OCEAN WEST HOLDING CORPORATION
OCEAN
WEST HOLDING CORPORATION
00
XXXXXXXXX XXXX, XXXXX 000
XXXXXX,
XX 00000
949-861-2590
Xxxxxx
0,
0000
Xxxxxxxxx:
This
letter sets forth the agreement (the “Agreement”) between Ocean West Holding
Corporation (“OWHC”), which together with its subsidiaries and affiliates is
hereinafter referred to as the “Company” and BK Financial Services, LLC of
Syosset, New York and Xxxxx Capital Corporation of Ketchum, Idaho as consultants
(collectively, the “Consultants”).
Any
reference in this Agreement to a “party” or the “other party” shall mean
Consultant or the Company, as the case may be.
Section
1. Scope
of Services Rendered.
The
Company hereby engages Consultant to act as its advisor to provide the
consulting services hereinafter described, as reasonably requested by the
Company. It is understood and acknowledged by the parties that the value of
Consultant’s advice is not readily quantifiable, and that although Consultant
shall be obligated to render the advice contemplated by this Agreement upon
the
reasonable request of the Company, in good faith, Consultant shall not be
obligated to spend any specific amount of time in so doing. Consultant’s duties
may include, but will not necessarily be limited to, providing recommendations
concerning the following related matters.
(a) Rendering
advice with regard to internal operations, including:
(i) the
formation of corporate goals and their implementation;
(ii) the
Company’s financial structure and its divisions or subsidiaries;
and
(iii) corporate
organization and personnel.
(b) Rendering
advice with regard to any of the following corporate finance
matters:
(i) changes
in the capitalization of the Company;
(ii) changes
in the Company’s corporate structure;
(iii) redistribution
of shareholdings of the Company’s stock;
(iv) offerings
of securities in public and private transactions;
(v) alternative
uses of corporate assets;
(vi) structure
and use of debt; and
(vii) sales
of
stock by insiders pursuant to Rule 144 or otherwise.
July
18,
2006
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2
(c) Rendering
investment banking services with regard to any of the following matters: the
acquisition of and/or merger with other companies, the sale of the Company
itself, or any of its assets, subsidiaries or affiliates, or similar type of
transaction (hereinafter referred to as a “Transaction”).
The
Company acknowledges and agrees that Consultant has been retained solely to
provide the advice or services set forth in this Agreement. Consultant shall
act
as an independent contractor and any duties of Consultant arising out of its
engagement hereunder shall be owed solely to the Company. As Consultant will
be
acting on the Company’s behalf, the Company agrees to the indemnification and
other obligations set forth in Section 7 of this Agreement.
Section
2. Compensation
- Cash Fees.
As
compensation for services to be provided by Consultant hereunder, the Company
agrees to pay a monthly retainer (the “Consulting Fee”) of $5,000.00 to
Consultant.
Out-of-Pocket
Expenses.
The
Company agrees to reimburse Consultant promptly for all reasonable out-of-pocket
expenses incurred (including without limitation all reasonable fees and expenses
of counsel) incurred by Consultant in connection with its engagement hereunder
upon production of supporting vouchers and receipts therefor.
Section
3. Term
of Engagement.
This
Agreement will expire six (6) months from the date hereof unless extended by
the
Company on 30 days’ prior written notice. The Agreement, if extended, may then
be terminated solely for cause. As set forth in this Section 3, Cause shall
be
defined to mean:
(i) Consultant’s
neglect or refusal to perform, or if it otherwise fails to perform such duties
as are delegated to Consultant by the Chief Executive Officer of the
Company;
(ii) any
other
conduct consisting a breach of this Agreement or of any code of conduct
heretofore or hereafter adopted by the Company;
(iii) Consultant
(or its CEO’s) conviction (including a conviction on a nole
contendere plea)
of
a felony or misdemeanor (other than minor traffic offenses);
(iv) any
willful, intentional, or grossly negligent act having the effect of inuring
Consultant’s reputation or the reputation or business of the
Company.
