Exhibit 10.9
ASSUMPTION OF THE FINANCIAL CONSULTING AGREEMENT - MEMORANDUM OF UNDERSTANDING
This document dated this 20th day of April 2009, serves as an assumption by
Ciralight Global Inc. of Ciralight Inc.'s obligations and rights under that
certain Financial Consulting agreement - Memorandum of Understanding ("FCA")
dated November 17, 2008 attached hereto as Exhibit A and incorporated herein by
reference between iCapital Finance Inc. and Ciralight, Inc. The parties to this
agreement are iCapital Finance Inc. and Ciralight Global, Inc.
RECITALS
WHEREAS, Xxxxxx Xxxxx, Xx. has initiated foreclosure proceedings against
Ciralight, Inc. under his UCC filing that secures his loans to the company which
includes assets, intellectual property, receivables and the beneficial rights to
all contracts including the aforementioned consulting agreement,
WHEREAS, on January 27, 2009 the Board of Directors of the company, Ciralight
Inc., by their vote and action transferred the rights to manufacture, sell and
market the products to Xx. Xxxxx and the Board further approved the transfer of
all inventory on hand to Xx. Xxxx'x facility in Anaheim, California,
WHEREAS, it is the wish of Ciralight Global, Inc. to retain the services of
iCapital Finance Inc, Xxxxxxx Xxxxxxxxx and Xxxx Xxxxx to implement the
development of the business plan for the new company that would produce, sell
and market the product and deal with old Ciralight Inc issues,
WHEREAS, it is the wish of the parties to modify the FCA dated November 17, 2008
so that iCapital performs the services under the FCA for the benefit of
Ciralight Global Inc. and expand iCapital's role and expanded scope of work
based on the new strategic direction and implementing the reorganization plan,
WHEREAS, Ciralight Global Inc. recognize and acknowledges the benefits and value
that it will receive by it's assumption of the FCA;
NOW, THEREFORE, for and inconsideration of the mutual coveanants and agreements
contained here in, it is agreed as follows;
1. The term of the agreement shall be extended to December 31, 2009.
2. The performance fee in section 5 of the FCA shall $120,000. Any fee
previously paid under the old agreement shall be deemed earned and
deemed to fully compensate consultant for any services provided by
consultant prior to the date of this agreement.
3. In addition to the aforementioned matters, the scope of work shall
include the following;
a. Coordinate the formation of the new company and the smooth
transition of the assets and property from the old company to the
new company;
b. Assist and direct the foreclosure process to ensure that the
assets are secured by Xxxxxx Xxxxx Xx. under his security
agreement;
c. Define the capital structure of the new company, develop a
funding plan and manage the implementation of the funding plan.
This shall include directing the effort to prepare a Private
Placement Offering memorandum, any loans or capital advances;
d. Work with the investors, vendors, customers and suppliers of the
old company to ensure they are accurately informed about the
facts surrounding the actions taken against the old company in an
effort to maintain good relationships and avoid litigation;
e. To evaluate the qualifications, capabilities, and benefits of key
individuals or companies previously doing business with to the
old company to determine which if any relationships are worthy to
continue.
f. To assist in reviewing documentation from the old company and
quantifying, evaluating and providing information that may be
necessary to complete the audit required in order to become a
public company.
4. In consideration for the scope of work items listed in paragraph 3
above, an additional fee in the amount of $55,000 shall be paid over
the course of the term on an as completed basis.
5. The client shall be responsible for actual and reasonable expenses
incurred to implement the work outlined herein. Said costs to be
approved by Client.
6. The client hereafter shall be Ciralight Global Inc., 0000 Xxxx Xxxxxx,
Xxxxx 0000, Xxxxxx XX 00000.
All other terms of the agreement shall remain unchanged.
IN WITNESS WHEREOF, the parties hereto, intending to be legally bound hereby,
have executed this Agreement as of the date first above written.
"CLIENT" "CONSULTANT"
Ciralight Global Inc. iCapital Finance Inc.
Signature: /s/ Xxxxxxxxx Xxxx Signature: /s/ Xxxxxxx Xxxxxxxxx
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Name: Xxxxxxxxx Xxxx Name: Xxxxxxx Xxxxxxxxx
Title: Secretary and Director Title: President
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EXHIBIT A TO EXHIBIT 10.9
iCapital Finance, Inc.
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0000 Xxxx Xxxxxx Xxxxx 0000 Xxxxxx XX 00000 Voice 000.000.0000 Fax 000.000.0000
FINANCIAL CONSULTING - MEMORANDUM OF UNDERSTANDING
This Memorandum of Understanding (the "Agreement") is entered this November 17,
2008 by and between ICAPITAL FINANCE, INC. ("Consultant"), a California
corporation, and Ciralight, Inc. ("Client" or "Company"), a/an Utah Corporation,
with reference to the following:
PRELIMINARY STATEMENT
Client desires to retain Consultant to provide certain financial advisory
services and Consultant desires to provide these services for the benefit of
Client.
