Exhibit 10.4
Altos
Growth
Corporation
Letter of Agreement
For
Emerging Delta Corporation
April 29, 2004
Prepared for:
Xxxxx Xxxxxxxx
Emerging Delta Corporation
Altos Growth Corporation: Delta's Growth Execution Partner
Acquisition is an important component to achieving the aggressive growth goals
of Delta; acquisition, therefore, must become a corporate core competency. Altos
Growth Corporation helps enterprises achieve and maintain long-term growth by
developing a growth-via-acquisition strategy into a core competency.
Founded by Xxxxxx Xxxxxxx, an executive with three decades of experience in
growing companies via acquisition - most notably The Gap, Businessland, and
Corporate Express - Altos Growth Corporation combines experience, pragmatism,
and vision to achieve its clients' growth objectives. Experience in over 150
mergers and acquisitions provides us with significant data points to develop a
playbook that takes a systematic approach to creating opportunities and striking
expertly when the right deal(s) surfaces. The experience enables us to develop
and implement external growth plans that avoid the most common mistakes of M&A
execution.
Xxxxxxx'x experience in the cash and carry wholesale business and at Corporate
Express will be particularly important in the Delta engagement. In the cash and
carry industry, Xxxxxxx, reporting to the chairman, headed the project to
transform one of the oldest and largest UK national food wholesalers to
modernize, systematize and expand the product line. It subsequently merged with
its largest competitor to become a multi-billion pound public market leader
trading on the London Stock Exchange as Xxxxxx PLC.
Corporate Express set out to consolidate the highly fragmented, independent
office supply industry. Dominated by small family-owned enterprises with limited
infrastructure and technology, Corporate Express, grew through a series of
acquisitions. Xxxxxxx, reporting to Corporate Express' chairman and CEO, helped
build an acquisition process - from targeting to negotiations to post-closing
integration - that became so efficient that Xxxxxxx'x team averaged nearly one
international acquisition per month for a period of four years. Through
technology and best practices, the combined entities that became Corporate
Express achieved superior efficiencies in distribution and customer acquisition,
leading to a market capitalization in excess of $7 billion. In his role as
Executive Vice President, Xxxxxxx will direct the AGC team to achieve similar
results for Delta.
The Altos Growth Team
XXXXXX XXXXXXX
Xxxxxx'x 30-year international career has included serving as CEO and other
executive-level positions within public and private companies, as well as within
start-ups. Five of the start-ups, in which he served as an executive, became
public on the NYSE, NASDAQ, OTCBB and London exchanges; four became billion
dollar corporations, most notably The Gap, Businessland, and Corporate Express.
Xxxxxx'x most productive growth stints were with companies that complemented
their organic growth by developing and executing a growth-via-acquisition
strategy. It is primarily from within these companies where Xxxxxx developed his
expertise in structuring a successful acquisition program. It is from without
(Corporate Express & others) where he proved that an effective playbook can be
developed for any client corporation with the right growth potential, by the
right "advisors."
A graduate of San Xxxx State University, Xxxxxx also studied at San Francisco
State University's graduate school of business, concentrating on operations
research. He serves on the executive board of the local BSA council. He is a
frequent guest speaker at industry conferences and is the author of several
industry columns.
XXXXXX X. XXXXXXX
Xxxxxx has 20+ years of executive sales management experience. He has defined
and implemented sales and business development strategies for many high-growth
technology companies throughout his career. Among the management roles he's
held: vice president of business development at NetObjects, Inc., a market
leader in web authoring solutions, director of sales at America Online (AOL)
after the acquisition of Medior where he led sales and business development,
vice president of sales at Orchid Technology, and director of worldwide sales at
Proxim, Inc. During his tenure in these companies, Xxxxxx was involved in the
companies' IPOs and acquisitions, later expanding his M&A experience as an
independent consultant.
Xxxxxx holds a Master of Business Administration from San Francisco State
University and a Bachelor of Arts from University of Colorado.
