AMBIZ ASSOCIATES, L.L.C. ADVISORY SERVICES AGREEMENT This Advisory Services Agreement (the “Agreement”, also sometimes referred to as an “AmBiz Rep Agreement”) sets forth the terms of the engagement of AMBIZ ASSOCIATES, L.L.C. also known as American...
AMBIZ
ASSOCIATES, L.L.C.
This
Advisory Services Agreement (the “Agreement”, also sometimes referred to as an
“AmBiz Rep Agreement”) sets forth the terms of the engagement of
AMBIZ
ASSOCIATES, L.L.C.
also
known as American Business Associates, L.L.C., a Nevada limited liability
company, its members, subsidiaries, successors, affiliates and assigns, formerly
known as AmBiz Partners, L.L.C. (“AmBiz”),
by
SUMMIT
ENVIRONMENTAL CORPORATION, INC.
A
Texas
Corporation, whose office address is as set forth opposite its signature below,
and its officers, directors, subsidiaries, successors, and affiliates
(“Summit”).
1.
Agreement. Summit
engages AmBiz on a nonexclusive basis to act as an advisor for the purpose
of
rendering such of the following services as Summit may from time to time
request:
Strategic
marketing advice;
Referral
to and or assistance in negotiating distribution and or retail
agreements
with target distribution and or retail channels;
Product
marketing advice and referrals to product purchasers;
Strategic
alliance, mergers and or acquisitions advice;
Investment
banking and or other debt and equity fund raising advice, and
Such
other services as Summit and AmBiz shall agree upon
which
may
include acting in an advisory capacity for the
management
and or Board of Directors of Summit;
As
set
forth herein.
All
decisions with respect to any specific engagement and potential transactions
will remain the sole option and decision of Summit.
2.
Effective Date and Term.
This
engagement shall become effective as of the later date set forth opposite the
parties’ signatures below (the “Effective Date”), and shall continue for a
period of three years unless terminated by either party upon thirty (30) days
prior written notice. Such term may be extended in writing upon mutual agreement
of the parties. Upon expiration or termination the provisions hereof relating
to
confidentiality, the payment of fees and expenses, indemnification and
non-circumvention (Paragraphs 4-8 below) will survive, unless terminated for
the
gross and willful negligence or misconduct of AmBiz.
AmBiz
Associates, LLC
▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Exhibit
10.15
Page
of
1 of 9
3.
No Liability. It
is
understood that any presentation Materials will be based upon assumptions and
information provided by Summit or Summit’s contracted third party consultants.
AmBiz will not be required to make or be responsible for any independent
analysis or investigation of any information provided by Summit, unless
specifically requested by Summit to assist in preparation thereof, for which
AmBiz shall be compensated separately. AmBiz assumes no responsibility or
liability as to the truth, accuracy or completeness of such information. Summit
herewith warrants and represents to AmBiz that all such Materials shall be
accurate and truthful and shall constitute a full disclosure of Summits’
business, markets, technology, management and financing. AmBiz shall have the
right to make appropriate disclaimers with respect to any such Materials.
Although AmBiz may be requested to conduct a due diligence review and make
suggestions regarding the Materials, the contents, including but not limited
to
the completeness, truth and accuracy thereof, are the sole responsibility of
Summit and are not that of AmBiz.
4.
Success Fees For Advisory Services. Summit
will pay AmBiz the fees set forth on Exhibit A hereto in consideration of AmBiz’
services. If within thirty six (36) months following expiration or termination
of this Agreement (unless the termination is for the gross and willful
negligence or misconduct of AmBiz), any transaction is closed with any party
identified by AmBiz prior to such expiration or termination, the Success Fees
shall be payable to AmBiz in accordance with this paragraph and Exhibit A
hereto. In furtherance thereof, Summit hereby additionally agrees that during
the term of this Agreement and for a period of three (3) years thereafter,
Summit, its officers, directors, employees, agents, subsidiaries, affiliates
and/or successors shall not directly or indirectly
a. offer
any
of its investments, property, securities (or any instrument similar to
securities) for sale to or exchange with, or solicit any offer to purchase
or
exchange thereof to, or otherwise contact, approach or negotiate with;
or
b. sell
any
of its products of services to; or
c. enter
into any strategic alliance or relationship with;
any
party
introduced to or referred to Summit by AmBiz during the term hereof, except
with
the prior written consent of AmBiz and only upon the payment of the fees
specified to AmBiz. Summit shall promptly notify AmBiz of such pending
transactions. Summit hereby agrees that its officers, directors, employees,
agents, subsidiaries, affiliates, and/or successors are bound by the terms
of
these provisions regarding the obligation to pay the fees
specified.
