Applying to connect with investors and customers through Kachan's Hello Cleantech online matchmaking or events requires acceptance of the following terms and conditions. In summary, there is no application or presentation fee, but a business development consulting fee of between 1% and 5% is due if a transaction(s) is facilitated. Details below.
THIS AGREEMENT will be dated the date of application acceptance.
BETWEEN;
D. KACHAN & CO. INC., a corporation existing under the laws of British Columbia, Canada, with an office at the Mercantile Building, 318 Homer Street, Suite 401, Vancouver, British Columbia, V6B 2V2 (“Kachan”)
AND:
The above-identified company (the “Company”)
WHEREAS:
A. Upon selection by selection committee, Kachan will arrange for the Company to attend one of its Hello Cleantech events to present to clean technology investors, and/or if opted into by the Company, Kachan will distribute the Company’s information electronically to clean technology investors participating in its Hello Cleantech entrepreneur and investor online matchmaking program (collectively or individually, “Activities”); and
B. The parties hereto agree that Kachan will be entitled to a business development consulting fee upon the successful completion of an agreement between the Company and any prospective investors or customers to which an introduction was directly facilitated by these Activities.
NOW THEREFORE THIS AGREEMENT WITNESSETH that in consideration of the mutual covenants and agreements herein contained and subject to the terms and conditions hereafter set out, the parties hereto agree as follows:
1. In this Agreement:
(a) “affiliate” means with respect to any person, any other person who directly or indirectly controls, is controlled by, or is under direct or indirect common control with, such person, and includes any person in like relation to an affiliate;
(b) a person shall be deed to “control” another person if such person possesses, directly or indirectly, the power to direct or cause the direction of the management and policies of such other person, whether through the ownership of voting securities, by contract or otherwise, and the term “controlled” shall have similar meaning;
(c) “person” is to be broadly interpreted and includes an individual, a corporation, a partnership, a trust, an unincorporated organization, a governmental authority or body, and the executors, administrators or other legal representatives of an individual in such capacity; and
(d) a financing or sales contract shall be deemed to have been directly facilitated by Kachan Activities where such financing or sales contract is with any attendee of a Hello Cleantech event at which the Company presented, or any affiliate of an attendee, or any investor or other company, or any affiliate of an investor or other company, participating in Kachan’s Hello Cleantech online matchmaking program if opted into by the Company.
2. The Company hereby agrees to pay to Kachan a consulting fee with respect to any financing or sales contract obtained by the Company as a direct result of introductions facilitated by the Activities (the “Consulting Fee”) and completed within 24 months of the commencement of the Activities. For the purposes of this Agreement, a financing transaction shall be deemed to be completed upon closing of such financing and a sales contract shall be deemed to be completed upon the entering into a definitive sales contract (each, a “Closing”).
3. The amount of the Consulting Fee shall be as determined by the following formula:
(a) 5% of the first million Canadian dollars the Company is entitled to receive under the transaction;
(b) 4% of the second million Canadian dollars the Company is entitled to receive under the transaction;
(c) 3% of the third million Canadian dollars the Company is entitled to receive under the transaction;
(d) 2% of the fourth million Canadian dollars the Company is entitled to receive under the transaction; and
(e) 1% of the value of all amounts above four million Canadian dollars, which the Company is entitled to receive under the transaction.
4. If a Consulting Fee shall become payable to Kachan as the result of an equity financing of the Company, Kachan shall have the option, at its sole discretion, to receive the Consulting Fee in equity securities of the Company with the same terms being offered to investors pursuant to such financing. Unless Kachan chooses to receive the Consulting Fee in equity securities, the Company will pay the Consulting Fee to Kachan by certified cheque, bank draft or wire transfer to an account designated by Kachan in writing.
5. The Consulting Fee shall be paid within 5 business days of the Closing of a financing that is subject to this Agreement or within 5 business days of each receipt by the Company of monies under a sales contract subject to this Agreement (each, a “Payment”). With respect to Consulting Fees paid in respect of sales contracts, payments shall be calculated on the total value of the contract and paid proportionally on each Payment received by the Company for the first two years of any such sales contract.
6. The Company shall promptly notify Kachan following the execution of any letter of intent, term sheet, engagement letter or other agreement relating to a pending financing or commercial sale that would trigger a Consulting Fee under this Agreement.
7. The Company shall be responsible for any of its own travel expenses and accommodation expenses related to the Activities.
8. Kachan is hereby engaged by the Company on a non‑exclusive basis and the Company may, in its sole discretion and on terms it deems appropriate, engage or retain other parties to assist it in locating and securing investors or customers.
9. Kachan is hereby engaged by the Company for the sole purpose of facilitating the introduction of the Company to prospective investors or customers through its Activities. Kachan has no authority to negotiate or enter into agreements on behalf of the Company. All negotiations and technical presentations to prospective investors or customers shall be made or carried out by the Company.
10. Kachan is not registered as an investment dealer or advisor with any securities commission or similar regulatory authority in any jurisdiction and cannot and will not, have any involvement in any transaction that may take place between the Company and any prospective investor.