Upon
expiration of this Agreement, Consultant will be entitled to prompt payment
of
all reasonable fees accrued prior to such expiration and reimbursement of all
reasonable out-of-pocket expenses as provided pursuant to the provisions set
forth in Section 2 above. Sections 5, 6, 7, 8, 9, 10 and 11 of this Agreement
will also remain operative and in full force and effect regardless of the
expiration of this Agreement.
July
18,
2006
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3
Section
4. Cooperation.
The
Company will furnish Consultant with all financial and other information and
data as Consultant believes, acting reasonably, are appropriate in connection
with its activities on the Company’s behalf, and shall provide Consultant full
access to its officers, directors, employees and professional advisors.
The
Company recognizes and confirms that Consultant, in connection with performing
its services hereunder, (i) will be relying without investigation upon all
information that is available from public sources or supplied to it by or on
behalf of the Company or its advisors; (ii) shall not in any respect be
responsible for the accuracy or completeness of, or have any obligation to
verify, the same; and (iii) will not conduct any appraisal of any assets of
the
Company.
Consultant
covenants that it shall not make any unauthorized or untrue statement relating
to the Company in providing the services on behalf of the Company hereunder
and
agrees that it shall indemnify the Company for any breach of this obligation
pursuant to the terms and conditions of Section 8 of this
Agreement.
The
Company covenants not to undertake any public offering or other issuance of
its
common shares or the Securities in contravention of the Laws.
Section
5. Confidentiality.
The
Company agrees that any advice in writing and designated as confidential (the
“Consultant Confidential Information”) provided by Consultant pursuant to this
Agreement will be treated by the Company as confidential, will be solely for
the
information and assistance of the Company in connection with its consideration
of transactions of the type referred to in this Agreement and will not be used,
circulated, quoted or otherwise referred to for any other purpose, nor will
it
be filed with, included in or referred to, in whole or part, in any registration
statement, proxy statement or any other communication, whether written or oral,
prepared, issued or transmitted by the Company or any affiliate, director,
officer, employee, agent or representative of any thereof, without, in each
instance, Consultant’s prior written consent.
Further,
in connection with this engagement of Consultant, it is contemplated that the
Company may supply to Consultant certain non-public or proprietary information
concerning the Company (the “Company Confidential Information”). Consultant
shall use Company Confidential Information solely for the purposes of rendering
services pursuant to and in accordance with this engagement and shall not
disclose any Company Confidential Information to any person, other than its
officers, directors, employees and outside advisors with a need to
know.
For
the
purposes of this Agreement, the Company Confidential Information and the
Consultant Confidential Information (collectively, the “Confidential
Information”) shall not include:
July
18,
2006
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4
| a) |
information
which is in the public domain at the date of disclosure of the
Confidential Information to the party in receipt of such Confidential
Information (the “Receiving Party”) to or which thereafter enters the
public domain through no fault of the Receiving Party (but only
after it
enters the public domain);
|
| b) |
information
which is already known to the Receiving Party at the time of its
disclosure to the Receiving
Party;
|
| c) |
information
which, following its disclosure to the Receiving Party, is received
by the
Receiving Party without obligation of confidence from a third party
who
the Receiving Party had no reason to believe was not lawfully in
possession of such information free of any obligation of confidence;
and
|
| d) |
expertise
which the Receiving Party has at the date hereof or which the Receiving
Party develops or enhances as a result of reviewing the information
or
material provided.
|
The
Receiving Party shall be entitled to disclose Confidential
Information:
| a) |
if
required pursuant to a subpoena or order issued by a court, arbitrator
or
governmental body, agency or official;
or
|
| b) |
to
those of its employees, agents and advisors that have a need to
know the
Confidential Information.
|
Section
6. Potential
Conflicts.
The
Company acknowledges that although Consultant and its affiliates may have and
may continue to have investment banking and other relationships with parties
other than the Company pursuant to which Consultant may acquire information
of
interest to the Company, Consultant shall have no obligation to disclose such
information to the Company, or to use such information in connection with any
contemplated transaction. The Company recognizes that Consultant is being
engaged hereunder to provide the services described above only to the Company
and is not acting as an agent or a fiduciary of, and shall have no direct duties
or liability to, the equity holders of the Company or any third party in
connection with its engagement hereunder, all of which are hereby expressly
waived. No one other than the Company is authorized to rely upon the engagement
of Consultant hereunder or any statements, advice, opinions or conduct by
Consultant.
