EXHIBIT 10.1
July 20, 1999
Xx. Xxxxx X. Xxxxxxx, Esq.
0000 Xxxxx 0xx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Re: Autocapital - Wapro B.V.
Dear Xx. Xxxxxxx:
Your office represents Autocapital with regard to the merger with Wapro
B.V. This letter sets forth the agreement ("Agreement") between Xxxxxx
Capital Corporation, an Arizona corporation ("MCC"), and Autocapital, Inc., a
shell company (hereinafter "Autocapital" or the "Company"), by which MCC will
introduce to Autocapital a third party purchaser (the "Purchaser") who
intends to acquire through purchase the majority of the outstanding common
stock ("Common Stock") of the Company. MCC will provide an introduction to
the acquiring Purchaser as detailed below.
I. RESPONSIBILITIES OF MCC
Subject to the terms and conditions hereof, MCC services will be limited
strictly to the introduction of Autocapital to the Purchaser interested in
acquiring through purchase the majority of the outstanding Common Stock of
the Company. MCC or its representative, Xxxxxxx X. Xxxxx, does not make any
representations or warranties regarding Autocapital.
It is expressly acknowledged and agreed by the parties hereto that MCC's
obligations do not insure the successful negotiation of or the final
completion of the transaction as contemplated by this Agreement.
MCC is not registered with the Securities & Exchange Commission (SEC) as a
broker/dealer or a member of the National Association of Securities Dealers
(NASD), and represents that it will not need to be so registered to carry out
its obligations hereunder. MCC's principal is a registered member in good
standing of the Institute of Management Consultants headquartered in New York
City.
It is expressly acknowledged and agreed by the parties hereto that MCC and
employees of MCC are independent contractors and are not employees or
officers of Autocapital.
Autocapital, Inc.
July 20, 1999
Page 2
II. COMPENSATION
In consideration of our referral services as set forth above, MCC shall be
entitled to receive, and Autocapital agrees to pay to MCC the following:
A. The term of this Agreement shall be 60 days and MCC will provide
the referral introduction immediately upon execution of this
Agreement.
B. MCC will receive a referral fee ("Referral Fee") in the form of a
cash payment in the amount of $75,000 payable in full upon closing the
transaction or receipt of funds by Autocapital. Cash payment in the
form of bank cashier's check is to be forwarded to:
Xxxxxx Capital Corporation
0000 Xxxx XxXxxxxx Xxxx
Xxxxxxx, XX 00000
C. AUTOCAPITAL SHALL HAVE SOLE DISCRETION IN DETERMINING WHAT
CONSTITUTES AN ACCEPTABLE REFERRAL AS CONTEMPLATED BY THIS AGREEMENT.
MCC shall earn the Referral Fee only upon the closing or receipt of
funds from the transaction as contemplated by this Agreement, and not
merely for presenting a referral option that in Autocapital's sole
discretion is unacceptable; and
D. MCC or its assigns shall be sold 400,000 pre-split shares of the
currently issued and outstanding control stock of Autocapital for
the price of $10 simultaneous with the completion of the acquisition
of the majority of the outstanding Common Stock of the Company by
the Purchaser.
III. EXCLUSIVITY
A. From the effective date of this Agreement, Autocapital and its
officer will not engage any other person or entity to serve as its
agent or representative to provide services similar to those to be
provided by MCC through the term of this Agreement without the prior
written consent of MCC.
B. If for a period of two (2) years after MCC's introduction of
Purchaser to Autocapital occurs a successful closing of the
transaction, as contemplated under this Agreement occurs, then MCC
shall be entitled to receive all compensation as defined in Section II
of this Agreement.
Autocapital, Inc.
July 20, 1999
Page 3
IV. INDEMNIFICATION
Since we will be acting on your behalf, it is our practice to receive
indemnification. Autocapital agrees to indemnify and hold harmless MCC against
any and all losses, claims, damages, liabilities or costs (and all actions in
respect thereof and any reasonable legal or other expenses in giving testimony
or furnishing documents in response to a subpoena or otherwise), including
the costs of investigating, preparing or defending any such action or claim,
whether or not in connection with litigation in which MCC is a party, as and
when incurred, directly or indirectly, caused by, relating to, based upon or
arising out of (a) any Purchaser introduction (as defined in or contemplated
by this engagement letter agreement, as it may be amended from time to time
(the "Agreement")), or (b) MCC's acting for Autocapital, including, without
limitation, any act or omission by MCC in connection with its acceptance of or
of the performance or nonperformance of its obligations under the Agreement;
PROVIDED, HOWEVER, such indemnity agreement shall not apply to any such loss,
claim, damage, liability or cost to the extent it is found to have resulted
primarily and directly from the gross negligence or willful misconduct of
MCC. Autocapital also agrees that MCC shall not have any liability (whether
direct or indirect, in contract or tort or otherwise) to Autocapital for or
in connection with the Agreement between Autocapital and MCC, except for any
such liability for losses, claims, damages, liabilities or expenses that is
found to have resulted primarily and directly from MCC's gross negligence or
willful misconduct.
