Mr. Robert Rosenschein GuruNet Corporation Wesley Hills, NY 10952-1233 December 9, 2004 Dear Bob,
Exhibit
10.1
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GuruNet
Corporation
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▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
December
9, 2004
Dear
▇▇▇,
This
Services Agreement (the “Agreement”)
sets
forth the terms and conditions under which Barretto Pacific Corporation
(“BPC”)
has
been engaged by GuruNet Corporation (the “Company”)
for
the purpose of disseminating and publicizing information regarding the Company,
its business and its affairs to members of the public in the United States
of
America with a view to encouraging investment in the Company’s securities. This
Agreement is effective December 13, 2004 (the “Engagement
Date”)
The
parties agree as follows:
1. The
Services. In
consideration of Company’s payment of the Fee (as defined below), BPC shall
provide the following services to the Company (collectively, the
“Services”);
(a) Disseminate
Public Information.
BPC
will disseminate public information about the Company, its business and affairs,
in the United States of America, to investment professionals and private parties
who may have an interest in investing in the Company’s securities. BPC has
relationships with many members of the investment community including
stockbrokers, buy and sell-side portfolio managers, buy and sell-side research
analysts, financial newsletter writers, investment banks, fund managers, other
investment professionals, and private investors. As a result, BPC will
disseminate public information regarding the Company to its existing database
of
business associates and to other investment professionals whom BPC will research
and identify based on their potential interest in the Company.
(b) Communicate
with Investment Community.
BPC
will communicate on an ongoing basis with members of the brokerage and
investment community in the United States of America whom BPC has contacted
for
the benefit of the Company and who have expressed a continued interest in the
Company.
(c) Conduct
Conference Calls.
BPC
will conduct periodic group conference calls with stockbrokers and other
investment professionals who may have an interest in the Company. The group
conference calls will enable the Company’s senior management to present the
Company’s “story” to a captive audience.
(d) Arrange
Meetings with Investment Community.
BPC
will identify investor conferences where the Company’s management may be invited
to attend, and arrange group or individual meetings with portfolio managers,
analysts, stockbrokers and other investment professionals in key money center
cities.
(e) Facilitate
Research Reports.
BPC
will provide introductions to buy and sell-side research analysts, and financial
newsletter writer with the goal of facilitating the production of one or more
research reports or financial newsletters on the Company.
(f) Facilitate
Engagement of Investment Bankers.
Should
the Company consider a public offering, private stock sale or other transaction,
BPC will assist in identifying and reaching agreement with an appropriate
investment banker.
(g) News
Releases.
BPC
will review and, where appropriate, make suggestions to modify the Company’s
proposed news releases. The Company will reference BPC as a contact source
on
all Company news releases during the term of BPC’s engagement by the
Company.
(h) Investor
Relations.
BPC
will advise the Company regarding best practices that are typical of the
Investor Relations profession.
(i) Public
Presentations.
BPC
will review and comment upon the Company’s web-site, brochure, PowerPoint
presentations, fact sheet and other investor oriented materials.
(j) Media
Contacts.
From
time to time BPC will provide introductions to members of the media, who may
be
interested in the Company’s affairs.
During
the term of this Agreement BPC will devote the time and attention to performing
the Services for Company that BPC reasonably believes is necessary to provide
effective promotion of the Company and its affairs. Notwithstanding anything
to
the contrary herein, the Services will not include any actions that constitute,
or that BPC believes constitute, or that BPC is advised by its counsel may
constitute, general solicitation or advertising of the Company’s securities,
rendering legal opinions or other legal services, performing services which
would require BPC to register as a broker or dealer, or performing services
that
would render BPC an “underwriter” pursuant to federal or state securities
laws.
2. The
Fee.
As
compensation for BPC rendering the Services during the term of this Agreement,
the Company shall pay BPC a fee of $100,000 in cash (the “Cash Fee”) and $50,000
in restricted stock (the “Registered Stock”) and the expense reimbursements
described in Section 3, below, collectively, (the “Fee”).
The
Cash
Fee includes the following payments on the following dates:
|
Payment
|
Payment
Date
|
|
|
$12,000
|
Upon
engagement
|
|
|
$
8,000
|
On
the 13th
day of each month commencing January 13,
2005
|
An
invoice for each payment following the initial payment will be e-mailed to
the
Company two (2) business days prior to its due date. Failure to receive this
invoice will not relieve the Company of its obligation to promptly pay each
installment of the Cash Fee.
Payments
shall be made by wire transfer to the following account:
Barretto
Pacific Corporation
Key
Bank
of Washington
Account
No. 471661005077
ABA
No.
