CONSULTING AGREEMENT
Exhibit
10.14
AGREEMENT made as of the 21st day of
April, 2009, by and between XXXX XXXXXX FINANCIAL, INC., a New York corporation,
with offices at 00 Xxxx Xxxxxx, 0xx
Xxxxx, Xxx Xxxx, XX 00000 (the “Consultant”), and AMBER READY, INC., a Nevada
corporation, with offices at 000 Xxxxxxxxx Xxxxx, 0xx
Xxxxx, Xxxxxxxx, XX 00000 (the “Company”).
WITNESSETH:
WHEREAS, the Company desires to obtain
the benefit of the services of the Consultant as a financial advisor and
consultant and in connection with financings, mergers, acquisitions and other
transactions of a similar nature; and
WHEREAS, the Consultant desires to
render such services to the Company;
NOW, THEREFORE, in consideration of the
foregoing and the mutual covenants and conditions herein contained, it is agreed
by and between the parties hereto as follows:
1. Retention;
Term. The Company hereby engages and retains the Consultant,
and the Consultant hereby agrees to render services, as a financial advisor and
consultant to the Company for a period of two (2) years (the “Term”), with such
Term to commence on the date hereof (the “Initial Closing Date”), on which date
the Company closed on the sale of its convertible promissory notes (“Convertible
Notes”) in an aggregate principal amount of no less than $3,000,000 pursuant to
its private offering (the “Offering”) of such Convertible Notes.
2. Services. The
services to be rendered by the Consultant shall consist of financial advice to
the Company concerning opinions and expertise desired by the Company from the
Consultant relating to financial matters in connection with the operation of the
business of the Company and in formulating plans and methods for
financings. The Consultant and the Company shall mutually agree as to
the form, manner and place in which said advice shall be
given. Consultant shall at no time be under any obligation to render
a written opinion or report in connection with any advice it may give to the
Company if such opinion or report is of the kind for which the Consultant, in
the common practice of the industry, would be entitled to receive compensation
in addition to the Consulting Fee, as defined below. The Consultant
shall devote such time as may be reasonably requested by the Company and shall
not by this Agreement be prevented or barred from rendering services of the same
or similar nature, or services of any nature whatsoever, for or on behalf of
persons, firms or corporations other than the Company.
3. Fee.
a. In
consideration for the services rendered by the Consultant hereunder, the
Consultant shall be paid a consulting fee (the “Consulting Fee”) of $15,000 per
month which shall be payable in shares of the Company’s common stock, at a price
of $0.15 per share (an aggregate of 2,400,000 shares of common
stock). Such shares, to the extent not previously issued, shall be
issued to the Consultant on the Initial Closing Date of the
Offering. The Company represents and warrants to the Consultant that
these shares have been duly authorized and, when issued and delivered to the
Consultant, will be validly issued, fully paid and
non-assessable. The Consultant represents and warrants to the Company
that it is acquiring these shares for its own account for investment purposes
only, without a view towards the distribution thereof.
1
b. In the
event that the Company closes on Convertible Notes in an aggregate principal
amount of no less than $11,000,000 pursuant to the Offering (the “Final Closing
Date”), the Consultant shall be paid a cash consulting fee (the “Cash Consulting
Fee”) of $15,000 per month for a period of twenty four (24)
months. The first installment of the Cash Consulting Fee shall be in
an amount equal to the product of (i) $15,000, times (ii) the number of whole or
partial 30-day months between the Initial Closing Date and the Final Closing
Date. Thereafter, each subsequent installment shall be in the amount
of $15,000 per month, which shall be due and payable on the first business day
of each month with respect to such month for the remainder of the
Term. Notwithstanding the foregoing, no Old Notes (as defined
in that certain Confidential Private Placement Memorandum dated March 19, 2009
and delivered by the Company to purchasers of the Convertible Notes) shall count
towards the $11,000,000 threshold for triggering the Company’s obligation to pay
the Cash Consulting Fee.
c. In
addition, the Company shall reimburse the Consultant for any out-of-pocket
disbursements and expenses that Consultant may reasonably incur in connection
with services rendered hereunder against reasonably itemized vouchers
therefor.
4. Acquisition or Merger;
Compensation. The Company shall pay to the Consultant the
normal and usual fees paid in the industry, pursuant to Section 9 of that
certain Investment Banking Agreement by and between the Company and the
Consultant dated as of December 30, 2008, and amended as of March 6, 2009
(collectively, the “Investment Banking Agreement”), should the Consultant
introduce an acquisition or merger to the Company which shall be
consummated. Such fees shall be separate and apart from the
compensation referred to in paragraph 3. The Company shall also pay
the Consultant compensation, in an amount to be mutually agreed upon, for any
financial placement the Consultant may effectuate for the Company during the
term of this Agreement.
