Attached files
| file | filename |
|---|---|
| 10-Q - BLACKHAWK CAPITAL GROUP BDC INC | v165619_10q.htm |
| EX-10.1 - BLACKHAWK CAPITAL GROUP BDC INC | v165619_ex10-1.htm |
| EX-31.2 - BLACKHAWK CAPITAL GROUP BDC INC | v165619_ex31-2.htm |
| EX-32.1 - BLACKHAWK CAPITAL GROUP BDC INC | v165619_ex32-1.htm |
| EX-32.2 - BLACKHAWK CAPITAL GROUP BDC INC | v165619_ex32-2.htm |
| EX-31.1 - BLACKHAWK CAPITAL GROUP BDC INC | v165619_ex31-1.htm |
Exhibit
10.2
CONSULTATION
AGREEMENT
This Consultation Agreement
("Agreement") is made by and between Growthink, Incorporated ("Growthink"), a
Delaware corporation, with its principal address at 6033 West Century Blvd. Ste.
150, Los Angeles, CA 90045, and Blackhawk Capital Group BDC, Inc. with its
principal address at 14 Wall Street, Suite ll00B, New York, NY 1005 together
with its principals who execute this agreement (jointly and severally referred
to as "Blackhawk," "Company “or "Fund").
RECITALS
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A.
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Growthink
is a market research firm for growth businesses. Growthink assists its
clients in understanding their target markets, customers, and competition,
and in positioning their businesses by conducting market research and
feasibility studies and formulating business
strategies.
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B.
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Company
needs assistance in one or more areas within Growthink's domain of
services.
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C.
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Company
has interviewed Growthink and has evaluated Growthink's services and
capabilities to the Company's satisfaction. Company desires to engage
Growthink to provide the services set forth in this
Agreement
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AGREEMENT
In consideration of the fore going
premises, the parties agree as follows:
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I.
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Growthink's
Services. Growthink will provide to Blackhawk research, analysis
and data related to the business development company(BDC) and hedge funds
investment arena. This research will include coverage and analysis of
BDC's and hedge funds of similar form and strategy to Blackhawk, as well
as data on Blackhawk's targeted investment arenas. Additionally, Growthink
will work to syndicate its research and analysis reports into coverage
channels frequented by institutional and individual investors. No research
or work shall be performed and released by Growthink pursuant to this
Agreement (a) without the permission of the Company, and (b) during the
period in which Blackhawk is conducting its private placement offering of
shares of its common stock pursuant to Rule 506 under the Securities Act
of 1933, as amended ("Securities
Act").
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II.
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Compensation.
The Company shall pay Growthink $25,000 upon execution of this Agreement,
and every (60) days thereafter in advance for services until termination
as described below. Each party to this Agreement may terminate it upon
seven (7) calendar days advance written notice to the other
party.
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III.
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General Terms and
Conditions. The general terms and conditions set forth on Appendix
A are made a part of and incorporated by reference into this
Agreement.
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[The
remainder of this page intentionally left blank]
1
GROWTHINK
EXECUTION
PAGE
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement, or have caused
this Agreement to be duly executed on their respective behalf by their
respective officers thereunto duly authorized as of as of the dates
below.
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Growthink:
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Signature:
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/s/James Turo
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Name:
James Turo
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Title:
CEO
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Date:
08/21/2009
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Blackhawk Capital Group BDC.
Inc:
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Signature:
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/s/ Craig A. Zabala
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Name:
Dr. Craig A. Zabala
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Title:
President and CEO
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Date:
08/21/2009
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Billing
Contact:
Name: Dr.
Craig A. Zabala
Phone:
212.566.8300
caz@concorde-us.com
Email
Address: caz@concorde-us.com
Fax: 212.566.8320
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GROWTHINK
Prefer
Invoices via e-Mail, Mail, or Fax? (Circle One)
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GROWTHINK
APPENDIX A
-GENERAL TERMS AI\ID CONDITIONS
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1.