▇▇▇▇▇▇▇▇▇
The
Restricted Stock shall be paid as follows: On the Engagement Date the Company
will instruct its transfer agent (the “Transfer
Agent”)
to
issue to BPC a certificate for seven thousand eight hundred (7,800) shares
(the
equivalent of $50,000) of Company’s authorized but uninsured common stock (the
“Restricted
Stock”).
The
Transfer Agent will be instructed to deliver the certificate for the Restricted
Stock to the Company, which shall hold it for the benefit of BPC pursuant to
this Agreement. Upon receipt of the certificate of Restricted Stock the Company
will advise BPC that is has received said certificate. If the Company does
not
terminate this Agreement pursuant to Section 5(b)(i), below, then, on the first
day of the third month following the Engagement Date, Company shall deliver
the
certificate representing the Restricted Stock to BPC and BPC shall own the
Restricted Stock free of all liens, claims, restrictions and encumbrances except
the limits of Rule 44. If the Company does terminate this Agreement pursuant
to
Section 5(b)(i), below, then Company shall retain the certificate for the
Restricted Stock, and BPC will execute any document required by Company to
allow
Company to cancel the certificate and also confirm that it [BPC] has no interest
in the Restricted Stock.
The
Cash
Fee, the expense reimbursements described in Section 3, below and the Restricted
Stock, shall be BPC’s sole and exclusive entitlement against the Company as
compensation for the Services.
3.
Expense
Reimbursement.
Except
as specifically provided in this Section, BPC shall not be entitled to
be
reimbursed for any of the expenses, out of pocket or otherwise, that it
incurs
in the course of performing the Services. The Company agrees to promptly
reimburse BPC for travel related expenses such as coach airfare, lodging
and meals associated with attending meetings arranged on behalf of the
Company,
or accompanying management to investment conferences, or other matters
that may
require travel on behalf of the Company, all of which will be billed to
Company
at BPC’s actual cost (collectively, “Allowed
Expenses”).
BPC
will not incur any Allowed Expense without the Company’s prior written approval,
which approval shall constitute the Company’s agreement to promptly reimburse
BPC for all such approved expenses.
Company
understands that BPC’s service (1) do not include the printing of any
documentary material on behalf of the Company and that any expenses that
may be
incurred in that respect, (which will only be incurred with the Company’s prior
written consent), shall be separately reimbursed to BPC by the Company;
and (ii)
do not include the cost of mailing the Company’s internal “Investor Package” to
members of the public who have requested such information from
BPC.
4.
Company’s
Duties.
Company
shall use its reasonable efforts to enable BPC to fully and satisfactorily
perform the Services for Company. This shall include, without limit, making
its
senior executives available on a regular basis to BPC; keeping BPC informed
of
Company’s business plans and strategies; filing all required SEC reports within
the prescribed time periods; integrating BPC into all discussions and processes
related to investor relations issues (including the possibility of the
Company
hiring other vendors who may perform similar Services); providing BPC with
copies of all proposed news releases at least twenty-four (24) hours before
the
anticipated release time; and indicating in all Company news releases that
BPC
is the investor relations contact reference for interested parties. If
BPC’s
failure to perform the Services is due, in whole or in part, to Company’s
failure to comply with this Section, BPC shall not be in default under
this
Agreement.
5.
Term
and Termination
(a)
Term.
The
initial term of this Agreement will commence on the Engagement Date and
continue
for a period of one (1) year (the “Initial
Term”).
Unless terminated as provided in the following subsection, upon the expiration
of the Initial Term and upon the expiration of each successive one-year
term
this Agreement will automatically be extended for an additional one-year
term.
(b)
Termination.
This
Agreement may be terminated only as follows:
(i)
By
Company during the Initial Term.
By
notice given to BPC no later than the last day of the third month of the
Initial
Term, the Company may terminate this Agreement without cause effective
as of the
close of business on the last day of the fourth month of the Initial Term.
(ii)
By
either party upon the expiration of the Initial Term.
By
notice given to the other party no later than the last day of the tenth
(10th)
month
of the Initial Term, either party may terminate this Agreement without
cause
effective as of the last day of the one-year Initial
Term.
(iii)
By
either party during any Subsequent Term.
By
notice given to the other party no later than the last day of the tenth
(10th)
month
of any term after this Initial Term, either party may terminate this Agreement
without cause effective as of the last day of the current one-year
term.
(iv)
By
BPC
for Company’s failure to Pay Fee, Reimburse Expenses or
Cooperate.
