Exhibit 10.6
[LETTERHEAD OF GE PARTNERS PLC]
Exhibit 10.6
1 Parties to the Agreement
1.1 GE Partners PLC ("GEP") domiciled in 306 Victoria House, Victoria, Mahe,
Republic of Seychelles and 1 Berkeley Street, London W1J 8DJ, United Kingdom WIJ
8DJ.
1.2 RFC K.K. ("Company") 7ty Floor, AsHeitz Building, Tomigaya, 1-10-2,
Shibuya-ku, Tokyo, Japan 151-0063
2. Appointment
2.1 GEP is hereby engaged by the Company as its corporate finance adviser in
relation to the acquisition of the Company on a matched share basis by an
American Corporation resulting in a reverse merger ("Acquisition") and the
Company accordingly agrees itself not to appoint and not to instruct any other
person on its behalf to appoint any other person as arranger/ advisor for such
purpose at any time during the Engagement Period (as defined in paragraph 5)
without GEP's specific consent, such consent not to be unreasonably withheld.
Further, during the Engagement Period the Company itself shall ensure that no
other person on its behalf instructs any other agents, intermediaries or
advisors in relation to the Acquisition without GEP's prior written approval.
2.2 The Company shall promptly inform GEP of all information, inquiries and
proposals it has received before or receives at any time during the Engagement
Period with respect to the Acquisition.
2.3 GEP shall inform the Company on a regular basis of any information that may
come to its attention regarding the Acquisition during the Engagement Period.
3. Services to be provided by GEP
3.1 GEP will act as corporate finance adviser to the Company in connection with
the transaction. As such, GEP will use all reasonable endeavours to provide the
following advice, assistance and services:
3.2 GEP shall advise the Company on structuring and arranging the Acquisition.
Additionally, as arranger, GEP shall assist in the preparation and authorisation
of documentation, as required.
3.3 GEP shall use reasonable efforts through its marketing and public relations
contacts to support and market the Acquisition including; (i) where appropriate,
arrange meetings and assist in presentations; (ii) assist the Company, the
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Directors and their advisors in negotiating definitive documentation and (iii)
take such other actions as are reasonably necessary to give effect to the
foregoing. The Company will give GEP reasonable and prompt co-operation and
assistance to support GEP in the provision of its services hereunder and keep
GEP informed of all developments relevant to the Acquisition ("the Services").
3.4 The Company acknowledges that this engagement letter does not constitute any
understanding or commitment whatsoever by GEP, or any of its respective
affiliates, to participate financially in any way in the Acquisition.
3.5 At the Company's option, GEP agrees to introduce to the Company professional
advisers to include but not be limited to reporting accountants, auditors,
lawyers and registrars, it being understood that all fees in connection with
such professional advice will be borne by the Company.
3.6 At the Company's option, GEP agrees to provide assistance in the marketing
of the Company's product, any such assistance to be governed by a separate
agreement.
3.7 GEP shall on a best efforts basis seek to provide or make relevant
introductions to provide:
* Any finance required for the listing and additional finance as agreed
with the company for
* Ongoing development pre listing. Post listing finance is by separate
negotiation.
4. Fees and Expenses
4.1 In consideration of GEP providing the Services, the Company will pay GEP the
following fees, together with any applicable VAT thereon:
(a) 10% of the Target Company's issued share capital.
(b) $20,000 per month for 12 months (fully inclusive)
(c) $6,000 per month consultancy contract for months 13 to 24 inclusive.
In addition RFC K.K. will pay the relevant fees due as they become due to
the accountants and auditors.
In addition, the Company shall reimburse GEP on demand for all
out-of-pocket expenses incurred by GEP in providing the Services, including
but not limited to travel, accommodation and professional advisors fees,
subject to the presentation of invoices to the Company, together with any
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taxes thereon. All such expenses in excess of (euro)1,000 (One Thousand
Euros) will be subject to the prior written consent of the Company, such
consent not to be unreasonably withheld.