XXXXX X. XX, CPA
Xxxxx is a seasoned finance executive with expertise in global operations, P&L,
fundraising, and mergers and acquisitions. A certified public accountant, Xxxxx
began his career at Franklin Funds and Pricewaterhousecoopers where he was a
member of the banking and financial services group. He then joined GE Capital's
lease financing group to serve as its assistant controller. His executive
management stints have included roles as vice president/treasurer of Stormedia,
Inc., EVP and CFO of Syquest Technology, CFO of Versata, Inc., and CFO of Planet
Intra/Inclusion Technologies. It was during these executive roles that Xxxxx
gained extensive experience in IPOs and other financing options as well as M&A
transactions.
Xxxxx is a 1986 graduate of the University of California in Berkeley.
XXXXX X. XXXXXXXXX
Xxxxx's 20+ years of marketing experience in the high tech industry has enabled
her to hone her ability to identify market opportunities as well as develop and
execute strategies for organic as well as inorganic growth. Her executive
management experience includes serving as CEO and president for NextMonet, an
online retailer which she merged with an offline catalog retailer in 2001; vice
president of marketing for Portrait Displays, now a display software company;
and for Orchid Technology, a leading, publicly-traded computer peripherals
manufacturer in the 80s and early 90s. From 1993 to 1997, she was a principal in
a marketing consulting firm that specialized in corporate and product
positioning; her client roster included leading technology companies such as
Xxxxx Labs, Radius, Sercomm International, Miro Computer Products, Jazz
Multimedia, and Common Ground Software. More recently, as an independent
marketing consultant, she has developed growth strategies for a number of
technology-based companies.
Xxxxx holds a Bachelor of Journalism from the University of Texas at Austin.
XXXX (XXXX) XXXXXX
Xxxx has over 25 years of experience in the development and management of
product lines, distribution channels, marketing and operations programs, and
strategic business planning activities. Xxxx also has extensive retail
merchandising experience, having managed both field and corporate merchandising
programs for Sears and The Gap.
His executive roles have included serving as Chairman and CEO of Positive
Communications, a nationwide wireless messaging company. He guided the company
to record levels of revenue and profitability, while launching incremental lines
of business. Under his guidance, the company transformed to a diversified $50M
company providing wireless messaging to over 300k subscribers, and "back office"
subscriber management and customer support services to dozens of business
clients.
Xxxx's experience in growing businesses includes Compaq Computer Corporation,
where he was responsible for the development and launch of Compaq personal
computing products in the US consumer market via retail distribution channels.
He was responsible for product marketing and management at BusinessLand, Inc, a
national distributor of personal computer and related products from its early
stages to over $1B in annual sales.
Xxxx holds a Bachelor of Arts degree in Business Administration from Hanover
College.
Altos Growth Corporation
ADVISORY AGREEMENT
between
Altos Growth Corporation
and
Emerging Delta Corporation
This Letter of Agreement ("Agreement") is made and entered into as of April 29,
2004 ("Effective Date"), by and between Emerging Delta Corporation, a Delaware
corporation (hereinafter referred to as "Delta"), with offices at 0000 Xxxxxx
Xxxxx Xxxx #000, Xxxxxx, XX 00000, Altos Growth Corporation ("AGC"), a Nevada
corporation, with offices at 000 Xxxxx Xxxxxx, #000, Xxx Xxxxx, Xxxxxxxxxx
00000, Xxxxxx Xxxxxxx ("Xxxxxxx"), CEO and Founding Partner of AGC"), and
AltosBanCorp, Inc. ("ABC"), a Nevada corporation, with offices at 000 0xx Xxxxx
Xxxxxx #000, Xxx Xxxxx, Xxxxxxxxxx 00000. As used herein, "Altos Group" shall
mean AGC, Xxxxxxx and ABC, collectively and individually.
