MERGERS AND ACQUISITIONS CONSULTING AGREEMENT
MERGERS
AND ACQUISITIONS CONSULTING AGREEMENT
Mergers
and Acquisitions Consulting Agreement made this 1st day of July, 2008 by and
between Emvelco Corp. (the "Company"), a Delaware corporation with an address
at
00000 Xxxxxxxx Xxxx., Xxxxx 0000., Xxx Xxxxxxx, Xxxxxxxxxx and TransGlobal
Financial LLC, a California limited liability company with a mailing address
at
0000 Xxxxxxx Xxxx Xxxxxx, #000, Xxx Xxx, XX 00000 (the
"Consultant")
WITNESSETH:
A. The
Company desires to engage the services of the Consultant for purposes of
assisting the Company in identifying, evaluating and structuring mergers,
consolidations, acquisitions, joint ventures and strategic alliances in energy
related businesses.
B. Consultant
is desirous of performing such services on behalf of the Company and desires
to
be engaged and retained by the Company upon the terms and conditions provided
for herein.
NOW,
THEREFORE, in consideration of the recitals, promises and conditions in this
Agreement, the Consultant and the Company agree as follows:
1. Consulting
Services.
The
Company hereby retains the Consultant on a non- exclusive but priority basis,
and exclusive basis with regards to those specific services on Transactions
(as
defined below) and the Consultant accepts such retention for the following
functions, services and duties:
1.1 Acquisition
Consulting Services.
The
Consultant agrees that during the term of this Agreement it will assist the
Company in the identification, evaluation, structuring, negotiating and closing
of business acquisitions, whether in the form of asset purchases, stock
purchases, mergers, consolidations, joint ventures, strategic alliances or
otherwise (“Transactions”).
1.2
Conditions
of Compensation. Compensation
shall be paid only in connection with Transactions:
1.2.1 proposed
by the Consultant and accepted and actually undertaken by the Company. The
Consultant shall be free to offer the same Transaction to others if the Company
does not accept it within ten (10) business days or is not able to prove
financial capability of undertaking the Transaction in 21 days after accepting
it; and
1.2.2 that
the
Company requests the Consultant’s assistance in writing.
1.3 The
Transactions that the Consultant has been engaged in prior to the execution
of
this Agreement are: Laud Petroleum, Perm, Russia; SRC Biodiesel Refinery,
Houston, Texas and Thermal Solar Generation Projects, Cyprus and
Turkey.
2. Term.
The
term of this Consulting Agreement shall be for a five (5) year period commencing
on the date hereof.
3. Compensation.
3.1 As
full
consideration for the services to be provided pursuant to paragraph 1 of this
Agreement, the Consultant shall be entitled to have a 20% carried interest
in
any Transaction closed by the Company, subject to 1.2 above. At the Consultant’s
sole option, compensation may be paid in restricted Company stock in an amount
equal to 20% of any transaction’s value undertaken by the Company pursuant to
paragraph 1 above. Transaction value shall be the market value on the day of
the
closing of stock, cash; assets and all other property (real or personal)
exchanged or received, directly or indirectly by the Company or any of its
security holders in connection with any such transaction.
3.2
The
obligation of the Company to pay the fees described in subparagraph 3 of this
Agreement shall be absolute and unconditional as long Consultant performs its
obligations under this Agreement, and shall be payable without offset, deduction
or claim of any kind or character. In the event that this Agreement shall not
be
renewed or if terminated for any reason, notwithstanding any such non-renewal
or
termination, Consultant shall be entitled to a full fee as provided under
paragraph 3.1 and expense reimbursement as provided in paragraph 4 hereof,
for
any transaction for which the discussions were initiated during the term of
this
Agreement and which is consummated within a period of eighteen months after
non-renewal or termination of this Agreement.
3.3 The
Company hereby acknowledges and consents that Consultant may receive additional
fees or other compensation from one or more of the lenders, subscribers,
customers, investors or parties to any transaction described in this Agreement
or any sources of funding identified by Consultant, for various services which
may include, in part, services related to this Agreement.
3.4 The
Company hereby acknowledges and consents that Consultant may receive additional
fees or other compensation from one or more of the lenders, subscribers,
customers, investors or parties to any transaction described in this Agreement
or any sources of funding identified by Consultant, for various services which
may include, in part, services related to this Agreement.
4. Expenses. In
addition to the compensation payable hereunder, and regardless of whether any
transaction set forth in paragraph 1.1 hereof is proposed or consummated, the
Company shall reimburse the Consultant for all fees and disbursements of the
Consultant’s travel and out-of-pocket expenses incurred in connection with the
services performed by the Consultant pursuant to this Agreement, including
without limitation, hotels, food and associated expenses and long distance
calls.
5. Consultant's
Services to Others.
The
Company acknowledges that the Consultant or its affiliates are in the business
of providing financial advisory and investment banking consulting advice to
others. Nothing contained in this Agreement shall be construed to limit or
restrict the Consultant in conducting such business with others, or in rendering
such advice to others, except to any direct competitors of the Company.
