Exhibit 10.9
FINANCIAL ADVISORY AND INVESTMENT BANKING AGREEMENT
This Agreement is made and entered into this 15th day of February, 2006,
between SkyeBanc, Inc. ("SKYE") and Dragon International Group, Corp.
("Company").
A glossary of definitions as used in this Agreement is set forth in Paragraph
10, below.
The parties hereto agree as follows:
1. Engagement; Nature of Services:
a) Company hereby engages SKYE as Company's non exclusive financial
advisor to render financial and other general advice as an investment
banker with a specific focus on business development, including,
without limitation, advice relating to capital structure, cost of
capital, general business strategic planning, competitive landscape
and general industry issues, with a view toward maximizing
shareholder value. This Agreement does not cover transactions, if
any, nor does it address financing in the public or private
markets; which services, if requested, shall be subject to a
separate agreement and are expressly not addressed in this
Agreement. SKYE shall obtain the consent of Company prior to
contacting any third parties in connection with services to be
rendered pursuant to this Agreement. The decision to proceed
shall be in the Company's sole and absolute discretion.
b) SKYE shall not be required to undertake duties not reasonably within
the scope of the financial advisory or investment banking services
contemplated by this Agreement or to spend any minimum amount of time
in providing such services. SKYE does not provide tax, accounting or
legal advice.
c) SKYE shall render such other financial advisory and investment banking
services as may from time to time be agreed upon in writing by SKYE and
Company (e.g., fairness opinions, business plans, etc.). The fees
payable for any such other services shall be customary investment
banking fees to be mutually agreed upon based upon the nature and type
of such services to be rendered.
2. Term: Subject to Paragraph 4, this Agreement shall commence upon execution
and be effective for a period of twenty four (24) months continuing thereafter
on a month-to-month basis unless and until terminated on thirty days' written
notice by either party to the other.
3. Compensation: In consideration of the services to be rendered by SKYE
hereunder, Company shall pay to SKYE "Retainer Fees."
a) Retainer Fees: Upon the execution hereof, Company shall pay to SKYE a
fee ("Retainer Fee") in immediately available funds in the amount of $
24,000 ("twenty four thousand dollars"). Commencing with the first month
after execution of this Agreement and continuing monthly thereafter,
Company shall pay to SKYE a fee ("Continuing Retainer Fee") in immediately
available funds in the amount of $7,000 ("seven thousand dollars"). The
Retainer Fee and the Continuing Retainer Fees shall be non-refundable.
Additionally, the Company shall issue to Skyebanc, Inc. 500,000 ("five
hundred thousand") warrants to purchase Dragon International Group Corp.
common stock at $0.15 per share. Those warrants shall have an expiration
date that is 5 years from the date of this agreement.
4. Reimbursement of Expenses: Promptly following presentation of customary
documentation, Company shall reimburse SKYE for all reasonable fees and
disbursements of SKYE's outside counsel and SKYE's reasonable travel and
out-of-pocket expenses as incurred in connection with the services performed by
SKYE pursuant to this Agreement, including without limitation, hotel, food and
associated expenses including long-distance telephone calls; provided that to
the extent any such reimbursement would cause aggregate reimbursement to exceed
Two Hundred Dollars ($200), such excess fees and disbursements, shall be subject
to Company's prior approval.
5. Public Disclosure: Company acknowledges that all opinions and advice (written
or oral) given by SKYE to Company in connection with SKYE's engagement are
intended solely for the benefit and use of Company and Company agrees that no
person or entity other than Company shall be entitled to make use of or rely
upon such opinion or advice to be given hereunder, and no such opinion or advice
shall be used for any other purpose or reproduced or disseminated, in any manner
or for any purpose, nor may Company make any public references to SKYE without
SKYE's prior written consent. Company agrees to distribute at its expense any
pre-approved press release via Businesswire National Circuit.
6. Non-Exclusive Services: Company acknowledges that SKYE and its affiliates are
in the business of providing financial advisory services, investment banking
services, and consulting advice to others. Nothing herein contained shall be
construed to limit or restrict SKYE in conducting such business with others, or
in rendering such advice to others, except as such advice may relate to matters
relating to Company's business and properties.
