The Empire State Building 350 Fifth Avenue, Suite 4812 New York, NY 10118 Telephone: (212) 375-2950 Facsimile: (212) 931-9339
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The
Empire State Building
000
Xxxxx Xxxxxx, Xxxxx 0000
Xxx
Xxxx, XX 00000
Telephone:
(000) 000-0000
Facsimile:
(000)
000-0000
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Confidential
October
26, 2005
Astris
Energi, Inc.
Jiri
Nor,
Chief Executive Officer
0000
Xxxxxx Xxxxx, Xxxx # 0
Xxxxxxxxxxx,
Xxxxxxx
X0X0X0,
Xxxxxx
Dear
Mr.
Nor:
Pursuant
to our discussions, we are pleased to confirm the arrangements under which,
Ardour
Capital Investments LLC,
("Advisor") is engaged by Astris
Energi Inc.(together
with its subsidiaries and affiliates, the "Company") to act as the Company's
financial advisor ("Financial Advisor").
| 1. |
As
Financial Advisor, Ardour will upon request assist and advise the
Company
with respect to its Business Plan and investor presentation preparation
and review. It shall also assist the company with capital structure
analysis, Value-based capital market strategy, including forecasted
market
demand analysis. In addition, Advisor agrees to arrange and accompany
ASTRIS ENERGI INC., on institutional grade “road shows” with both current
shareholders as well as potential shareholders during the term
of
engagement. Such engagement shall be on an exclusive basis, excepting
that
Advisor agrees to assist the Company in a syndication agreement
with
Xxxxxxx Xxxxxxxxx, whereby Xxxxxxx Xxxxxxxxx would assist advisor
in the
Company’s capital raise.
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For
acting as the Company's Financial Advisor, the Company will pay
Ardour
Capital Investments a equivalent monthly retainer fee of a total
of
1,250,000 Shares of the Company’s common stock payable as follows. Such
shares shall be for services rendered for a period of twenty four
(24)
months. The first issuance of 625,000 shares is due upon the signing
of
this agreement and non-refundable, the balance of 625,000 shares
shall be
due upon either a successful company capital raise of at least
$3.0
million dollars or the completion of the 24 month term. The issued
shares
shall bear full “piggyback” registration rights. This agreement may be
terminated by the Company in month six (6) through written notice.
Should
the Company elect not to terminate at that time, then the engagement
is
automatically extended through month twenty four (24). In the event
that
the Company decides to terminate this agreement after six (6) months
but
before twenty four (24) months, Advisor shall be entitled to the
balance
of the 625,000 shares.
|
| 2. |
Advisor
shall also act as the Company’s exclusive mergers and acquisition advisor
("M&A Advisor") during the term of the agreement. For acting as the
Company’s M&A advisor, Ardour shall receive cash and or the market
value equivalent in stock compensation (with a cash payment being
contingent upon the amount of cash available in the combined entity)
equal
to the following schedule;
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5%
on the first five (5) million dollars of value of the
transaction
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4%
on the next one (1) million dollars of value of the
transaction
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3%
on the next one (1) million dollars of value of the
transaction
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2%
on the balance of the value of the
transaction
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| 3. |
At
the request of the Company, Advisor will act as the placement agent
or
underwriter in connection with an equity financing for the Company.
For
acting as the Company’s underwriter or placement agent, Ardour shall
receive as compensation a cash fee equal to 7% of the dollar amount
raised
less the market value dollar amount of the initial 625,000 shares
on the
date of issue, of the monthly retainer fee, but under no circumstances
shall the sum be a negative dollar amount resulting in a payment
from
Advisor to the Company. In addition, the Company shall issue 4
year
warrants to purchase common stock at an exercise price of 110%
of the
prevailing market rate at the close of the offering. The total
amount of
such warrants to be issued shall be equal to 3% of the total shares
issued
in the offering. The Company further agrees that Advisor shall
be entitled
to the above referenced fees, should the Company complete a financing
with
an investor introduced by Advisor, for a period of six (6) months
following the termination of the
agreement.