Section
7. Indemnification.
The
Company hereby agrees to indemnify and hold harmless Consultant and its assigns
and affiliates, the respective directors, officers, attorneys and other agents,
stockholders and employees of Consultant and its affiliates and each other
person, if any, controlling Consultant or any of its affiliates (Consultant
and
each such person and entity being referred to as a “Consultant Indemnified
Person”), to the full extent lawful, from and against any losses, claims,
damages or liabilities or actions (including without limitation shareholder
actions, actions brought by VC Arjent and actions arising from the use of
information contained in documents prepared by the Company or omissions from
such materials) related to or arising out of its engagement or Consultant’s role
in connection herewith, and will pay (or, if paid by a Consultant Indemnified
Person, reimburse such Indemnified Person) for all reasonable fees and expenses
(including, without limitation, legal fees and expenses) incurred by such
Consultant Indemnified Person in connection with investigating, preparing or
defending any such action or claim, whether or not in connection with pending
or
threatened litigation in which any Indemnified Person is a party. The Company
will not, however, be responsible for any claims, liabilities, losses, damages
or expenses which result from any compromise or settlement not approved by
the
Company or which result primarily from the fraud, willful misconduct or gross
negligence of any Consultant Indemnified Person. The foregoing agreement shall
be in addition to any rights that any Indemnified Person may have at common
law
or otherwise, including without limitation any right to contribution. The
foregoing obligations of indemnification shall be fulfilled upon the monthly
presentation of appropriate bills and receipts by the Consultant Indemnified
Person which shall be paid within twenty days of receipt.
July
18,
2006
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5
Consultant
agrees to indemnify and hold harmless the Company and its respective directors,
officers, attorneys and other agents, shareholders and employees of the Company
(the Company and any such person or entity being referred to here as a “Company
Indemnified Person”), to the full extent lawful, from and against any losses,
claims, damages or liabilities or actions relating to arising out of the breach
by Consultant of its representations, warranties and covenants contained in
this
Agreement, including, without limitation, the representations, warranties and
covenants contained in Sections 4 and 5 of this Agreement, and will pay (or,
if
paid by a Company Indemnified Person, reimburse such Company Indemnified Person)
for all reasonable fees and expenses (including, without limitation, legal
fees
and expenses) incurred by such Company Indemnified Person in connection with
investigating, planning or defending any such action or claim whether or not
in
connection with pending or threatened litigation in which any Company
Indemnified Person is a party. Consultant will not, however, be responsible
for
any claims, liabilities, losses, damages or expenses which result from any
compromise or settlement not approved by Consultant or which result primarily
from the fraud, willful misconduct or negligence of any Company Indemnified
Person, or any breach by the Company of its obligations hereunder. The foregoing
agreement shall be in addition to any rights that any Company Indemnified Person
may have at common law or otherwise, including without limitation any right
to
contribution. The foregoing obligations of indemnification shall be fulfilled
upon the monthly presentation of appropriate bills and receipts by the
indemnified party which shall be paid within twenty days of
receipt.
If
any
action or proceeding is brought against any Consultant Indemnified Person or
Company Indemnified Person (collectively, an “Indemnified Person”) in respect of
which indemnity may be sought pursuant hereto, or if any Indemnified Person
receives notice from any potential litigant or a claim which such person
reasonably believes will result in the commencement of any such action or
proceeding, or of the existence of any such claim, the Indemnified Person shall
immediately notify the other party of all relevant facts relating thereto,
but
the failure so to notify such other party of any such action or proceeding
shall
not relieve the other party from any other obligation or liability which it
may
have to any Indemnified Person otherwise than under this Agreement or with
respect to any other action or proceeding, except if and to the extent that
the
other party is prejudiced by such failure so to notify. In case any such action
or proceeding shall be brought against any Indemnified Person, the other party
shall be entitled to assume the defense of such action or proceeding or
participate in such action or proceeding with counsel of the other party’s
choice, or compromise or settle such action or proceeding, at its expense (in
which case the other party shall not thereafter be responsible for the fees
and
expenses of any separate counsel retained by such Indemnified Person).