WHEREAS, Delta desires to acquire independent wholesale grocery distribution
centers ("IWDCs"), also known as Cash and Carrys (the "Delta Acquisition
Program");
WHEREAS, AGC represents that it is capable of providing Delta the needed merger
and advisory services required by Delta to effect the Delta Acquisition Program
(the "Program M&A Services") and of sourcing the financing required by Delta in
connection with the Program M&A Services ("Program Financing Services"):
WHEREAS, AGC desires to contract with Delta to perform such services; and
WHEREAS, Delta hereby retains AGC to perform the services described in Section
1.;
NOW, THEREFORE, in consideration of the payments herein provided to be made and
the mutual promises, agreements and undertakings herein contained, the parties
mutually agree as follows:
1.0 SCOPE OF GENERAL SERVICES
1.1. AGC will provide the services of Xxxxxxx, who will serve as Delta's
Executive Vice President of Business Development, serve on its
Executive Committee, and serve as a Board member of Delta ("Xxxxxxx
Executive Services"). As Delta's Executive Vice President of Business
Development, Xxxxxxx will have primary responsibility for developing
and maintaining for Delta a core competency in mergers and
acquisitions and related financings in the Delta Acquisition Program.
Xxxxxxx will be in charge of AGC's services to be rendered hereunder.
1.2. AGC shall serve as Delta's Official Advisor in connection with the
Delta Acquisition Program and will provide, the following services
("AGC Services"):
1.2.1. Development of Acquisition Competency: AGC will have lead
responsibility for development of acquisition competency within
Delta, including the design, development, training and
implementation of acquisition processes into Delta's business so
that the ability to provide continuous growth via acquisitions
becomes a core competency of Delta.
1.2.2. Mergers and Acquisitions:
1.2.2.1. AGC will manage and execute Program M&A Services,
including targeting, evaluation, negotiation, and arranging
closing activities.
1.2.2.2. AGC will assist in the preparation of proposals to
shareholders, partners and other parties-in-interest in
connection with Program M&A Services.
1.2.3. Program Financing Services: 1.2.3.1. AGC shall seek the
following for Delta:
1.2.3.1.1. One or more financing commitments on which Delta
can rely in negotiating acquisitions, e.g., a funding
source that will provide a line of equity or credit to
be used to acquire businesses pursuant to the Delta
Acquisition Program ("Multi-Unit Acquisition Funding
Line");
1.2.3.1.2. Financings for specific acquisitions pursuant to
the Delta Acquisition Program ("Single-Unit Acquisition
Funding").
1.2.3.1.3. As used herein, "AGC Acquisition Funding" shall
mean a Multi-Unit Acquisition Funding Line or a
Single-Unit Acquisition Funding that is arranged by
AGC.
1.2.3.2. As part of its Program Financing Services, , AGC will:
1.2.3.2.1. analyze and implement the most productive
packaging of Delta to qualified sources of funding
based on the specific criteria and requirements of the
funding sources;
1.2.3.2.2. identify qualified sources of financing for
Delta;
1.2.3.2.3. prepare a suitable document with which to
generate interest on the part of potential sources of
financing for Delta;
1.2.3.2.4. present Delta to potential sources of financing;
1.2.3.2.5. facilitate meetings between Delta and potential
sources of financing for Delta;
1.2.3.2.6. negotiate terms of proposed financings;
1.2.3.2.7. facilitate all steps and procedures required for
potential financings to be effected, including letters
of intent, contracts and closing procedures.
1.2.4. Presentations to the Board and Financial Constituencies: AGC
will assist Delta Management with presentations to Delta's Board
of Directors, shareholders, stock brokers and securities
analsysts regarding transactions, the financial feasibility of
Delta's contemplated program with XXxxxxx, and other issues
related to that program.
1.2.5. Ancillary Management Advisory Services: AGC will study, review
and advise Delta regarding:
1.2.5.1. appropriate structure of management agreements with
XXxxxxx's executives who will be members of the senior
management team of Delta during the acquisition phase of
Delta's growth,
1.2.5.2. other relevant partnerships or strategic business
relationships;
1.2.5.3. Delta's historic and projected financial statements and
financial policies.
1.3. Milestones: AGC and Delta have determined a set of milestones for
which AGC will be responsible for achieving during the first 120 days
(Exhibit A hereto); these milestones will be incorporated in Delta's
business and operating plan.