4.2 In the event that GEP provides the Services hereunder and such Acquisition
thereafter does not proceed owing to a material or adverse change in the
structure of the Company or to any failure on the part of the Company to close
on such Acquisition, the Company shall be required to pay to GEP a cancellation
fee of $50,000 (One Hundred Thousand Dollars).
4.3 All fees as referred to in this paragraph 4 shall be paid in USD$ or an
alternative currency using the days prevailing interbank exchange rate. All out
of pocket expenses to be reimbursed to GEP shall be reimbursed in the currency
in which they were incurred.
5. Engagement Period and Termination
5.1 GEP's engagement hereunder shall become effective on the date the Company
executes and delivers this engagement letter to GEP and shall remain in effect
until termination in accordance with the following provisions of this paragraph
5 ("the Engagement Period").
(a) Termination of this agreement shall occur on the following
events/circumstances:
On the date 30 (thirty) days following execution by the Parties of the
present agreement, provided at least 30 (thirty) days prior to such date,
at least one of the Parties has served notice in writing on the other that
it wishes the engagement to terminate on such date. Where no such notice is
served by either party as aforesaid, the engagement shall remain in effect
for another 30 days from such date, under the same terms and conditions as
set out in this engagement letter;
GEP shall be entitled to terminate:
i) in the event there has been a material breach of the terms of the
engagement letter by the Company;
ii) otherwise, subject to the minimum term established in clause 5.1 (a),
above, at any time as GEP so wishes on giving 30 (thirty) days written
notice to the Company.
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(b) The Company shall be entitled to terminate:
iii) in the event there has been a material breach of the terms of the
engagement letter by the Company;
iv) otherwise, subject to the minimum term established in clause 5.1 (a),
above, and to giving 30 (thirty) days written notice to GEP, in the
event that the Company in its discretion no longer wishes to proceed
with the Acquisition, in which event the cancellation fee specified in
clause 4.2 hereof will become immediately payable.
(b) At any time but without prejudice to the foregoing as specifically
agreed between the parties in writing.
5.2 Upon termination of this engagement letter, neither party shall have any
continuing liability or obligation to the other.
6. Information and Co-operation
6.1 In connection with GEP's engagement hereunder, the Company shall provide GEP
with such information and documents as GEP may consider necessary or desirable
in order to enable it to provide the Services and to carry out its duties and
responsibilities hereunder. In particular, and without prejudice to the
generality of the foregoing, the Company will promptly furnish GEP with such
information as GEP may request in order to permit GEP to assist the Company in
preparing any material required for the Acquisition (collectively, the
"Acquisition Documents").
6.2 The Company will be solely responsible for the contents of any Acquisition
Documents and the Company represents and warrants to GEP that the Acquisition
Documents will, as of the date of any marketing, distribution of the Acquisition
Documents or completion, or preparation of the Acquisition, be true and accurate
in all material respects, not omit any material fact and not be misleading in
any respect and, with respect to any financial projections, the Company
represents that they have been, or will be, prepared in good faith on the basis
of reasonable assumptions. The Company agrees to advise GEP promptly of the
occurrence of any event or any other change known to the Company which results
in any of the Acquisition Documents containing any untrue statement of a
material fact or omitting to state a material fact the omission of which would
render any statements contained therein, in light of the circumstances under
which they were made, misleading and in such event the Company shall provide
corrective information to GEP suitable for inclusion in a supplemental
information statement. For purposes of this paragraph notification by the
Company must be made directly to GEP and GEP shall not be deemed notified solely
as a result of action, notice or the constructive knowledge of any of its
Related Parties.
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6.3 The Company acknowledges that GEP (i) will use and rely upon the information
provided by the Company or on its behalf which will comprise the Acquisition
Documents absolutely and without GEP itself independently verifying any of the
same, (ii) does not itself assume any responsibility for the accuracy of
completeness of the Acquisition Documents.
6.4 The Company hereby authorises GEP to provide the Acquisition Documents on
its behalf to those concerned with the Acquisition. GEP shall each have the
right to review and be required to approve all Acquisition Documents and every
form of letter, circular, notice, memorandum or other written communication from
the Company or any person acting on its behalf in connection with the
Acquisition and the persons to whom any of the foregoing are to be directed,
such approval not to be unreasonably withheld.