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| 4. |
In
addition to the fees payable hereunder and regardless of whether
any
Transaction or Financing is proposed or consummated, the Company
shall
reimburse Advisor for all reasonable travel and out-of-pocket expenses
incurred by Advisor in connection with the performance of its services
hereunder, including without limitation, hotel, food and associated
expenses and long-distance telephone calls; provided, however,
expenses
over $1,000 shall require the prior
approval of the Company. Such expenses shall be submitted by Advisor
on a
monthly basis, together with originals of receipts and other documentation
supporting all expenditures in excess of $25, in accordance with
Company
policy, and reimbursed by Company upon receipt.
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| 5. |
In
connection with Advisor's activities on the Company's behalf, the
Company
will furnish Advisor with all information, which it may reasonably
request
and will provide Advisor access to the officers, directors, accountants
and counsel of the Company. The Company acknowledges that in rendering
its
services hereunder, Advisor shall be solely using and relying on
the
information provided by the Company. Advisor does not assume
responsibility for the accuracy or completeness of any such information.
Any advice rendered by Advisor pursuant to this agreement may not
be
disclosed publicly without the prior written consent of Advisor.
|
| 6. |
The
Company acknowledges that Advisor makes no commitment whatsoever
as to
making a market in the Company's securities or to recommending
or advising
its clients to purchase the Company's
securities.
|
| a) |
The
Company agrees that Advisor has the right to place advertisements
in
financial and other newspapers and journals describing its services
to the
Company hereunder upon review and approval by the Company and the
payment
for which shall be for the account of the
Advisor.
|
| b) |
Advisor
will act under this agreement as an independent contractor with duties
to
the Company. Because Advisor will be acting on the Company's behalf
in
this capacity, it is Advisor's practice to receive and give mutual
indemnification. A copy of Advisor's standard indemnification form
is
attached to this letter agreement, and is incorporated herein. It
is
expressly understood and agreed to by the parties hereto that Advisor
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.
|
| c) |
Any
notice or communication permitted or required hereunder shall be
in
writing and shall be deemed given upon receipt and shall be (i)
hand-delivered; (ii) sent postage prepaid by registered mail, return
receipt requested, or (iii) sent by confirmed facsimile, to the respective
parties as set forth below, or to such other address as either party
may
notify the other in writing:
|
2
| If the Company, to: | Astris Energi Inc. | |
| Jiri Nor, Chief Executive Officer | ||
| 0000 Xxxxxx Xxxxx, Xxxx # 0 | ||
| Xxxxxxxxxxx, Xxxxxxx | ||
| X0X0X0, Xxxxxx | ||
| If to the Advisor, to: | ARDOUR CAPITAL INVESTMENTS | |
| The Empire State Building | ||
| 000 0xx Xxxxxx, Xxxxx 0000 | ||
| Xxx Xxxx, XX 00000 | ||
| Attn: Xxxxx X Xxxxx, CEO |
| d) |
This
letter agreement shall be binding upon and inure to the benefit of
each of
the parties hereto and their respective successors, legal representatives
and assigns.
|
| e) |
No
provision of this letter agreement may be amended, modified or waived,
except in a writing signed by all of the parties
hereto.
|
| f) |
This
letter agreement shall be construed in accordance with and governed
by the
laws of the State of New York, without giving effect to its conflict
of
law principles. Each of the Company and the Advisor hereby (1) agrees
that
any legal suit, action or proceeding arising out of or relating to
this
letter agreement and/or the transactions contemplated hereby, including,
without limitation, any such legal suit, action or proceeding against
any
present or former officer, employee or agent of the Advisor, each
of whom
is intended to be a third-party beneficiary of the agreement contained
in
this paragraph 13, shall be instituted exclusively in New York State
supreme Court, County of New York, or in the United States District
Court
for the Southern District of New York, (w) irrevocably waives any
objection which it may have now or hereafter to the venue of any
such
suit, action or proceeding, and (3) irrevocably consents to the
jurisdiction of the New York State Supreme Count, County of New York
and
the United States District Court for the Southern District of New
York in
any such suit, action or proceeding. Each of the Company and the
Advisor
further agrees to accept and acknowledge service of any and all process
which may be served in any such suit, action or proceeding in the
New York
State Supreme Court, County of New York, or in the United States
District
Court for the Southern District of New York and agrees that service
of
process upon the Company mailed by means of registered or certified
mail,
return receipt requested, to the Company’s address shall be deemed in
every respect effective service of process upon the Company in any
such
suit, action or proceeding, and service of process upon the Advisor
mailed
by means of registered or certified mail, return receipt requested,
to the
Advisor’s address shall be deemed in every respect effective service of
process upon the Advisor in any such suit, action or proceeding.