By
notice given to the Company at any time, BPC may terminate this Agreement
if the
Company has failed to pay any installment of the Fee when due and payable
or
failed to fully and promptly reimburse any Allowed Expenses or approved
expanses. BPC may also terminate this Agreement if, within thirty (30)
days of
giving a notice to Company that specifies in detail the facts constituting
Company’s breach of its obligations under Section 4 hereof, Company has not
cured the breach.
(v)
By
Either Party for any Other Material Breach.
Either
party may terminate this Agreement if, within thirty (30) days of giving
a
notice to the other party that specifies in detail the facts constituting
the
other party’s breach of any material term of this
Agreement.
(c)
Consequences
of Termination.
If this
Agreement is properly terminated, there shall be no further obligations on
the
part of the Company or BPC, their respective stockholders, directors, officers,
employees, agents or representatives, except (i) Company will be obligated
to
pay BPC the Fee for all periods through the effective date of the termination
and reimburse BPC for all Allowed Expenses and for al other approved expenses
incurred through that date, and (ii) BPC shall be obligated to continue to
comply with the provisions of Section 9. Nothing herein shall relieve either
party from liability for any material breach of this
Agreement.
(d)
Limitation
of Liability.
Notwithstanding anything contained in this Agreement to the contrary, in
no
event shall BPC’s liability for any breach of this Agreement exceed the amount
paid by Company to BPC as Fees under this Agreement.
6.
Other
Consultants and other Clients.
The
Company reserves the right to contract other firms to provide services
similar
to the Services and expressly acknowledges that BPC shall be entitled to
provide
the Services to other public companies provided
that
such other representation does not in any way interfere or conflict with
the
effective performance of BPC’s duties hereunder, and provided,
further,
that
BPC adheres to its obligations of confidentiality as set forth in Section
9
hereof.
7.
Status
as Independent Contractor.
All
payments hereunder will be made to BPC as an independent contractor and
BPC will
be solely responsible for federal, state, and city tax filings and remittances.
BPC is not, and by the provision of the Services will not become, an agent
or
employee of the Company and will have no authority, express or implied,
to
commit or otherwise obligate the Company in any manner
whatsoever.
8.
Compliance
with Laws.
BPC
represents and warrants that it will perform the Services in compliance
with all
applicable laws and legal requirements, including but not limited to all
applicable federal and state securities laws and regulations applicable
to BPC
or to the Company, and Company’s internal policies with respect to ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, a copy of which has been provided to BPC.
9.
Nondisclosure.
BPC
will not, either during or after the term of this Agreement, directly or
indirectly divulge, publish or disclose any information regarding the affairs
or
business of the Company or its affiliates except
information that is provided by the Company and expressly authorized to
be
disclosed. BPC will not use for its own purposes, or for any purposes other
than
providing the services to the Company, any information BPC may acquire
with
respect to the Company’s affairs, business, or projects. Upon the termination of
this Agreement (for any reason) BPC will promptly return to the Company
all
documents and other property of the Company including, without limitation,
all
Confidential Information (as defined below) and all copies thereof. BPC
will
deliver all such materials in accordance with the Company’s
directions.
BPC
acknowledges that the Company may provide to BPC material, non-public
information (“Confidential
information”)
concerning the Company. BPC agrees that only those employees or advisors who
have a need to know such information will have access to such Confidential
Information, and that any employee or advisor who is provided with such access
will be under a written obligation to maintain the confidentiality of such
Confidential Information on terms at least as restrictive as those provided
for
herein. BPC will not trade the Company’s stock upon the basis of any material
non-public information that BPC may possess.
BPC
will
segregate all Confidential Information from information of other companies
and
will not reproduce any of the Confidential Information without the Company’s
prior written consent. BPC acknowledges that (i) BPC has received and read
the
Company’s most recently filed public documents, and (ii) the Company has made
available to BPC all other documents and information that BPC has requested
relating to the Company.
10.
Notice.
Any
notice required or permitted to be given by this Agreement shall be in
writing
and must be given by personal delivery, by confirmed facsimile transmission,
by
overnight courier, or by mailing, postage prepaid, registered or certified
mail.
All notices shall be addressed to the receiving party at its address set
forth
below or to such other address as the receiving party may, by notice, designate.
Notices shall be deemed to be given and effective as follows: (i) if personally
delivered or sent by facsimile, as of the date the notice is personally
delivered of faxed; (ii) if sent by overnight courier, two (2) business
days
after delivery of the notice to the courier; and (iii) if sent by certified
or
registered mail, four (4) business days after mailing. Notice shall be
addressed
as follows:
|
(a)
|
if
to the Company to: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, GuruNet Corporation, ▇▇▇ ▇▇▇▇▇
▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
|
|
(b)
|
if
to BPC, to: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇, ▇▇▇ ▇, ▇▇▇▇▇▇▇,
▇▇
▇▇▇▇▇
|
11.
