Exhibit 10.13
ADVISORY AGREEMENT
January 19, 2006
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President
Soft Wave Media, Inc.
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Dear ▇▇. ▇▇▇▇▇▇:
This will confirm the engagement of Vista Development, LLC ("VISTA"),
by Soft Wave Media, Inc. (the "COMPANY"), on the terms and subject to the
conditions of this Agreement, to act as financial advisor to the Company.
As discussed, we propose to undertake certain services on your behalf,
to the extent requested by you, which shall consist of assisting the Company in
raising additional capital, which may include, but is not limited to assisting
the Company in: (i) executing an Initial Public Offering ("IPO") or identifying
a public shell company suitable for a reverse merger; (ii) structuring and
completing the IPO or the reverse merger with a public shell company and a
simultaneous equity raise; (iii) identifying and recruiting board members, a
chief financial officer and an appropriate public accounting firm; (iv)
developing an appropriate organizational structure and internal controls; (v)
selecting an investment bank and an investment advisor/placement agent for the
raising of additional capital; (vi) consummating the IPO or reverse merger; and
(vii) completing a second round of financing for the Company.
In consideration for the services to be rendered to the Company by
Vista, the Company shall pay Vista a monthly cash fee of $15,000 (commencing the
first full calendar month following the date of this Agreement) during the term
of this Agreement; such fee shall be payable monthly in arrears (within 10 days
following the end of each month). The Company shall also, upon request by Vista
from time to time, reimburse Vista promptly for all reasonable, authorized and
documented out-of-pocket expenses incurred by Vista in connection with its
engagement hereunder; PROVIDED, HOWEVER, that Vista shall not, without the prior
written approval of the Company, (i) incur any individual expense greater than
$500, or (ii) incur aggregate expenses of greater than $2,000 during the course
of any given month. It is understood that all or a portion of the $15,000
monthly fee may be utilized by Vista to engage other professionals in the
fulfillment of the services stated herein with the written approval of the
Company. The fees payable to Vista in accordance with this paragraph shall be
payable whether or not an IPO, reverse merger, or second round of financing is
completed, provided that Vista is operating in good faith and using its
commercial best efforts in connection with its duties hereunder.
Vista has executed and delivered a Confidentiality Agreement of even
date herewith and, unless the Company shall otherwise agree, Vista shall cause a
copy thereof to be executed and delivered to the Company for any third parties,
agents, independent contractors, officers or employees of Vista having access to
confidential information of the Company.
The Company and Vista agree to indemnify and hold each other harmless
from and against any and all losses, claims, actions, damages, liabilities and
expenses (including reasonable counsel fees) (collectively the "INDEMNIFIED
LIABILITIES"), caused by or arising out of or in connection with the other's
activities in connection with the IPO, reverse merger, second round of
financing, or other actions or services contemplated herein or provided pursuant
hereto, except such Indemnified Liabilities as are found in a final judgment of
a court to have resulted from the other's gross negligence or willful
misconduct. The indemnified party shall promptly notify the other of the threat
or assertion against the other of any claim or the commencement of any action or
proceeding for which indemnification rights hereunder exist. The indemnitor
shall, upon written notice, be entitled to assume the defense thereof at its
expense with counsel chosen by such indemnitor and reasonably satisfactory to
the other; PROVIDED, HOWEVER, that the indemnified party may retain separate
counsel to participate in such defense at its sole cost and expense.
This Agreement contains the entire agreement between the parties
relating to the subject matter hereof and supersedes all oral statements and
prior writings with respect thereto. This Agreement shall be amended only in
writing signed by the parties.
The term of this Agreement shall commence on the date set forth on the
first page hereof and shall continue until January 19, 2007, unless sooner
terminated as provided herein. This Agreement may be terminated by the Company
at any time with the written consent of Vista.
This Agreement shall be governed by, and construed in accordance with,
the laws of the State of New York. The parties hereto agree that any rule of
construction to the effect that ambiguities are to be resolved against the
drafting party shall not be applied in the construction or interpretation of
this Agreement.
It is understood that Vista is being engaged hereunder solely to
provide the services described above to the Company and that this Agreement does
not constitute a joint venture or partnership or create any agency or employment
relationship except as expressly provided herein. Vista shall have no right,
power or authority to assume or create any agreement, commitment or obligation
or to make any representation or warranty on behalf of the Company with respect
to any matter whatsoever.
A facsimile transmission of signatures to this Agreement in one or more
counterparts shall be legal and binding on the parties hereto.
If you agree with the foregoing, please execute the enclosed copy of
this Agreement in the space provided below and return it to us.
Very truly yours,
VISTA DEVELOPMENT, LLC
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Its: Manager
Accepted and agreed to:
SOFT WAVE MEDIA, INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
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Its: CEO
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Date: 1/19/06
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