5.
Preapproved Expenses. Summit
shall promptly reimburse AmBiz for all expenses paid or incurred by AmBiz or
any
of its members, and which are PREAPPROVED
BY SUMMIT for
travel, entertainment, goods and services which are necessary or appropriate
in
order to provide the services specified. At the request of AmBiz Summit shall
provide AmBiz with a reasonable expense advance to cover AmBiz’ preapproved out
of pocket expenses according to budgets or estimates prepared by AmBiz.
Preapproved expenses not covered by any advance shall be reimbursed within
seven
(7) days of submittal of an itemized expense reimbursement report.
Exhibit
10.15
Page
of 2
of 9
6.
Confidentiality and Non-Disclosure Agreement, and Non-Circumvention Agreement:
All
terms
of the AmBiz integrated Mutual Confidentiality and Non-Disclosure Agreement
and
Non-Circumvention Agreement, a copy of which is attached as Exhibit B, are
incorporated herein by this reference. In the event that Summit and AmBiz have
not previously executed such agreement, they shall do so concurrently herewith.
In addition to the terms thereof, it is further understood that during the
course of this engagement AmBiz will be furnishing proprietary and confidential
advice and information to Summit relating to capital funding sources, marketing
and distribution channels, and other business opportunities and relationships
developed by AmBiz. Accordingly any such information, or any other information
provided to Summit relating to AmBiz’s efforts on Summit’s behalf, or
introductions made to Summit by AmBiz, are confidential and are the sole
proprietary property of AmBiz. Summit agrees to treat as confidential any such
information or related or similar information provided to Summit by AmBiz and
Summit will not, without AmBiz’s prior written consent, use such information or
disclose such to any third party. AmBiz, in turn, will treat as confidential
and
will not without Summit’s prior written consent, use or disclose to any third
party any confidential information of Summit provided to AmBiz. Notwithstanding
the foregoing, the terms of this paragraph shall not apply to any information
which is or becomes generally available to the public, is required by law to
be
disclosed, or is obtained from any third party which is in possession of such
information through no fault of AmBiz or Summit, and which holder of such
information is not under any obligation to treat such information as
confidential. Further in accordance with the terms of the above Paragraph 4,
Summit agrees not to circumvent AmBiz and to pay AmBiz the fees set forth
therein. Summit hereby agrees that its officers, directors, employees, agents,
subsidiaries, affiliates, and/or successors are bound by the terms of these
provisions regarding confidentiality and non-circumvention. Should any of
Summit’s officers, directors, employees, agents, subsidiaries and or successors
circumvent the provisions hereof and enter into a transaction with a party
introduced by AmBiz then Summit agrees to pay AmBiz the fees set forth pursuant
to Paragraph 4 hereof.
7.
Audit Rights. Summit
shall provide AmBiz with a monthly report, within twenty days of the close
of
the month, indicating all sale of product during such month to parties
introduced by AmBiz, with respect to funding provided by any party introduced
by
AmBiz, or for any other business relationship between Summit and party
introduced by AmBiz, along with a check for the fees due hereunder. In the
event
of any merger, acquisition, or financing AmBiz shall have the right to payment
through an escrow. AmBiz shall have the right to audit the books and records
of
Summit with respect to verifying the revenues or financings from any transaction
with a party introduced by AmBiz in order to properly determine the fees due
to
AmBiz hereunder as a result of the efforts of AmBiz. Audits shall be during
normal business hours upon reasonable notice, not more frequently than once
per
month, and Summit agrees to make all relevant records available to AmBiz to
expedite such audits.
Exhibit
10.15
Page
of 3
of 9
8.