This Indemnification Agreement shall be in addition to any liability which
Autocapital may otherwise have to MCC or its affiliates, and the
indemnification provided for shall extend personally to MCC's officers,
employees, agents, legal counsel and controlling persons of MCC within the
meaning of the Securities Act of 1933, as amended. All references to MCC in
this Indemnification Agreement shall be understood to include any of the
foregoing.
If any action, proceeding, or investigation is commenced or claim is made as
to which MCC proposes to demand indemnification, it will notify Autocapital
with reasonable promptness. Autocapital reserves the right to assume the
defense of MCC with counsel of its choosing, which counsel shall be
reasonably acceptable to MCC. Autocapital will be liable for any settlement
of any claim against MCC made without its written consent. MCC may not settle
any claim without the consent of Autocapital.
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. Notwithstanding the foregoing, MCC shall not be obligated to
contribute any amount under this Agreement that exceeds the amount of fees
MCC previously received pursuant to this Agreement.
If the indemnification provided for in this Indemnification Agreement shall for
any reason be unavailable to MCC in respect of any loss, claim, damage, or
liability, or any action in respect
Autocapital, Inc.
July 20, 1999
Page 4
thereof, referred to therein, then each Indemnifying Party shall, in lieu of
indemnifying such Indemnified Party, contribute to the amount paid or payable
by such Indemnified Party as a result of such loss, claim, damage, or
liability, or any action in respect thereof (i) in such proportion as shall
be appropriate to reflect the relative benefits received by Autocapital from
the applicable Purchaser transaction, or (ii) if the allocation provided by
clause (i) is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in such
clause (i), but also the relative fault of MCC, with respect to the actions
or inactions (including statements and omissions) that resulted in such loss,
claim, damage, or liability, or any action in respect thereof, as well as any
other relevant equitable considerations.
V. ENTIRE AGREEMENT
The Parties agree that this Agreement dated July 20, 1999, embodies the
entire agreement and understanding of the Parties and supersedes all
previous agreements, and that no understandings or agreements, verbal or
otherwise, exist between the Parties except as set forth in this Agreement.
Any modifications to the Agreement must be reduced to writing, signed by both
parties, and attached to the Agreement to be effective.
VI. SEVERABILITY
Should any section or any part of any section of the Agreement be rendered
void, invalid, or unenforceable by any court of law, for any reason, such a
determination shall not render void, invalid, or unenforceable any other
section or any part of any section in the Agreement.
VII. SURVIVAL OF REPRESENTATIONS
Each Party, for itself, and its successors, heirs, executors, administrators,
representatives, insurers, agents, and assigns, covenants and agrees that all
representations made hereunder and obligations created hereunder shall apply
to their successors and assigns; provided, however, that MCC shall not assign
this Agreement to a third party without the prior written consent of a duly
authorized representative of Autocapital, which consent shall not be
unreasonably withhold.
VIII. NOTICES
Any required notices under this Agreement shall be made by overnight courier
or certified mail, postage prepaid and return receipt requested as follows:
If to MCC:
Xxxx X. Xxxxxx
Chairman, President and CEO
Autocapital, Inc.
July 20, 1999
Page 5
Xxxxxx Capital Corporation
0000 Xxxx XxXxxxxx Xxxx
Xxxxxxx, Xxxxxxx 00000
If to Autocapital:
AUTOCAPITAL
c/o Xxxxx Xxxxxxx
0000 Xxxxx 0xx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
IX. CHOICE OF LAW
The validity and interpretation of this Agreement shall be governed by the
laws of the State of Arizona, without giving effect to the State of Arizona's
choice of law principles, and all actions arising under this Agreement or
arising out of the operative facts represented by services performed pursuant
to this Agreement shall be resolved in the courts of the State of Arizona.
X. HEADINGS
The headings are for informational purposes only and shall not constitute a
part of this Agreement.
Autocapital, Inc.
July 20, 1999
Page 6
XI. NO WAIVER OF BREACH
Waiver of any one breach of the provisions of this Agreement shall not be
deemed a waiver of any other breach of the same or any other provision of
this Agreement.
AGREED AND ACCEPTED:
Please confirm that the foregoing correctly sets forth our mutual
understanding by signing and returning the copy of this agreement provided
for that purpose.
Autocapital
By: /s/ Xxxxx X. Xxxxxxx Date: 8/13/99
------------------------- -----------------
Xxxxx X. Xxxxxxx, Esq.
Attorney for Autocapital
Xxxxxx Capital Corporation
Xxxx X. Xxxxx
By: /s/ Xxxx X. Xxxxx Date: 8/16/99
------------------------- -----------------
Xxxx X. Xxxxx
Executive Vice President
