Yao-Ting Su Chairman and CEO APlus International, Ltd.
Exhibit 10.9
April 8,
2009
Yao-Ting
Su
Chairman
and CEO
APlus
International, Ltd.
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Dear Mr.
Su:
This
letter agreement (“Agreement”) confirms the
terms upon which APlus International, Ltd., together with all subsidiaries,
affiliates, successors and other controlled units, either existing or formed
subsequent to the execution of this engagement (defined for the purposes of this
Agreement as “Client”), engages
Dragonfly Capital Partners, LLC (“Dragonfly”), to provide
advisory services pertaining to a transaction between Client and Sparking
Events, Inc. (the “Transaction”) on a best
efforts basis.
Upon the
closing of a Transaction, Dragonfly shall receive (after any forward stock
splits or adjustments) 350,000 shares of common stock and warrants to purchase
250,000 share of common stock of Client. The warrants shall have a strike price
of $1.00 and shall expire on May 1, 2011. The warrants will have registration
rights requiring their registration on the company second registration
statement, which shall be filed no later than January 1, 2010. However, in the
event that a registration statement for the shares underlying the warrants is
not declared effective by May 1, 2010, the warrants shall become
cashless.
The term
of this Agreement shall be for one year (“Term”). If the terms of
our engagement as set forth in this Agreement (including the attached Standard
Terms and Conditions) are agreed to, kindly sign the enclosed copy of this
letter and return it to the undersigned.
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By:
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/s/
Yao-Ting Su
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By:
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/s/
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APlus International, Ltd. |
Dragonfly
Capital Partners,
LLC
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Dragonfly
Capital Partners, LLC - Member NASD/SIPC
STANDARD
TERMS AND CONDITIONS
The
following general terms and conditions shall be incorporated by reference into
the engagement letter agreement, dated April 8, 2009 between APlus
International, Ltd. and Dragonfly to which these terms are attached (the
Agreement). Capitalized terms used below without definition shall have the
meanings assigned to them in the Engagement Letter and any references herein to
the “Agreement” shall mean the Engagement Letter Agreement together with these
Standard Terms and Conditions. These Standard Terms and Conditions will survive
the termination of this Agreement.
(a)
Client agrees (i) to indemnify and hold harmless Dragonfly and its affiliates,
and the respective members, managers, directors, officers, agents, and employees
of Dragonfly, its affiliates and its associated broker dealer (Dragonfly and
each such entity or person being referred to as an “Indemnified Person”), and
the respective heirs, representatives, successors and assigns of the Indemnified
Persons from and against any losses, claims, demands, damages or liabilities of
any kind relating to or arising out of activities performed or services
furnished pursuant to the Agreement or Dragonfly’s role in connection therewith,
within a reasonable time after such expenses are incurred or paid; and, (ii) to
defend each Indemnified Person with Client’s counsel and to pay for all expenses
(including reasonable fees and disbursements) of such counsel in connection with
investigating, preparing or defending any investigative, administrative,
judicial or regulatory action or proceeding in any jurisdiction related to or
arising out of such activities, services, or role, in connection with pending or
threatened litigation to which any Indemnified Person is a party. Client will
not, however, be responsible for any such losses, claims, demands, damages,
liabilities or expenses to the extent that they are finally judicially
determined to have resulted primarily from Dragonfly’s gross negligence or
willful misconduct. Client also agrees that no Indemnified Person shall have any
liability (whether direct or indirect, in contract, tort or otherwise) to Client
or any of its security holders or creditors for or in connection with the
Agreement, any financing or Dragonfly’s role or services in connection
therewith, except to the extent that any such liability for losses, claims,
demands, damages, liabilities or expenses incurred by Client is finally
judicially determined to have resulted primarily from Dragonfly’s gross
negligence or willful misconduct. In the event of such judicial determination,
Dragonfly shall indemnify and hold harmless Client and its affiliates, and the
respective directors, officers, agents, and employees of Client in the same
manner as set forth in this Section 1(a). In no event shall Client or any
Indemnified Person be responsible for any special or consequential
damages.