6.5 The Company shall at all times use its efforts to assist GEP in providing
the Services and in carrying out its duties, functions and responsibilities
hereunder and shall co-operate and use all reasonable efforts to assist GEP in
complying with the applicable laws of any jurisdiction in which GEP operating.
7. Confidentiality
7.1 GEP acknowledges that, in performing its duties from time to time hereunder,
it shall receive from the Company certain information relating to the Company,
the Acquisition and otherwise to the transactions contemplated by this
engagement letter. For purposes of this paragraph, all such information, except
for information which (i) is comprised in Acquisition Documents as approved by
the Company (ii) GEP is otherwise authorised by the Company to disclose to third
parties otherwise than on a confidential basis, (iii) is or becomes generally
available to the public other than as a result of a disclosure by GEP where such
disclosure is not permitted, or (iv) is or becomes available to GEP on a
non-confidential basis from a person or entity other than the Company, is
hereinafter referred to as "Confidential Information".
7.2 GEP shall keep the Confidential Information confidential and not without the
Company's prior consent, except as required by law, legal process, or regulatory
authority, (i) disclose or reveal any Confidential Information to any person,
firm or entity other than those employees, agents or advisors of GEP who are
actively and directly participating in the transactions contemplated by this
engagement letter or who otherwise need to know the Confidential Information for
the purpose of evaluating, structuring or reviewing any portion of the
Acquisition or GEP's role with respect thereto, or (ii) use Confidential
Information for any purpose other than in connection with the transactions
contemplated by this engagement letter.
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7.3 If GEP's engagement is terminated at any time, GEP shall continue to
maintain the Confidential Information in confidence in accordance with the terms
of this engagement letter and, upon the written request of the Company, such
Confidential Information and all copies thereof as are held by GEP, will be
returned to the Company, or destroyed by GEP, provided, however, that GEP may
retain one copy of the Confidential Information in the files of its general
counsel for compliance purposes or for the purpose of defending or maintaining
any litigation relating to this engagement letter.
7.4 If GEP should decide that any such Confidential Information should be
included in the Acquisition Documents, and the Company withholds its consent to
such disclosure or refrains from co-operating fully in such disclosure, GEP may
immediately terminate the Services and the Company shall immediately reimburse
all GEP's fees and expenses due under clause 4 herein., as provided in paragraph
4.3 together with all fees, if any, due under paragraph 4.2.
7.5 The Company agrees that this engagement letter (including the fact of its
existence and its terms and conditions), and the services it describes, together
with any related information or documents, constitute confidential and propriety
information of GEP. The Company further agrees that its written and verbal
reports to the Company and all writings prepared by or on behalf of GEP and
furnished to the Company in connection with GEP's engagement hereunder
(collectively the "GEP Information") shall be kept confidential and the Company
shall not without GEP's prior written consent, except as required by law, legal
process or a regulatory authority, (i) disclose or reveal any GEP Information to
any person, firm or entity other than those employees, agents or advisors of the
Company who are actively and directly participating in the transactions
contemplated by this engagement letter or otherwise needed to know the GEP
Information for the purpose of evaluating, structuring or reviewing any portion
of the Acquisition or the Company's participation with respect thereto, or (ii)
use the GEP Information for any purpose other than in connection with the
transactions contemplated by this engagement letter.
8. Related Parties
GEP acknowledges that it will take all reasonable steps to ensure that, pursuant
to paragraph 7 above, any Confidential Information obtained from the Company
shall not be disclosed to the Related Parties, except as permitted under
paragraph 7.