Indemnification. If
AmBiz
becomes involved in any capacity in any action or legal proceeding regarding
Summit and or its business, Summit agrees to reimburse AmBiz for AmBiz’s
reasonable out-of-pocket expenses, including fees and disbursements of AmBiz’s
counsel. Summit also agrees to indemnify and hold AmBiz harmless against any
losses, claims, damages or liabilities to which AmBiz may become subject,
relating to or arising out of any action or proceeding in connection with the
services which are the subject of this Agreement. Provided, however, that Summit
shall not be liable with respect to any loss, claim, damage or liability to
the
extent a court of competent jurisdiction shall have determined results from
AmBiz’s willful misfeasance or gross negligence.
9.
Third Party Services.
a.
Third
Party Fees and Expenses: From
time
to time in furtherance of the interests of Summit hereunder, AmBiz may deem
it
desirable to engage the services of other outside parties to Summit’s goals. In
such event AmBiz will recommend to and shall discuss with Summit the purposes
and advantages of engaging third party outside consultants, brokers, or parties
to assist in furthering Summit’s goals. The costs, expenses and fees of such
third party providers shall be borne by Summit under separate engagement letters
to be entered into between Summit and said third party, and shall be in addition
to the fees paid to AmBiz hereunder. AmBiz shall be responsible for the fees,
expenses or costs of any such third parties. Engagement of any such third
parties is subject to the prior approval of Summit.
b.
AmBiz
Member in Third Party Services Capacity: Often
the
third party services being recommended fall within an AmBiz member’s special
area of expertise or profession and can be provided either by an AmBiz member
or
an outside third party provider. Such services may require substantial time
from
the AmBiz member or engagement of specialized professional expertise. Examples
of such services might include drafting or redrafting of marketing or business
plans, acting in a corporate officer capacity on behalf of Summit, acting in
a
professional capacity in the AmBiz member’s profession (accounting, law,
insurance, etc), or undertaking major assignments requiring significant and
substantial time of the AmBiz member. In these circumstances the AmBiz member
shall enter into separate agreements with Summit which shall be treated as
Third
Party fees and expenses hereunder and shall be in addition to AmBiz fees
hereunder. Engagement of such AmBiz member to provide separate and independent
services is at the sole option of Summit.
10.
Miscellaneous
a.
Independent
Contractor Status. It
is
understood and agreed that AmBiz is engaged by Summit as an independent
contractor, solely to provide the services described herein.
b.
AmBiz’s
Efforts. AmBiz
undertakes this engagement solely on a “best efforts” basis, working with Summit
to achieve Summit’s desired objectives by using its and its member’s
professional judgment, efforts and skill. AmBiz makes no representations or
guarantees regarding any successful outcome hereunder. AmBiz makes no
representations or warranties that any retail sales, distribution channel,
merger, acquisition, financing and/or alliance is or will be available nor
that
any entity which desires or commits to a transaction would in fact honor its
commitments. AmBiz is not liable for Summit’s inability or failure to conclude a
transaction trough AmBiz’s efforts.
Exhibit
10.15
Page
of 4
of 9
c.
Arbitration.
Any
and
all disputes between the parties in connection with this Agreement shall be
resolved through final and binding arbitration in accordance the rules of the
American Arbitration Association and judgment upon any reward resulting from
such arbitration may be entered and enforced in a court having proper
jurisdiction. Any arbitration proceeding pursuant to this Agreement shall be
held in Las Vegas, Nevada.
d.
Costs
of Obtaining Benefits. Summit
shall reimburse AmBiz for the full Costs of any legal fees and expenses incurred
by AmBiz in enforcing or obtaining the benefits to which it is entitled under
the terms of this Agreement.
e.
Governing
Law. This
Agreement shall be governed by and construed in accordance with the laws of
the
State of Nevada, without any references to its conflicts of laws and principles.
f.
Entire Understanding. This
Agreement contains the entire understanding between Summit and AmBiz with
reference to the subject matter hereof and supersedes any prior understandings
and agreements related thereto, whether written or oral.
g.
Severability. If
any
provision of this Agreement, or the application of such Provision to any person
or circumstance, shall be held invalid, the remainder of this Agreement, or
the
application of such provision to persons and circumstances other than those
to
which it is held invalid shall not be affected thereby.
h.
Notices: Notices
shall be sent to the respective parties hereto 1) at the address on the first
page letterhead if to AmBiz, with a copy to the identified individual
responsible member of AmBiz at the address set forth below his or her signature,
and 2) with respect to Summit, to the address on the signature page below.
