CONSULTANT AGREEMENT
EXHIBIT 99.1
Consultant
Agreement, made as of August 31, 2009 between Hero Capital Profits Limited (the
“Corporation”), and Aegis Capital Corp., a corporation with an address at 000
0xx
Xxxxxx, 00xx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the “Consultant”).
Whereas, the Corporation
wishes to assure itself of the services of the Consultant for the period
provided in this Agreement, and the Consultant is willing to provide its
services to the Corporation on a non-exclusive basis for the period under the
terms and conditions hereinafter provided.
Now, Therefore,
Witnesseth, that for and in
consideration of the premises and of the mutual promises and covenants herein
contained, the parties hereto agree as follows:
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1.
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Engagement
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Unless
terminated earlier as hereinafter provided, the Corporation agrees to and does
hereby engage the Consultant, and the Consultant agrees to provide such
consulting services and advise pertaining to the Corporation’s planned reverse
merger as the Corporation may from time to time reasonably request,
for the period commencing on August 31, 2009 and ending on September
30th, 2009. The period during which Consultant shall serve in such
capacity shall be deemed the “Engagement Period” and shall hereinafter be
referred to as such.
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2.
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Services
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The
Consultant shall render to the Corporation the consulting services described
below, with respect to which the Consultant shall apply its best efforts and
devote such time as shall be reasonably necessary to perform its duties
hereunder, it being understood that Consultant shall perform such services
without any direct supervision by the Corporation and at such time
and place and in such manner (whether by conference, telephone, letter or
otherwise) as the Consultant may determine. Consultant’s duties may include but
will not necessarily be limited to, providing recommendations concerning the
following matters:
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(i)
Capitalization of
the Corporation;
(ii)
The Corporation’s
corporate structure;
(iii)
Corporate
governance.
(iv)
Redistribution of
shareholdings of the Corporation’s stock;
(v)
Alternative uses
of corporate assets;
(vi)
Structure and use
of debt;
(vii)
Strategic plan of
the Corporation; and
(viii)
Meetings with and
presentations to institutional and professional individual investors
For the
avoidance of doubt, this Agreement shall not cover any services rendered in
connection with mergers and acquisition and financing transactions, which
matters shall be covered by a separate agreement between the parties; and
Consultant acknowledges and agrees that the services provided hereunder
specifically exclude all market making and broker-dealer activities and
services.
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3.
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Compensation
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a.
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For
the services and duties to be rendered and performed by the
Consultant
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during
the Engagement Period and in consideration of the Consultant’s having entered
into this agreement, the Corporation agrees to issue to the Consultant a non
refundable fee of 400,000 legend free post merger shares.
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b.
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Aegis
will instruct the company to issue the shares to affiliates of Aegis and
or
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Aegis.
The shares will be freely assignable to any person or entity designated by
Aegis.
4. Liability of
Consultant
The
Corporation acknowledges that all opinions and advice (written or oral) given by
Consultant to the Corporation in connection with Consultant’s engagement are
intended solely for the benefit and use of the Corporation in considering the
transaction to which they relate, and the Corporation agrees that no person or
entity other than the Corporation shall be entitled to make use of or rely upon
the advice of Consultant to be given hereunder, and no such opinion or advice
shall be used for any other purpose or reproduced, disseminated, quoted or
referred to at any time, in any
manner or
for any purpose, nor may the Corporation make any public references to
Consultant, or use Consultant’s name in any annual reports or any other reports
or releases of the Corporation without Consultant’s prior written
consent.
5. Consultant’s Services to
Others
The
Corporation acknowledges that Consultant or its affiliates provides services and
consulting advice to others. Nothing herein contained shall be
construed to limit or restrict Consultant in conducting such business with
respect to others, or in rendering such advice to others.
6. Corporation
Information
a. The
Corporation recognizes and confirms that, in advising the Corporation and in
fulfilling it engagement hereunder, Consultant will use and rely on data,
material and other
information
furnished to Consultant by the Corporation. The Corporation
acknowledges and agrees that in performing its services under this engagement,
Consultant may rely upon the data, material and other information supplied by
the Corporation without independently verifying the accuracy,
completeness
or veracity of same. The Corporation agrees to notify Consultant in
writing via overnight courier, facsimile or e-mail of any material event and/or
change within twenty-four hours of its occurrence.
b. Except
as contemplated by the terms hereof or as required by applicable law, Consultant
shall keep confidential all material non-public information provided to it by
the Corporation, and shall not disclose such information to any third party,
other than such of its employees and advisors as Consultant determines to have a
need to know (provided that such employees and advisors agree to be bound by the
provisions of this paragraph).
7. Consultant an Independent
Contractor
Consultant
shall perform its services hereunder as an independent contractor and not as an
employee of the Corporation or an affiliate thereof. It is expressly
understood and agreed to by the parties hereto that Consultant shall have no
authority to act for, represent or bind the Corporation or any affiliate thereof
in any manner, except as may be agreed to expressly by the Corporation in
writing from time to time.
