CONSULTING AGREEMENT
This Consulting Agreement ("Agreement") is made and entered into on
February 4, 2011 ("Agreement Date"), by and among IPX Capital, LLC a
New York limited liability corporation with offices at % Xxxx Xxxxx,
Xxxxx 0000, Xxx Xxxx, Xxx Xxxx 00000 ("IPIX") and Iron Eagle Group,
Inc. a Delaware corporation, ("IEG" or the "Company"), (together, the
"Parties"). This Agreement sets forth certain understandings and
binding agreements between the Parties.
RECITALS
WHEREAS, the Company is in need of assistance in facilitating short
term and long-term capital needs, financial analysis and modeling,
assisting the Company's management team with corporate presentations to
investment banks, potential investors, and other third partied, and
business development.
WHEREAS, IPX has agreed to perform consulting work for the Company in
providing assistance in facilitating short term and long-term capital
needs, financial analysis and modeling, assisting the Company's
management team with corporate presentations to investment banks,
potential investors, and other third parties, business development, and
other related activities as directed by the Company ("Consulting
Services");
NOW, THEREFORE, the parties hereby agree as follows:
1. Services. IPX shall provide to the Company Consulting as reasonable
requested.
2. Consideration.
A. Stock Compensation. In consideration for the Consulting Services
to be performed by IPX under the Agreement, the Company shall grant to
IPX, or an affiliate of affiliates of IPX designated by IPX. Two
Hundred and Fifty Thousand (250,000) shares of common stock of the
Company (the "Shares"), to vest as follows: (i) One Hundred Twenty Five
Thousand (125,000) of the Shares to vest upon the execution of this
Agreement by IPX and the Company, and (ii) the remaining One Hundred
Twenty Five Thousand (125,000) of the Shares to vest upon the closing
of a transaction as described herein. The Shares shall be subjected to
customary lock-up provisions for a period of six months from the date
of this Agreement.
B. Success Fee. In consideration for the Consulting Services to be
performed by IPX under this Agreement, upon the Company raising the
necessary capital to fund the first acquisition of acquisitions (the
"Transaction"), the Company will pay IPX a cash fee equal to: (i) One
Hundred Thousand ($100,000.00) Dollars for a Transaction of up to Forty
Million Dollars ($40,000,000). Plus (ii) One Percent (1%) of any
capital raised in excess of Forty Million Dollars ($40,000,000),
(collectively the "Success Fee").
C. Out-of-Pocket Expenses. The Company will pay IPX for all
reasonable and approved out-of-pocket expenses which are incurred in
connection with the performances of the duties hereunder. IPX shall
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submit written documentation and receipts itemizing the expenses. IPX
will submit a statement of anticipated expenses related to the ttask
for "Pre-Approval" prior to undertaking the initiative on behalf of the
Company. The "Approval" for the expenses from the Company shall be in
writing (posted leter, fax transmission or email correspondence)
delivered to IPX.
D. Success Fee Tail. If the Company shall within one year
immediately following the termination of this Agreement consummate a
Transaction with any parties which IPX advises the Company regarding a
Transaction, the Company shall pay to IPX a Success Fee with respect to
such Transaction calculated in accordance with this Agreement.
E. Further Capital Raises. Upon the successful completion of a
Transaction pursuant to Paragraph 2(B) of this Agreement, if the
Company wishes to retain IPX for a future transaction, the fees of such
retention and/or successful completion of a future capital raise or
future transaction shall be mutually agreed upon in writing by the
Company and IPX.
3. Independent Contractor. Nothing herein shall be construed to create
an employer-employee relationship between the Company and IPX. IPX is
an independent service provider and not an employee of the Company or
any of its subsidiaries or affiliates. The consideration set forth in
Section 2 shall be the sole consideration due to IPX for the services
rendered hereunder. It is understood that the Company will not withhold
any amounts for payment of taxes from the compensation of IPX
hereunder. IPX will not represent to be or hold itself out as an
employee of the Company.
4. Confidentiality.
A. In the course of performing Consulting Services, the parties
recognize that IPX may come in contact with or become familiar with
information which the Company or its subsidiaries or affiliates may
consider confidential. This information may include, but is not limited
to, information pertaining to the Company systems, which information
may be of value to a competitor. IPX agrees to keep all such
information confidential and not to discuss or divulge it to anyone
other than appropriate Company personnel or their designees.
B. IPX and the Company agree not to use the other party's name
in marketing materials without prior written approval.
