UNISE INVESTMENT CORP.
Exhibit 10.10
UNISE
INVESTMENT CORP.
April 22,
2009
Sparking
Investments, Inc.
0000 X.
Xxxxxxx Xxxx, #000X
Xxx
Xxxxx, Xxxxxx 00000
Attn:
Yao-Ting Su
Dear Mr.
Su:
This
financial advisory agreement (the “Agreement”) is made and entered into as of
the date above (the “Effective Date”), by and between Unise Investment Corp., a
New York corporation (“Unise”) and Sparking Events, Inc., a publicly owned
Nevada corporation, and its subsidiaries, affiliates, portfolio companies and/or
investments (collectively hereinafter the "Company"), for the purpose of
defining and acknowledging the terms of this Agreement.
In
consideration of the mutual promises made herein and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
1. Exclusivity.
The Company hereby engages Unise on a non-exclusive basis for the term specified
in Paragraph 2 hereof to render services to the Company as its corporate finance
consultant and financial advisor upon the terms and conditions set forth
herein.
2. Term
and Termination. This Agreement shall be effective for a period of one year (the
“Initial Term”), commencing upon the Effective Date of this Agreement and may be
extended as the parties shall mutually agree in writing (the “Term”), subject to
the establishment of arrangements for additional compensation and other
appropriate terms for such extension. Beginning sixty (60) days after the
Effective Date of this Agreement, either party may terminate Unise’s engagement
hereunder at any time by giving the other party at least sixty (60) days prior
written notice, subject to the provisions of Paragraph 4 through 14, all of
which shall survive any termination of this Agreement.
3. Services
to be Provided. During the Term of this Agreement, Unise shall provide the
Company with such regular and customary consulting advice as is reasonably
requested by the Company, provided that Unise shall not be required to undertake
duties not reasonably within the scope of the financial advisory services
contemplated by this Agreement.
It is
understood and acknowledged by the parties that the value of Unise advice is not
readily quantifiable, and that Unise shall be obligated to render advice upon
the request of the Company, in good faith, but shall not be obligated to spend
any specific amount of time in so doing.
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Initials:____
The
Company recognizes and confirms that in advising the Company in completing its
engagement hereunder, Unise will be using and relying on data, material and
other information furnished to Unise by the Company. It is understood that in
performing under this engagement Unise may reasonably rely upon any information
so supplied without independent verification and that Unise shall not have any
responsibility for such independent verification. As a condition to Unise's
obligation to provide services hereunder, the Company represents, warrants and
covenants to Unise that none of the information furnished to Unise by the
Company shall include any untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements made, in light of the
circumstances under which they are made, not misleading. Unise agrees
that it will keep confidential and not disclose or permit its employees or
representatives to disclose information received from the Company (other than to
Unise employees involved in the performance of services hereunder or otherwise
on a need-to-know basis), or otherwise use such information, except as
contemplated in this letter agreement, as may be authorized by the Company in
connection with Unise's performance of services hereunder, or as such disclosure
may be required by law.
The
Company acknowledges that all advice given by Unise in connection with its
engagement hereunder is intended solely for the benefit and use of the Board of
Directors and senior management of the Company. Except as may be
required by applicable law, the Company agrees that no such advice shall be used
for any other purpose or be reproduced, disseminated, quoted or referred to at
any time, in any manner or for any purpose, nor shall any public references to
Unise be made by or on behalf of the Company, in each case without Unise's prior
written consent.
The
Company recognizes that Unise has been retained only by the Company and that its
engagement is not deemed to be on behalf of, and is not intended to confer any
rights or bestow the status of third-party beneficiary upon, any shareholder or
employee of the Company, or any other person not a party hereto as against Unise
or any of its affiliates, their respective limited and general partners,
directors, officers, agents and employees or each other person, if any,
controlling Unise or any of its affiliates. Unless otherwise expressly stated in
writing by Unise, no advice or opinions rendered to the Board of Directors or
management of the Company during the course of the engagement hereunder shall
constitute a recommendation to any other party and no one other than the
Company, its directors and its senior management, is authorized to rely upon the
engagement of Unise or any statements or conduct by Unise. Moreover, it is
acknowledged that the relationship of Unise to the Company is that of an
independent contractor, that the obligations and responsibilities of Unise to
the Company are limited to those specifically set forth herein, and that Unise,
by entering into this agreement and satisfying its obligations hereunder, does
not assume any fiduciary duties with respect to the Company, its Board of
Directors, its management, its employees or its shareholders. All decisions made
with respect to potential financings and mergers and acquisition transactions,
whether or not consistent with advice rendered by Unise, shall be those of the
Board of Directors or management of the Company, as the case may
be.