Binding
Effect: No Assignment.
This
Agreement shall inure to the benefit of and be binding upon the parties
hereto.
This Agreement may not be assigned.
12.
Severability.
Each
provision and paragraph of this Agreement is declared to constitute a separate
and distinct covenant and to be severable from all other such separate
and
distinct covenants under this Agreement. If any covenant or provision herein
contained is determined to be void or unenforceable, in whole or in part,
such
determination shall not affect or impair the validity or enforceability
of any
other covenant or provision contained in this Agreement and the remaining
provisions of this Agreements shall be valid and enforceable to the fullest
extent provided by law.
13.
No
Brokers.
BPC
represents and warrant that it has not retained any broker or other individual
in connection with the subject matter of this Agreement who may be entitled
to
be paid a fee by the Company in connection herewith.
14.
Entire
Agreement.
This
agreement replaces, supersedes and cancels all prior agreements, representations
and understandings between the Company and BPC in respect of the subject
matter
of this Agreement.
15.
Governing
Law.
This
Agreement shall be governed in all respects, including validity, interpretation
and effect, by the laws of the State of New York applicable to contracts
executed and to be performed wholly within such state.
16.
Dispute
Resolution.
All
disputes arising out of this Agreement shall be submitted to mediation.
The goal
of the mediation shall be to preserve and enhance the parties’ relationship. Any
party desiring mediation shall begin the process by giving the other party
a
written request to mediate, describing the issues involved and inviting
the
other party to join with the requesting party to name a mutually agreeable
mediator and a time frame for the mediation meeting. The parties and the
mediator may adopt any procedural format they choose. The contents of all
discussions during the mediation shall be confidential and non-discoverable
in
any subsequent litigation. If the parties can agree upon a mutually acceptable
resolution to the disagreement, it shall be reduced to writing signed by
the
parties, and the dispute shall be deemed ended.
If
the
dispute is not successfully mediated, or if either party refuses to mediate
or
to promptly name a mutually acceptable mediator, then any party who desires
dispute resolution may institute legal proceedings.
17.
Consent
to Jurisdiction.
The
Company and BPC hereby irrevocably submit in any suit, action or proceeding
arising out of or relating to this Agreement to the exclusive jurisdiction
and
venue of the federal and state courts of the State of New York and irrevocably
waive any and all objections to such courts exclusive jurisdiction and
venue in
any such suit, action or proceeding.
18.
Waiver
of Jury Trail.
The
Company and BPC hereby waive any right they may have to a trial by jury
in
respect of any action, proceeding or litigation directly or indirectly
arising
out of, under, or in connection with this Agreement.
19.
Amendments;
Waivers.
No
amendment or waiver or any provision of this Agreement shall be binding
upon a
party unless made in writing and signed by such party.
20.
Further
Documents.
The
parties will execute and deliver all such further documents and instruments
and
do all such further acts and things as may be required to carry out the
full
intent and meaning of this Agreement.
21.
Indemnification.
BPC
shall indemnify and hold harmless the Company, its directors and officers,
and
each person, if any, who controls the Company (within the meaning of the
Section
15 of the Securities Act or Section 20 of the Securities Exchange Act of
1934,
as amended) against all losses, claims, damages, liabilities and expenses
(including reasonable attorneys’ and accountants’ fees, disbursements and
expenses, as incurred) incurred by such party arising out of or based upon
(i)
any failure of BPC to perform the Services in accordance with applicable
law, or
(ii) any suite, claim, investigation, action or other proceeding brought
by any
governmental entity in connection with BPC’s performance under this
Agreement.
22.
Counterparts.
This
Agreement may be executed in two or more partially fully executed counterparts,
each of which shall be deemed an original, but all of which together shall
constitute but one and the same instrument provided
that
neither party shall have any obligations hereunder until all parties have
become
signatories hereto.
Please
confirm that the foregoing correctly sets forth our agreement by initialing
each
page, signing the signature page, and returning to us via facsimile a copy
of this Agreement.
| BARRETTO PACIFIC CORPORATION | ||
| |
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| By: | /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, President | |
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||
| ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, President | ||
| GURUNET COPORATION | ||
| |
|
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| By: | /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ | |
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||
| ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, Chairman, Chief Executive Officer | ||