EXHIBIT 10.7
FORM OF CONSULTING AGREEMENT
NEWBRIDGE SECURITIES CORPORATION
BATHGATE CAPITAL PARTNERS LLC
____, 2005
Xxxx Xxxxx Michel Siemens
Chairman President
A4S Security, Inc. A4S Security, Inc
000 Xxxxx Xxxxxxxxxx Xxxx, #00 000 X. Xxxxxx Xxxxxx
Xxxxxx, Xxxxxxxx 00000 Xxxxxxxx, Xxxxxxxx 00000
Gentlemen:
We are pleased that A4S Security, Inc., a Colorado corporation (the
"Company") has decided to retain Newbridge Securities Corporation ("Newbridge")
and Bathgate Capital Partners LLC ("BCP") (together "Consultants") to provide
general financial advisory and investment banking services to the Company as set
forth herein. This letter agreement (this "Agreement") will confirm Consultants'
acceptance of such retention and set forth the terms of our engagement.
1. Retention. The Company hereby retains Consultants as its
non-exclusive financial advisors and investment bankers to provide general
financial advisory and investment banking services, for the term specified in
Paragraph 2 below, and Consultants accept such retention on the terms and
conditions set forth in this Agreement. In such capacity, Consultants shall: (i)
assist the Company in evaluating and make recommendations concerning the
relationships among the Company's various lines of business and potential areas
for business growth; and (ii) provide such other financial advisory and
investment banking services upon which the parties may mutually agree.
2. Term. Except as otherwise specified in Paragraph 8 hereof, this
Agreement shall be effective for a two (2) year period commencing , 2005 and
ending on , 2007.
3. Information. In connection with Consultants' activities hereunder,
the Company will cooperate with Consultants and furnish Consultants upon request
with all information regarding the business, operations, properties, financial
condition, management and prospects of the Company (all such information so
furnished being the "Information") that Consultants deem appropriate and will
provide Consultants with access to the Company's officers, directors, employees,
independent accountants and legal counsel. The Company recognizes and confirms
that Consultants: (i) will use and rely primarily on the Information and on
information available from generally recognized public sources in performing the
services contemplated by this Agreement without having independently verified
the same; (ii) does not assume responsibility for the accuracy or completeness
of the Information and such other information; and (iii) will not make an
appraisal of any assets of the Company. Any advice rendered by Consultants
pursuant to this Agreement may not be disclosed publicly without Consultants'
prior written consent. Consultants hereby acknowledge that certain of the
Information received by them may be confidential and/or proprietary, including
Information with respect to the Company's technologies, products, business
plans, marketing, and other Information which must be maintained by them as
confidential. Consultants agree that they will not disclose such confidential
and/or proprietary Information to any other companies in the industry in which
the Company is involved. Consultants understand that the Company may as a
condition for providing Information to the Consultants, require that Consultants
provide customary assurances of confidentiality.
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4. Compensation. As consideration for Consultants' services pursuant to
this Agreement, Consultants shall be entitled to receive, and the Company agrees
to pay Consultants, (together) a fee of $2,500 per month for the term of this
Agreement. The aggregate sum of $60,000 shall be due and payable upon the
execution of this Agreement ("Consulting Fee"), and shall be deducted by the
Consultants from the proceeds of the public offering for which the Consultants
are acting as managing underwriters.
5. Expenses. In addition to payment to Consultants of the compensation
set forth in Section 4 hereof, the Company shall promptly upon request from time
to time reimburse Consultants for all reasonable expenses (including, without
limitation, fees and disbursements of counsel and all travel and other
out-of-pocket expenses) incurred by Consultants in connection with its
engagement hereunder. Consultants will provide the Company an invoice and copies
of receipts pursuant to its expenses and such expenses shall not exceed $3,000
without prior authorization of the Company; provided that the foregoing
limitation and consent shall not apply to legal fees incurred as provided
pursuant to Section 6 hereof.
6. Indemnification. The Company agrees to indemnify Consultants in
accordance with the indemnification and other provisions attached to this
Agreement as Exhibit A (the "Indemnification Provisions"), which provisions are
incorporated herein by reference and shall survive the termination or expiration
of this Agreement.
