November 11, 2004 PERSONAL AND CONFIDENTIAL ImagiTrend, Inc. Sarasota, FL 34236 Attn: Russell F. Haraburda, President & CEO VIA FACSIMILE 941-365-8632 Dear Mr. Haraburda:
November
11, 2004
PERSONAL
AND CONFIDENTIAL
0000
Xxxx
Xxxxxx, Xxx 000
Xxxxxxxx,
XX 00000
Attn:
Xxxxxxx X. Xxxxxxxxx, President & CEO
VIA
FACSIMILE 000-000-0000
Dear
Xx.
Xxxxxxxxx:
This
letter agreement ("Agreement") confirms the terms and conditions of the
engagement of Greentree Financial Group, Inc. ("Greentree") by ImagiTrend,
Inc.
(the "Company") to render certain professional services to the Company in
connection with the Company's proposed registration statement and listing
on the
Over-the-Counter Bulletin Board (OTCBB).
1. Services.
Greentree agrees to perform the following services:
|
(a)
|
|
|
(b)
|
Assist
the Company in preparing a compensatory plan for officers, directors,
employees and consultants;
|
|
(c)
|
Assist
with the preparation of Form
SB-2,
including drafting of the registration statement, reviewing of
the
Company’s corporate documents in preparation for filing the registration
statement and answering comments from the Securities and Exchange
Commission;
|
|
(d)
|
Assist
with EDGARizing the aforementioned document as required by the
Securities
and Exchange Commission, including any applicable
amendments;
|
|
(e)
|
Assist
the Company in selecting an independent transfer agent;
|
|
(f)
|
Assist
the Company in preparing information for its Blue Sky publication
with
Standard & Poor's;
|
|
(g)
|
Perform
such other services as the Company and Greentree shall mutually
agree to
in writing.
|
1
2. Fees.
The
Company agrees to pay Greentree for its services a financial advisory fee
("Advisory Fee") of $29,500 and 1,500,000 common shares payable as follows:
$15,000 due upon signing, $14,500 due upon filing of the SB-2 registration
statement. The shares will be due upon signing of this agreement and registered
in the Form SB-2 registration statement.
3. Term.
The
term of this Agreement shall commence on November 11, 2004. Greentree also
agrees to assist in answering any SEC comments remaining in connection with
the
registration statements. This agreement may be terminated by the Company
with 30
days prior written notice to Greentree. If the Company terminates this Agreement
prior to the expiration of the Term, the Company shall pay to Greentree all
reasonable expenses incurred, in accordance with Paragraph 5 hereof. Any
obligation pursuant to this Paragraph 3, and pursuant to Paragraphs 2, 4,
5, 6
and 8 hereof, shall survive the termination or expiration of this
Agreement.
4. Expenses.
The
Company agrees to reimburse Greentree for all of its reasonable out-of-pocket
fees, expenses and costs (including, but not limited to, legal, accounting,
travel, accommodations, telephone, translation, computer, courier and supplies)
in connection with the performance of its services under this Agreement,
upon
prior written approval.
All
such fees, expenses and costs will be billed at any time by Greentree and
are
payable by the Company when invoiced. Upon expiration of the Agreement any
unreimbursed fees and expenses will be immediately due and payable.
5. Indemnification.
In
addition to the payment of fees and reimbursement of fees and expenses provided
for above, the Company agrees to indemnify Greentree and its affiliates with
regard to the matters contemplated herein, as set forth in Exhibit A, attached
hereto, which is incorporated by reference as if fully set forth herein.
2
6. Matters
Relating to Engagement.
The
Company acknowledges that Greentree has been retained solely to provide the
services set forth in this Agreement. In rendering such services, Greentree
shall act as an independent contractor, and any duties of Greentree arising
out
of its engagement hereunder shall be owed solely to the Company. The Company
further acknowledges that Greentree may perform certain of the services
described herein through one or more of its affiliates.
The
Company acknowledges that Greentree is a consulting firm that is engaged
in
providing financial advisory services. The Company acknowledges and agrees
that
in connection with the performance of Greentree's services hereunder (or
any
other services) that neither Greentree nor any of its employees will be
providing the Company with legal, tax or accounting advice or guidance (and
no
advice or guidance provided by Greentree or its employees to the Company
should
be construed as such) and that neither Greentree nor its employees hold itself
or themselves out to be advisors as to legal, tax, accounting or regulatory
matters in any jurisdiction. The attorneys and accountants that work for
Greentree are exclusively for Greentree's benefit. The Company shall consult
with its own legal, tax, accounting and other advisors concerning all matters
and advice rendered by Greentree to the Company and the Company shall be
responsible for making its own independent investigation and appraisal of
the
risks, benefits and suitability of the advice and guidance given by Greentree
to
the Company and the transactions contemplated by this Agreement. Neither
Greentree nor its employees shall have any responsibility or liability
whatsoever to the Company or its affiliates with respect thereto.
The
Company recognizes and confirms that in performing its duties pursuant to
this
Agreement, Greentree will be using and relying on data, material, and other
information (the "Information") furnished by the Company or their respective
employees and representatives. The Company will cooperate with Greentree
and
will furnish Greentree with all Information concerning the Company and any
Transaction, Alternate Transaction or Financing which Greentree deems
appropriate and will provide Greentree with access to the Company's officers,
directors, employees, independent accountants and legal counsel for the purpose
of performing Greentree's obligations pursuant to this Agreement. The Company
hereby agrees and represents that all Information furnished to Greentree
pursuant to this Agreement shall be accurate and complete in all material
respects at the time provided, and that, if the Information becomes materially
inaccurate, incomplete or misleading during the term of Greentree's engagement
hereunder, the Company shall promptly advise Greentree in writing. Accordingly,
Greentree assumes no responsibility for the accuracy and completeness of
the
Information. In rendering its services, Greentree will be using and relying
upon
the Information without independent verification evaluation thereof.