1.4. AGC Independence. AGC shall devote such time to the performance of AGC
Services as is necessary for a satisfactory performance; however, AGC
shall have no obligation to work any particular hours or days or any
particular number of hours or days. AGC retains the right to contract
for similar services with other businesses or individuals, provided
such other clients are not primarily engaged or are not considering
engaging in the specialty foods or wholesale grocery distribution
business.
2.0 TERM
The term of this Agreement shall be twelve (12) months from the Effective
Date unless earlier terminated. This Agreement is renewable, upon written
agreement of both parties, for additional six (6) month periods.
3.0 INDEPENDENT CONTRACTOR STATUS
3.1. Delta shall not control the details, manner or means by which AGC or
Xxxxxxx performs the Services in any material respect. However, AGC and
Xxxxxxx will comply with policies of Delta.
3.2. Delta and AGC expressly intend and agree that AGC and any of its
representatives shall be independent contractors and not an employee of
Delta.
3.3. Except as expressly provided or authorized in this Agreement, AGC shall
have no authority to act for on behalf of, or represent Delta. This
Agreement does not create a partnership or joint venture.
4.0 COMPENSATION FOR SERVICES
Delta agrees that AGC, in consideration of its services pursuant to this
Agreement, shall be entitled to receive, and Delta shall pay, the following
compensation for AGC's general services, as listed above and:
4.1. Monthly Xxxx.Xxxxx shall pay AGC, for Nielsen Executive Services, an annual
fee in the amount of one hundred and twenty thousand Dollars ($120,000),
Ten Thousand dollars ($10,000) to be paid on the first day of the first
month beginning after the signing of this agreement and ten thousand
dollars ($10,000) shall be paid on the first day of each month thereafter.
This Monthly Fee for the first six months of this agreement will include
the services of AGC. Conditionally, upon achievement of the financial
milestones, mutually agreed to between the parties and documented as part
of Schedule A, AGC will receive an additional $10,000 beginning on the
seventh month beginning after the signing of this Agreement, payable on the
first day of each month.
4.2. Transaction Fees. In addition to the foregoing monthly fee(s), Delta shall
pay AGC the following contingent transaction fees:
4.2.1. Private Placement Financing: During the term of this agreement, if
Delta enters into a binding contract for an AGC Acquisition Funding,
Delta shall pay to AGC, at the time that funds are disbursed pursuant
to the arrangements of that AGC Acquisition Funding, a cash fee based
upon the total face value of the transaction in accordance with the
following schedule: (i) four percent (4%) of a term debt financing;
(ii) three percent (3%) of the incremental amount funded under a
revolving credit line; (iii) five percent (5%) of a credit enhancement
instrument, including an insured or guaranteed obligation (the credit
enhancement instrument to be valued along with any debt financing
secured, so that a single 5% fee will apply to the combined value of
the debt and credit enhancement instruments), and (iv) five percent
(5%) of financing that is structured as a revenue-producing contract,
fee-sharing arrangement, or similar agreement. This obligation shall
survive for a period of two (2) years from the date of execution of
the agreement for each such transaction.
4.2.2. Merger or Acquisition: During the term of this Agreement, if Delta
acquires any company pursuant to the Delta Acquisition Program, Delta
shall pay AGC a cash fee in an amount equal to the greater of $50,000
or one half of one percent of sales (0.5%) for transactions
representing cumulative sales volume up to $250 million; three
quarters of one percent of sales (.075%) for transactions representing
cumulative sales volume of between $250 million and $500million; and
one percent of sales (1%) for transactions representing cumulative
sales volume of over $500 million. All sales volume will be based on
the most current twelve month period preceeding an acquisition
transaction. Delta may opt for the "Xxxxxx Scale" in calculating the
cash transaction fee due AGC. As used herein, the term "Xxxxxx Scale"
means the following: the greater of $50,000 or percentages of the
purchase price: 5% of any amount up to $1 million, 4% of the amount
above $1 million up to $2 million, 3% of the amount above $2 million
up to $3 million, 2% of the amount above $3 million up to $4 million,
and 1% of all amounts above $ 4 million.
4.2.2.1. AGC shall be entitled to no compensation in connection with
Delta's acquisition of or merger with EZklick, Inc.