Notices may be sent by first class mail, facsimile, or overnight delivery
service (FedEx).
i.
Headings.
The
text
in the headings of paragraphs may be executed in one or more counterparts,
which
together shall constitute a binding agreement. A signed facsimile will create
and constitute an original, legally binding agreement on the party sending
the
same, as will electronic signatures digitally transmitted, both of which are
hereby authorized. The parties hereto confirm their understanding by signing,
dating, and returning copies of this Agreement to each other.
11.
Acceptance and Execution: This
Agreement may be executed in one or more counterparts, which together shall
constitute a binding agreement. A signed facsimile will create and constitute
and original, legally binding agreement on the party sending the same, as will
electronic signatures digitally transmitted, both of which are hereby
authorized. The parties hereto confirm their understanding by signing, dating,
and returning copies of this Agreement to each other.
Exhibit
10.15
Page
of 5
of 9
AmBiz
Associates, L.L.C.
(address
per first page/letterhead)
By
/s/
▇▇▇ ▇.
▇▇▇▇▇
Name:
▇▇▇
▇. ▇▇▇▇▇ Title:
Assistant Managing Member
Street
Address: ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
City/State/Zip
Code: Las Vegas, Nevada
Telephone:
▇▇▇-▇▇▇-▇▇▇▇ Fax:
Email:
▇▇▇▇▇▇▇▇▇▇@▇▇▇.▇▇▇
Date:
2/25/04
This
ADVISORY SERVICES AGREEMENT is hereby agreed to and the terms hereof are
accepted by Summit.
Summit
Environmental Corporation, Inc.
/s/
▇▇▇▇▇ ▇▇▇▇▇▇
By
/s/ ▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇, CEO
▇▇▇
▇
▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Telephone:
▇▇▇-▇▇▇-▇▇▇▇ Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Email:
▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
Date:
February 17, 2004
Exhibit
10.15
Page
of 6
of 9
EXHIBIT
A
Fee
Agreement and Designation of Services
AmBiz
and
Summit agree that Summit has engaged AmBiz for the services indicated and has
agreed to the fees set forth below. The parties hereto shall indicate their
consent to the various services by placing an initial where indicated and
inserting the agreed upon fee. If a category for fee is left blank and a
category does not bear any initial by AmBiz and Summit then it is agreed that
AmBiz is not providing the services for that category. This Exhibit may be
amended from time to time to add categories of services. Paragraphs
a, b and c below are applicable regardless of whether or not initialed by the
Parties. Paragraphs d and e below are applicable below only IF completed by
and
initialed by the Parties.
|
a.
|
Retailing
Commission/ Distribution Channel
Commission.
|
In
the
event AmBiz is successful in finding a purchaser for Summit products, or a
channel of distribution, whether wholesale or retail, Summit shall pay AmBiz
an
overriding commission of ten percent (10%) of Summit’s ongoing invoiced and
collected amounts to the purchaser, retailer, wholesaler, or other distributor
for the length of any purchase and or distribution agreements entered into
during the term hereof or entered into within three years of expiration or
termination hereof with parties introduced by AmBiz.
|
b.
|
Debt
and Equity Financing, Merger Acquisition or Alliance.
|
In
the
event that AmBiz assists Summit with debt or equity financings, Summit agrees
to
pay AmBiz a “Success Fee” equal to five percent (5%) of the first five million
dollars (US$5,000,000.00), three and one half percent (3.5%) of the amount
over
five million up to ten million (US$5,000,000.00-$10,000,000.00), and two percent
(2%) of the balance above ten million US$10,000,000.00) of the gross amount
of
any capital whether debt or equity raised for Summit directly or indirectly
by
AmBiz, and of the value of any merger consideration for transactions arranged
by
or directly or indirectly introduced by AmBiz. AmBiz may assist in such
transactions by introducing Summit to third party brokers, investment bankers,
financial advisors and or angel or venture investors. Summit and not AmBiz
shall
be responsible for any additional fees charged by said third
parties.
c. Stock
Warrants.
