Spartan Securities Group, Ltd. 100 Second Avenue South, Suite 300N St. Petersburg, Florida, 33701 Tel 727-502-0508 Fax 727-502-0858
 |
Spartan
Securities Group, Ltd.
000
Xxxxxx Xxxxxx Xxxxx, Xxxxx 000X
Xx.
Xxxxxxxxxx, Xxxxxxx, 00000
Tel
000-000-0000 Fax 000-000-0000
|
Thursday,
September 28, 2006
Xx
Xxxxxx
CEO
Identica
Corp.
000
Xxxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx,
Xxxxxxx X0X-0X0
Dear
Xx.
Xxxxxx:
Subject
to a satisfactory due diligence review and in contemplation of a “best efforts”
private placement of $2 million this financial advisory and investment banking
agreement (the “Agreement”) is made and entered into as of the date above (the
“Effective Date”), by and between Spartan Securities Group, Ltd., a Florida
Limited Partnership (“Spartan”) and Identica Corp., an Ontario, Canada
Corporation, and its subsidiaries, affiliates, portfolio companies and/or
investments (collectively hereinafter the "Company"), for the purpose of
defining and acknowledging the terms of this Agreement.
In
consideration of the mutual promises made herein and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the
parties hereto agree as follows:
| 1. |
Exclusivity.
The Company hereby engages Spartan on a non-exclusive basis for the
term
specified in Paragraph 2 hereof to render services
to the Company as its corporate finance consultant, financial advisor
and
investment banker upon
the terms and conditions set forth herein. Any private or public
placement
of securities will be considered to be on an exclusive basis, unless
waived, once the company has agreed in writing to the specific terms
of
the given placement or underwriting. Once the company has agreed
to the
specific terms of the given placement or underwriting the company
hereby
grants a right-of-first-refusal to Spartan on any contemplated financing
with a period of 10 days to accept the terms and conditions of any
bona
fide offer of funding from any third party. Any exception to this
clause,
made by mutual agreement, will be acknowledged in writing to the
company.
|
| 2. |
Term
and Termination.
This Agreement shall be effective for a period of two years (the
“Initial
Term”), commencing upon the Effective Date of this Agreement and may be
extended as the parties shall mutually agree in writing (the “Term”),
subject to the establishment of arrangements for additional compensation
and other appropriate terms for such extension. Beginning 60 days
after
the Effective Date of this Agreement, either party may terminate
Spartan’s
engagement hereunder at any time by giving the other party at least
60
days prior written notice, subject to the provisions of Paragraph
4
through 17, all of which shall survive any termination of this
Agreement.
|
| 3. |
Services
to be Provided.
During the Term of this Agreement, Spartan shall provide the Company
with
such regular and customary consulting advice as is reasonably requested
by
the Company, provided that Spartan shall not be required to undertake
duties not reasonably within the scope of the financial advisory
or
investment banking services contemplated by this Agreement.
|
It
is
understood and acknowledged by the parties that the value of Spartan advice
is
not readily quantifiable, and that Spartan shall be obligated to render advice
upon the request of the Company, in good faith, but shall not be obligated
to
spend any specific amount of time in so doing.
