AGREEMENT
THIS
AGREEMENT
is
effective as of September 13, 2007, by and between Garisch Financial, Inc.,
an
Illinois corporation with its principal place of business located at 0000
Xxxxxxxx Xxxxx, Xxxxxx, Xxxxxxxx 00000 (“GFI”), Catalyst Lighting Group, Inc., a
corporation organized and existing under the laws of the state of Delaware,
with
its principal place of business located at 000X Xxxxxxxxx Xxxxxxxxx, Xxxxx
00,
Xxxx Xxxxx, XX 00000 (“Catalyst”), and KIG Investors I, LLC, a Delaware limited
liability company (“KIG Investors”). Catalyst and KIG Investors may be referred
to collectively as the “Clients.” GFI and the Clients may each be referred to as
a “Party” or collectively as the “Parties.”
RECITALS
WHEREAS,
GFI is
engaged in the business of providing consulting services to public and private
companies including, without limitation, conducting due diligence
investigations, assisting in the preparation of SEC filings, structuring,
evaluating and executing business transactions, business combinations and
mergers, recommending and advising on corporate and strategic matters, and
reviewing financial and accounting matters (“Services”); and
WHEREAS,
Catalyst and KIG Investors desire to engage GFI described herein, and GFI
desires to accept such engagement, all in accordance with the terms and
conditions herein set forth;
NOW,
THEREFORE,
in
consideration of the mutual promises and covenants set forth herein, the Parties
hereby agree as follows:
1.
|
Intent
and Services
|
It
is the
general nature and intent of this Agreement that GFI will provide the Services
to KIG Investors solely in connection with KIG Investors’ purchase of a
controlling interest in Catalyst (“Acquisition”) and to Catalyst solely in
connection with the initial actions by Catalyst following such Acquisition
(collectively, such services shall be the “Transaction Services”). GFI will
provide such Transaction Services at the reasonable request of KIG Investors
and/or Catalyst as an independent contractor and not as an employee. The Parties
hereto specifically acknowledge and agree that GFI’s performance of the
Transaction Services shall not be construed or considered legal, investment
banking or capital formation services or advice. The Parties further agree
that
the Transaction Services shall not be construed as the practice of law, and
KIG
Investors and Catalyst each acknowledge and agree that they have been advised
by
GFI to seek legal counsel if they deem such to be necessary.
2.
|
Transaction
Services
|
The
Parties hereto acknowledge and agree that GFI, as of the date hereof, has
completed all of the Transaction Services to be satisfaction of KIG Investors
and Catalyst.
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3.
|
Compensation |
In
consideration of the services provides hereunder, GFI shall be entitled to
the
following compensation to be paid upon the execution of this Agreement, all
of
which compensation shall be fully earned, vested and non-refundable:
a) GFI
shall
receive a cash payment of $25,000.
b) GFI
shall
also receive 866,537 shares of common stock of Catalyst (“Shares”), which are
valued at $8,665.37 in the aggregate, or $0.01 per share. The Parties
acknowledge and agree that the value of the Shares as set forth in the preceding
sentence is the best determinate of the fair value of such Shares based on
the
recent price of shares sold by Catalyst in arm’s length transactions for cash
consideration on an as converted to common stock basis. The Shares shall be
issued pursuant to an exemption from registration under the Securities Act
of
1933, as amended (“Securities Act”), and the certificates representing the
Shares shall contain the restrictive legend under the Securities Act. Prior
to
the issuance of the Shares, GFI shall provide a representation letter to
Catalyst with respect to the issuance of the Shares, which shall be satisfactory
to Catalyst. The Parties agree that the Shares shall have registration rights
pursuant to the terms of a registration rights agreement to be entered into
by
Catalyst and GFI.
c) GFI
shall
be reimbursed for any out-pocket expenses incurred by GFI in connection with
its
Transaction Services hereunder, provided such expenses are approved in advance.
4.
|
Independent
Contractor
|
GFI
shall
be, and is deemed to be, an independent contractor in the performance of its
duties hereunder. GFI shall have no power to enter into any agreement on behalf
of or otherwise bind KIG Investors or Catalyst without the express prior written
consent of KIG Investors or Catalyst. GFI shall be free to pursue, conduct,
carry on and provide for its own account (or for the account of others) similar
Services to other clients.