Unise’s
duties may include, but will not necessarily be limited to, providing
recommendations and assisting in the following:
Rendering
advice with regard to internal operations, including:
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the
formation of corporate goals and their
implementation;
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the
Company's financial structure and its divisions or
subsidiaries;
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securing,
when and if necessary and possible, additional financing through banks
and/or insurance companies; and
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corporate
organization and personnel; and
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Rendering
advice with regard to any of the following corporate finance
matters:
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changes
in the capitalization of the
Company;
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changes
in the Company's corporate
structure;
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redistribution
of shareholdings of the Company's
stock;
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sales
of securities in private
transactions;
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use
of funds not in the ordinary course of
business;
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alternative
uses of corporate assets; and
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structure
and use of debt; and
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Rendering
advice, assistance and introduction to third parties with regard to any of the
following merger, acquisition, joint venture or strategic alliance
activities:
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the
acquisition and/or merger of or with other
companies;
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joint
ventures or strategic alliances with other
companies;
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divestiture
or any other similar transaction;
and
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the
sale of the Company itself (or any significant percentage, assets,
subsidiaries or affiliates
thereof);
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(Such
activities shall also include Unise advising the Company in determining, if
appropriate, the best means and timing to effect a sale, merger, financing,
restructuring, joint venture or other combination or disposition of the Company,
its assets and/or its stock, or any portion thereof, whether owned directly or
indirectly, in one or more transactions (each a "Transaction" ) with any person
or entity (including, among others, former or existing creditors, investors,
affiliates, employees and/or shareholders), (all of the foregoing being
considered "Constituents"). To facilitate any such Transactions, if and when
appropriate, Unise will review a list of potential acquirers, investors and/or
strategic partners (jointly referred herein as "Investors") and, subject to the
Company' s consent in each case, interact with such Investors in an effort to
create interest in one or more Transactions. Unise will coordinate the
negotiating process with the Company and its other advisors, will actively
participate in negotiations, and otherwise reasonably assist the Company in
effectuating each Transaction, provided that the Company shall have the absolute
discretion to agree whether, and on what terms, to
implement any such Transaction.) and
Rendering
advice and/or assistance with regard to any bank financing or any other
financing from financial institutions or individuals (including but not limited
to revolving credit facilities, lines of credit, term loans, rediscounted credit
facilities, senior and junior loans, whether collateralized or unsecured,
etc.).
4.
Compensation. In consideration for the services previously
rendered and to be rendered by Unise to the Company pursuant to this Agreement,
the Company shall compensate Unise by the issuance of 111,667 shares of the
Company’s common stock (the “Advisory Fee”) due upon the execution of this
Agreement.
5.
Confidentiality. The Company acknowledges that all opinions
and advice (written or oral) given by Unise to the Company in connection with
Unise’s engagement are intended solely for the benefit and use of the Company in
considering the transaction to which they relate, and the Company agrees that no
person or entity other than the Company shall be entitled to make use of or rely
upon the advice of Unise to be given hereunder, and no such opinion or advice
shall be used for any other purpose or reproduced, disseminated, quoted or
referred to at any time, in any manner or for any purpose, nor may the Company
make any public references to Unise, or use Unise’s name in any annual reports
or any other reports or releases of the Company without Unise’s prior written
consent.
6. Independent
Contractor. The Company acknowledges that Unise is in the business of providing
financial consulting advice to others. Nothing herein contained shall be
construed to limit or restrict Unise in conducting such business with respect to
others, or in rendering such advice to others. Unise shall perform its services
hereunder as an independent contractor and not as an employee of the Company or
an affiliate thereof. It is expressly understood and agreed to by the parties
hereto that Unise shall have no authority to act for, represent or bind the
Company or any affiliate thereof in any manner, except as may be agreed to
expressly by the Company in writing from time to time.