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Term;
Termination. The term of this Agreement (the "Term") shall
initially be (60) sixty days and, thereafter, for a total of eight (8)
months of services, commencing on the date hereof, and shall renew
automatically thereafter in (60) day increments until terminated in
writing by either party upon seven (7) calendar days advance written
notice. Termination of this Agreement shall not affect Sections 4 -7 of
this Appendix A, each of which shall survive any termination or expiration
of this Agreement.
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2.
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Change Orders.
Any modifications to Growthink services as described in Section I will
require execution of a written change order by both parties to this
Agreement(a "Change Order"), which shall substantially conform to the
format of the document attached hereto as Appendix B. Each Change Order
shall be deemed to be an amendment to and will become part of this
Agreement.
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3.
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Good Faith
Cooperation. The Company shall cooperate with Growthink in good
faith. The Company shall promptly return telephone calls, emails, and
requests for information, including providing all relevant information in
the possession of the Company. The Company shall be available for
teleconferences or in-person conferences with representatives of Growthink
upon reasonable notice from Growthink. Additionally, the Company shall
promptly pay invoices when presented and due. Breach of this paragraph by
Company excuses future Growthink performance but not Company performance,
including payment of all invoices due, until breach has been
cured.
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4.
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Non-solicitation.
Unless otherwise mutually agreed to by the parties in writing, Company
agrees not to hire, retain or seek to retain any current and/or former
employee, consultant, agent or other personnel of Growthink during the
term of this Agreement and for a period of twelve (12)consecutive months
thereafter.
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5.
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Absence of
Representations and Warranties. Growthink shall exercise good faith
and use reasonable business diligence in fulfilling its obligations under
this Agreement. Growthink makes no representations or warranties regarding
(i) the information and data which Growthink incorporates into its work
product since Growthink is dependent on public information and other third
party in formation in rendering its services; (ii) business strategy;(iii)
financing of the Company; (iv) success of the Company; or (v) any other
aspect of the business plan and services rendered under this Agreement.
The Company is responsible for its own success or failures. EXCEPT AS
SPECIFICALLY PROVIDED FOR IN SECTION 7(m) BELOW, THERE ARE NO WARRANTIES
WITH RESPECT TO THE SERVICES OR THE USE OR OPERATION OF THE WORK PRODUCT
OR DELIVERABLES, EXPRESS OR IMPLIED INCLUDING, BUT NOT LIMITED TO, ANY
IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE,
TITLE OR NONINFRINGEMENT.
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6.
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Limitation of
Liability. NEITHER PARTY SHALL HAVE ANY LIABILITY TO THE OTHER WITH
RESPECT TO ITS OBLIGATIONS UNDER THIS AGREEMENT OR GROWTHINK OTHERWISE FOR
SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, EVEN IF
THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO
EVENT SHALL GROWTHINK'S LIABILITY FOR ANY REASON AND UPON ANY CAUSE OF
ACTION WHATSOEVER EXCEED THE AMOUNTS PAID TO GROWTHINK BY COMPANY UNDER
THIS AGREEMENT.
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4
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7.
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Miscellaneous.
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a.
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Amendment. This
Agreement may be amended only by an instrument in writing signed by all
parties which expressly refers to this Agreement and specifically states
that it is intended to amend it. Further, this Agreement may not be
modified by an oral agreement even though supported by new
consideration.
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b.
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Relationship Between
the Parties. Agreement does not constitute and shall not be
construed as constituting a partnership or joint venture among or between
Growthink, Company or the individual signatories hereto. Except for
authorized parties signing on behalf of Company: i) no party hereto shall
have the right to obligate or bind any other party hereto in any manner
whatsoever; and ii) no party hereto shall be deemed an agent of any other
party hereto.
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c.
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Work for Hire.
Except for deliverables that constitute methodologies, techniques or
concepts that are generic and reusable from client to client and project
to project, and upon payment of all applicable
fees Agreement, Company shall own any copyright rights in
works of authorship or documents created by Growthink for Company under
this Agreement. Company and Growthink further agree that all such works of
authorship and documents are "works for hire", specially ordered and
commissioned by Company, as supplementary works to materials, documents,
business models and/or intellectual property owned by
Company.