Spartan’s
duties may include, but will not necessarily be limited to, providing
recommendations and assisting in the following:
| (a) |
Rendering
advice with regard to internal operations,
including:
|
| i. |
the
formation of corporate goals and their
implementation;
|
| ii. |
the
Company's financial structure and its divisions or
subsidiaries;
|
| iii. |
securing,
when and if necessary and possible, additional financing through
banks
and/or insurance companies; and
|
| iv. |
corporate
organization and personnel; and
|
| (b) |
Rendering
advice with regard to any of the following corporate finance
matters:
|
| i. |
changes
in the capitalization of the
Company;
|
| ii. |
changes
in the Company's corporate
structure;
|
| iii. |
redistribution
of shareholdings of the Company's
stock;
|
| iv. |
sales
of securities in private
transactions;
|
| v. |
alternative
uses of corporate assets; and
|
| vi. |
structure
and use of debt; and
|
| (c) |
Rendering
advice, assistance and introduction to third parties with regard
to any of
the following merger, acquisition, joint venture or strategic alliance
activities:
|
| i. |
the
acquisition and/or merger of or with other
companies;
|
| ii. |
joint
ventures or strategic alliances with other
companies;
|
| iii. |
divestiture
or any other similar transaction;
and
|
| iv. |
the
sale of the Company itself (or any significant percentage, assets,
subsidiaries or affiliates thereof); and
|
| (d) |
Rendering
advice and/or assistance with regard to any of the following capital
raising activities:
|
| i. |
bank
financing or any other financing from financial institutions or
individuals (including but not limited to revolving credit facilities,
lines of credit, term loans, rediscounted credit facilities, senior
and
junior loans, whether collateralized or unsecured,
etc.);
|
| ii. |
act
as Placement Agent for any private offering of the Company's securities;
and act as underwriter in any public offering of the Company's
securities.
|
|
4.
|
Compensation.
In consideration for the services rendered by Spartan to the Company
pursuant to this Agreement (and in addition to the expenses provided
for
in Paragraph 7 hereof), the Company shall compensate Spartan as
follows:
|
| (a) |
Monthly
Retainer.
Should the Company complete an equity financing not less than
$1,000,000.00, with the assistance of Spartan, the Company shall
pay
Spartan a monthly financial advisory fee of one thousand five hundred
dollars ($1,500.00) per month for the following two years from the
date of
funding, the first payment of which shall be due on the first day
of the
month immediately following the funding. This fee includes a minimum
of 10
hours monthly of financial advisory services. Additional time may
be
billed at $150.00. the company acknowledges this fee is not compensation
for capital raising or listing services, but solely for continuing
advisory services.
|
| (b) |
Merger
and Acquisition, Joint Venture, Strategic Alliance
Transactions.
If any Transaction (as hereinafter defined) is consummated during
the Term
of this Agreement with any parties introduced by Spartan during the
Term,
the Company shall pay at the closing of or as received on each such
Transaction a cash fee equal to the sum of:
|
| i |
five
percent (5%) of the first five million dollars of the Aggregate
Consideration (as herein after defined) of a Transaction,
|
| ii |
four
percent (4%) of the second five million dollars of the Aggregate
Consideration of a Transaction,
|
| iii |
three
percent (3%) of the third five million dollars of the Aggregate
Consideration of a Transaction, and
|
| iv |
two
percent (2%) of the Aggregate Consideration over fifteen million
dollars.
|
| (c) |
Aggregate
Consideration
is
defined and computed as follows:
|
| i |
The
total sale proceeds and other consideration received (which shall
be
deemed to include amounts paid into escrow) by the Company and/or
its
shareholders or by a target and/or its shareholders upon the consummation
of the Transaction (including payments made in installments), inclusive
of
cash, securities, notes, consulting agreements and agreements not
to
compete, plus the total value of liabilities
assumed.
|
| ii |
If
a portion of such consideration includes contingency payments (whether
or
not related to future earnings or operations), Aggregate Consideration
will include 75% of the face value of such payments without regard
to
whether the conditions for the payment of such contingent amounts
have
been or may be satisfied.
|
| iii |
If
the Aggregate Consideration for the Transaction consists in whole
or in
part of securities, for the purposes of calculating the amount of
Aggregate Consideration, the value of such securities will be the
value
thereof on the day preceding the consummation of the Transaction
as the
Company and Spartan agree; provided, however, that in the case of
securities for which there is a public trading market, the value
will be
determined by the average last sales price for such securities for
the
last twenty (20) days prior to such consummation as determined by
Spartan
and communicated by Spartan to the Company. If there is no public
trading
market for such securities but securities have been sold in a private
placement within the past 24 months, the fair market value shall
be based
upon the gross sales price in the last such private placement.