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7.
Reliance. The Company recognizes and confirms that, in
advising the Company and in fulfilling its engagement hereunder, Unise will use
and rely on data, material and other information furnished to Unise by the
Company. The Company acknowledges and agrees that in performing its services
under this engagement, Unise may rely upon the data, material and other
information supplied by the Company without independently verifying the
accuracy, completeness or veracity of same.
8.
Notices. Any notice or communication permitted or required hereunder
shall be in writing and shall be deemed sufficiently given if hand-delivered or
sent (i) postage prepaid by registered mail, return receipt requested, or (ii)
by facsimile.
9.
Counterparts. This Agreement may be executed in any number of
counterparts, each of which together shall constitute one and the same original
document.
10.
Assignability and Modification. This Agreement is
not assignable and cannot be modified or changed, nor can any of its provisions
be waived, except by the mutual agreement in writing of all
parties.
11.
Indemnification. The Company
(the "Indemnitor) hereby agrees to indemnify and hold Unise
(hereinafter referred to as the "Indemnitee") and each and every one of the
directors, officers, employees and shareholders of the Indemnitee
(hereinafter referred to as the "Personnel") harmless from and against any and
all expenses, losses, claims, actions, damages or liabilities, whether joint or
several (including the aggregate amount paid in reasonable settlement
of any actions, suits, proceedings or claims), and
the reasonable fees and expenses of its counsel that may
be incurred in advising with respect to and/or defending any claim that may be
made against the Indemnitee to which the Indemnitee and/or its Personnel may
become subject or otherwise involved in any capacity under
any statute or common law or otherwise insofar as such expenses, losses, claims,
damages, liabilities or actions arise out of or are based, directly or
indirectly, upon the performance of professional services rendered to the
Indemnitor by the Indemnitee and its Personnel hereunder or otherwise in
connection with the matters referred to in the attached letter agreement,
provided, however, that this indemnity shall not apply to the extent that a
court of competent jurisdiction in a final judgment that has become
non-appealable shall determine that:
(i) the
Indemnitee or its Personnel have been negligent or dishonest or have committed
any fraudulent act in the course of such performance; and
(ii) the
expenses, losses, claims, damages or liabilities, as to which
indemnification is claimed, were directly caused by the negligence, dishonesty
or fraud referred to in above.
If for
any reason (other than the occurrence of any of the events itemized in (i) and
(ii) above, the foregoing indemnification is unavailable to the Indemnitee or
insufficient to hold it harmless, then the Indemnitor shall contribute to the
amount paid or payable by the Indemnitee as a result of such expense, loss,
claim, damage or liability in such proportion as is appropriate to reflect not
only the relative benefits received by the Indemnitor on the one hand and the
Indemnitee on the other hand but also the relative fault of the Indemnitor and
the Indemnitee, as well as any relevant equitable considerations provided that
the Indemnitor shall in any event contribute to the amount paid or payable by
the Indemnitee as a result of such expense, loss, claim, damage or liability any
excess of such amount over the amount of the fees received by the Indemnitee
hereunder.
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The
Indemnitor agrees that in case any legal proceeding shall be brought against
the Indemnitor and/or the Indemnitee by any governmental
commission or regulatory authority or any stock exchange or other
entity having regulatory authority, either domestic or
foreign, shall investigate the
Indemnitor and/or the Indemnitee and Personnel of the Indemnitee
shall be required to testify in connection therewith or shall be required to
respond to procedures designed to discover information regarding, in
connection with, or by reason of the performance of professional services
rendered to the Indemnitor by the Indemnitee, the Indemnitee shall have the
right to employ its own counsel in connection therewith, and the reasonable fees
and expenses of such counsel as well as the
reasonable costs and out-of-pocket expenses incurred by the Indemnitee and its
Personnel in connection therewith shall be paid by the Indemnitor as
they occur.
