AGREEMENT
Exhibit
10.1
AGREEMENT
THIS
AGREEMENT
is
effective as of February 26, 2007, by and between Garisch Financial, Inc.,
an
Illinois corporation with its principal place of business located at 0000 Xxxx
Xxxxx Xxxxxx, Xxxx Xxxxx, Xxxxxxxx 00000 (“GFI”), Frezer, Inc., a corporation
organized and existing under the laws of the state of Nevada, with its principal
place of business located at 000X Xxxxxxxxx Xxxxxxxxx, Xxxxx 00, Xxxx Xxxxx,
XX
00000 (“Frezer”), and KI Equity Partners IV, LLC, a Delaware limited liability
company (“KI Equity”). Frezer and KI Equity 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,
Frezer
and KI Equity 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 KI Equity solely in connection with KI Equity’s purchase of a controlling
interest in Frezer (“Acquisition”) and to Frezer solely in connection with the
initial actions by Frezer following such Acquisition (collectively, such
services shall be the “Transaction Services”). GFI will provide such Transaction
Services at the reasonable request of KI Equity and/or Frezer 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 KI Equity and Frezer 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 KI Equity and
Frezer.
| 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 1,700,000 shares of common stock of Frezer (“Shares”),
which are valued at $17,000 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 Frezer in arm’s length
transactions. 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 Frezer with
respect
to the issuance of the Shares, which shall be satisfactory to Frezer.
The
Parties agree that the Shares shall have registration rights pursuant
to
the terms of a registration rights agreement to be entered into by
Frezer
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 KI Equity or Frezer without the express prior written
consent of KI Equity or Frezer. 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 KI Equity or Frezer, or to anyone who may claim any right
due
to any relationship with KI Equity or Frezer, 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. KI Equity and Frezer 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 KI Equity
and Frezer 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
KI Equity and Frezer 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.
| 6. |
Confidentiality
|
GFI
agrees that any information provided to it by KI Equity or Frezer 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 KI Equity or Frezer of the
existence, terms and circumstances surrounding such a request, (ii) consult
with
KI Equity or Frezer 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 Frezer:
|
|
|
|
000X
Xxxxxxxxx Xxxxxxxxx, Xxxxx 00
|
|
|
Xxxx
Xxxxx, XX 00000
|
|
|
Attn:
Xxxxx X. Xxxxxxx, President
|
|
|
|
|
If
to KI Equity:
|
KI
Equity Partners IV, LLC
|
|
|
0000
XXX Xxxxxxx, Xxxxx 0000
|
|
|
Xxxxxxxxx
Xxxxxxx, XX 00000
|
|
|
Attn:
Xxxxxxx X. Xxxxxxx, Manager
|
|
|
|
|
If
to GFI:
|
Garisch
Financial, Inc.
|
|
|
0000
Xxxx Xxxxx Xxxxxx
|
|
|
Xxxx
Xxxxx, 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.
| 8. |
Representations
and Warranties of KI Equity and
Frezer
|
KI
Equity
and Frezer 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 KI Equity and Frezer 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.
|
| 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.
|
[Remainder
of this page intentionally left blank.]
IN
WITNESS WHEREOF
the
undersigned have executed this Agreement as of the day and year first above
written.
|
KI
EQUITY PARTNERS IV, LLC
|
FREZER, 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
|
