Exhibit 10.9
FINDER'S and ADVISORY AGREEMENT
THIS AGREEMENT (the "Agreement") made on this __ day of ____________, 2001
by and between vSource1, Inc., xXxxxxx0.xxx, Inc., and vSource1 LLC and West
Park Capital, Inc. and Scarborough Capital, Inc. (the "Finder") and, Nutrastar,
Inc. (otcbb:NTRA) (the "Issuer"or the "Company").
THE PARTIES
1.1 Issuer, a ______________ corporation with its principal office at (Address)
1.2 Finder, a Georgia Subchapter S corporation, with its principal office
at 00 Xxxxxx Xxxx, Xxxxxxx, Xxxxxxx 00000.
1.3 Each person executing this Agreement mutually represents that they have
full and complete authority to do so and have been designated to do so by their
respective managers or Board of Directors.
2. THE AGREEMENT
2.1 Issuer seeks to be introduced to one or more businesses or entities
together with such businesses' or entities' subsidiaries, affiliates and related
companies (referred to herein as the "Target(s)") that are consistent with
Issuer's business and strategic plans that Issuer could either acquire all or
any portion of their capital securities or assets, or engage in a merger, joint
venture or other business arrangement with such business or entity (the
"Transaction"). Furthermore, the Finder may introduce the Company to investors
who may, at the discretion of the Company and the investor(s), complete an
investment transaction of which one or more purchasers may be all or part of a
private placement offering ("Offering"). The Offering and/or Transaction shall
be for equity securities of the Issuer on terms and conditions satisfactory to
the Issuer. As a result of the introduction(s) made by or through Finder to
Issuer to an investor (either a single investor or several investors referred to
herein as "Investors") or any related entity under Investors' control, should
all or any part of the Offering and/or Transaction be placed with Investors or
closed by the Issuer and the Target, then Issuer shall owe Finder such fees as
described herein on page 3. Should Issuer close on any introduction pursuant to
a Transaction(s) under this Agreement, that in itself shall serve as proof that
the Offering and/or Transaction met the terms and conditions that were
satisfactory to Issuer.
2.2 Unless provided otherwise within this agreement, it is acknowledged by
Issuer that: Finder has acted solely as a finder and not in any other capacity;
Finder has not advised Issuer in any manner regarding the merits of this or any
other financing arrangement, acquisition, merger, joint venture or other
business arrangement; Finder has consulted its own counsel on all aspects of
this Offering and/or Transaction; Finder has not made any representations to
Issuer to induce it into this Agreement; and Finder shall not sell or offer to
sell securities related to this Offering and/or Transaction.
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2.3 As it pertains to an investment or an Offering, Issuer shall be
under no obligation to pay any fee or other monies to Finder on account of this
Agreement unless (a) the purchase of all or part of the Offering contemplated by
this Agreement has closed with Investors and/or the Transaction has closed with
a Target. For purposes of this Agreement, the total amount of the fee due Finder
shall be due and payable on the date of the closing of the Offering and/or
Transaction. Issuer shall be under no obligation to consummate any such Offering
and/or Transaction, except upon such terms as shall be acceptable to Issuer in
its sole discretion. However, if Issuer declines to accept such bona fide terms
as proposed to the Company by the Investor(s), then the Finder has the right to
terminate this agreement and the Company will pay a fee of $0.00 to the finder
in consideration for the contacts and effort provided by the finder to obtain
such terms and offers.
2.4 Prior to the introduction to any particular investor and/or Target,
Finder will first disclose the identity of that proposed Investor and/or Target
to the Issuer. Issuer, at its sole discretion, can approve or decline whether
such introduction can be made to that Investor and/or Target. If Issuer does not
approve or decline whether such introduction can be made to that investor and/or
Target within 24 hours of the disclosure of the identity of that investor and
/or Target by Finder to Issuer, then such inaction shall be deemed an approval.
If the Investor or Target learns of the Issuer from the Finders Internet site or
any other venue or forum suggested by the Finder and contacts the Issuer
directly to pursue an investment or any transaction with the Issuer, then the
Finder is required to be compensated as described in paragraph 2.1, 2.3 and 2.5.