5. Representations and
Warranties. In addition to the representations and warranties
set forth in Section 3, each of the Company and the Consultant represents and
warrants to the other, to induce the other party’s reliance, that: (i) it has
the power, authority, and legal capacity to enter into and to perform this
Agreement; (ii) this Agreement when executed and delivered by the parties will
be a legal, valid and binding obligation enforceable against each party in
accordance with its terms; (iii) the making of this Agreement by the parties
does not violate any separate agreement, rights or obligations existing between
the parties and any other person or entity, and, while this Agreement remains in
effect, the parties shall not make any separate agreement with any person or
entity that is inconsistent with any of the provisions of this Agreement; (iv)
neither party has entered, nor will enter, into any agreement, commitment or
other arrangement which diminishes any of the rights herein granted; and (v)
each party will comply with all applicable laws, regulations, ordinances and
statutes in performance of its obligations hereunder.
2
6. Further
Assurances. Each party hereto shall, at the request of the
other party hereto, at any time and from time to time after the date hereof, if
further action is necessary to carry out this Agreement and consummate and make
effective the transactions contemplated by this Agreement, execute and deliver
or cause to be executed and delivered all such further instruments and take or
cause to be taken all such further action as may be reasonably necessary or
appropriate in order to confirm or carry out the provisions of this
Agreement.
7. Amendment. This
Agreement may not be amended except by a written agreement signed by each party
hereto.
8. Severability. The
invalidity or unenforceability of any provisions hereof shall in no way affect
the validity or enforceability of any other provision. If any
provision is held invalid or unenforceable in any jurisdiction, it shall remain
in force and be enforceable in any other territory or jurisdiction.
9. Binding Effect. This Agreement shall be
binding upon the parties hereto, their heirs, legal representatives, successors,
and assigns. Each party hereto in furtherance hereof shall execute a
will directing his executor to perform this Agreement and to execute all
documents necessary to effectuate its purposes. The failure to
execute such will, however, shall not affect the rights of any party hereto or
the obligations of any estate, as provided in this Agreement.
10. Entire
Agreement. This Agreement,
together with the Investment Banking Agreement and a certain Placement Agency
Agreement between the parties, contains the entire agreement among the parties
hereto with respect to the subject matter hereof; and supersedes any and all
prior agreements and understandings among any or all of the parties
hereto.
11. Notices. Any notice required or
designed to be given under this Agreement shall be given in the manner set forth
in the Placement Agency Agreement.
12. Waiver. No delay or failure by
either party to exercise any right under this Agreement, and no partial or
single exercise of that right, shall constitute a waiver of that or any other
right, unless otherwise expressly provided herein.
13. Headings. Headings in this
Agreement are for convenience only and shall not be used to interpret or
construe its provisions.
14. Governing Law and
Jurisdiction. This Agreement shall be governed by and
construed and enforced in accordance with the laws of the State of New
York. The Company and the Consultant hereby irrevocably and
unconditionally consent to submit to the exclusive jurisdiction of the courts of
the State of New York and of the United States District Court for the Southern
District of New York for any lawsuits, actions or other proceedings arising out
of or relating to this Agreement and agree not to commence any such lawsuit,
action or other proceeding except in such courts. The Company further
agrees that service of any process, summons, notice or document by mail, return
receipt requested, to the Company’s address set forth above shall be effective
service of process for any lawsuit, action or other proceeding brought against
the Company in any such court. The Company and the Consultant hereby
irrevocably and unconditionally waive any objection to the laying of venue of
any lawsuit, action or other proceeding arising out of or relating to this
Agreement in the courts of the State of New York or the United States District
Court for the Southern District of New York, and hereby further irrevocably and
unconditionally waive and agree not to plead or claim in any such court that any
such lawsuit, action or other proceeding brought in any such court has been
brought in an inconvenient forum.
3
15. Judicial
Interpretation. Should any provision of this Agreement require
judicial interpretation, it is agreed that a court interpreting or construing
the same shall not apply a presumption that the terms hereof shall be more
strictly construed against any party by reason of the rule of construction that
a document is to be construed more strictly against the party who itself or
through its agent prepared the same, it being agreed that both parties have
participated in the preparation of this Agreement.
16. Counterparts. This Agreement may be
executed in two or more counterparts, each of which shall be deemed an original
but all of which together shall be one and the same instrument.
[signature
page follows]
4
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be signed by
their duly authorized officers as of the date first above written.
By /s/ XXX
XXXXXXXXX
Name: Xxx
Xxxxxxxxx
Title: Chief
Executive Officer
XXXX XXXXXX FINANCIAL,
INC.
By: /s/ XXXXXX
XXXXXXX
Name: Xxxxxx
Xxxxxxx
Title: Chief
Executive Officer
5