Furthermore, notwithstanding anything to the contrary herein, Consultant shall
not be required to, and shall not, negotiate the terms of any securities related
transactions with any investors in the event that the Company seeks to engage
in
any financing activities, shall not negotiate the terms of any agreements
related to financing activities and although Consultant may make introductions
to potential investors and broker dealer securities firms, Consultant shall
not
participate in any meetings with potential investors or with any broker dealer
firms other than to introduce the parties.
6. Representation
and Indemnification by Company.
(a) The
Company shall be deemed to make a continuing representation of the accuracy
of
any and all material facts, material, information, and data which it supplies
to
the Consultant and the Company acknowledges its awareness that the Consultant
will rely on such continuing representation in disseminating such information
and otherwise performing duties under this Agreement.
(b) The
Consultant, in the absence of notice in writing from the Company, will rely
on
the continuing accuracy of material, information and data supplied by the
Company.
(c) The
Company hereby agrees to indemnify the Consultant against, and to hold the
Consultant harmless from, any claims, demands, suits, loss, damages, etc.
arising out of the Consultant's reliance upon the accuracy and continuing
accuracy of such facts, material, information and data, unless the Consultant
has been negligent in fulfilling his duties and obligations
hereunder.
(d) The
Company hereby agrees to indemnify the Consultant against, and to hold the
Consultant harmless from, any claims, demands, suits, loss, damages, etc.
arising out of the Consultant's reliance on the general availability of
information supplied to the Consultant and the Consultant's ability to
promulgate such information, unless the Consultant has been grossly negligent
in
fulfilling his duties and obligations hereunder.
7. Representation
and Indemnification by Consultant.
(a) The
Consultant agrees to provide its services hereunder in a good and workmanlike
manner consistent with the performance standards observed by other professionals
undertaking such functions.
(b) The
Consultant agrees that it will not release or disseminate any information
pertaining to the Company without providing the Company with an advance copy
thereof and obtaining authorization for such release and
dissemination.
(c) The
Consultant hereby agrees to indemnify the Company against, and to hold the
Company harmless from, any claims, demands, suits, loss, damages, etc. arising
out of any inaccurate statement or misrepresentation provided that such
indemnification shall not pertain to any information provided by or attributable
to the Company.
8. Relationship
of Parties.
The
Consultant is an independent contractor, responsible for compensation of its
agents, employees and representatives, as well as all applicable withholding
therefrom and taxes thereon (including unemployment compensation) and all
workers compensation insurance. This Agreement does not establish any
partnership, joint venture, or other business entity or association between
the
parties, and neither party is intended to have any interest in the business
or
property of the other.
9. Termination.
This
Agreement may not be terminated by either party prior to the expiration of
the
term provided in Paragraph 2 above except as follows:
(a) Upon
failure of the other party to cure a material default under, or a breach of,
this Agreement within thirty (30) days after written notice is given as to
such
breach by the terminating party;
(b) Upon
the
bankruptcy or liquidation of the other party, whether voluntary or
involuntary;
(c) Upon
the
other party taking the benefit of any insolvency law; and/or;
(d) Upon
the
other party having or applying for a receiver appointed for all or a substantial
part of such party's assets or business.
10. Disclaimer
by Consultant.
The
Consultant makes no representation that (a) the price of the Company's
publicly-traded securities will increase, (b) any person will purchase
securities in the Company as a result of the contract, or (c) any investor
will
lend money to or invest in or with the Company.
11. Non-Assignability.
The
rights, obligations and benefits established by this Agreement shall not be
assignable by either party hereto except with the consent of the other. This
Agreement shall, however, be binding upon and shall inure to the benefit of
the
parties and their successors.
12. Governing
Law.
The
terms and provisions of this Agreement shall be governed by and construed under
the laws of the State of California.
13. Notice.
Notice
hereunder shall be in writing and shall be deemed to have been given (a) at
the
time when deposited for mailing in a receptacle under the control of the United
States Postal Service, by registered or certified mail, prepaid, return receipt
requested, or (b) on the business day following deposit with a reputable
overnight courier for overnight delivery; each addressed to the respective
party
at the address of such party first above written or at such other address as
such party may fix by notice given pursuant to this paragraph.
14. No
Other Agreements.
This
Agreement supersedes all prior understandings, written or orally given and
constitutes the entire Agreement between the parties hereto with respect to
the
subject matter hereof. No waiver, modification or termination of this Agreement
shall be valid unless in writing signed by each of the parties
hereto.
15. Xxxx
Xxxxxxxx Gas Company, LLC.
Xxxx
Xxxxxxxx Gas Company, LLC (“DCG”) f/k/a the Xxxxx Ranch which was subject to
acquisition by the Company is excluded from this Agreement in its entirety.
In
other words, Consultant
and the Company agree that the DCG transaction is not subject to this Agreement,
and Consultant is NOT entitled to ANY fee in connection with said transaction.
IN
WITNESS WHEREOF, the parties have hereunto set their hands and seals the day
and
year first above written.
| EMVELCO CORP. | ||
| |
|
|
| By: | /s/ Xxxxx Xxxxx | |
|
Xxxxx Xxxxx, Chief Executive Officer |
||
| TRANSGLOBAL FINANCIAL SERVICES LLC | ||
| |
|
|
| By: | /s/ Xxxx X. Mustafoglu | |
|
Xxxx
X. Mustafoglu
President
|
||