5.
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Indemnification
|
GFI
shall
not be liable to KIG Investors or Catalyst, or to anyone who may claim any
right
due to any relationship with KIG Investors or Catalyst, for any acts or
omissions in the performance of the Transaction Services on the part of GFI
or
on the part of the agents or employees of GFI, except when said acts or
omissions of GFI are due to willful misconduct or gross negligence. KIG
Investors and Catalyst agree to indemnify and hold GFI and its officers,
directors, shareholders, managers, members, agents, advisors, consultants and
employees (“Indemnified Parties”) harmless from any and all losses, expenses,
claims, damages or liabilities (including reasonable attorneys’ fees) incurred
by any Indemnified Party arising out of or related to the performance of GFI's
services under this Agreement, and KIG Investors and Catalyst shall, at the
option of GFI, reimburse GFI or pay directly for any and all legal or other
expenses incurred in connection with the investigation or defense of any action
or claim in connection therewith; provided, however, that KIG Investors and
Catalyst shall not be liable for any loss, claim, damage or liability that
is
found (as set forth in a final judgment by a court of competent jurisdiction)
to
have resulted in a material part from any act by GFI which constitutes willful
misconduct or gross negligence by GFI.
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6.
|
Confidentiality
|
GFI
agrees that any information provided to it by KIG Investors or Catalyst of
a
confidential nature will not be revealed or disclosed to any person or entity,
except as required by GFI in the performance of this Agreement, until (i) such
time that the information is or becomes generally known by the public (other
than as a result of its disclosure by GFI in breach of this Agreement), (ii)
is
known or becomes known by GFI on a non-confidential basis from a person not
otherwise bound by a confidentiality agreement or who is not otherwise known
to
be prohibited from transmitting the information to GFI, or (iii) subject to
the
following sentence, is required by applicable law, regulation or court or
administrative order to be disclosed. In the event that GFI receives a request
to disclose all or any part of any confidential information under the terms
of a
valid and effective subpoena or order issued by a court of competent
jurisdiction, GFI agrees to (i) immediately notify KIG Investors or Catalyst
of
the existence, terms and circumstances surrounding such a request, (ii) consult
with KIG Investors or Catalyst on the advisability of taking legal available
steps to resist or narrow such request, and (iii) if disclosure of such
information is required, exercise GFI’s reasonable commercial efforts to obtain
an order or other reliable assurance that confidential treatment will be
accorded to such information.
GFI
hereby acknowledges that it is aware, that the United States securities laws
prohibit any person who has material, non-public information concerning the
matters which are the subject of this Agreement from purchasing or selling
securities of any public company or entering into any hedging or short selling
transactions involving the securities of any public company, to the extent
such
public Company has a class of publicly traded securities, and from communicating
such information to any other person under circumstances in which it is
reasonably foreseeable that such person is likely to purchase or sell such
securities.
7.
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Notices
|
All
notices hereunder shall be in writing addressed to the Party at the address
herein set forth, or at such other address as to which notice: pursuant to
this
section may be given, and shall be given by personal delivery, by certified
mail
(return receipt requested), Express Mail or by national overnight courier.
Notices will be deemed given upon the earlier of actual receipt or three (3)
business days
after being mailed or delivered to such courier service.
Notices
shall be addressed as follows:
If
to Catalyst:
|
Catalyst
Lighting Group, Inc.
|
|
000X
Xxxxxxxxx Xxxxxxxxx, Xxxxx 00
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||
Xxxx
Xxxxx, XX 00000
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||
Attn:
Xxxxx X. Xxxxxxx, President
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||
If to KIG Investors:
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KIG
Investors I, LLC
|
|
0000
XXX Xxxxxxx, Xxxxx 0000
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||
Xxxxxxxxx
Xxxxxxx, XX 00000
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||
Attn:
Xxxxxxx X. Xxxxxxx, Manager
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If to GFI:
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Garisch
Financial, Inc.
|
|
0000
Xxxxxxxx Xxxxx
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||
Xxxxxx,
XX 00000
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||
Attn:
Xxxxxxxx X. Xxxxxxxxx,
President
|
Any
notices to be given hereunder will be effective if executed by and sent by
the
attorneys for the Parties giving such notice, and in connection therewith the
Parties and their respective counsel agree that, in giving such notice, such
counsel may communicate directly in writing, with such Parties to the extent
necessary to give such notice.