NOW, THEREFORE, in consideration of their mutual promises, the parties here
to, intending to be legally bound, agree as follows;
1. ENGAGEMENT. Client hereby engages Consultant on a non exclusive basis,
and Consultant hereby accepts the engagement as a financial consultant
to Client and to render advice, consultation, information and services
to the Directors and/or Officers Of Client regarding general financial
and business matters including but not limited to;
a. Reorganizations, reverse mergers, divestitures, and due diligence
studies;
b. Capital sources and the formation of financial transactions;
c. Banking methods and systems;
d. Guidance and assistance in available alternatives to maximize
shareholder value;
e. Periodic preparation and distribution of research reports and
information to the broker/dealer and investment banking community
f. Prepare and distribute tear sheets, corporate report and other
information as needed; and
g. Provide introductions to funding sources;
It is expressly understood that Consultant shall have no power to bind
Client to any contract or obligation or to transact any business in
Client's name or on behalf of Client in any manner.
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2. TERM. The term ("Term") of this Agreement shall commence on the date
hereof and continue for three months.
3. DUE DILIGENCE. The Client shall supply and deliver to the Consultant
all information relating to the Client's business as may be reasonably
requested by the Consultant to enable the Consultant to make an
assessment of Client's company and business prospects and provide the
consulting services described herein.
4. COMPENSATION AND FEES. As consideration for Consultant entering into
this Agreement, Client shall pay Consultant a non-refundable retainer
of $30,000. Payment shall be made to Twenty-Nine Monaco, Inc. (agent
for Consultant) upon execution and delivery of this Agreement.
5. PERFORMANCE FEE. In addition to the retainer described in paragraph 4
hereof, Client agrees to pay Consultant a performance fee for a
merger/acquisition entered into and completed by Client as a result of
the efforts of or an introduction by Consultant during the term of
this Agreement equal to three percent (3%) of the total value of the
transaction. For a merger/acquisition entered into by Client as a
result of Client's own efforts, Client shall pay Consultant zero
percent (0%) of the total value of the transaction within 30 days of
closing. Such percentage(s) shall be paid to Consultant in the same
ratio of cash and/or stock as the transaction. "Total value" shall
include, but is not limited to cash, cash equivalents, stock, and the
value of any consideration other than cash paid or received by Client.
6. NON-CIRCUMVENTION. The client agrees to pay iCapital performance fees
(outlined in item 5) for any iCapital introduction made during the
initial contract period that results in a transaction within the next
18 months.
7. SURVIVAL. The representations, warranties and covenants of the parties
hereto shall survive the execution and delivery of this Agreement.
8. NOTICES. All notices or other communications required or permitted
hereunder shall be in writing and shall be sufficiently given if
delivered personally or by overnight courier, addressed as follows;
(A) IF TO CONSULTANT:
iCapital Finance, Inc.
0000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxxxx 00000
Attn: President
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(B) IF TO CLIENT:
Ciralight, Inc.
000 Xxxxx 000 Xxxx, Xxxxx 0 xxx 0
Xxxxx Xxxx Xxxx, Xxxx 00000
Attn: General Manager
Any part hereto may specify in writing a different address for such purposes by
notice to the other party. Notices shall be deemed to have been delivered upon
the earlier of actual receipt or the second business day following the day
notice is given by overnight courier.
9. BINDING EFFECT. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and
assigns.
10. CHOICE OF LAW. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of California, without
regard to any laws of conflicts, and is executed and delivered by the
parties hereto in the State of California.
11. SEVERABILITY. If any term or condition of this Agreement should be
held invalid in any respect by a court, arbitrator or tribunal of
competent jurisdiction, such invalidity shall not affect the validity
of any other term or condition hereof. The parties hereto acknowledge
that they would have executed this Agreement with any such invalid
term or condition excluded.
12. COUNTERPARTS. This Agreement may be executed by facsimile and in
counterparts, each of which shall be deemed an original and all of
which when taken together shall constitute one and the same Agreement.
13. HEADINGS. The headings set forth in this Agreement are for convenience
only and do not qualify or affect the terms or conditions thereof
14. PRELIMINARY STATEMENT. The Preliminary Statement is incorporated
herein by this reference and made a part hereof.
15. ATTORNEYS' FEES; COSTS. The prevailing party shall be entitled to
recover from the losing party its attorneys' fees and costs incurred
in any action brought to enforce any right arising out of this
Agreement.
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IN WITNESS WHEREOF, the parties hereto, intending to be legally bound here by,
have executed this Agreement as the day and year first above written.
"CLIENT"
Ciralight, Inc.
Signature: /s/ Xxxxxx Xxxxxxx
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Print name: Xxxxxx Xxxxxxx
Print title: Executive Vice President
"CONSULTANT"
ICAPITAL FINANCE, INC.
Signature: /s/ Xxxxxxx Xxxxxxxxx
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Print name: Xxxxxxx Xxxxxxxxx
Print title: Managing Director
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