|
For
other
property received or receivable as a part of the Aggregate Consideration and
the
parties are unable to agree, then each of Spartan and the Company will select
an
investment banking firm respected in the merger and acquisition field to
determine a value and the midpoint between the two values established by the
two
independent experts will be the fair market value for the purpose
hereof.
| (d) |
For
the purposes of this Agreement, any of the following transactions
shall
constitute a “Transaction”:
|
| i |
the
sale, outside of the ordinary course of business, of the Company
or a
material portion of its assets, securities, or business by means
of a
merger, consolidation, joint venture, exchange offer or purchase
or sale
of stock or assets, or any transaction resulting in any change of
control
of the Company or its assets or business;
or
|
| ii |
the
purchase by the Company, outside of the ordinary course of business,
of
another company or a material portion of its assets, securities or
business by means of a merger, consolidation, joint venture, exchange
offer or purchase or sale of stock or
assets.
|
| (e) |
Third-Party
Debt Placements.
In
the event Spartan is involved in originating a debt facility, inclusive
of
revolving credit facilities, lines of credit, term loans, rediscounted
credit facilities, senior and junior loans, whether collateralized
or
unsecured, etc., (the “Credit Facility”) with a bank or other
institutional lender (the “Lending Source”), the Company will pay Spartan
a fee of two percent (2%) of the maximum amount of the Credit Facility.
|
In
the
event Spartan is involved in arranging an increase in a Credit Facility, the
Company will pay Spartan a fee of two percent (2%) of the increase from the
maximum amount of the existing Credit Facility to the maximum amount of the
new
Credit Facility.
| (f) |
Equity
Placements and Underwritings (“Equity Financing
Transaction”).
The Company shall grant Spartan a right of first refusal (i) to act
as
Placement Agent for any private offering of the Company's securities;
and
(ii) to act as underwriter in any public offering of the Company's
securities. Subject to negotiated definitive underwriting agreements
covering both private and public financing transactions the following
fee
schedule is the maximum that may be due with respect to any sale
or
distribution of securities arising from this engagement as
follows:
|
| i. |
Private
Placement of Equity (or securities convertible into
equity)
|
|
Transaction
Fee
|
Eight
percent (8%) of gross proceeds raised in the placement or
placements
|
|
|
Warrant
Coverage
|
Amount
equal to fifteen percent (15%) of the offering
|
|
|
Non-Accountable
Allowance
|
Expense |
Two
percent (2%) of gross proceeds
|
| i. |
Public
Offering of Equity
|
|
Transaction
Fee
|
Ten
percent (10%) of gross proceeds raised in the placement or
placements
|
|
|
Warrant
Coverage
|
Amount
equal to ten percent (10%) of the offering
|
|
|
Non-Accountable
Allowance
|
Expense |
Two
percent (2%) of gross proceeds
|
All
Warrants shall expire five (5) years from the date of issuance and shall have
cashless exercise provisions, “piggy back” and demand registration rights and,
anti-dilution provisions on any forward splits or material increases of ten
(10)
percent or more of the common stock, acceptable to Spartan. In lieu of paying
the Shares Purchase Price in cash, Spartan may, at its option, deliver to the
Company for cancellation shares of common stock or other outstanding securities
of the Company convertible into the Company's common stock (including rights
represented by this Warrant) that have a value equal to the Shares Purchase
Price.
Once
the
companies stock is publicly traded, and the stock price has maintained an
average closing price of 200% of the offering price for a period of 10 trading
days, the warrant holder will be required to exercise the warrants in cash
or by
way of cashless exercise.
The
determination of value shall be made by agreement between the Holder and the
Company, but, failing such agreement, by reference to the trading price of
the
Company's common stock on the date of exercise. The Shares Purchase Price may
also be paid, at Holder's option, by the Holder canceling any indebtedness
of
the Company to the Holder.
| (g) |
Fairness
Opinions, Valuations and Other Services.