Promptly
after receipt of notice of the commencement of any legal proceeding
against the Indemnitee or any of its Personnel or after
receipt of notice of the commencement of any investigation, which is based,
directly or indirectly, upon any matter in respect of which indemnification may
be sought from the Indemnitor, the Indemnitee will notify the Indemnitor in
writing of the commencement thereof and, throughout the course thereof, will
provide copies of all relevant documentation to the Indemnitor, will keep the
Indemnitor advised of the progress thereof and will discuss with the Indemnitor
all significant actions proposed.
The
indemnity and contribution obligations of the Indemnitor shall be in addition to
any liability which the Indemnitor may otherwise have, shall extend upon the
same terms and conditions to the Personnel of the Indemnitee and shall be
binding upon and inure to the benefit of any successors, assigns, heirs and
personal representatives of the Indemnitor, the Indemnitee and any of the
Personnel of the Indemnitee. The foregoing provisions shall survive the
completion of professional services rendered under the Agreement or any
termination of the authorization given by the Agreement.
12. Choice
of Law and Venue. This Agreement and the rights of the parties
hereunder shall be governed by and construed in accordance with the laws of the
state of the defendant including all matters of construction, validity,
performance, and enforcement and without giving effect to the principles of
conflict of laws. Any legal action brought by the Parties shall be brought in
the State of New York, County of New York.
13. Dispute
Resolution. The parties shall attempt amicably to resolve disagreements by
negotiating with each other. In the event that the matter is not amicably
resolved through negotiation, any controversy, dispute or disagreement arising
out of or relating to this Agreement (a “Controversy”) shall be submitted to a
nationally recognized arbitration association, such as J.A.M.S./Endispute or the
American Arbitration Association, for final binding arbitration, which shall be
conducted by a single arbitrator (the “Arbitrator”) in New York, New York,
pursuant to J.A.M.S./Endispute’s Arbitration Rules (the “Rules”).
Notwithstanding anything to the contrary contained in the Rules, the Arbitrator
shall not award consequential, exemplary, incidental, punitive or special
damages.
If any
party shall desire relief of any nature whatsoever from any other party as a
result of any Controversy, such party will initiate such arbitration proceedings
within a reasonable time, but in no event more than one (1) year after the facts
underlying said Controversy first arise or become known to the party seeking
relief (whichever is later). The failure of such party to institute such
proceedings within said period shall be deemed a full waiver of any claim for
such relief. Arbitrator may award the prevailing party its costs for the
arbitration proceeding; including its reasonable attorneys' fees and
costs.
The
parties agree that the decision and award of the Arbitrator shall be taken, but
that such award or decision may be entered as a judgment and enforced in any
court having jurisdiction over the party against whom enforcement is sought. Any
equitable relief awarded under this paragraph shall be dissolved upon issuance
of the Arbitrator’s decision and order.
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Notwithstanding
the provisions for dispute resolution, in the event of a breach or threatened
breach by any party to this Agreement, either party shall be entitled in order
to maintain the status quo and pending the outcome of any arbitration pursuant
to this Agreement, seek an injunction or similar equitable relief restraining
either party, as the case may be, from committing or continuing any such breach
or threatened breach or granting specific performance of any act required to be
performed without the necessity of showing that money damages would not afford
an adequate remedy and without the necessity of posting any bond or other
security.
The
parties hereto hereby consent to the jurisdiction listed above for any
proceedings under this paragraph. The parties agree that the availability of
arbitration in the Agreement shall not be used by any party as grounds for the
dismissal of an injunctive action instituted by the other party.
15. Severability.
Each paragraph, term or provision of this Agreement shall be considered
severable and if, for any reason, any paragraph, term or provision is determined
to be invalid or contrary to any existing or future law or regulation, such will
not impair the operation, or affect the remaining portions, of this
Agreement.
| Very truly yours, | ||||
| UNISE INVESTMENT CORP. | ||||
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By:
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/s/ Shoo Chyn Kan | |||
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Name:
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Shoo Chyn Kan | |||
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Title:
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President | |||
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ACCEPTED
AND AGREED:
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By:
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/s/ Yao-Ting Su | |
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Name: Yao-Ting
Su
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Title:
Chairman
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