4.2.3. AGC Sources: It will be AGC's responsibility to identify sources of
AGC Program Funding (individually, an "AGC Source"), to approach and
negotiate with AGC Sources, and to manage the transaction through
closing. Each AGC Source introduced to Delta on the date of this
Agreement shall be listed in Schedule B annexed hereto and made a part
hereof. Subsequent to the date of this Agreement and immediately upon
AGC's introduction of an AGC Source to Delta, AGC and Delta shall
amend Schedule B to include each additional AGC Source within thirty
(30) days of such introduction.
4.3. If, in the opinion of Delta's securities counsel, applicable securities
laws require Delta to employ a registered broker-dealer, insurance broker,
or otherwise licensed placement agent in connection with the aforesaid
types of matters, AGC will cooperate with such agent, and the fees payable
to AGC will be reduced by the amount that Delta must pay to such agent, not
to exceed 2% of the cash proceeds.
4.4. It is Delta's hope and expectation that AGC will become integrated into the
development of Delta. Accordingly, Delta expects that it will refer
potential co-facilitators to AGC to cooperate on a financing. Such
co-facilitators will be of two types: (i) those that merely make an
introduction to a source of funding or an acquisition opportunity
("Finders") and (ii) those that "work the deal" actively with AGC to bring
about a successful conclusion ("Co-Managers"). AGC hereby authorizes Delta
to pay to such co-facilitators the following percentages of any fee that
would otherwise be owed to AGC in connection with any such transaction: 10%
to a Finder and 50% to a Co-Manager.
4.5. Delta authorizes and directs any Closing Agent to distribute directly or
from escrow any and all contingent fees due to AGC hereunder. Delta agrees
that such fees and the manner of payment and delivery as herein provided
shall be included in the documentation of any transaction as to which AGC
shall be entitled to a contingent fee hereunder.
4.6. Delta will issue to AGC, upon the signing of this Agreement, 4,350 shares
of common stock at a price of $15.00 per share. Payment for such shares
will be deferred for a period of 12 months from the date of issuance. AGC
retains the option of paying for the shares by applying fees owed by Delta.
4.7. Except as otherwise provided for herein:
4.7.1. All fees due to AGC hereunder shall have no offsets, are
nonrefundable, non-cancelable and shall be free and clear of any and
all encumbrances, provided however that after AGC shall have been paid
$100,000 in non-contingent monthly fees for the AGC services, as
outlined in paragraph 1.2, the amount of all contigent fees due
hereunder shall be credited with 50% of the amount of such monthly
fees in excess of $100,000.
4.7.2. All contingent cash fees due AGC hereunder shall be paid to AGC
immediately upon closing of the transaction that gives rise to Delta's
duty to pay such fees by wire transfer of immediately available funds
from the proceeds of the Fee Transaction, either directly or from the
formal or informal escrow arrangement established for the Fee
Transaction (collectively, the "Closing Agent"), pursuant to the
written wire transfer instructions of AGC to the Closing Agent.
4.8. Expenses.
4.8.1. Out-of-Pocket. In addition to the fees described above, Delta agrees
to promptly reimburse AGC, upon request from time to time, for all
reasonable out-of-pocket expenses incurred by AGC in connection with
the performance of its services under this Agreement. AGC must advise
Delta, and obtain approval for such, prior to committing to such
expenses.
4.8.2. Legal and Other Professional Fees. Delta will manage the
professionals (legal, accounting, et al) required to complete any
transaction on Delta's behalf. Fees will be paid directly to these
professionals by Delta.
5.0 NON-COMPETE
For a period of two (2) years after the expiration of the Term of this
Agreement, Altos Group shall not, directly or indirectly, own (except for
the ownership of publicly-traded securities constituting not more than five
percent [5%] of the outstanding securities of the issuer thereof), manage,
engage in, operate or conduct, prepare to or plan to conduct or assist any
person or entity to conduct any business, or have any interest in any
business, person, firm, corporation or other entity that engages, directly
or indirectly, in any business which is substantially similar to or
competitive with Delta in the United States of America.