Fees and expenses payable to Spartan with regard to fairness opinions,
valuations and services not specifically set forth herein will be
determined by mutual agreement in writing at such time as the nature
and
terms of such transactions are
determined.
|
| (h) |
Other
Factors Affecting Compensation .
|
| (i) |
Fees
and commissions will be paid at the rate of 30% of the applicable
fee
structure contained herein if the investing party has been introduced
by
the issuer. In the case of Public or Private Offerings, this fee
reduction
does not include non-accountable expenses that may be
applicable.
|
| (j) |
In
the case of Public or Private Offerings it is understood that there
will
be a definitive agreement covering compensation for the specific
transaction anticipated and the parties agree and accept that this
may
include a reduction of compensation from this schedule as agreed
by the
parties and or as may be approved by
NASD.
|
| 5. |
Payment
of Fees.
All fees to be paid pursuant to this Agreement are due and payable
to
Spartan in cash. The
Company hereby irrevocably authorizes and instructs third-party funding
sources, including Lending Sources and private equity groups, (the
“Funding Sources”), to pay directly to Spartan cash sums provided for in
Paragraph 4 above and further authorizes Spartan to notify the
Funding Sources of this provision and the terms of this Agreement
for
purposes of this provision and payment of the sums due under Paragraph
4
of this Agreement. The Company agrees that Spartan is a direct beneficiary
of any eventual financing agreement between the Company and the Funding
Sources. The Company hereby expressly agrees that in the event any
dispute
or disagreement arises with respect to the payment to Spartan of
the sums
due under Paragraph 4 of this Agreement, including any dispute regarding
the amount due Spartan under this Agreement, that the Financing Sources
shall immediately place all disputed sums in an interest bearing
Escrow
account pending resolution of the dispute. The Company hereby irrevocably
authorizes and instructs the Funding Sources to escrow such disputed
sums.
The Company further agrees that any sums due under this Agreement
which
are not in dispute shall not be escrowed, but shall be paid upon
closing
to Spartan by the Funding Sources as provided for under the terms
of this
Agreement.
|
| 6. |
Continuing
Obligation.
In the event that this Agreement shall not be renewed or if terminated
for
any reason notwithstanding any such renewal or termination, Spartan
shall
be entitled to a full fee as provided under Paragraph 4 hereof, for
any
transaction for which the discussions were initiated during the Term
of
this Agreement and which is consummated within a period of twelve
(12)
months after non-renewal or termination of this Agreement.
|
| 7. |
Expense
Reimbursement.
In addition to the compensation payable hereunder, and regardless
whether
any transaction set forth in Paragraphs 3 or 4 hereof is proposed
or
consummated, the Company shall reimburse Spartan for all pre-approved
fees
and disbursements of Spartan’s counsel and Spartan’s travel and
out-of-pocket expenses incurred in connection with the services performed
by Spartan pursuant to this
Agreement.
|
| 8. |
Default
by the Company.
In the event that the Company fails to pay the retainer set forth
in
Paragraph 4 (a) hereof for any month by the end of such month, Spartan
may
at any time prior to the payment in full of any such monthly payment,
demand payment of all or any portion of the past due monthly retainers
in
Common Stock of the Company valued at one-half (1/2) the fair market
value
thereof determined on the date such demand is made by Spartan on
the
Company.
|
Fair
market value shall be determined as follows: (i) if the Common Stock is quoted
on the National Association of Securities Dealers, Inc. Automated Quotation
System (“NASDAQ”), the fair market value shall be the closing inside bid price
of the Common Stock as quoted on NASDAQ; (ii) if the Common Stock is traded
in
the over the counter market, but not quoted on NASDAQ, the fair market value
shall be the average closing bid price of the Common Stock;
(i)
if
the Common Stock is publicly traded in any market other than NASDAQ, the fair
market value shall be the closing bid price of the Common Stock;
(ii)
if
the Common Stock is not publicly traded, but the Company has concluded a private
placement of shares of Common Stock within the past 24 months, the fair market
value shall be based upon the gross sales price of shares of Common Stock in
the
last such private placement. In the event that Spartan makes such a demand
for
payment in Common Stock, then the Company shall either make all past due
payments to Spartan within five (5) days of receipt of such notice or promptly
shall deliver restricted shares of its Common Stock to Spartan in payment of
such retainer obligations. Spartan agrees that any Common Stock so received
will
be purchased for investment purposes only and not with a view to distribution.
| 9. |
Confidentiality.
