Contract
Exhibit 10.58
THIS
MASTER CAPITAL RAISING
AGREEMENT (this "Agreement"),
is entered into on July, 2009, by and between Xxxxxxxxxxxxx.xxx,
Inc. ("THE
CLIENT") and SICG SA ("SICG").
WHEREAS,
SICG represents that it has expertise in the area of providing high quality
capital raising support including: organizing professional road show
presentations, building a capital raising syndicate, identifying and contacting
retail and institutional investors, and helping build up an International
presence and reputation; and is ready, willing, and able to provide assistance
in that area to THE CLIENT on the terms and conditions set forth herein:
and
WHEREAS,
THE CLIENT, in reliance on SICG's representations, is willing to engage SICG as
an independent contractor, and not as an employee, partner or joint venture, on
the terms and conditions set forth herein. By signing a copy of this agreement
you agree to appoint SICG as your exclusive Broker and Corporate Adviser. SICG
will have the exclusive authority to work with other advisers and subcontractors
in executing this agreement on a carve out basis.
NOW
THEREFORE, in consideration of the obligations herein made and undertaken, the
parties, intending to be legally bound, covenant and agree as
follows:
Section
1
SCOPE
OF SERVICES
1.1 SICG
shall provide capital raising consulting services (the "Services")
in assisting
THE
CLIENT with communicating their message to qualified international
investors.
SICG
shall render the Services and deliver the required services and other
deliverables ("Deliverables")
in accordance with the timetable set forth in Exhibit A. If SICG
anticipates at any time that it will not complete one or more assignments within
the prescribed timetable, SICG shall immediately so inform THE CLIENT by written
notice, submit proposed revisions to the timetable that reflect SICG's best
estimates of what can realistically be achieved, and continue to work under the
original timetable until otherwise directed by THE CLIENT. SICG shall also
prepare and submit such further reports of its performance and its progress as
THE CLIENT may reasonably request from time to time.
1.2 THE
CLIENT shall provide for itself such time and resources as shall be necessary to
perform the consulting services called for by this Agreement.
1.3 THE
CLIENT shall, within two days of receipt of each invoice submitted to THE
CLIENT, advise SICG of the acceptance or rejection by THE CLIENT of such
invoice. Any rejection shall specify the nature and scope of the deficiencies in
such invoice. SICG shall, upon receipt of such a notice of rejection, act
diligently to correct such deficiencies. The failure of THE CLIENT to provide
such a notice of rejection within such period shall constitute acceptance by THE
CLIENT of said invoice.
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1.4 The
Services shall be performed at SICG's offices and other reserved venues unless
THE CLIENT requires otherwise and the Services shall be performed in a
workmanlike and professional manner by employees of SICG having a level of skill
in the area commensurate with the requirements of the scope of work to be
performed.
1.5 Anything
herein to the contrary notwithstanding, the parties hereby acknowledge and agree
that THE CLIENT shall have no right to control the manner, means, or method by
which SICG performs the Services called for by this Agreement. Rather, THE
CLIENT shall be entitled only to consult with respect to the elements of the
Services to be performed by, and to review and assess the performance of the
Services by SICG for the limited purposes of assuring that the Services have
been performed and confirming that such results are satisfactory. SICG shall
perform the Services in accordance with all applicable laws, rules and
regulations.
Section
2
TERMS
OF AGREEMENT
2.1 This
Agreement shall commence on the date specified in Exhibit A, and unless modified
by mutual agreement of the parties or terminated earlier pursuant to the terms
of this Agreement, shall continue in effect for a period of one year from
inception.
2.2 This
Agreement may be terminated by either party after one year at the end of each
calendar month upon 30 days' prior written notice, if the other party breaches
any material term hereof and the breaching party fails to cure such breach
within the 30-day period. THE CLIENT will not compensate SICG for the remainder
of the contract beyond any outstanding actual out-of-pocket
expenses.
2.3 Upon
termination of this Agreement for any reason, SICG shall promptly return to THE
CLIENT all copies of any data, records, or materials of whatever nature or kind,
belonging to THE CLIENT, including all materials incorporating the proprietary
information of THE CLIENT.
2.4 Within 30
days of termination of this Agreement for any reason, SICG shall submit to THE
CLIENT an itemized invoice for any fees or expenses previously accrued under
this Agreement. THE CLIENT, upon payment of accrued amounts so invoiced, shall
thereafter have no further liability or obligation to SICG whatsoever for any
further fees, expenses, or other payment.
Section
3
FEES,
EXPENSES, AND PAYMENT
3.1 In
consideration of the services to be performed by SICG, THE CLIENT shall pay SICG
the fees set forth in Exhibit A attached hereto.