7. Other Activities. The Company acknowledges that Consultants have
been, and may in the future be, engaged to provide services as an underwriter,
placement agent, finder, advisor and investment banker to other companies in the
industry in which the Company is involved. Additionally, Consultants shall not
be required to devote any minimum amount of time towards providing services to
the Company pursuant to this Agreement. Subject to the confidentiality
provisions of Consultant contained in Section 3 hereof, the Company acknowledges
and agrees that nothing contained in this Agreement shall limit or restrict the
right of Consultants or of any member, manager, officer, employee, agent or
representative of Consultants, to be a member, manager, partner, officer,
director, employee, agent or representative of, investor in, or to engage in,
any other business, whether or not of a similar nature to the Company's
business, nor to limit or restrict the right of Consultants to render services
of any kind to any other corporation, firm, individual or association.
Consultants may, but shall not be required to, present opportunities to the
Company.
8. Termination; Survival of Provisions. Either Consultants or the
Company may terminate this Agreement at any time upon 30 days' prior written
notice to the other party. In the event that Consultants terminate this
Agreement prior to its expiration, they will promptly return a portion of the
Consulting Fee, determined by multiplying $2,500 by the number of months
remaining under the Agreement, to the Company. In the event of termination of
this Agreement by either the Company or Consultant, the Company shall reimburse
Consultants for all expenses incurred by Consultants in connection with its
services hereunder pursuant to Section 5 hereof. Any reimbursement of the
Consulting Fee due to the Company shall be paid to the Company on the
Termination Date. All such reimbursements due to Consultants pursuant to the
immediately preceding sentence shall be paid to Consultants on or before the
Termination Date (in the event such fees and reimbursements are earned or owed
as of the Termination Date). Notwithstanding anything expressed or implied
herein to the contrary the terms and provisions of Sections 4, 5, 6 (including,
but not limited to, the Indemnification Provisions attached to this Agreement
and incorporated herein by reference), 7, 8, 9, 10 and 15 shall survive the
termination of this Agreement.
9. Notices. All notices provided hereunder shall be given in writing
and either delivered personally or by overnight courier service or sent by
certified mail, return receipt requested, or by facsimile transmission, if to
Newbridge, 0000 Xxxxxxx Xxxxx Xxxx, Xxxxx 000, Xx. Xxxxxxxxxx, XX 00000,
Attention: Xxx Xxxxx, Fax No. (___) ____; if to BCP, to Bathgate Capital
Partners LLC, 0000 X. Xxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxx Xxxxxxx, Xxxxxxxx
00000, Attention, Xxxxx X. X. Xxxxxx, Senior Managing Partner, Fax No. (303)
000-000-0000; and if to the Company, to the address set forth on the first page
of this Agreement, Attention: CEO, Fax No.: (000) 000-0000. Any notice delivered
personally or by fax shall be deemed given upon receipt (with confirmation of
receipt required in the case of fax transmissions); any notice given by
overnight courier shall be deemed given on the next business day after delivery
to the overnight courier; and any notice given by certified mail shall be deemed
given upon the second business day after certification thereof.
10. Governing Law; Jurisdiction; Waiver of Jury Trial. This Agreement
shall be governed by and construed in accordance with the laws of the State of
Florida applicable to agreements made and to be fully performed therein, without
regard to conflicts of law principles. The Company irrevocably submits to the
exclusive jurisdiction of any court of the State of Florida or the United States
Federal Courts in the State of Florida for the purpose of any suit, action or
other proceeding arising out of this Agreement, or any of the agreements or
transactions contemplated hereby, which is brought by or against the Company,
and agrees that service of process in connection with any such suit, action or
proceeding may be made upon the Company in accordance with Section 9 hereof. The
parties hereby expressly waive all rights to trial by jury in any suit, action
or proceeding arising under this Agreement.
11. Amendments This Agreement may not be modified or amended except in
a writing duly executed by the parties hereto.
12. Headings. The section headings in this Agreement have been inserted
as a matter of reference and are not part of this Agreement.