2.5 This Agreement is for an initial period of one year from the date
that the Issuer indicates their approval by signing this agreement or so noting
electronically by responding to queries over the Finder's Internet site.
However, either party may cancel this agreement in writing within 30 days of the
expiration date of this initial one year period. If notification is not tendered
within this period than this agreement will automatically renew for another 12
month period from the expiration date. After this agreement has expired, then
neither party will have any obligations towards the other party unless
previously introduced Investors are actively negotiating with Issuer at
expiration time, then this Agreement will survive until such time as the active
dealings either terminate or an Offering and/or Transaction is closed.
Furthermore, if at any time in the future, the Issuer proceeds to transact an
offering with any Investor and/or target introduced by the Finder, than the
finder will be entitled to collect all of such fees as would normally be due
within the provisions of this agreement. All introductions made by the finder
will continue to be considered introduction(s) by the finder even after this
agreement has expired.
3. THE FEE
3.1 The fee for Acquisition Services as hereinafter defined as the
introduction by Finder to Issuer of Investors, to be paid to Finder by Issuer
pursuant to this Agreement, shall be a sum computed as follows:
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A. _ Percent (_%), plus B. _ percent (_%) for unaccountable expenses, of all
funds raised from the sale of Issuer securities to Investors as a result of
the introduction of Investors to Issuer by Finder shall be paid to Finder
in cash upon the closing of such sale. The term "funds raised" shall
include all funds due to Issuer under the agreement between Issuer and
Investors regardless of when those funds may be payable to Issuer.
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Amount Funded A. Fee B. Unaccountable Expenses
--------------------------- -----------------------------------------
$1,000,000 to $5,000,000 5% 2%
--------------------------- -----------------------------------------
$5,000,001 to $10,000,000 4% 1.5%
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$10,000,001 to $25,000,000 3% 1.5%
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$25,000,000 and up 2% 1%
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$0 to $1,000,000 10% 3%
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B. Plus, 10% of the transaction value in cashless warrants of the Issuer on
the same pricing and conditions as the Transaction or Issue warrants.
C. In the event that the Finder arranges a credit line or any traditional or
non traditional bank debt placement, or an equity line with any Investor
appropriate to provide this facility, then the Company can elect to pay the
Finder 2% of the agreed upon total debt, equity or credit facility at the
time of a closing for such facility.
OR
D. In the event that Finder introduces or identifies a business or entity to
Issuer and Issuer subsequently acquires all or any portion of the capital
securities or assets of, or engages in a merger, joint venture or other
business arrangement with, such business or entity (the "Acquisition
Services"), then the Issuer will compensate Finder (based on the
Transaction Value, as defined below) for such services in an amount equal
to:
7% on the first $5,000,000 of the Transaction Value;
6% on the amount from $5,000,001 to $10,000,000;
5% on the amount from $10,000,001 to $15,000,000;
4% on the amount from $15,000,001 to $20,000,000;
3% on the amount from $20,000,001 to $25,000, 000, and
3% on the amount in excess of $25,000,000.
E. Plus, 10% of the transaction value in cashless warrants of the Issuer on
the same terms and conditions as the Transaction or Issue warrants.
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"Transaction Value" shall mean the aggregate value of all
cash, securities and other property (i) paid to Issuer, its
affiliates or their shareholders in connection with any
transaction referred to in this paragraph involving any
investment in or acquisition of Issuer or any of Issuer's
affiliates (e.g., an entity that directly, or indirectly,
through one or more intermediaries controls or is controlled
by, or is under common control with Issuer) (or the assets of
either), (ii) paid by or to the Issuer or any affiliate in any
such transaction, or (iii) paid or contributed by Issuer or an
affiliate and by the other party or parties in the event of
any such transaction involving a merger, consolidation, joint
venture or similar joint enterprise or undertaking. The value
of any such securities shall be the fair market value thereof,
as determined in good faith by Issuer's Board of Directors and
set forth in the relevant acquisition or other applicable
agreement. If Issuer seeks financing in addition to
acquisition candidates, then Issuer shall pay an additional
fee to the Finder for such service.