8. Representations and
Warranties
Consultant
represents and warrants that neither Consultant nor any of Consultant’s
partners,
employees
or agents is under any pre-existing obligation in conflict or in any way
inconsistent with the provisions of this Agreement. Consultant
warrants that Consultant has the right to disclose or use all ideas, processes,
techniques and other information, if any, which Consultant has gained from third
parties, and which Consultant discloses to the Corporation in the course of
performance of this Agreement, without liability to such third
parties. Consultant represents and warrants that Consultant has not
granted any rights or licenses to any intellectual property or technology that
would conflict with Consultant’s obligations under this
Agreement. Consultant will not knowingly infringe upon any copyright,
patent, trade secret or other property right of any former client, employer or
third party in the performance of the Services required by this
Agreement.
Consultant
represents and warrants that it is a corporation duly incorporated, validly
existing and in
good standing under the laws of New York. Consultant has all
requisite power and authority to own its properties and conduct its business as
currently conducted and to enter into and perform its obligations under this
Agreement. The execution, delivery and performance of this Agreement
have been duly
authorized by all necessary action on the part of Consultant. This
Agreement has been duly executed and delivered by Consultant and constitutes the
valid and duly binding obligation of Consultant enforceable in accordance with
its terms. Consultant does not need the consent of any third
party or approval or authorization of any governmental authority in order for
Consultant to enter into and perform its obligations under this
Agreement. The execution, delivery and performance of this Agreement
by Consultant do not and will not constitute a violation by Consultant of any
law or regulation applicable to Consultant, including any applicable securities
laws
and the
rules and regulations promulgated by FINRA.
9. Indemnification
Consultant
will indemnify and hold the Corporation, its officers, directors, employees and
other agents, harmless from and against any and all claims, damages and
liability, including costs, expenses and reasonable attorneys’ fees, made or
presented against or suffered by the Corporation, its officers, directors,
employees and other agents, as a result of (i) the failure of Consultant to
complete the services described herein in a satisfactory manner; (ii) the
negligence or wrongful act of Consultant relating to Consultant’s performance of
such services under this Agreement; (iii) Consultant’s breach of
any term or provision under this Agreement; and (iv) Consultant’s
noncompliance with any applicable law, rule, or regulation, including any
applicable securities laws and the rules and regulations promulgated by
FINRA.
10. Termination
During
the Engagement Period, if Consultant fails, refuses or is unable to provide
services required by this Agreement, the Engagement Period will terminate one
(1) year from the execution of
this
Agreement, upon thirty (30) days notice by the Corporation.
11. Miscellaneous:
a. This
Agreement between the Corporation and Consultant constitutes the entire
agreement and understanding of the parties hereto, and supersedes any and all
previous agreements and understandings, whether oral or written, between the
parties with respect to the matters set forth herein.
b. Any
notice or communication permitted or required hereunder shall be in writing and
shall be deemed sufficiently given if hand-delivered or sent (i) postage prepaid
by registered
mail, return receipt requested, or (ii) by facsimile, to the respective parties
as set forth below, or to such other address as either party may notify the
other in writing.
If to the
Corporation,
to: Hero
Capital Profits Limited
Xxxx 0000, 00/X Xxxxx X
Xxxxxxx Xxxxxxxxxx Xxxxxx
37 Ma Tau Wai Road,
Hunghom
Kowloon, Hong Kong
Attention: Xxxxx
Xxxxxx
If to
Consultant,
to: Aegis
Capital Group
000 0xx
Xxxxxx, 00xx
Xxxxx
Xxx
Xxxx, XX 00000
Attention: Xxxxx X.
Xxxxxx
c. This
Agreement shall be binding upon and inure to the benefit of each of the parties
hereto and their respective successors, legal representatives and
assigns.
d. This
Agreement may be executed in any number of counterparts, each of whom together
shall constitute one and the same original document.
e. No
provision of this Agreement may be amended, modified or waived, except in a
writing signed by all of the parties hereto.
f. This
Agreement shall be construed in accordance with and governed by the laws of the
State of New York, without giving effect to conflict of law
principles. The parties hereby agree that any dispute which may arise
between them arising out of or in connection with this
Agreement
shall be adjudicated before a court located in New York, and they hereby submit
to the exclusive jurisdiction of the courts of the State of New York with
respect to any action or legal proceeding commenced by any party, and
irrevocably waive any objection they now or hereafter may have respecting the
venue of any such action or proceeding brought in such a court or respecting the
fact that such court is an inconvenient forum, relating to or arising out of
this Agreement, and consent to the service of process in any such action or
legal proceeding by means of registered or certified mail, return receipt
requested, in care of the address set forth in Paragraph 11(b)
hereof.
IN WITNESS WHEREOF, the
parties hereto have caused this Agreement to be duly executed, as of the date
first above written.
CONSULTANT
Aegis Capital Corp.
By: /s/Xxxxx X.
Xxxxxx
Name:
Xxxxx X. Xxxxxx
Title: Managing Director
CORPORATION
Hero Capital Profits
Limited
By: /s/ Xxxxx
Xxxxxx
Name:
Xxxxx Xxxxxx
Title: President