7. Reliance Upon Information: Company recognizes and confirms that, in advising
Company and in fulfilling its engagement hereunder, (i) SKYE will use and rely
on data, material and other information furnished to SKYE, and (ii) SKYE may
rely upon such data, material and other information without any independent
investigation or appraisal to verify its accuracy, completeness or veracity,
except to the extent SKYE has actual knowledge to the contrary. Company
represents and warrants that all such data, material and other information
provided by Company will be true and accurate in all material respects and
will not contain any untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein not misleading
in light of the circumstances under which such statements are made. SKYE shall
be under no obligation to make an independent appraisal of assets or an
independent investigation or inquiry as to any information regarding, or any
representations of, any other participant, nor shall SKYE have any liability
with regard thereto. If, in SKYE's opinion after completion of its due
diligence process, the condition or prospects of Company, financial or
otherwise, are not substantially as represented or do not fulfill SKYE's
expectations, SKYE shall have the sole discretion to determine its continued
participation in this Agreement.
8. Indemnification Agreement: To induce SKYE to act on behalf of Company in
connection with SKYE's engagement hereunder, Company and SKYE are entering into
a separate indemnification agreement substantially in the form attached hereto
as Annex A and dated the date hereof, providing for the indemnification of SKYE
by Company. SKYE has entered into this Agreement in reliance on the indemnities
set forth in such indemnification agreement.
9. Independent Contractor: SKYE shall perform its services hereunder as an
independent contractor and not as an employee of Company or an affiliate
thereof. SKYE shall have no authority to act for, represent or bind Company or
any affiliate thereof in any manner, except as may be agreed to expressly by
Company in writing from time to time.
10. Definitions:
a) "Company" shall mean Sense Holdings, Inc.
b) "Continuing Retainer Fee" is defined in Section 3(b).
c) "Retainer Fee" is defined in Section3(b).
d) "Securities" shall mean debt, mezzanine and/or equity interests or any
combination thereof.
e) "SKYE" shall mean SkyeBanc, Inc.
11. Miscellaneous:
a) Entire Agreement: This Agreement and Annex A constitute the entire
agreement and understanding of the parties hereto, and supersede any and
all previous agreements and understandings, whether oral or written, with
respect to the matters set forth herein. No provision of this Agreement may
be amended, modified or waived, except in a writing signed by the parties.
This Agreement and the Annex shall be binding upon and inure to the benefit
of each of the parties and their respective successors, legal
representatives and assigns.
b) Notice: Any notice or communication permitted or required hereunder
shall be in writing and shall be deemed sufficiently given if
hand-delivered or sent postage prepaid by certified mail, return receipt
requested as set forth below, or to such other address as either party may
notify the other of in writing:
if to Company, to Dragon International Group, Corp
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Ningbo, China 315000
Attn: ▇▇▇▇▇ ▇▇
Chief Executive Officer
if to Skyebanc, Inc. to: SkyeBanc, Inc.
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Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
c) Governing Law; Exclusive Jurisdiction: This Agreement shall be
construed in accordance with and governed by the laws of the State of (((New
Jersey))), without giving effect to its conflict of law principles. ((((Any
dispute which may arise between the parties arising out of or in connection with
this Agreement shall be adjudicated before a court located in (((New Jersey, New
Jersey))) and they hereby submit to the exclusive jurisdiction of the courts of
the State of (New Jersey))) located in (((Monmouth County, New Jersey))) and of
the federal court in the applicable district of (((Monmouth County, New
Jersey))) with respect to any action or legal proceeding commenced by any party,
and irrevocably waive any objection they now or hereafter may have respecting
the venue of any such action or proceeding brought in such a court or respecting
the fact that such court is an inconvenient forum, waive trial by jury in any
such action or proceeding, and consent to the service of process in any such
action or legal proceeding by means of registered or certified mail, return
receipt requested, to the address set forth in Paragraph 11.)))) OR (((Any
disputes solely between the parties and not involving a third party claimant,
shall be determined by a panel of three arbitrators appointed by the American
Arbitration Association in (((Monmouth County, New Jersey))) for resolution
through the Commercial Arbitration rules of that Association. The decision of
the panel will be binding and the parties agree the panel may award costs and
fees, including attorneys' fees, as part of any award made. The parties agree
that neither will have any liability for indirect or consequential damages
unless bad faith is shown. ))))
If the foregoing correctly sets forth our understanding with respect to
the foregoing, please so indicate by signing below, at which time this letter
shall become a binding agreement. This agreement shall be considered null and
void if not signed and countersigned by 5:00 PM on the 5th business day from the
date of this agreement.