The Company acknowledges that all opinions and advice (written or
oral)
given by Spartan to the Company in connection with Spartan’s engagement
are intended solely for the benefit and use of the Company in considering
the transaction to which they relate, and the Company agrees that
no
person or entity other than the Company shall be entitled to make
use of
or rely upon the advice of Spartan 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 Company make any public references to Spartan,
or use
Spartan’s name in any annual reports or any other reports or releases of
the Company without Spartan’s prior written consent, which shall not be
unreasonably withheld. withheld.
|
| 10. |
Independent
Contractor.
The Company acknowledges that Spartan is in the business of providing
financial services and consulting advice to others. Nothing herein
contained shall be construed to limit or restrict Spartan in conducting
such business with respect to others, or in rendering such advice
to
others. Spartan shall perform its services hereunder as an independent
contractor and not as an employee of the Company or an affiliate
thereof.
It is expressly understood and agreed to by the parties hereto that
Spartan shall have no authority to act for, represent or bind the
Company
or any affiliate thereof in any manner, except as may be agreed to
expressly by the Company in writing from time to
time.
|
| 11. |
Reliance.
The Company recognizes and confirms that, in advising the Company
and in
fulfilling its engagement hereunder, Spartan will use and rely on
data,
material and other information furnished to Spartan by the Company.
The
Company acknowledges and agrees that in performing its services under
this
engagement, Spartan may rely upon the data, material and other information
supplied by the Company without independently verifying the accuracy,
completeness or veracity of same.
|
| 12. |
Notices.
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 of in
writing:
|
If
to the
Company,
to:
Identica
Corp.
000
Xxxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx,
Xxxxxxx X0X-0X0
Attention:
Xx Xxxxxx
If
to
Spartan,
to:
Spartan
Securities Group, Ltd.
000
Xxxxxx Xxxxxx Xxxxx, Xxxxx 000X
Xx.
Xxxxxxxxxx, Xxxxxxx 00000
Attention:
Xxxxx
Xxxxxx
Title:
Senior
Managing Partner
| 13. |
Indemnification.
Spartan and the Company have entered into a separate letter agreement
dated the date hereof (the “Indemnity Letter”), providing for the
indemnification of Spartan by the Company in connection with Spartan’s
engagement hereunder.
|
| 14. |
Counterparts.
This Agreement may be executed in any number of counterparts, each
of
which together shall constitute one and the same original
document.
|
| 15. |
Assignability
and Modification.
This Agreement is not assignable and cannot be modified or changed,
nor
can any of its provisions be waived, except by the mutual agreement
in
writing of all parties.
|
CHOICE
OF
LAW AND VENUE
This
Agreement and the rights of the parties hereunder shall be governed by and
construed in accordance with the laws of the state of the defendant including
all matters of construction, validity, performance, and enforcement and without
giving effect to the principles of conflict of laws. Any legal action brought
by
the Company against the Consultant shall be brought in the State of Florida,
County of Hillsborough and any action brought by the Consultant against the
Company shall be in the State of Florida, County of Pinellas.
| 16. |
Severability.
Each paragraph, term or provision of this Agreement shall be considered
severable and if, for any reason, any paragraph, term or provision
is
determined to be invalid or contrary to any existing or future law
or
regulation, such will not impair the operation, or affect the remaining
portions, of this Agreement.
|
| 17. |
Dispute
Resolution.