11. Kachan will not:
(a) discuss any matters with the Company or investors that requires familiarity with securities;
(b) advise the Company or investors on the merits of particular investments, securities, any proposed listing of securities on any exchange or quotation service or otherwise provide securities advice;
(c) participate in negotiating the terms of any transaction; or
(d) handle funds or securities in connection with any transaction.
12. The Company represents and warrants to, and covenants and agrees with Kachan that:
(a) the Company is duly and validly existing under the laws of the jurisdiction stated on the first page of this Agreement;
(b) this Agreement has been duly approved by all requisite corporate actions of the Company and the Company has good and sufficient right and authority to enter into this Agreement on the terms and conditions set forth herein and to pay the Consulting Fee;
(c) the making of this Agreement and the completion of all the transactions contemplated hereby will not conflict with, or result in the breach of or the acceleration of any indebtedness under, or constitute default under, the constating documents of the Company or any indenture, mortgage, agreement, lease, license or other instrument to which it is a party or by which it is bound, or any judgment or order of any court or administrative body by which the Company is bound;
(d) to its knowledge, the execution and delivery of this Agreement, the performance of its obligations under this Agreement and the completion of the transactions contemplated under this Agreement will not result in the violation of any law or regulation by the Company; and
(e) all information provided by, or to be provided by, the Company to Kachan or to any prospective investors in connection with this Agreement, or the transactions contemplated hereby is, or shall be, true and complete in all material respects.
13. The Company authorizes Kachan to submit information provided by it to potential investors. Kachan has not verified the information provided by the Company and makes no warranties or representations regarding the truth, accuracy or completeness of the information provide by such. Additionally, Kachan is not responsible for the release of any confidential, restricted or proprietary information provided by the Company in its application.
14. Kachan makes no warranty or representation that any of the Activities or related services provided by Kachan will result in the Company completing a financing or procuring a sales contract.
15. Nothing contained in this Agreement shall be construed as:
(a) creating any obligation on Kachan to market the Company or solicit prospective investors for the Company; or
(b) constituting Kachan as an agent of the Company.
16. This Agreement shall not be construed as a partnership, and Kachan shall not be liable for any obligation incurred by the Company, nor shall Kachan be liable for any injuries, liabilities or damages suffered by or caused by the Company. In the event of any breach of any of the representations, warranties or covenants herein contained, the breaching party shall indemnify, defend and hold harmless the other party from any and all damages, claims, losses, causes of action, costs, expenses and fees incurred by the other party, directly or indirectly, as a result of any such breach.
17. The Company agrees to indemnify and hold harmless Kachan, its officers, directors, employees, agents and their respective affiliates (the “Indemnified Parties”) from and against all claims, damages, losses and expenses, direct and indirect, or consequential damages, including but not limited to fees and legal expenses, including any arbitration costs, arising out of or resulting from the performance of the work by or claims against the Indemnified Parties related to the services performed for the Company. This indemnity shall survive termination of this Agreement and complete from any of the transactions contemplated hereby.
18. This Agreement constitutes the entire agreement between the parties with respect to its subject matter, and supersedes any prior understandings and agreements between the parties with respect to its subject matter. There are no representations, warranties, forms, conditions, undertakings or collateral agreements, express implied or statutory between the parties other than as expressly set forth in this Agreement.
19. The term of this Agreement shall be 2 years from the date of this Agreement. Notwithstanding termination or expiry of this Agreement, if the Company completes a Closing of a transaction that would otherwise be subject to a Consulting Fee under this Agreement, Kachan shall be entitled to receive a Consulting Fee with respect to such Closing, including with respect to Payments received by the Company after such expiration or termination of this Agreement.
20. The decision of whether or not to proceed with any proposal shall be at the sole discretion of the Company, and the Company shall incur no obligation whatsoever to Kachan in the event that any proposal is rejected.
21. Any notice under this Agreement will be given in writing and must be delivered, sent by facsimile or electronic communication or mailed by prepaid post and addressed to the party to which notice is to be given at the address of the party provided on the first page of this Agreement or such other address designated by the party in writing.
22. Time shall be of the essence in the performance of this Agreement.
23. This Agreement will be subject to and construed in accordance with and governed by the laws of the Province of British Columbia and the laws of Canada applicable therein.
24. This Agreement may not be assigned by either party hereto.
25. This Agreement may be amended in writing with the mutual consent of both parties.
26. This Agreement shall be binding upon and shall enure to the benefit of each of the parties hereto and their respective permitted receivers, successors and assigns.
27. For the convenience of the parties, this Agreement may be executed in any number of counterparts and delivered by facsimile or other electronic means, and each executed counterpart shall, for all purposes, be deemed an original and shall have the same force and effect as an original, but all of which together shall constitute in the aggregate one and the same agreement.
IN WITNESS WHEREOF the parties hereto have caused their duly authorized representatives to execute this Agreement on the date of this application's acceptance. A personalized copy will be emailed as reference to the email address entered above upon acceptance.