Exhibit 10.11
AGREEMENT
THIS AGREEMENT is effective as of June 26, 2008, by and between Garisch
Financial, Inc., an Illinois corporation with its principal place of business
located at 0000 Xxxxxxxx Xxxxx, Xxxxxx, Xxxxxxxx 00000 ("GFI") and Forex365,
Inc., a corporation organized and existing under the laws of the state of
Nevada, with its principal place of business located at 000 Xxxxxxxx Xxx, Xxxx
Xxxxx, XX 00000 ("Client"). GFI and the Client 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, the Client desires 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 the Client solely in connection with the acquisition of a
controlling interest in the Client and in connection with the initial actions by
the Client following such acquisition (collectively, such services shall be the
"Transaction Services"). GFI will provide such Transaction Services at the
reasonable request of the Client 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 the Client acknowledges and agrees that it has 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 the Client.
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 2,200,000 shares of common stock of the Client
("Shares"), which are valued at $22,000.00 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 the Client in arm's length
transactions for cash consideration. 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 the Client with respect to
the issuance of the Shares, which shall be satisfactory to the Client. The
Parties agree that the Shares shall have registration rights pursuant to the
terms of a registration rights agreement to be entered into by the Client and
GFI.
b) 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 the Client without the express prior
written consent of the Client. 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. Indemnification
GFI shall not be liable to the Client, or to anyone who may claim any right
due to any relationship with the Client, 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. The Client agrees 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 the Client 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 the Client 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 the Client 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 the Client of the existence,
terms and circumstances surrounding such a request, (ii) consult with the Client
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. 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 the Client: Forex365, Inc.
000 Xxxxxxxx Xxx
Xxxx Xxxxx, XX 00000
Attn: Xxxxx X. Xxxxxxx, President
If to GFI: Garisch Financial, Inc.
0000 Xxxxxxxx Xxxxx
Xxxxxx, XX 00000
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.
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8. Representations and Warranties of the Client
The Client represents and warrants to GFI that:
a) It will cooperate fully and timely with GFI to enable GFI to perform the
Transaction Services that may be rendered hereunder;
b) It has full power and authority to enter into this Agreement;
c) The performance by it 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 it or any contractual
obligation by which it may be bound; and
d) All information supplied to GFI by it, shall be true and accurate and
complete in all material respects, to its best knowledge.
9. Representations and Warranties of GFI
GFI represents and warrants to the Client 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. 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.
11. 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.
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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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IN WITNESS WHEREOF the undersigned have executed this Agreement as of the
day and year first above written.
Forex365, Inc.
By: /s/ Xxxxx X. Xxxxxxx
---------------------------
Xxxxx X. Xxxxxxx, President
Garisch Financial, Inc.
By: /s/ Xxxxxxxx X. Xxxxxxxxx
--------------------------------
Xxxxxxxx X. Xxxxxxxxx, President
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