13. Successors and Assigns. The benefits of this Agreement shall inure
to the parties hereto, their respective successors and assigns and to the
indemnified parties hereunder and their respective successors and assigns, and
the obligations and liabilities assumed in this Agreement shall be binding upon
the parties hereto and their respective successors and assigns. Notwithstanding
anything contained herein to the contrary, neither Consultants nor the Company
shall assign any of its obligations hereunder without the prior written consent
of the other party.
14. No Third Party Beneficiaries. This Agreement does not create, and
shall not be construed as creating, any rights enforceable by any person or
entity not a party hereto, except those entitled to the benefits of the
Indemnification Provisions. Without limiting the foregoing, the Company
acknowledges and agrees that Consultants are not being engaged as, and shall not
be deemed to be, an agent or fiduciary of the Company's stockholders or
creditors or any other person by virtue of this Agreement or the retention of
Consultants hereunder, all of which are hereby expressly waived.
15. Waiver. Any waiver or any breach of any of the terms or conditions
of this Agreement shall not operate as a waiver of any other breach of such
terms or conditions or of any other term or condition, nor shall any failure to
insist upon strict performance or to enforce any provision hereof on any one
occasion operate as a waiver of such provision or of any other provision hereof
or a waiver of the right to insist upon strict performance or to enforce such
provision or any other provision on any subsequent occasion. Any waiver must be
in writing.
16. Counterparts. This Agreement may be executed in any number of
counterparts and by facsimile transmission, each of which shall be deemed to be
an original instrument, but all of which taken together shall constitute one and
the same agreement. Facsimile signatures shall be deemed to be original
signatures for all purposes.
If the foregoing correctly sets forth our agreement, please sign the
enclosed copy of this Agreement in the space provided below and return it to us.
Very truly yours,
NEWBRIDGE SECURITIES CORPORATION
By:
---------------------------
Xxx Xxxxx
President
BATHGATE CAPITAL PARTNERS LLC
By:
---------------------------
Xxxxx X. X. Xxxxxx
Senior Managing Partner
Agreed to and accepted this day of ___, 2005.
A4S Security, Inc.
By: --------------------------------
Xxxxxxx Siemens
President
Exhibit A
INDEMNIFICATION PROVISIONS
Capitalized terms used in this Exhibit shall have the meanings ascribed
to such terms in the Agreement to which this Exhibit is attached.
The Company agrees to indemnify and hold harmless Consultants, and each
of the other Indemnified Parties (as hereinafter defined) from and against any
and all losses, claims, damages, obligations, penalties, judgments, awards,
liabilities, costs, expenses and disbursements, and any and all actions, suits,
proceedings and investigations in respect thereof and any and all legal and
other costs, expenses and disbursements in giving testimony or furnishing
documents in response to a subpoena or otherwise (including, without limitation,
the costs, expenses and disbursements, as and when incurred, of investigating,
preparing, pursing or defending any such action, suit, proceeding or
investigation (whether or not in connection with litigation in which any
Indemnified Party is a party)) (collectively, "Losses"), directly or indirectly,
caused by, relating to, based upon, arising out of, or in connection with,
Consultants' acting for the Company, including, without limitation, any act or
omission by Consultants in connection with their acceptance of or the
performance or non-performance of its obligations under the Agreement between
the Company and Consultants to which these indemnification provisions are
attached and form a part (the "Agreement"), any breach by the Company of any
representation, warranty, covenant or agreement contained in the Agreement (or
in any instrument, document or agreement relating thereto, including any Agency
Agreement), or the enforcement by Consultants of their rights under the
Agreement or these indemnification provisions, except to the extent that any
such Losses are found in a final judgment by a court of competent jurisdiction
(not subject to further appeal) to have resulted primarily and directly from the
gross negligence or willful misconduct of the Indemnified Party seeking
indemnification hereunder. The Company also agrees that no Indemnified Party
shall have any liability (whether direct or indirect, in contract or tort or
otherwise) to the Company for or in connection with the engagement of
Consultants by the Company or for any other reason, except to the extent that
any such liability is found in a final judgment by a court of competent
jurisdiction (not subject to further appeal) to have resulted primarily and
directly from such Indemnified Party's gross negligence or willful misconduct.