SKYEBANC, INC. DRAGON INTERNATIONAL GROUP CORP
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(sign) (sign)
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(print name) (print name)
Chief Operating Officer CEO
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(title) (title)
ANNEX A Indemnification Provisions to Financial Advisory and Investment
Banking Agreement (the "Agreement") dated February 15th, 2006 between SkyeBanc,
Inc. ("SKYE") and Sense Holdings, Inc. (the "Company")
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1. Company agrees to (a) reimburse SKYE, its affiliates and their
respective directors, officers, employees, agents and controlling persons (each,
an "Indemnified Party") promptly, upon demand, for actual, out-of-pocket
expenses (including reasonable fees and expenses for legal counsel) as they are
incurred in connection with the investigation of, preparation for or defense of
any pending or threatened claim, or any litigation, proceeding or other action
in connection with or arising out of or relating to the engagement of SKYE under
the Agreement, or any actions taken or omitted, services performed or matters
contemplated by or in connection with the Agreement, (collectively, a "Claim");
and (b) to indemnify and hold harmless each Indemnified Party from and against
any and all out-of-pocket losses, claims, damages and liabilities, joint or
several, to which any Indemnified Party may become subject, including any amount
paid in settlement of any litigation or other action (commenced or threatened)
to which Company shall have consented in writing (such consent not to be
unreasonably withheld), whether or not any Indemnified Party is a party and
whether or not liability resulted; provided, however, that Company shall not be
liable in respect of any loss, claim, damage or liability to the extent that a
court or other agency having competent jurisdiction shall have determined by
final judgment (not subject to further appeal) that such loss, claim, damage or
liability shall have been incurred solely as a direct result of the willful
misconduct or gross negligence of such Indemnified Party.
2. ((((((An Indemnified Party shall have the right to retain separate legal
counsel of its own choice to conduct the defense and all related matters in
connection with any Claim, and such counsel shall to the fullest extent,
consistent with its professional responsibilities, cooperate with Company and
legal counsel designated by Company.)))))) OR (((((((In the event that there is
a conflict or potential conflict of interests as between Company and an
Indemnified Party in the reasonable judgment of counsel for such Indemnified
Party, then such Indemnified Party shall have the right to retain separate legal
counsel of its own choice to conduct the defense and all related matters in
connection with any Claim. Company shall pay the reasonable fees and expenses of
such legal counsel and such counsel shall to the fullest extent, consistent with
its professional responsibilities, cooperate with Company and any legal counsel
designated by Company.))))))
3. Company will not, without the prior written consent of each Indemnified
Party settle, compromise or consent to the entry of any judgment in any pending
or threatened Claim in respect of which indemnification may be reasonably sought
hereunder (whether or not any Indemnified Party is an actual or potential party
to such Claim), unless such settlement, compromise or consent includes an
unconditional, irrevocable release of each Indemnified Party against whom such
Claim may be brought from any and all liability arising out of such Claim.
4. In the event the indemnity provided for hereunder is unavailable or
insufficient to hold any Indemnified Party harmless, then Company shall
contribute to amounts paid or payable by an Indemnified Party in respect of such
Indemnified Party's losses, claims, damages and liabilities as to which the
indemnity provided for hereunder is unavailable or insufficient (i) in such
portion as appropriately reflects the relative benefits received by Company, on
the one hand, and the Indemnified Party, on the other hand, in connection with
the matters as to which losses, claims, damages or liabilities relate, or (ii)
if the allocation provided by (i) above is not permitted by applicable law, in
such proportion as appropriately reflects not only the relative benefits
referred to in clause (i) but also the relative fault of Company, on the one
hand, and the Indemnified Party, on the other hand, as well as any other
equitable considerations. The amounts paid or payable by a party in respect of
losses, claims, damages and liabilities referred to above shall be deemed to
include any reasonable legal or other out-of-pocket fees and expenses incurred
in defending any litigation, proceeding or other action or claim.
Notwithstanding the provisions hereof, SKYE's share of the liability hereunder
shall not be in excess of the amount of fees actually received by SKYE under the
Agreement (excluding any amounts received as reimbursement of expenses by SKYE).
5. These Indemnification Provisions shall remain in full force and effect
and survive the expiration of the term of the Agreement, and shall be in
addition to any liability that Company might otherwise have to any Indemnified
Party under the Agreement or otherwise.
6. Each party hereto consents to personal jurisdiction and service of
process and venue in any court in the State of New Jersey in which any claim for
indemnity is brought by any Indemnified Person, except as provided in Section 11
(c) of the Agreement.
SKYEBANC, INC. DRAGON INTERNATIONAL GROUP CORP
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(sign) (sign)
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(print name) (print name)
Chief Operating Officer CEO
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(title) (title)