3.2 The fee due to Finder shall be payable to Finder by Issuer at
closing and dispersed from the closing escrow. The escrow agent shall release
the fee to Finder at the same time as the balance of escrowed funds are released
to Issuer and the certificates are sent to Investors and/or Target or its
security holders. The Issuer is responsible for such fee and if the investor
refuses to comply, then the finder has the right to collect such fee from the
Issuer immediately after a Transaction has occurred.
4. OTHER
4.1 Unless otherwise arranged between the Issuer and the Finder, any
arrangements made by Finder with any broker or other persons with whom
Finder is or may be involved are the total responsibility of Finder.
Upon payment made by Issuer to Finder of Finder's fee, Finder will
hold Issuer free and harmless from any and all claims, liabilities,
commissions, fees or expenses in connection with the transaction from
any party who alleges a relationship with or through Finder and the
Investors and/or Target.
4.2 Finder will have the right to publicize its relationship with the
Issuer and use any means it deems necessary to attract funds for the
benefit of the Issuer, including to advertise, issue correspondence
through traditional and/or electronic methods, or use telephonic
methods to promote the Issuer. Once a transaction is completed, the
Finder will have the right to publicize its involvement in the
transaction and/or list a tombstone about the transaction.
4.3 In the event of any dispute between Issuer and Finder arising under or
pursuant to the terms of this Agreement, or any matters arising under the terms
of this Agreement, the same shall be settled only by arbitration in Xxxxxx
County, City of Atlanta, State of Georgia, in accordance with rules and
regulations of the American Arbitration Association. The determination of the
arbitrators shall be final and binding upon Issuer and Finder and may be
enforced in any court of appropriate jurisdiction.
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4.4 This Agreement shall be construed by and governed exclusively under
the laws of the State of Georgia, without regard to its conflicts of laws
provisions.
4.5 This Agreement contains the entire agreement between Finder and
Issuer concerning the introduction of Investors to Issuer and correctly sets
forth the rights and duties of each of the parties to each other concerning this
matter as of this date. Any agreement or representation concerning the subject
matter of this Agreement or the duties of Finder to Issuer in relation thereto,
not set forth in this Agreement, is null and void.
4.6 Issuer shall include in any agreement executed by Issuer with any
Investor and/or Target regarding the Offering and/or Transaction, the following
representation: "(the Investor and/or Target) has performed its own due
diligence investigation and has had the opportunity to ask questions of (the
Issuer) and its management team and analyze their responses. (The Investor
and/or Target) has not relied on any representations not made by (Issuer)and
expressly set forth in the purchase agreement. Both parties to the purchase
agreement shall release and hold harmless (the Finder) and from and against any
losses, claims, damages or liabilities related to the Offering and/or
Transaction."
4.7 Issuer shall include in any agreement executed by Issuer with any
Investor regarding the Offering and/or Transaction, a covenant requiring Finder
to be paid its fees hereunder either from the funds held in escrow pending the
closing of the Offering and/or Transaction or directly from the Investors and/or
Issuer in accordance with the wiring instructions attached hereto as Exhibit A.
4.8 Issuer agrees to indemnify and hold harmless Finder and each
person, if any, who controls Finder within the meaning of the Securities Act of
1933, as amended (the "Act"), its employees, agents, and the Finder's counsel
against any losses, claims, damages or liabilities, joint or several (which
shall, for all purposes of this Agreement, include, but not be limited to, all
reasonable costs of defense and investigation and all attorneys' fees), to which
Finder, any controlling person, its employees, agents, or Finder's counsel may
become subject, under the Act or otherwise, insofar, as such losses, claims,
damages or liabilities (or actions in respect thereof) (i) arise out of or are
based upon any untrue statement or alleged untrue statement of any material fact
contained in the Offering and/or Transaction documents and agreements; or (ii)
arising out of or are based upon the omission or alleged omission to state in
the [Offering] [Transaction] documents and agreements any material facts
required to be stated therein or necessary to make the statements therein not
misleading.
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IN WITNESS WHEREOF, the parties have signed this Agreement on the date first
written above.
Company: Nutrastar, Inc.
(The "Issuer" or the "Company")
By: _______________________________
Title:______________________________
VSource1, Inc. and xXxxxxx0.xxx, Inc.
(The "Finder")
By: Xxxxxx Xxxx
Xxxxxx Xxxx
President
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