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d.
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Residual
Knowledge. Nothing herein shall be construed to prevent or in any
way limit Growthink from using general knowledge, skill and expertise
acquired in the performance of this Agreement in any current or subsequent
endeavors. Company shall have no interest in such
endeavors.
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e.
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Waiver of Conflict of Interest.
Growthink advises many other companies and individuals. Growthink is privy
to a large number of creative ideas, many of which are protected and/or
proprietary intellectual property. We are also bound by numerous
on-disclosure and confidentiality obligations in areas that may be
similar, or competitive to the Company's business or technology. We take
reasonable measures to hold all client confidential information in
confidence. It is possible that during the time we are advising you, some
of our past, current or future clients will a) have similar types/lines of
business as yours, b) be in direct and/or indirect competition with you,
and/or c) have business dealings with you. Growthink services for Company
are conditioned upon Company acknowledging and waiving all potential
claims of conflict of interest.
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5
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f.
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Indemnification.
In further reconsideration of the agreements relating to the
engagement(the "engagement")contained in our Consultation Agreement dated
the date hereof, in the event that Growthink or any of its affiliates, the
respective directors, officers, partners, members, agents or employees of
Growthink or any of its affiliates, or any other person controlling
Growthink or any of its affiliates (collectively, "Indemnified Persons")
becomes involved in any capacity in any action, claim, suit, investigation
or proceeding, actual or threatened, brought by or against any person, in
connection with or as a result of the engagement or any matter referred to
in the engagement, the Company will reimburse such Indemnified Person for
its reasonable and customary legal and other expenses(including without
limitation the costs and expenses incurred in connection with
investigating, preparing for and responding to third party subpoenas or
enforcing the engagement) incurred in connection therewith as such
expenses are incurred. The Company will also indemnify and hold harmless
any Indemnified Person from and against, and the Company agrees that no
Indemnified Person shall have any liability to the Company or its owners,
parents, affiliates, security holders or creditors for, any losses,
claims, damages or liabilities (including actions or proceedings in
respect thereof) (collectively, "Losses") (A) related to or arising out of
(i) the Company's actions or failures to act(including statements or
omissions made or information provided by the Company or its agents) or
(ii) actions or failures to act by an Indemnified Person with the
Company's consent or in reliance on the Company's actions or failures to
act or (B) otherwise related to or arising out of the engagement or
Growthink's performance thereof, except that this clause(B) shall not
apply to any Losses that are finally determined by a court or arbitral
tribunal to have resulted solely from the bad faith or gross negligence of
such Indemnified Person. If such indemnification is for any reason not
available or insufficient to hold an Indemnified Person harmless, the
Company agrees to contribute to the Losses involved in such proportion as
is appropriate to reflect the relative benefits received(or anticipated to
be received)by the Company, on the one hand, and by Growthink, on the
other hand, with respect to the engagement or, if such allocation is
determined by a court or arbitral tribunal to be unavailable, in such
proportion as is appropriate to reflect other equitable considerations
such as the relative fault of the Company on the one hand and of Growthink
on the other hand; provided ,however, that, to the extent permitted by
applicable law, the Indemnified Persons shall not be responsible for
amounts which in the aggregate are in excess of the amount of all fees
actually received by Growthink from the Company in connection with the
engagement. Relative benefits to the Company, on the one hand, and
Growthink, on the other hand, with respect to the engagement shall be
deemed to be in the same proportion as (i) the total value paid or
proposed to be paid or received or proposed to be received by the Company
or its security holders ,as the case may be, pursuant to the
transaction(s),whether or not consummated, contemplated by the engagement,
bears to (i) all fees actually received by Growthink in connection with
the engagement.
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g.
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Entire Agreement and
Governing Law. This Agreement comprises the entire agreement
between the parties. This agreement can be executed in counterparts
delivered by fax and all such faxed counterparts, collectively, shall be
deemed, for all purposes, to constitute one original executed agreement.