7. Governing
Law.
This
Agreement shall be governed by and construed in accordance with the laws
of the
State of Florida without regard to the conflict of laws provisions
thereof.
3
8. No
Brokers.
The
Company represents and warrants to Greentree that there are no brokers,
representatives or other persons which have an interest in compensation due
to
Greentree from any services contemplated herein.
9.
Authorization.
The
Company and Greentree represent and warrant that each has all requisite power
and authority, and all necessary authorizations, to enter into and carry
out the
terms and provisions of this Agreement and the execution, delivery and
performance of this Agreement does not breach or conflict with any agreement,
document or instrument to which it is a party or bound.
10. Miscellaneous.
This
Agreement constitutes the entire understanding and agreement between the
Company
and Greentree with respect to the subject matter hereof and supersedes all
prior
understanding or agreements between the parties with respect thereto, whether
oral or written, express or implied. Any amendments or modifications must
be
executed in writing by both parties. This Agreement and all rights, liabilities
and obligations hereunder shall be binding upon and insure to the benefit
of
each party’s successors but may not be assigned without the prior written
approval of the other party. If any provision of this Agreement shall be
held or
made invalid by a statute, rule, regulation, decision of a tribunal or
otherwise, the remainder of this Agreement shall not be affected thereby
and, to
this extent, the provisions of this Agreement shall be deemed to be severable.
This Agreement may be executed in any number of counterparts, each of which,
shall be deemed to be an original, but such counterparts shall, together,
constitute only one instrument. The descriptive headings of the Paragraphs
of
this Agreement are inserted for convenience only, do not constitute a part
of
this Agreement and shall not affect in anyway the meaning or interpretation
of
this Agreement.
Please
confirm that the foregoing correctly sets forth our agreement by signing
below
in the space provided and returning this Agreement to Greentree for execution,
which shall constitute a binding agreement as of the date first above
written.
Thank
you. We look forward to a mutually rewarding relationship.
GREENTREE
FINANCIAL GROUP, INC.
By:__/s/
R.
Xxxxx Cottone____________
Name:
R.
Xxxxx Xxxxxxx
Title:
Vice-President
AGREED
TO
AND ACCEPTED
AS
OF
NOVEMBER 11, 2004:
By:___/s/
Xxxxxxx X. Haraburda________
Name:
Xxxxxxx
X. Xxxxxxxxx
Title:
President
& CEO
4
EXHIBIT
A: INDEMNIFICATION
The
Company agrees to indemnify Greentree, its employees, directors, officers,
agents, affiliates, and each person, if any, who controls it within the meaning
of either Section 20 of the Securities Exchange Act of 1934 or Section 15
of the
Securities Act of 1933 (each such person, including Greentree is referred
to as
"Indemnified Party") from and against any losses, claims, damages and
liabilities, joint or several (including all legal or other expenses reasonably
incurred by an Indemnified Party in connection with the preparation for or
defense of any threatened or pending claim, action or proceeding, whether
or not
resulting in any liability) ("Damages"), to which such Indemnified Party,
in
connection with providing its services or arising out of its engagement
hereunder, may become subject under any applicable Federal or state law or
otherwise, including but not limited to liability or loss (i) caused by or
arising out of an untrue statement or an alleged untrue statement of a material
fact or omission or alleged omission to state a material fact necessary in
order
to make a statement not misleading in light of the circumstances under which
it
was made, (ii) caused by or arising out of any act or failure to act, or
(iii)
arising out of Greentree's engagement or the rendering by any Indemnified
Party
of its services under this Agreement; provided, however, that the Company
will
not be liable to the Indemnified Party hereunder to the extent that any Damages
are found in a final non-appealable judgment by a court of competent
jurisdiction to have resulted from the gross negligence or willful misconduct
of
the Indemnified Party seeking indemnification hereunder.
These
indemnification provisions shall be in addition to any liability which the
Company may otherwise have to any Indemnified Party.
If
for
any reason, other than a final non-appealable judgment finding an Indemnified
Party liable for Damages for its gross negligence or willful misconduct the
foregoing indemnity is unavailable to an Indemnified Party or insufficient
to
hold an Indemnified Party harmless, then the Company shall contribute to
the
amount paid or payable by an Indemnified Party as a result of such Damages
in
such proportion as is appropriate to reflect not only the relative benefits
received by the Company and its shareholders on the one hand and the Indemnified
Party on the other, but also the relative fault of the Company and the
Indemnified Party as well as any relevant equitable considerations.
Promptly
after receipt by the Indemnified Party of notice of any claim or of the
commencement of any action in respect of which indemnity may be sought, the
Indemnified Party will notify the Company in writing of the receipt or
commencement thereof and the Company shall have the right to assume the defense
of such claim or action (including the employment of counsel reasonably
satisfactory to the Indemnified Party and the payment of fees and expenses
of
such counsel), provided that the Indemnified Party shall have the right to
control its defense if, in the opinion of its counsel, the Indemnified Party's
defense is unique or separate to it as the case may be, as opposed to a defense
pertaining to the Company. In any event, the Indemnified Party shall have
the
right to retain counsel reasonably satisfactory to the Company, at the Company's
sole expense, to represent it in any claim or action in respect of which
indemnity may be sought and agrees to cooperate with the Company and the
Company's counsel in the defense of such claim or action. In the event that
the
Company does not promptly assume the defense of a claim or action, the
Indemnified Party shall have the right to employ counsel to defend such claim
or
action. Any obligation pursuant to this Annex shall survive the termination
or
expiration of the Agreement.
5