5. Non-Circumvention.
The parties agree not to contact or initiate contact at any time for
any purpose, both directly and indirectly with any entity or any
officers, directors of the entity, whose identity was revealed and to
whom any party introduced to the other party, unless such approval is
specifically granted by the introducing party on a case-by-case basis.
The terms of this Agreement will apply to entities with which the
either party has an existing business relationship prior to receiving
any introduction from the introducing party. The introducing party will
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provide the other party a general overview of the entity being
introduced, sufficient to allow the other party to perform an internal
conflict check, following which the other party will confirm whether or
not it wishes to receive additional information and thereby agree to be
bound by the non-circumvention terms of the Agreement with respect to
the particular entity.
6. Indemnification. Since IPX will be acting on behalf of the Company
in connection with this agreement, the Company agrees to indemnify IPX
in accordance with the indemnity agreement attached hereto as Exhibit A
(the "Indemnity Agreement")
7. Term. This service agreement shall commence at the date of execution
of this agreement and shall be six months. Either party may terminate
this Agreement upon thirty (30) days prior written notice.
8. Renewal. This Agreement shall automatically renew on a monthly basis
after the initial term unless canceled by either party in writing.
9. Brokers. The Company represents and warrants to IPX that there are
no brokers, representatives or other persons, other than Aegis Capital,
which have an interest in compensation due to IPX from any transaction
contemplated herein.
10. Notice. Any notice or communication permitted or required by this
Agreement shall be deemed effective when personally delivered or
deposited, postage prepaid, in the first class mail of the United
States properly addressed to the appropriate party at the address set
forth below:
i. Notices to IPX:
0 Xxxx Xxxxx, Xxxxx 0000
Xxx Xxxx, XX 00000
ii. Notice to the Company:
00 Xxxx 00xx Xxxxxx, Xxxxx 00X
Xxx Xxxx, XX 00000
11. Miscellaneous.
A. Entire Agreement and Amendments. This Agreement constitutes
the entire agreement of the parties with regard to the subject matter
hereof, and replaces and supersedes all other agreements or
understandings, whether written or oral. No amendment or extension of
the Agreement shall be binding unless in writing and signed by both
parties.
B. Binding Effect, Assignment. This Agreement shall be binding
upon and shall inure to the benefit of IPX and the Company and to the
Company's successors and assigns. Nothing in this Agreement shall be
construed to permit the assignment by IPX or the Company of any of its
rights or obligations hereunder, and any such assignment is expressly
prohibited without the prior written consent of the other party.
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C. Other Advisory Services. The Company acknowledges that IPX is
in the business of providing various advisory services (of all types
contemplated by this agreement) to others. Nothing herein contained
shall be construed to limit or restrict IPX in conducting such business
with respect to others or in rendering such advice to others.
D. Governing Law, Severability. This Agreement shall be governed
by the laws of the State of New York. The invalidity or
unenforceability of any provision of the Agreement shall not affect the
validity or enforceability of any other provision.
[SIGNATURE PAGE TO FOLLOW]
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WHEREFORE, the parties have executed this Agreement as of the date
first written above.
Iron Eagle Group, Inc. IPX Capital
By:/s/Xxxxx Xxxxxxx By: /s/Xxxx Xxxxxxxxx
Name: Xxxxx Xxxxxxx Name: Xxxx Xxxxxxxxx
Position: Director Title: Managing Director
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EXHIBIT A
INDEMNIFICATION PROVISIONS
Iron Eagle Group, Inc. and its affiliates and subsidiaries
(collectively, the Company"), agrees to indemnify and hold harmless IPX
Capital and its affiliates and their respective officers, directors,
employees, agents and controlling persons, (collectively, "IPX") to the
full extent lawful, against any and all losses, claims, damages,
obligations, penalties, judgments, awards, liabilities, costs, expenses
and disbursements ( and any and all actions, suits, proceedings and
investigations in respect thereof and any and all legal and other
costs, expenses and disbursements in giving testimony or furnishing
documents in response to a subpoena or otherwise) (each a "Liability"),
including, without limitation, the costs, expenses, and disbursements,
as and when incurred, of investigating, preparing or defending any such
action, suit, proceeding or investigation (whether or not in connection
with litigation in which IPX is a party), directly or indirectly,
relating to based upon, arising out of, or in connection with, any
transaction, financing, proposal or any other matter contemplated by
the engagement of IPX pursuant to that certain Agreement, dated
February 04, 2011 between the Company and IPX to which these
indemnification provisions are attached and form a part (the
"Agreement"), except to the extent that any such Liability is found in
a final judgment by a court of competent jurisdiction (not subject to
further appeal) to have resulted primarily and directly from IPX' gross
negligence of willful misconduct, and provided that Liabilities
resulting form actions brought by the Company against IPX shall be
covered by the final sentence of this paragraph. The Company also
agrees that IPX shall not have any liability (whether direct or
indirect, in contract or tort or otherwise) to the Company for or in
connection with the engagement of IPX, except to the extent that any
such liability is found in a final judgment by a court of competent
jurisdiction (not subjected to any further appeal) to have resulted
primarily and directly from IPX's gross negligence or willful
misconduct.