(b)
Client shall not be liable for any settlement of any litigation or proceeding
effected without its prior written consent (which shall not be unreasonably
withheld). Client will not, without Dragonfly’s written consent, settle,
compromise, consent to the entry of any judgment in or otherwise seek to
terminate any claim, action or proceeding in respect of which indemnity may be
sought hereunder, whether or not any Indemnified Person is an actual or
potential party thereto, unless such settlement, compromise, consent or
termination includes an unconditional release of each Indemnified Person from
any liabilities arising out of such claim, action or proceeding. If Client
enters into any agreement or arrangement with respect to, or effects, any
proposed sale, exchange, dividend or other distribution or liquidation of all or
a significant portion of its assets in one or a series of transactions or any
significant recapitalization or reclassification of its outstanding securities,
Client shall provide for the assumption of its obligations under this Section 1
by another party reasonably satisfactory to Dragonfly.
(c) If
the foregoing indemnification is unavailable or insufficient to hold an
Indemnified Person harmless in respect of any losses, claims, damages or
liabilities referred to therein then, in lieu of indemnifying such Indemnified
Person hereunder. Client shall contribute to the amount paid or payable by such
Indemnified Person as a result of such losses, claims, damages or liabilities
(and expenses relating thereto) in such proportion as is appropriate to reflect
the relative benefits to Client, on the one hand, and Dragonfly, on the other
hand, of the financing (whether or not the financing is consummated) and also
the relative fault of each of Client and Dragonfly, as well as any other
relevant equitable considerations; provided, however, that in no event shall the
Indemnified Persons be required to contribute an aggregate amount in excess of
the aggregate amount of fees actually received by Dragonfly under the Engagement
Letter (unless it is finally judicially determined that any Indemnified party
acted with gross negligence or willful misconduct). For the purposes of this
Agreement, the relative benefits to Client and Dragonfly of the financing shall
be deemed to be in the same proportion as (a) the total value paid or
contemplated to be paid or received or contemplated to be received by Client or
its security holders, as the case may be, in connection with the financing or
financings that are the subject of the Engagement Letter, whether or not any
such financing is consummated, bears to (b) the fees paid or to be paid to
Dragonfly under the Engagement Letter.
Section
2. Financial Advisory Role, Information, Reliance, Confidentiality,
etc.
(a)
Client understands that Dragonfly is acting solely as an independent contractor
and is not undertaking to provide any legal, accounting or tax advice in
connection with its engagement under the Agreement and that Dragonfly’s role in
any due diligence will be limited solely to assisting Client in coordinating the
work of Client’s other professional advisers.
(b)
Client agrees to provide to Dragonfly all information reasonably requested by
Dragonfly for the purpose of its engagement under the Agreement and to provide
access during regular business hours to employees and officers and directors of
Client as Dragonfly reasonably requests. Dragonfly shall be entitled to rely
upon and assume, without any obligation of independent verification, the
accuracy and completeness of all information that is publicly available and all
information that has been furnished to it by Client or any target company or
otherwise reviewed by Dragonfly, and Dragonfly shall not assume any
responsibility or have any liability therefore. Dragonfly has no obligation to
conduct any appraisal of any assets or liabilities.
Dragonfly
Capital Partners, LLC - Member NASD/SIPC
(c) In
order to enable Dragonfly to bring relevant expertise to bear on its engagement
under the Agreement among its global affiliates, Client agrees that Dragonfly
may share information obtained from Client hereunder with its affiliates, and
may perform the services contemplated hereby in conjunction with its affiliates;
provided, however, that the fee, if payable, shall be paid only to Dragonfly or
its associated broker/dealer and that no other affiliate shall have any claim or
demand against Client to receive any portion of its fee. Client agrees that,
following the closing of an investment, Dragonfly may, at its option and
expense, place an advertisement or announcement in such newspapers and
periodicals as it may determine describing Dragonfly’s role, subject to the
prior approval of Client and its legal counsel.