The parties shall attempt amicably to resolve disagreements by negotiating
with each other. In the event that the matter is not amicably resolved
through negotiation, any controversy, dispute or disagreement arising
out
of or relating to this Agreement (a “Controversy”) shall be submitted to a
nationally recognized arbitration association, such as J.A.M.S./Endispute
or the American Arbitration Association, for final binding arbitration,
which shall be conducted by a single arbitrator (the “Arbitrator”) in
Tampa, Florida, pursuant to J.A.M.S./Endispute’s Arbitration Rules (the
“Rules”). Notwithstanding anything to the contrary contained in the Rules,
the Arbitrator shall not award consequential, exemplary, incidental,
punitive or special damages.
|
If
any
party shall desire relief of any nature whatsoever from any other party as
a
result of any Controversy, such party will initiate such arbitration proceedings
within a reasonable time, but in no event more than one (1) year after the
facts
underlying said Controversy first arise or become known to the party seeking
relief (whichever is later). The failure of such party to institute such
proceedings within said period shall be deemed a full waiver of any claim for
such relief. Arbitrator may award the prevailing party its costs for the
arbitration proceeding; including its reasonable attorneys' fees and costs.
The
parties agree that the decision and award of the Arbitrator shall be taken,
but
that such award or decision may be entered as a judgment and enforced
in
any court having jurisdiction over the party against whom enforcement is sought.
Any equitable relief awarded under this paragraph shall be dissolved upon
issuance of the Arbitrator’s decision and order.
Notwithstanding
the provisions for dispute resolution, in the event of a breach or threatened
breach by any party to this Agreement, either party shall be entitled in order
to maintain the status quo and pending the outcome of any arbitration pursuant
to this Agreement, seek an injunction or similar equitable relief restraining
either party, as the case may be, from committing or continuing any such breach
or threatened breach or granting specific performance of any act required to
be
performed without the necessity of showing that money damages would not afford
an adequate remedy and without the necessity of posting any bond or other
security.
The
parties hereto hereby consent to the jurisdiction listed above for any
proceedings under this paragraph. The parties agree that the availability of
arbitration in the Agreement shall not be used by any party as grounds for
the
dismissal of an injunctive action instituted by the other party.
Very
truly yours,
SPARTAN
SECURITIES GROUP, LTD.
By:
/s/ Xxxxx
Xxxxxx
Name:
Xxxxx
Xxxxxx
Title: Senior
Managing Partner
Accepted
and Agreed to as of the date first written above:
Identica
Corp.
By:
/s/ Xx
Xxxxxx
Name:
Xx
Xxxxxx
Title: CEO
| TO: |
Spartan
Securities Group, Ltd.September
28, 2006
000
Xxxxxxx Xxxxxx, Xxxxx 000
Xx.
Xxxxxxxxxx, Xxxxxxx 00000
|
In
connection with your engagement pursuant to our letter agreement of even date
herewith (the “Engagement”), we agree to indemnify and hold harmless Spartan
Securities Group, Ltd. (“Spartan” or “you”) and its affiliates, the respective
directors, officers, partners, agents and employees of Spartan and its
affiliates, and each other person, if any, controlling Spartan or any of its
affiliates (collectively, “Indemnified Persons”), from and against, and we agree
that no Indemnified Person shall have any liability to us or our owners,
parents, affiliates, security holders or creditors for, any losses, claims,
damages or liabilities (including actions or proceedings in respect thereof)
(collectively “Losses”) (a) related to or arising out of (i) our actions or
failures to act (including statements or omissions made, or information
provided, by us or our agents) or (ii) actions or failures to act by an
Indemnified Person with our consent or in reliance on our actions or failures
to
act, or (b) otherwise related to or arising out of the Engagement or your
performance thereof, except that this clause (b) shall not apply to any Losses
that are finally judicially determined to have resulted primarily from your
bad
faith or gross negligence. If such indemnification is for any reason not
available or insufficient to hold you harmless, we agree to contribute to the
Losses involved in such proportion as is appropriate to reflect the relative
benefits received (or anticipated to be received) by us and by you with respect
to the Engagement or, if such allocation is judicially determined unavailable,
in such proportion as is appropriate to reflect other equitable considerations
such as the relative fault of us on the one hand and of you on the other hand;
provided,
however,
that,
to the extent permitted by applicable law, the Indemnified Persons shall not
be
responsible for amounts which in the aggregate are in excess of the amount
of
all fees actually received by you from us in connection with the Engagement.