If the
Company is served in any suit, action or proceeding arising out of
this
letter agreement in accordance with this section and the Company
fails to
appear, for any reason, and a default judgment subsequently issues
against
the Company, the Company agrees that it will not dispute such default
judgment.
|
The
parties hereby waive trial by jury in any action or proceeding involving,
directly or indirectly, a dispute concerning or arising from this letter
agreement.
3
If
the
terms of our engagement as set forth in this letter are satisfactory to you,
kindly sign and date the enclosed copy of this agreement and the indemnification
form thereto as Exhibit A and return them to us.
| Very truly yours, | ||
| ARDOUR CAPITAL INVESTMENTS | ||
| |
|
|
| By: | /s/ Xxxxx X. Xxxxx | |
|
Name: Xxxxx X. Xxxxx |
||
| Title: Chief Executive Officer | ||
| ACCEPTED AND AGREED TO: | |||
| By: /s/ Xxxxx Nor | |||
|
|
|||
| Name:
Xxxxx
Nor Title: Vice President Marketing and Corporate Development |
4
ARDOUR
CAPITAL INVESTMENTS
Attn:
Xxxxx Xxxxx
The
Empire State Building
000
0xx
Xxxxxx,
xxxxx 0000
Xxx
Xxxx,
XX 00000
Gentlemen:
This
letter will confirm that we have engaged Ardour Capital Investments LLC(Advisor)
to advise and assist us in connection with the matters referred to in our
letter
agreement dated October 26, 2005 (“Engagement Letter"). In consideration of your
agreement to act on our behalf in connection with such matters, we agree
to
indemnify and hold harmless you and your affiliates and you and their respective
officers, directors, employees and agents and each other person, if any,
controlling you or any of your affiliates (you and each such other person
being
an "Indemnified Person") from and against any losses, claims, damages or
liabilities related to, arising out of or in connection with, the engagement
(the "Engagement") under the Engagement Letter, and will reimburse each
Indemnified Person for all expenses (including reasonable fees and expenses
for
one counsel) as they are incurred in connection with investigating, preparing,
pursuing or defending any action, claim, suit, investigation or proceeding
related to, arising out of or in connection with the Engagement, whether
or not
pending or threatened and whether or not any Indemnified Person is a party.
We
will not, however, be responsible to any Indemnified Person for any losses,
claims, damages or liabilities (or expenses relating thereto) that are finally
judicially determined to have resulted from the willful misconduct or gross
negligence of such Indemnified Person. We also agree that no Indemnified
Person
shall have any liability (whether direct or indirect, in contract or tort
or
otherwise) to us for or in connection with the Engagement except for any
such
liability for losses, claims, damages or liabilities incurred by us that
are
finally judicially determined to have resulted from the willful misconduct
or
gross negligence of such Indemnified Person.
We
will
not, without your prior written consent, settle, compromise, consent to the
entry of any judgment in or otherwise seek to terminate any action, claim,
suit
or proceeding in respect of which indemnification may be sought hereunder
(whether or not any Indemnified Person is a party thereto) unless such
settlement, compromise, consent or termination includes a release of each
Indemnified Person from any liabilities arising out of such action, claim,
suit
or proceeding. No Indemnified Person seeking indemnification, reimbursement
or
contribution under this agreement will, without our prior written consent,
settle, compromise, consent to the entry of any judgment in or otherwise
seek to
terminate any action, claim, suit, investigation or proceeding referred to
in
the preceding paragraph.