(d)
Dragonfly’s financial advice is intended solely for the benefit and use of the
Board of Directors of Client in considering a financing, is not on behalf of,
and shall not confer rights or remedies upon, any shareholder or creditor of
Client or any other person, and may not be used or relied upon for any other
purpose. Client will treat Dragonfly’s advice as confidential and will not
disclose it to any third party in any manner without Dragonfly’s prior written
approval.
(e) In
the event Client requests that Dragonfly deliver documents or information
relating to a financing via electronic transmissions or delivery of such
document or information is required by law or regulation to be made via
electronic transmissions, Client acknowledges and agrees that the privacy and
integrity of electronic transmissions cannot be guaranteed. To the extent that
any documents or information relating to Dragonfly’s engagement under the
Agreement or a financing are transmitted electronically, Client agrees to
release Dragonfly from any loss or liability incurred in connection with the
electronic trapsmission of any such documents and information, including the
unauthorized interception, alteration or fraudulent generation and transmission
of electronic transmissions by third parties; provided, however, that Client
shall not release Dragonfly from such losses or liabilities to the extent that
they are finally judicially determined to have resulted from Dragonfly’s gross
negligence or willful misconduct.
(a) The
Agreement may not be assigned by Client or Dragonfly without the prior written
consent of the other party . The Agreement constitutes the entire understanding
of the parties with respect to the subject matter thereof, supersedes all prior
agreements with respect thereto, may not be amended except in writing signed by
both of the parties, has been duly authorized and executed by each of the
parties hereto and constitutes the legal, binding obligation of each such party.
Notices permitted or required hereunder shall be to the following addresses (or
such other address as shall be notified by a party hereto from time to time): if
to Dragonfly-Dragonfly Capital LLC, ▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇ Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇ Attention: ▇▇▇ ▇▇▇▇▇▇ with a copy to:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇. If to Client, then to individual and
address as provided on page 1 of this Agreement. Notice may be given (i) by
registered or certified mail, postage prepaid, return receipt requested,
effective 7 days after posting, (ii) by confirmed fax, effective on the next
business day in recipient’s location, or (iii) by messenger or courier,
effective upon receipt. The headings in this agreement are for convenience only
and are in no way intended to describe, interpret, define, or limit the scope,
extent, or intent of this agreement or any of its provisions. This agreement may
be executed in counterparts, each of which, when taken together, shall
constitute one duly executed original agreement.
(b) This
Agreement may not be modified or amended except in writing executed in
counterparts, each of which will be deemed an original and all of which will
constitute one and the same instrument. This Agreement supersedes all prior
agreements between the parties concerning the subject matter hereof. Neither
party may assign this Agreement without the prior written consent of the other
party. If any provision of this Agreement shall for any reason be held invalid
or unenforceable by any court, governmental agency or arbitrator of competent
jurisdiction, such invalidity or unenforceability shall not affect any other
provision hereof, but this Agreement shall be construed as if such invalid or
unenforceable provision had never been contained herein.
(c) Any
dispute arising hereunder, if not settled by mutual agreement, shall, at either
party’s option, and, upon written notice by one party to the other, be settled
by final and binding arbitration in New York, New York. The arbitration shall be
conducted in accordance with the Commercial Dispute Resolution Procedures and
Rules of the American Arbitration Association (“AAA Rules”) by a
single disinterested arbitrator appointed in accordance with such AAA
Rules.
(d) The
arbitrator shall have authority to award relief under legal or equitable
principles, including interim or preliminary relief, and to allocate
responsibility for the costs of the arbitration and to award recovery of
attorneys’ fees and expenses in such manner as is determined by the
arbitrators.
(e)
Judgment upon the award rendered by the arbitrators may be entered in any court
having personal and subject matter jurisdiction. Each party hereby submits to
the in personam and subject matter jurisdiction of the federal and state courts
in the County of New York for the purpose of confirming
Dragonfly
Capital Partners, LLC - Member NASD/SIPC