On the
Effective Date, in consideration of the activities and services performed
hereunder by AmBiz and in consideration of AmBiz’ covenants hereunder, Summit
shall grant AmBiz common stock warrants (warrants) that represent a grant equal
to one percent (1%) ownership per year for the primary Term of the Agreement,
granted one percent on the Effective Date, and one percent additional on the
first and second anniversaries of the Effective Date (i.e. three percent (3%)
ownership covering the full primary term of this Agreement) and thereafter
an
additional one percent (1%) ownership per additional year this Agreement is
in
effect granted at the commencement of each additional year of the Term.
Percentage ownership shall be calculated as a percent of outstanding shares
as
of the date of the grant of the warrants.
The
warrants shall have a five year term from the date of vesting, unless extended.
Exhibit
10.15
Page
of 7
of 9
The
warrants shall vest quarterly prorate (i.e. one quarter (25%) of each year’s
grant shall vest every three months following the Effective Date, an anniversary
of the Effective Date, or an extension of the term) unless this agreement has
been terminated by either Party. In the event of termination the warrants shall
vest for that three month quarterly period during which the termination
occurs.
The
exercise price of the warrants shall be greater of the par value of Summit’s
common stock or $.01 per share, except that if Summit’s shares are registered
and traded then the warrant exercise price shall be the quoted trade price
on
the date of the grant, or if Summit has recently successfully completed the
raising of funding pursuant to a private placement memorandum, then the average
purchase price of the shares issued pursuant to the private placement
memorandum.
If
Summit
is “sold” to a third party (meaning a transfer of more than 50% change of
ownership to a third party during any one year period), then all unvested
warrants for any such year and unvested warrants for all prior years shall
immediately vest from the date of transaction.
Upon
vesting, any warrants shall be individually exercisable at AmBiz’ discretion for
common stock of Summit. Summit shall register for resale shares of stock
underlying the warrants.
EXHIBIT
B
The
MUTUAL CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT,
AND
NON-CIRCUMVENTION AGREEMENT, constituting Exhibit B hereto,
is
attached
and consists of the following four pages.
Exhibit
10.15
Page
of 8
of 9
SUMMIT
ENVIRONMENTAL CORPORATION
OTCBB:
SEVT
Amendment
Exhibit
A
The
amendment contained herein refers to specific paragraphs of the Exhibit A to
the
Advisory Services Agreement by and between AmBiz Associates, LLC and Summit
Environmental Corporation, Inc. dated and executed February 25, 2004 and
February 17, 2004, respectively.
More
specifically, paragraph A, of Exhibit A shall be amended to add an additional
sentence to the end of said paragraph. Added as follows: “The ten percent (10%)
overriding commission shall not apply to FirePower™ or FlameOut® or any future
private label, if applicable, aerosol fire extinguishers sold by ▇▇▇▇ ▇▇▇▇▇▇
to
Target or other large chain stores, but shall continue to apply to sales of
these items to Noble Fir, or to other purchasers or accounts generated by
AmBiz”;
Additionally,
paragraph C of Exhibit A shall be amended as follows:
|
1)
|
The
stock options granted and vested, upon the third year of the Agreement,
shall be accelerated to be grated [sic] no later than December 30,
2005,
or on the date of execution of this amendment if sooner, at the 2005
option price, and
|
|
2)
|
An
additional one percent (1%) of ownership shall be granted between
execution hereof and February 25, 2006, the commencement of the third
year
of the Agreement, at the 2005 option
price.
|
Additionally
the agreement shall be executed for one additional year to February
2008.
In
consideration of the amending of paragraph C, herein, AmBiz warrants that all
currently granted and accelerated warrants under paragraph (1) above and not
yet
exercised will be exercised and paid for by January 18, 2006.
As
with
the original agreement, this agreement may be executed in one or more
counterparts, when together constitute a binding amendment to the original
agreement captioned herein.
|
AmBiz
Associates, LLC
|
Summit
Environmental Corporation, Inc.
|
|
By:
/s/
[illegible]
|
By:
▇▇▇▇▇
▇▇▇▇▇▇
|
|
Title:
Managing Member
|
Title:
▇▇▇▇▇ ▇▇▇▇▇▇
|
|
Date
Executed: 12-29-05
|
Date
Executed: 12-30-05
|
▇▇▇
▇.
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ • (▇▇▇) ▇▇▇-▇▇▇▇ • (▇▇▇) ▇▇▇-▇▇▇▇ • fax
(▇▇▇) ▇▇▇-▇▇▇▇
Exhibit
10.15
Page
of 9
of 9