9. Indemnification
9.1 The Company agrees to indemnify and hold harmless GEP, each of its Related
Parties and each of its or their directors, officers, employees, agents and
affiliates (each an "Indemnitee") in respect of any and all actions, claims
losses, liabilities, damages, costs, charges and expenses whatsoever which any
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Indemnitee may suffer or incur or which may be made against any Indemnitee
relating to or arising from GEP's engagement, the provision of the Services, the
Acquisition or otherwise from the arrangements contemplated by this engagement
letter or any acts or omissions of any Indemnitee otherwise requested by the
Company or any of the Company's affiliates pursuant to or in connection
therewith, provided that the Company shall not be liable under this indemnity to
the extent any such action, claims, losses, liabilities, damages, costs,
charges, or expenses are attributable to the gross negligence or wilful
misconduct of such Indemnitee. The indemnity in this paragraph 9 is given to GEP
in its own right and as trustee for each other Indemnitee.
10. Due Diligence and Information
The Company shall not be responsible for any due diligence in relation to the
transaction and the Company acknowledges that any advice given by GEP on the
structuring of the Acquisition shall be based on information provided by the
Company.
11. Limited GEP Role
It is expressly agreed and understood that GEP is not providing nor is the
Company relying on GEP for legal, accounting, tax or other advice and that the
Company will rely on the advice of its own professionals and advisors as it
considers appropriate for such matters and will make an independent analysis and
decision regarding the Acquisition in relation to such matters based on such
advice. The determination whether to accept any proposals, presentation or
recommendations arising out of GEP's services under this engagement letter shall
be made by the Company in its sole discretion, and the Company shall have the
option, at its sole discretion, to accept, reject or modify any such proposals,
presentations or recommendations rendered to it by GEP. Nothing in this
engagement letter shall give rise to any liability or responsibility on the part
of GEP for the success or otherwise of the Acquisition.
12. GEP Affiliates
The Company hereby acknowledges and agrees that GEP may perform the services,
contemplated to be rendered by it, under this engagement letter through selected
affiliates within the host country of listing. In connection therewith but at
all times subject to the confidentiality obligations set out herein, GEP may
share any information on matters relating to the Company with such affiliates.
13. Modification of Agreement
This engagement letter may be modified, amended or superseded only in writing
signed by both the parties hereto and expressly referring to this engagement
letter.
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14. Authority
The Company represents and warrants to GEP that its entry into and delivery of
this engagement letter has been duly authorized. GEP represents and warrants to
the Company that GEP's entry into and delivery of this engagement letter has
been duly authorized.
15. No Agency
Notwithstanding the identification of GEP as arranger for the Acquisition, GEP
will act under this engagement letter solely as an independent contractor. The
execution of this engagement letter shall not authorize any party to act as or
hold themselves to act as an agent or fiduciary, and GEP shall not be or be
deemed to be an agent or fiduciary of the Company.
16. Disputes
Any disputes or complaints (with all relevant details) must be in writing and
should be referred in the first instance to the Compliance Officer of GEP.
Should the Company be dissatisfied with the handling of the dispute, the Company
has the right to refer the matter to the Directors of GEP. As the Company is
classified as either an Intermediate Customer or Private Expert Client and
thereby an Intermediate Customer the Company waives the right to the services of
any Financial Ombudsman Service (FOS) and compensation under the any regulatory
regime.
17. Assignment
This engagement letter shall be binding upon and inure to the benefit of the
parties hereto and may not be assigned by either party, without the prior
written consent of the other party.
18. Entire Agreement
This agreement supersedes any and all discussions, written or oral, between the
parties hereto and sets out the entire agreement of the parties relating to the
subject matter of this engagement letter.
19. Counterparts
This agreement may be executed in counterparts, each of which shall be deemed an
original and all of which counterparts shall constitute one and the same
document.
20. Applicable Law
The laws of the United Kingdom apply to this agreement
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Please indicate the Company's acceptance of the provisions of this engagement
letter by signing as indicated and in accordance with the provisions set out
below:
This engagement letter is hereby executed and delivered by the parties as a Deed
on the date and year of acceptance of the terms of this letter by the Company as
indicated by the date of its signature below:
EXECUTED AND DELIVERED AS A DEED
By RFC K.K.
/s/ James Fiorillo
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Director
James Fiorillo
Print Name
Date 19/10/2011
EXECUTED AND DELIVERED AS A DEED
by Global Equity Partners
/s/ Peter Smith
----------------------------------
Director
PETER SMITH
Date 19/10/2011.
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