Notwithstanding the other party’s election to assume the defense of such action
or proceeding, such Indemnified Person shall have the right to employ separate
counsel and to participate in the defense of such action or proceeding at its
own cost and expense.
July
18,
2006
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6
In
order
to provide for the just and equitable contribution, if a claim for
indemnification hereunder is found unenforceable in a final judgement by a
court
of competent jurisdiction (not subject to further appeal), even though the
express provisions hereof provide for indemnification in such case, then the
Company and Consultant shall contribute to the losses, claims, damages,
judgements, liability or costs to which the Indemnified Person may be subject
in
accordance with the relative benefits received by, and the relative fault of,
each in connection with the statements, acts or omissions which resulted in
such
losses, claims, damages, judgements, liabilities or costs. Consultant and the
Company agree that a pro rata
allocation would be unfair. No person found liable for a fraudulent
misrepresentation, omission or gross negligent behavior shall be entitled to
contribution from any person who is not also found liable for such fraudulent
misrepresentation, omission or gross negligent behavior.
Notwithstanding
the foregoing, Consultant shall not be obligated to contribute to any amount
hereunder that exceeds the amount of fees or compensation received or to be
received by Consultant for its services to the Company hereunder.
These
indemnification provisions shall (i) remain operative and in full force and
effect regardless of any completion of the engagement of Consultant, (ii) inure
to the benefit of any successors, assigns, heirs or personal representative
of
any Indemnified Person; and (iii) be in addition to any other rights that any
Indemnified Person may have.
Section
8. Complete
Agreement; Severability; Amendments; Assignment.
This
Agreement embodies the entire agreement and understanding between the parties
hereto and supersedes any prior agreements and understandings relating to the
subject matter hereof. If any provision of this Agreement is determined to
be
invalid or unenforceable in any respect, such determination will not affect
such
provision in any other respect or any other provision of this Agreement, which
will remain in full force and effect. This Agreement may not be amended or
otherwise modified or waived except by an instrument in writing signed by both
Consultant and the Company.
This
Agreement shall be binding upon and inure to the benefit of the Company,
Consultant, each Indemnified Person and their respective successors and
permitted assigns.
July
18,
2006
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Section
9. Notices.
Notices
must be in writing and shall be given by personal delivery or by facsimile
copy
followed by executed originals sent by registered mail, return receipt
requested, as follows:
(i)
to
the Company at:
00
Xxxxxxxxx Xxxx, Xxxxx 000
Xxxxxx,
XX 00000
Attention:
Xxxxx Xxxxx, CEO
Facsimile:
(000) 000-0000; or
(ii)
to
the Consultant’s at:
BK
Financial Services, LLC
00
Xxxxxxxx Xxxxx
Xxxxxxxx,
XX
00000
Facsimile:
000-000-0000
Xxxxx
Capital Corporation
XX
Xxx
0000
Xxxxxxx,
Xx
00000
Facsimile:
______________
or
to
such other address or facsimile number as may be designated by notice given
by
either party to the other. Any demand, notice or other communication given
by
person delivery shall be conclusively deemed to have been given on the day
of
actual delivery thereof and if given by facsimile, on the day of transmittal
thereof if given during normal business hours of the recipient and on a business
day during which such normal business hours next occur if not given during
such
hours on any day.
Section
10. Governing
Law and Choice of Forum.
This
Agreement and the legal relations between the parties hereto shall be governed
as to validity, interpretation, construction, effect and in all other respects
by the internal laws of the State of California without regard to its principles
of conflict or choice of Law. Any dispute arising under this Agreement shall
be
heard in the federal or state courts in Orange County, California.
July
18,
2006
Page
8
Please
confirm that the foregoing correctly sets forth our agreement by signing and
returning to Consultant the enclosed original copy of this
Agreement.
Very
truly yours,
OCEAN
WEST HOLDING CORPORATION
By:________________________________
Xxxxx
Xxxxx
Chief
Executive Officer
Accepted
as of the date written above.
BK
FINANCIAL SERVICES, LLC
By:________________________________
Name:________________________________
Title:________________________________
XXXXX
CAPITAL CORPORATION
By:________________________________
Name:________________________________
Title:________________________________