The
provisions of this agreement shall apply to the Engagement and any modification
thereof and shall remain in full force and effect regardless of any termination
or the completion of your services under the Engagement Letter.
This
agreement and the Engagement Letter shall be governed by and construed in
accordance with the laws of the State of New York applicable to contracts
executed and to be performed in that state.
| Very truly yours, | ||
| Astris Energi, Inc. | ||
| |
|
|
| By: | /s/ Xxxxx Nor | |
|
Name: Xxxxx Nor |
||
| Title: Vice President Marketing and Corporate Development | ||
| ACCEPTED AND AGREED TO: | |||
| as of October___ 26_, 2005: | |||
| Ardour Capital Investments LLC | |||
| By: /s/ Xxxxx X. Xxxxx | |||
|
|
|||
|
Name:
Title:
|
5
Astris
Energi, Inc.
Jiri
Nor,
Chief Executive Officer
0000
Xxxxxx Xxxxx, Xxxx # 0
Xxxxxxxxxxx,
Xxxxxxx
X0X0X0,
Xxxxxx
Gentlemen:
This
letter will confirm that we have been engaged by Astris Energi, Inc.( the
“Company”) to advise and assist us in connection with the matters referred to in
our letter agreement dated October 26, 2005 (“Engagement Letter"). In
consideration of our agreement to act on your behalf in connection with such
matters, we agree to indemnify and hold harmless you and your affiliates
and you
and their respective officers, directors, employees and agents and each other
person, if any, controlling you or any of your affiliates (you and each such
other person being an "Indemnified Person") from and against any losses,
claims,
damages or liabilities related to, arising out of or in connection with,
the
engagement (the "Engagement") under the Engagement Letter, and will reimburse
each Indemnified Person for all expenses (including reasonable fees and expenses
for one counsel) as they are incurred in connection with investigating,
preparing, pursuing or defending any action, claim, suit, investigation or
proceeding related to, arising out of or in connection with Advisor’s willful
misconduct or gross negligence while performing under the Engagement, whether
or
not pending or threatened and whether or not any Indemnified Person is a
party.
We will not, however, be responsible to any Indemnified Person for any losses,
claims, damages or liabilities (or expenses relating thereto) that are finally
judicially determined to have resulted from the willful misconduct or gross
negligence of such Indemnified Person. We also agree that no Indemnified
Person
shall have any liability (whether direct or indirect, in contract or tort
or
otherwise) to us for or in connection with the Engagement except for any
such
liability for losses, claims, damages or liabilities incurred by us that
are
finally judicially determined to have resulted from the willful misconduct
or
gross negligence of such Indemnified Person.
We
will
not, without your prior written consent, settle, compromise, consent to the
entry of any judgment in or otherwise seek to terminate any action, claim,
suit
or proceeding in respect of which indemnification may be sought hereunder
(whether or not any Indemnified Person is a party thereto) unless such
settlement, compromise, consent or termination includes a release of each
Indemnified Person from any liabilities arising out of such action, claim,
suit
or proceeding. No Indemnified Person seeking indemnification, reimbursement
or
contribution under this agreement will, without our prior written consent,
settle, compromise, consent to the entry of any judgment in or otherwise
seek to
terminate any action, claim, suit, investigation or proceeding referred to
in
the preceding paragraph.
The
provisions of this agreement shall apply to the Engagement and any modification
thereof and shall remain in full force and effect regardless of any termination
or the completion of our services under the Engagement Letter.
This
agreement and the Engagement Letter shall be governed by and construed in
accordance with the laws of the State of New York applicable to contracts
executed and to be performed in that state.
| Very truly yours, | ||
| Ardour Capital Investments, LLC | ||
| |
|
|
| By: | /s/ Xxxxx X. Xxxxx | |
|
Name: |
||
| Title: | ||
| ACCEPTED AND AGREED TO: | |||
| as of October___ 26_, 2005: | |||
| Astris Energi Inc. | |||
| By: /s/ Xxxxx Nor | |||
|
|
|||
|
Name: Xxxxx
Nor
Title:
Vice President Marketing and Corporate
Development
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