein, this Agreement shall be
governed by, and enforced in accordance with, the laws of the State of New York
(excluding the choice of law principles thereof). This Agreement
shall inure to the benefit of, and be binding upon, Lara Mac and the Company
(including any present or future subsidiaries of the Company that are not
signatories hereto), and their respective successors and assigns.
(f) All
information provided by the Company to Lara Mac shall be complete and correct in
all material respects and will not knowingly contain any untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements contained therein, in light of the
circumstances under which they were made, not misleading. The Company
shall advise Lara Mac immediately of the occurrence of any event or circumstance
that results in any Company document containing untrue statement of a material
fact or omitting to state a material fact required to be stated therein or
necessary to make the statements contained therein, in light of the
circumstances under which they were made, not misleading, and shall furnish to
Lara Mac copies of amended or supplemented documents that correct such statement
or omission in such quantities as Lara Mac may from time to time reasonably
request. All financial or other projections of the Company will be prepared in
good faith on the basis of reasonable assumptions. The Company acknowledges that
Lara Mac (i) will be using and relying on all Company information without
independently verification of the same, (ii) does not assume responsibility for
the accuracy or completeness of such information; and (iii) will not make any
appraisal of any assets of the Company. Except as otherwise provided
herein, nothing herein shall require Lara Mac to deliver to the Company any
reports, memoranda or other documentation of any nature or kind except as
determined by Lara Mac.
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(g) The
Company has full corporate power and authority to execute and deliver this
Agreement on behalf of itself and its affiliates and to perform its obligations
hereunder, and all consents, authorizations, approvals and orders required in
connection with the execution, delivery and performance hereof have been
obtained. This Company represents and warrants to the Lara Mac that the
Agreement is a valid and binding obligation of the Company, enforceable in
accordance with its terms and that the execution, delivery and performance of
this Agreement by the Company and the Lara Mac will not conflict with, result in
a breach of any of the terms or provisions of or constitute a violation or a
default under any laws, rules or regulations applicable to the Company and the
Lara Mac pertaining to the subject matter herein or under any material agreement
or instrument to which the Company is a party or by which the Company is bound.
Nothing herein shall be construed as an undertaking of unique or exclusive
services of the Lara Mac solely on behalf of the Company. The Company
agrees to undertake any and all of its own due diligence with respect to any and
all prospective Investors and proposed Corporate Development. The
Company expressly waives any and all actual or potential conflicts with respect
to the Lara Macs past, present or future relationships of any nature or kind
with any Investors or their respective affiliates.
(h) Lara
Mac shall be entitled to fully rely upon all documents and materials provided by
the Company as true and correct in all respects and the Company shall indemnify
and hold harmless Lara Mac and its officers, directors, employees and agents for
any and all losses incurred by Lara Mac as a result of any material misstatement
or omission in such marketing materials, which losses shall include, without
limitation, all fees, costs, expenses and disbursements of counsel defending
Lara Mac against claims for such losses as well as enforcement of this
Agreement. The officers and directors of the Company shall
independently review and confirm the validity of all facts in all materials
prepared by Lara Mac.
(i) No
advice rendered by Lara Mac pursuant to this Agreement may be disclosed publicly
in any manner without Lara Mac’s prior written approval, except as may be
required by law, regulation or court order but subject to the limitation
below. If the Company is required or reasonably expects to be
required to disclose any advice, the Company shall provide Lara Mac with prompt
notice thereof so that Lara Mac may seek a protective order or other appropriate
remedy and take reasonable efforts to assure that all of such advice disclosed
will be covered by such order or other remedy. Whether or not such a
protective order or other remedy is obtained, the Company will and will cause
its affiliates to disclose only that portion of such advice that the Company is
so required to disclose.
(j) The
Company shall not directly or indirectly or through any third party take any
action to circumvent this Agreement or the rights of Lara Mac set forth
herein. The Company undertakes and promises that it will not
circumvent the Lara Mac by dealing directly with any prospective counterparties
introduced by the Lara Mac to the Company, unless authorized by the Lara Mac in
writing to deal directly with them.
(k) This
Agreement may be executed in two or more counterparts, and by different parties
on separate counterparts. Each set of counterparts showing execution by all
parties shall be deemed an original, and shall constitute one and the same
instrument. Delivery of an executed copy of this Agreement by
electronic facsimile transmission or other means of electronic communication
capable of producing a printed copy will be deemed to be execution and delivery
of this Agreement as of the date set forth on page one of this
Agreement.
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(l) The
waiver by any party of any breach of this Agreement shall not operate as or be
construed to be a waiver by such party of any subsequent
breach.
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IN WITNESS WHEREOF, the parties have
caused this Agreement to be executed and delivered as of this 22nd day of
June, 2009 by their duly authorized officers or agents as set forth
below.
LARA
MAC INC.
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By:
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/s/ Xxxxxxxx Xxxxx
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Name:
Xxxxxxxx Xxxxx
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Title:
Chief Executive Officer
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Company:
TIGER RENEWABLE ENERGY LTD.
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By:
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/s/ Xxxx Xxxxxxxx
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Name:
Xxxx X. Xxxxxxxx
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Title:
Chief Financial Officer
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Address for
Notices:
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00
Xxxx Xxxxxx
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Xxxxxxx,
XX 00000
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