3.2 In
addition to the foregoing, THE CLIENT shall pay SICG its actual out-of-pocket
expenses, approved in advance by THE CLIENT, which are reasonable and necessary
for SICG to incur in furtherance of its performance hereunder. SICG will provide
THE CLIENT with access to such original receipts, ledgers, and other records as
may be reasonably appropriate for THE CLIENT or the Clients or the accountants
of both or to verify the amount and nature of any such expenses.
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3.3 If SICG
terminates this Agreement because of the breach of THE CLIENT, SICG shall be
entitled to a full payment for work in progress. THE CLIENT will compensate SICG
for the remaining duration of the contract as set forth in Exhibit
A.
3.4 The fees
and charges of SICG for any follow-on or additional work not covered in the
scope of work described in Exhibit A shall be performed at the then-current
rates for such work charged by SICG to its best customers.
3.5 THE
CLIENT shall pay all fees and expenses owing to SICG hereunder within 10 days
after THE CLIENT has received an official invoice.
Section
4
CONFIDENTIALITY
4.1 All
right, title, and interest in and to the programs, systems, data, or materials
utilized or produced by SICG in the performance of the Services shall remain the
property of SICG.
4.2 All
right, title, and interest in and to all of THE CLIENT'S presentation material,
including all rights in copyright that may subsist therein, shall belong to THE
CLIENT.
Section
5
PROPRIETARY
INFORMATION
5.1 SICG
acknowledges that in order to perform the Services called for in this Agreement,
it may be necessary for THE CLIENT to disclose to SICG certain Trade Secrets
that have been developed by THE CLIENT at great expense and that have required
considerable effort of skilled professionals. SICG shall not disclose, transfer,
use, copy, or allow access to any such Trade Secrets to any employees or to any
third parties, excepting those who have a need to know such Trade Secrets
consistent with the requirements of this Agreement and who have undertaken a
written obligation of confidentiality and limitation of use. In no event shall
SICG disclose any such Trade Secrets to any competitors of THE
CLIENT.
5.2 As used
herein, the term "Trade Secrets" shall mean any proprietary business practice,
information, design, process, procedure, formula, or improvement that is not
generally known to the general public or the competitors of THE CLIENT. The
obligations set forth in Sections 5.1 shall survive the termination of this
Agreement and continue for so long as the material remains a Trade
Secret.
Section
6
WARRANTIES
AND REPRESENTATIONS
6.1 THE
CLIENT warrants that it is legally allowed to enter this Agreement with SICG
hereunder.
6.2 SICG has
the necessary power to enter this Agreement and to consummate the transactions
contemplated in this Agreement.
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6.3 The
execution and delivery by SICG of this Agreement and the consummation of the
transactions contemplated in this Agreement will not result in any violation of,
or be in conflict with, or constitute a default under, any agreement or
instrument to which SICG is bound, or any judgment, decree, order, or any
statute, rule or regulation applicable to SICG.
6.4 SICG
warrants that it will organize all of the agreed services as outlined in Exhibit
A. SICG will follow up with all of interested parties and leads for the purpose
of introducing THE CLIENT'S company and investment outlook. Although SICG will
use its best efforts, SICG makes no representations or warranties that THE
CLIENT will receive any actual new investments as a result of the campaign.
Several external factors outside of SICG's control will influence investment
including the quality of the presentation, THE CLIENT'S historical track record,
the appeal of THE CLIENT'S business strategy and the overall outlook for the
global capital markets.
Section
7
INDEMNIFICATION
7.1 THE CLIENT hereby
indemnifies and agrees to hold harmless SICG from and against any and all
claims, demands, and actions, and any liabilities, damages, or expenses
resulting there from, including court costs and reasonable attorney fees
(collectively the "Liabilities''), arising out of or relating to the Services,
except in the event the Liabilities were the indirect or direct result of or
related to fraud or negligence by SICG. SICG's obligations under this section
shall survive the termination of this Agreement for any reason. THE CLIENT
agrees to indemnify and hold harmless SICG from any untrue statement of material
fact or material omissions contained in any offering documentation or other
written statements relating to THE CLIENT approved by THE CLIENT.
Section
8 MISCELLANEOUS
8.1 SICG shall not assign,
transfer, or subcontract this Agreement or any of its obligations hereunder
without the prior written consent of THE CLIENT.
8.2 This
Agreement shall be governed and construed in all respects in accordance with the
substantive laws of Switzerland, and all conflicts arising out of this Agreement
shall be settled in Geneva. The place of performance, the jurisdiction for
clients domiciled abroad and the sole jurisdiction for any proceedings is
Geneva. SICG does reserve the right to institute action before any other
competent court and particularly the court of THE CLIENT'S domicile, but Swiss
law shall remain applicable.
8.3 The
parties are and shall be independent contractors to one another, and nothing
herein shall be deemed to cause this Agreement to create an agency, partnership,
or joint venture between the parties. THE CLIENT shall not be liable for any
debts, accounts, obligations, or other liabilities whatsoever of
SICG.