6.0 CONFIDENTIAL INFORMATION
6.1. Altos Group shall retain in confidence all information of Delta, and its
suppliers as appropriate, transmitted to Altos Group by Delta (or Delta's
advisors) under this Agreement, which Delta has identified as being
confidential or which by the nature of the information (including trade
secrets and other confidential and proprietary business information) or the
circumstances surrounding the disclosure should be treated as confidential
("Confidential Information"). Altos Group shall refrain from using or
exploiting any Confidential Information for any purpose or activity other
than those necessary to or contemplated by this Agreement. Altos Group
shall not disclose or facilitate the disclosure of Confidential Information
to any third party and shall not copy, duplicate, reproduce, distribute or
otherwise disseminate Confidential Information except as necessary to or
contemplated by this Agreement.
6.2. This Section shall not apply or shall cease to apply to information
supplied by Altos Group:
6.2.1. if it has come into the public domain without breach of confidence
by Altos Group which was known without restriction of disclosure to
Altos Group prior to its first receipt of the same from Delta;
6.2.2. which is hereafter rightfully furnished to Altos Group by a third
party without restriction on disclosure; or
6.2.3. is required to be disclosed pursuant to any statutory requirement or
court order. In the event Confidential Information is required to be
disclosed by any statutory requirement or court order, Altos Group
shall promptly notify Delta in writing.
7.0 INTELLECTUAL PROPERTY
7.1. Altos Group agrees that all information that has been created, discovered,
or developed by Delta, its subsidiaries, affiliates, licensors, licensees,
successors, or assigns, shall be the sole property of Delta.
7.2. Proprietary Information includes trade secrets, processes, discoveries,
structures, inventions, designs, ideas, works of authorship, copyrightable
works, trademarks, copyrights, formulas, improvements, inventions, product
concepts, techniques, marketing plans, merger and acquisition targets,
strategies, forecasts, blueprints, sketches, records, notes, devices,
drawings, customer lists, patent applications, continuation applications,
continuation-in-part applications, file wrapper continuation applications
and divisional applications and information about the Delta's Affiliates,
its employees and/or advisors (including, without limitation, the
compensation, job responsibility and job performance of such employees
and/or advisors).
7.3. All original content, proprietary information, trademarks, copyrights,
patents or other intellectual property created by Altos Group pursuant to,
as a result of, or in connection with this agreement shall be the sole and
exclusive property of Delta, provided however that original content,
proprietary information, trademarks, copyrights, patents or other
intellectual property created by Altos Group during the course of this
agreement which is not otherwise herein deemed to be Delta's proprietary
information, shall be the sole and exclusive property of Altos Group.
8.0 INDEMNIFICATION
8.1. Delta represents that all materials provided or to be provided to Altos
Group or any third party regarding Delta's financial affairs or operations
are and shall be truthful and accurate and in compliance with any and all
applicable federal and state securities laws. Delta agrees to indemnify and
hold harmless Altos Group and its advisors, professionals and affiliates,
the respective directors, officers, partners, members, managers, agents and
employees and each other person, if any, controlling Altos Group or any of
its affiliates to the full extent lawful, from and against all losses,
claims, damages, liabilities and expenses incurred by them (including
reasonable attorneys' fees and disbursements) that result from actions
taken or omitted to be taken (including any untrue statements made or any
statement omitted to be made) by Delta, its agents or employees which
relate to the scope of this Agreement and the performance of the services
by Altos Group contemplated hereunder.
8.2. Altos Group will indemnify and hold harmless Delta and the respective
directors, officers, agents, affiliates and employees of Delta from and
against all losses, claims damages, liabilities and expenses that result
from bad faith, gross negligence or unauthorized representations of Altos
Group or actions taken or omitted to be taken (including any untrue
statements made or any statement omitted to be made) by Altos Group.
8.3. Each person or entity seeking indemnification hereunder shall promptly
notify Delta, or Altos Group, as applicable, of any loss, claim, damage or
expense for which Delta or Altos Group, as applicable, may become liable
pursuant to this Section. No party shall pay, settle or acknowledge
liability under any such claim without consent of the party liable for
indemnification, and shall permit Delta or Altos Group, as applicable, a
reasonable opportunity to cure any underlying problem or to mitigate actual
or potential damages.