These Indemnification Provisions shall extend to the following persons
(collectively, the "Indemnified Parties"): Newbridge, BCP, their present and
former affiliated entities, managers, members, officers, employees, legal
counsel, agents and controlling persons (within the meaning of the federal
securities laws), and the officers, directors, partners, stockholders, members,
managers, employees, legal counsel, agents and controlling persons of any of
them. These indemnification provisions shall be in addition to any liability
which the Company may otherwise have to any Indemnified Party.
If any action is brought against an Indemnified Person in respect of
which indemnity may be sought against the Company pursuant to Section 5(a), such
Underwriter or Selected Dealer shall promptly notify the Company in writing of
the institution of such action, provided , however , that any failure by an
Indemnified Party to notify the Company shall not relieve the Company from its
obligations hereunder. Upon receipt of such notification the Company shall
assume the defense of such action, including the employment and fees of counsel
(subject to the reasonable approval of such Indemnified Party) and payment of
actual expenses. Such Indemnified Party shall have the right to employ its or
their own counsel in any such case, but the fees and expenses of such counsel
shall be at the expense of such Indemnified Party unless (i) the employment of
such counsel at the expense of the Company shall have been authorized in writing
by the Company in connection with the defense of such action; (ii) the Company
shall not have employed counsel to have charge of the defense of such action; or
(iii) such Indemnified Party or Parties shall have reasonably concluded that
there will be material defenses available to it or them which are different from
or additional to those available to the Company (in which case the Company shall
not have the right to direct the defense of such action on behalf of the
Indemnified Party or Parties), in any of which events the reasonable fees and
expenses of not more than one additional firm of attorneys selected by the
Indemnified Parties shall be borne by the Company. Notwithstanding anything to
the contrary contained herein, if the Indemnified Party shall assume the defense
of such action as provided above, the Company shall have the right to approve
the terms of any settlement on behalf of the Company of such action, which
approval shall not be unreasonably withheld. The Company shall be liable for any
settlement of any claim against any Indemnified Party made with the Company's
written consent. The Company shall not, without the prior written consent of
Newbridge and BCP, settle or compromise any claim, or permit a default or
consent to the entry of any judgment in respect thereof, unless such settlement,
compromise or consent (i) includes, as an unconditional term thereof, the giving
by the claimant to all of the Indemnified Parties of an unconditional release
from all liability in respect of such claim, and (ii) does not contain any
factual or legal admission by or with respect to an Indemnified Party or an
adverse statement with respect to the character, professionalism, expertise or
reputation of any Indemnified Party or any action or inaction of any Indemnified
Party.
In order to provide for just and equitable contribution, if a claim for
indemnification pursuant to these indemnification provisions is made but it is
found in a final judgment by a court of competent jurisdiction (not subject to
further appeal) that such indemnification may not be enforced in such case, even
though the express provisions hereof provide for indemnification in such case,
then the Company shall contribute to the Losses to which any Indemnified Party
may be subject (i) in accordance with the relative benefits received by the
Company and its stockholders, subsidiaries and affiliates, on the one hand, and
the Indemnified Party, on the other hand, and (ii) if (and only if) the
allocation provided in clause (i) of this sentence is not permitted by
applicable law, in such proportion as to reflect not only the relative benefits,
but also the relative fault of the Company, on the one hand, and the Indemnified
Party, on the other hand, in connection with the statements, acts or omissions
which resulted in such Losses as well as any relevant equitable considerations.
No person found liable for a fraudulent misrepresentation shall be entitled to
contribution from any person who is not also found liable for fraudulent
misrepresentation. The relative benefits received (or anticipated to be
received) by the Company and it stockholders, subsidiaries and affiliates shall
be deemed to be equal to the aggregate consideration payable or receivable by
such parties in connection with the transaction or transactions to which the
Agreement relates relative to the amount of fees actually received by
Consultants in connection with such transaction or transactions. Notwithstanding
the foregoing, in no event shall the amount contributed by all Indemnified
Parties exceed the amount of fees previously received by Consultants pursuant to
the Agreement.
Neither termination nor completion of the Agreement shall affect these
Indemnification Provisions which shall remain operative and in full force and
effect. The Indemnification Provisions shall be binding upon the Company and its
successors and assigns and shall inure to the benefit of the Indemnified Parties
and their respective successors, assigns, heirs and personal representatives.