8.
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Representations and Warranties of KIG Investors and Catalyst |
KIG
Investors and Catalyst each represent and warrant to GFI that:
a) Each
will
cooperate fully and timely with GFI to enable GFI to perform the Transaction
Services that may be rendered hereunder;
b) Each
has
full power and authority to enter into this Agreement;
c) The
performance by each of them of this Agreement will not violate any applicable
court decree, law or regulation, nor will it violate any provision(s) of the
organizational or corporate governance documents of each of them or any
contractual obligation by which each of them may be bound; and
d) All
information supplied to GFI by each of them, shall be true and accurate and
complete in all material respects, to the best knowledge of each of
them.
9.
|
Representations and Warranties of GFI |
GFI
represents and warrants to KIG Investors and Catalyst that:
a) It
has
full power and authority to enter this Agreement;
b) It
has
the requisite skill and experience to perform the Transaction Services and
to
carry out and fulfill its duties and obligations hereunder; and
c) It
will
use its best efforts to complete all Transaction Services in a timely and
professional manner.
10.
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Governing Law, Dispute Resolution, and Jurisdiction |
This
Agreement shall be governed by and construed in accordance with the laws of
the
State of Illinois, without giving effect to the conflicts of laws principles
thereof. All disputes, controversies or claims (“Disputes”) arising out of or
relating to this Agreement shall in the first instance be the subject of a
meeting between a representative of each Party who has decision-making authority
with respect to the matter in question. Should the meeting either not take
place
or not result in a resolution of the Dispute within twenty (20) business days
following notice of the Dispute to the other Party, then the Dispute shall
be
resolved in a binding arbitration proceeding to be held in Chicago, Illinois,
in
accordance with the international rules of the American Arbitration Association.
The Parties agree that a panel of one arbitrator shall be required. Any award
of
the arbitrator shall be deemed confidential information for a minimum period
of
five years. The arbitrator may award attorneys’ fees and other arbitration
related expense, as well as pre- and post-judgment interest on any award of
damages, to the prevailing Party, in their sole discretion.
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11.
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Miscellaneous |
a) No
Waiver.
No
provision of this Agreement maybe waived except by agreement in writing signed
by the Parties hereto. A waiver of any term or provision of this Agreement
shall
not be construed as a waiver of any other term or provision.
b) Non-assignability.
This
Agreement is not assignable without the written consent of the other
Parties.
c) Multiple
Counterparts.
This
Agreement may be executed in multiple counterparts, each of which shall be
deemed an original. It shall not be necessary that each Party executes each
counterpart, or that any one counterpart be executed by more than one Party
so
long as each Party executes at least one counterpart. Facsimile or electronic
signatures of this Agreement shall be construed and accepted as original
signatures hereof.
d) Severability.
If any
provision of this Agreement is declared by any court of competent jurisdiction
to be invalid for any reason, such invalidity shall not affect the remaining
provisions of this Agreement.
e) Construction.
No
provision of this Agreement shall be construed against any Party by virtue
of
the fact that that this Agreement was primarily prepared by such
Party.
f) Headings.
The
section and paragraph heading shall not be deemed a part of this
Agreement.
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of this page intentionally left blank.]
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IN
WITNESS WHEREOF
the
undersigned have executed this Agreement as of the day and year first above
written.
KIG Investors I, LLC | Catalyst Lighting Group, Inc. | |||
By: | /s/ Xxxxxxx X. Xxxxxxx | By: | /s/ Xxxxx X. Xxxxxxx | |
Xxxxxxx X. Xxxxxxx, Manager |
Xxxxx X. Xxxxxxx, President |
Garisch
Financial, Inc.
By: /s/ Xxxxxxxx X. Xxxxxxxxx | |||
Xxxxxxxx
X. Xxxxxxxxx, President
|
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