8.4. The scope of this indemnification between Altos Group and Delta shall be
limited to, and pertain only to certain transactions contemplated or
entered into pursuant to this Agreement. Delta or Altos Group, as
applicable, shall have the opportunity to defend any claim for which it may
be liable hereunder, provided it notifies the party claiming the right to
indemnification in writing within fifteen (15) days of notice of the claim.
The rights stated pursuant to this Section shall be in addition to any
rights that Altos Group, Delta, or any other person entitled to
indemnification may have in common law or otherwise, including, but not
limited to, any right to contribution.
8.5. The indemnification provisions herein shall survive for five years after
the termination or expiration of this agreement.
9.0 TERMINATION AND TERMINATION FEES
9.1. If the Advisor does not perform according to the milestones defined in
Exhibit A for the first 120 days of the Effective Date of this Agreement,
Delta has the unconditional right to cancel this agreement. In the event of
cancellation, Delta will nevertheless pay all fees due at that time to AGC.
9.2. For Just Cause, Delta shall have the unconditional right to terminate this
Agreement at any time with no duty to pay any compensation to AGC. Just
Cause shall mean:
9.2.1. Violation of any AGC's duties hereunder,
9.2.2. Filing of criminal charges against AGC or any member of the AGC team
or any affiliate of AGC for any felony or any crime involving fraud or
moral turpitude, or
9.2.3. The bringing or filing of any complaint or action by any regulatory
body against AGC or any member of the AGC team or any affiliate of AGC
for violation of any duty imposed under the business (including but
not limited to matters of corporate governance and antitrust) or
securities regulation legal system of the jurisdiction bringing or
filing such complaint or action, or
9.2.4. Insolvency of AGC or other infirmity which causes AGC to be unable
to perform its duties hereunder.
9.3. If Delta enters into a contract with a party that is ready, willing and
able to perform its duties under such contract or letter of intent, and
provided that such party is in fact ready, willing and able to perform its
duties under such contract or letter of intent, then:
9.3.1. Delta will not terminate, cancel or rescind that contract pursuant
to any transaction that Delta shall have entered into that was
facilitated by AGC, unless such cancellation is made pursuant to
pertinent "out clauses" of those respective documents ("Avoidance
Cause");
9.3.2. In the event that Delta elects not to proceed with a transaction
that was facilitated by AGC without invoking an Avoidance Cause, Delta
shall immediately pay AGC a termination fee equal to ten percent (10%)
of the total fees that would have been paid to the Advisor had the
transaction been effected.
9.4 This Agreement and the AGC's engagement hereunder shall not be terminated
by Delta under any circumstances nor for any reason whatsoever (except as
noted in Section 8.2.), unless all compensation due to AGC pursuant to
Section 4 above has been distributed to AGC directly or from the Closing
Agent.
10.0 NOTICE
Any notice required or permitted hereunder shall be in writing and sent to
the address first written above or to such other addresses as the parties
may from time to time specify, by United States Mail, First Class postage
prepaid, by Federal Express, DHL or similar courier or by hand delivery, by
facsimile transmissions (with written transmission confirmation report).
11.0 SUCCESSORS AND ASSIGNS
This Agreement and all of the provisions hereof shall be binding upon and
inure to the benefit of the parties hereto and their respective successors
and permitted assigns. This Agreement and any of the rights, interests or
obligations hereunder may be assigned by the Advisor without the prior
written consent of Delta. This Agreement and any of the rights, interests
or obligations hereunder may not be assigned by Delta without the prior
written consent of the AGC, which consent shall not be unreasonably
withheld.
12.0 SEVERABILITY OF PROVISIONS
If any provision of this Agreement shall be declared by a court of
competent jurisdiction to be invalid, illegal or incapable of being
enforced in whole or in part, the remaining conditions and provisions or
portions thereof shall nevertheless remain in full force and effect and
enforceable to the extent they are valid, legal and enforceable, and no
provision shall be deemed dependent upon any other covenant or provision
unless so expressed herein.