The indemnification provisions shall (subject to the limitation set
forth above) be in addition to any liability which the Company may
otherwise have to IPX or the persons identified below in this sentence
and shall extend to the following: IPX, its affiliated entities,
partners, employees and controlling persons (within the meaning of the
federal securities laws), and the officers, directors, employees and
controlling persons of any of them. All references to IPX in these
indemnification provisions shall be understood to include any and all
of the foregoing.
If any action, suit, proceeding or investigation is commenced, as to
which IPX proposes to demand indemnification, it shall notify the
Company in writing with reasonable promptness (but any failure by IPX
to notify the Company shall not relieve the Company from its
obligations hereunder unless such failure shall materially and
adversely affect the Company); and the Company shall promptly assume
the defense of such action, suit or proceeding, including the
employment of counsel (reasonably satisfactory to IPX) and payment of
fees and expenses. IPX shall have the right to retain its own counsel
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of its own choice to represent it and such counsel shall, to the extent
consistent with its professional responsibilities, cooperate with the
Company and any counsel designated by the Company, but the fees and
expenses of such counsel employed by IPX shall be at the expense of IPX
unless (i) the employment of such counsel shall have been authorized in
writing by the Company in connection with the defense of such action,
(ii) the Company shall not have promptly employed counsel reasonably
satisfactory to IPX, or (iii) IPX's outside legal counsel shall have
reasonably concluded and so advises IPX in writing that there may be
one or more legal defenses available to it which have substantial merit
and which are different from or additional to those available to the
Company and the Company does not assert such position(s), in any of
which events such fees and expenses shall be borne by the Company to
the extent incurred in connection with such defenses and the Company
shall not have the right to direct the defense of such action on
behalf of IPX. The Company shall be liable for any settlement of any
claim against IPX made with the Company's written consent, which shall
not be unreasonably withheld. The Company shall not, without the prior
written consent of IPX, which consent shall not be unreasonably
withheld, settle or compromise any claim, or permit a default or
consent to the entry of any judgment in respect thereof, unless such
settlement, compromise or consent includes, as unconditional term
thereof, the giving by the claimant to IPX of an unconditional release
from all liability in respect of such claim.
In order to provide for just and equitable contribution, if claim for
indemnification pursuant to these indemnification provisions is made
but it is found in final judgment by a court of competent jurisdiction
(not subject to further appeal) that such indemnification may not be
enforced in such case, even though the express provisions hereof
provide for indemnification in such case, then the Company, on the one
hand, and IPX, on the other hand, shall contribute to the losses,
claims, damages, obligations, penalties, judgments, awards,
liabilities, costs, expenses, and disbursements to which the
indemnified persons may be subject in accordance with the relative
benefits received by the Company, on the one hand, and IPX, on the
other hand, and also relative fault of the Company, on one hand, and
IPX, on the other hand, in connection with the statements, acts or
omissions which resulted in such losses, claims, damages, obligations,
penalties, judgments, awards, liabilities, costs, expenses or
disbursements and the relevant equitable considerations shall also be
considered. No person found liable for fraudulent misrepresentation
shall be entitled to contribution from any person who is not also found
liable for such fraudulent misrepresentation.
Neither termination nor completion of engagement of IPX referred to
above shall affect these indemnification provisions which shall then
remain operative and in full force and effect.
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IPX CAPITAL
By: /s/Xxxx Xxxxxxxxx
-----------------------
Name: Xxxx Xxxxxxxxx
Title: Managing Director
AGREED AND ACCEPTED
IRON EAGLE GROUP, INC.
By: /s/Xxxxx Xxxxxxx
-----------------------
Name: Xxxxx Xxxxxxx
Title: Director