Relative benefits to us, on the one hand, and you, on the other hand, with
respect to the Engagement shall be deemed to be in the same proportion as (i)
the total value paid or proposed to be paid or received or proposed to be
received by us or our security holders, as the case may be, pursuant to the
transaction(s), whether or not consummated, contemplated by the Engagement
bears
to (ii) all fees paid or proposed to be paid to you by us in connection with
the
Engagement.
We
will
advance each Indemnified Person all expenses (including reasonable fees and
disbursements of counsel) as they are incurred by such Indemnified Person in
connection with investigating, preparing for or defending any action, claim,
investigation, inquiry, arbitration or other proceeding (“Action”) referred to
above (or enforcing this agreement or any related engagement agreement), whether
or not in connection with pending or threatened litigation in which any
Indemnified Person is a party, and whether or not such Action is initiated
or
brought by you . We further agree that we will not settle or compromise or
consent to the entry of any judgment in any pending or threatened Action in
respect of which indemnification may be sought hereunder (whether or not an
Indemnified Person is a party therein) unless we have given you reasonable
prior
written notice thereof and used all reasonable efforts, after consultation
with
you, to obtain an unconditional release of each Indemnified Person from all
liability arising therefrom. In the event we are considering entering into
one
or a series of transactions involving a merger or other business combination
or
a dissolution or liquidation of all or a significant portion of our assets,
we
shall promptly notify you in writing. If requested by Spartan, we shall then
establish alternative means of providing for our obligations set forth herein
on
terms and conditions reasonably satisfactory to Spartan.
If
multiple claims are brought against you in any Action with respect to at least
one of which indemnification is permitted under applicable law and provided
for
under this agreement, we agree that any judgment, arbitration award or other
monetary award shall be conclusively deemed to be based on claims as to which
indemnification is permitted and provided for. Our obligations hereunder shall
be in addition to any rights that any Indemnified Person may have at common
law
or otherwise. Solely for the purpose of enforcing this agreement, we hereby
consent to personal jurisdiction and to service and venue in any court in which
any claim which is subject to this agreement is brought by or against any
Indemnified Person. We acknowledge that in connection with the Engagement you
are acting as an independent contractor with duties owing solely to us. YOU
HEREBY AGREE, AND WE HEREBY AGREE ON OUR OWN BEHALF AND, TO THE EXTENT PERMITTED
BY APPLICABLE LAW, ON BEHALF OF OUR SECURITY HOLDERS, TO WAIVE ANY RIGHT TO
TRIAL BY JURY WITH RESPECT TO ANY CLAIM, COUNTER-CLAIM OR ACTION ARISING OUT
OF
THE ENGAGEMENT, YOUR PERFORMANCE THEREOF OR THIS AGREEMENT.
The
provisions of this agreement shall apply to the Engagement (including related
activities prior to the date hereof) and any modification thereof and shall
remain in full force and effect regardless of the completion or termination
of
the Engagement. This agreement and any other agreements relating to the
Engagement shall be under seal, governed by and construed in accordance with
the
laws of State of Florida, without regard to conflicts of law principles
thereof.
|
Very
truly yours,
|
|||
|
Accepted
and Agreed:
|
|||
|
Spartan
Securities Group, Ltd.
|
Client:
|
Identica
Corp.
|
|
|
By:
|
By:
|
||
|
Name:
|
Xxxxx
Xxxxxx
|
Name:
|
Xx
Xxxxxx
|
|
Title:
|
Senior
Managing Partner
|
Title:
|
CEO
|