13.0 ENTIRE AGREEMENT; MODIFICATION
This Agreement and the schedule hereto contains the entire agreement of the
parties relating to the subject matter hereof, and the parties hereto and
thereto have made no agreements, representations or warranties relating to
the subject matter of this Agreement which are not set forth herein. No
amendment or modification of this Agreement shall be valid unless made in
writing and signed by each of the parties hereto.
14.0 NON-WAIVER
The failure of any party to insist upon the strict performance of any of
the terms, conditions and provisions of this Agreement shall not be
construed as a waiver or relinquishment of future compliance therewith, and
said terms, conditions and provisions shall remain in full force and
effect. No waiver of any term or condition of this Agreement on the part of
any party shall be effective for any purpose whatsoever unless such waiver
is in writing and signed by such party.
15.0 GOVERNING LAW
The parties hereto acknowledge that the transactions contemplated by this
Agreement bear a reasonable relation to the state of Delaware. This
Agreement shall be governed by, and construed and interpreted in accordance
with, the internal laws of the state of Delaware without regard to such
state's principles of conflicts of laws. The parties irrevocably and
unconditionally agree that the exclusive place of jurisdiction for any
action, suit or proceeding ("Actions") relating to this Agreement shall be
in the state and/or federal courts situate in the county and state of
Delaware. Each party irrevocably and unconditionally waives any objection
it may have to the venue of any Action brought in such courts or to the
convenience of the forum. Final judgment in any such Action shall be
conclusive and may be enforced in other jurisdictions by suit on the
judgment, a certified or true copy of which shall be conclusive evidence of
the fact and the amount of any indebtedness or liability of any party
therein described. Service of process in any Action by any party may be
made by serving a copy of the summons and complaint, in addition to any
other relevant documents, by commercial overnight courier to any other
party at their address set forth in this Agreement.
16.0 HEADINGS
The headings of the Sections are inserted for convenience of reference only
and shall not affect any interpretation of this Agreement
17.0 COUNTERPARTS
This Agreement may be executed in counterpart signatures, each of which
shall be deemed an original, but all of which, when taken together, shall
constitute one and the same instrument, it being understood that both
parties need not sign the same counterpart. In the event that any signature
is delivered by facsimile transmission, such signature shall create a valid
and binding obligation of the party executing (or on whose behalf such
signature is executed) the same with the same force and effect as if such
facsimile signature page were an original thereof.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date last set forth below.
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Emerging Delta Corporation Altos Growth Corporation and
AltosBanCorp, Inc.
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Signed: Signed:
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Name: Xxxxx Xxxxxxxx Name: Xxxxxx Xxxxxxx
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Title: Chairman of the Board Title: CEO & Founding Partner
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Date: April 29, 2004
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Xxxxxx Xxxxxxx
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Signed:
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Name: Xxxxxx Xxxxxxx
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Title: CEO & Founding Partner
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Date: April 29, 2004
SCHEDULE A
120-Day Milestone Timeline
The following timeline may be compressed depending on the availability of
current data. If the program can be initiated by May 15, 2003 it could be
completed by the end of July at the earliest, end of August at the latest.
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DESCRIPTION COMMENTS
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Business Plan Review |X| Review for consistency and defensible
assumptions and projections.
|X| Develop presentation for fundraising.
|X| Write abbreviated Executive Summary for
gauging lender interest.
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Identify sources for debt Required to complete Schedule B attached
and equity financing. hereto.
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Obtain a signed letter of
intent for funding that
enables the acquisition of
an IWDC by the last week in
the first 120 days.
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Develop acquisition criteria Prioritize
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Review feedback from initial Adjust approach and documentation as
contact with capital appropriate.
sources; expand contact list
as appropriate.
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Develop and prioritize target list Formal and active pipeline of qualified
for acquisition. targets
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Line up debt and equity financing.
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Engage acquisition targets,
and have a signed letter of
intent with one IWDC by the
last week in the first 120
days.
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SCHEDULE B
AGC SOURCES FOR FINANCING