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8.4 All remedies available to
either party for one or more breaches by the other party are and shall be deemed
cumulative and may be exercised separately or concurrently without waiver of any
other remedies. The failure of either party to act on a breach of this Agreement
by the other shall not be deemed a waiver of such breach or a waiver of future
breaches, unless such waiver shall be in writing and signed by the party against
whom enforcement is sought.
IN WITNESS
WHEREOF, the parties hereto have executed this Agreement as of the day
and year written hereunder.
| For and on behalf of: | SICG SA -Swiss Investment Consulting Group |
|
Place and Date:
|
GENEVA, SWITZERLAND 30 JUNE 2009 |
| Full Name: | Xx. Xxxxx XXXXXXX
Founder
and Managing Partner
|
| Address: |
00
xxx xx xx Xxxxxxxxxx
0000
Xxxxxx, XXXXXXXXXXX
|
| Signature: |
/s/ X. XXXXXXX
|
| For and on behalf of: |
Xxxxxxxxxxxxx.xxx, Inc.
|
| Place and Date: |
Cool Sprigs FL 33065
|
|
Full
Name:
|
Xxxxxx Xxxxxxx
|
| Address: |
0000 Xxxxx Xxxx Xxxx.
|
| Signature: |
/s/ Xxxxxx Xxxxxxx
|
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THE
SERVICES
Start
Date - August, 2009
Detailed
Description of the Services
Upon
execution of this agreement, SICG SA will commence a detailed Capital Raising
campaign for THE CLIENT. Initially, SICG will take the needed time to fully
learn THE Client's business. SICG will review all of THE Client's marketing and
presentation materials and make suggestions for improvements.
The
primary purpose of the campaign will be to introduce THE CLIENT to qualified
investors. SICG will accomplish this through several means. Specifically, SICG
will use the following methods and resources:
1. Public
Relations / Capital Raising Campaign:
|
a.
|
SICG
will use its wide ranging industry contacts to assist THE CLIENT with
raising capital in the international markets.
|
|
b.
|
SICG will initiate a press and media campaign to increase exposure for THE CLIENT. SICG will arrange several and frequent media appearances for key team members of THE CLIENT with sources such as CNBC Europe, Bloomberg Europe and the financial press. |
|
c.
|
SICG
will help organize an effective European press release distribution service
to keep institutional investors updated.
|
|
d.
|
SICG
will help to build key strategic European alliances to enhance THE CLIENT'S
shareholder base and increase the market
liquidity.
|
2. Organization
of Capital Raising Road Show presentations:
|
a.
|
Theses
presentations will take place on dates and locations to be determined.
|
|
b.
|
SICG
will book the appropriate venue, coordinate with the hotel on menu and
beverage selection, send personal invitations to attendees, and follow
up to insure maximum participation. SICG will further work with THE
CLIENT to review their presentation and make suggestions. SICG will
personally inspect each presentation venue and coordinate for proper
lighting, podium, computer,
etc.
|
| c. |
SICG
will follow up on THE CLIENT'S behalf with all presentation attendees
for the specific purpose of having them invest in THE CLIENT'S
company. Although SICG will use its best efforts, there are no guarantees
any new investors will commit only from the road
show.
|
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Performance
linked compensation
SICG will
be eligible to receive commission based compensation in the event any investor
participates in a future financing or commercial transaction offered by THE
CLIENT provided the commission is compliant with the relevant securities laws.
In the event of any successful financing, TH E CLIENT will pay 10% of the gross
proceeds of the successful financing to SICG. In addition, the Company shall
issue to SICG common stock warrants to purchase 10% of the number of shares sold
by the Company in a successful financing on the same terms and conditions
offered to the investors in the financing. SICG will be solely responsible for
managing the capital raising syndicate; comprised of various sub agents SICG
decides to appoint.
Each
commercial event will be negotiated on a case by case basis. The material terms
of any commercial event shall be determined by THE CLIENT and SICG and shall
comply with all applicable laws, rules and regulations.
For
Road Shows, THE CLIENT agrees to the following:
The costs
associated with the presentation will be passed on directly to THE CLIENT. The
terms are one half due immediately upon invoice to allow SICG to pay deposits to
book the venues and one half due a week before the initial presentation. The
upfront fee includes: booking the venue, paying for the luncheon, printing and
mailing invitations, telephone, office and administration charges and SICG's
travel to and from the presentations. The fee does not include additional
expenses including: THE CLIENT'S travel costs to Europe, THE CLIENT'S travel
costs within Europe or additional services performed by SICG for THE CLIENT not
covered by this Agreement as agreed to in section 3.2.
All
marketing materials and road show materials shall be reviewed and approved by
THE CLIENT in advance of use.
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