This Agreement shall be governed by, interpreted under, construed and
enforced in accordance with the laws of the State of New York, excluding
conflict of law principles that might cause application of laws of any
other jurisdiction.
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h.
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Jurisdiction. Venue.
and Remedies. The Parties consent to the jurisdiction of the
federal and state courts of the State of New York. The Parties consent to
venue in New York, New York. The Parties consent to the service of process
in the same manner as the giving of notices pursuant to this Agreement.
All legal or equitable proceedings, arbitrations, or hearings initiated by
the Parties shall be in New York City and no court to tribunal, board,
panel, or arbitrator shall have jurisdiction over any matter in any other
location. Either party may exercise all remedies at law or in equity. All
provisions of this Agreement may be specifically enforced, whether or not
there is an adequate remedy at law or whether money damages may be
ascertainable.
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6
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i.
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Attorneys Fees and
Costs. If any action is brought for the enforcement of the
provisions of this Agreement ,the successful or prevailing party will be
entitled to recover its attorneys' fees and costs, as well as all other
costs that it incurred in connection with the action, in addition o any
other relief to which the prevailing party may be
entitled.
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j.
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Company Payment
Obligations. The Company is responsible for all obligations under
this Agreement. Billing invoices for fees and expenses will be sent
monthly or more frequently, and payment is due on receipt. In the absence
of any written objection to an invoice within 20 days after mailing
(emailing of invoices is acceptable) the Company will be deemed to have
accepted and acknowledged the invoice as valid and correct. After 30 days
following the sending of an invoice, unpaid amounts will accrue interest
from the date of the invoice until Growthink receives payment at a rate of
1.75% per month or the highest legally allowed rate, whichever is
lower.
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k.
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Force Majeure.
Except for Company's payment obligations under this Agreement, neither
party shall be liable for delay in performance hereunder due to causes
beyond its reasonable control, including but not limited to acts of God,
fires, strikes, acts of war, or intervention by governmental authority.
Any failure occasioned by the foregoing shall be remedied as soon as
reasonably possible.
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l.
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Independent Legal
Counsel. Company acknowledges that it has read and understands this
Agreement and that it has been afforded sufficient time and reasonable
opportunity to consult with independent legal counsel on the subject
matter hereof prior to the execution of this Agreement or that Company
elects to waive its option to seek such independent legal consultation and
that this Agreement is executed voluntarily and without duress or any
undue influence on the part of Growthink or any other person, firm or
entity.
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m.
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Execution. Each party to this
Agreement represents and warrants to the other party that the execution of
this Agreement and the performance of such party's obligations hereunder
have been duly authorized and that this Agreement is a valid and legal
agreement binding on such party and enforceable in accordance with its
terms.
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n.
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Release of Research and Reports.
No researcher report may be released by Growthink without the consent of
Blackhawk and review by its legal
counsel.
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7
APPENDIX B -CHANGE
ORDER
Change
Order No.________ to Agreement
Growthink
or Client shall complete Question 1. Growthink shall complete the remainder of
the Change Order, except for the approval/rejection portion, which shall be
completed by Client in its sole discretion. Each section may be as long or short
as the circumstances require.
Additional
pages may be attached as necessary.
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1.
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Describe
changes, modifications, or additions to the
Services:
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These
modifications were requested by:
_______Growthink ______Client
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2.
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Modifications,
clarifications or supplements by Growthink or Client to description of
desired changes or additions requested in Section I above, if
any.
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3.
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Necessity,
availability and assignment of requisite Growthink personnel and/or
resources to make requested modification or
additions.
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4.
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Impact
on Costs, delivery schedule, and other
requirements.
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(a)
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Changes
in Costs:
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(b)
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Changes
in delivery schedule:
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(c)
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Changes
to any other requirements:
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Change
Order Is:
___Approved
and
Accepted ___Rejected
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Growthink
Signature
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Date:
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Client
Signature Date
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Date:
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