Attached files
| file | filename |
|---|---|
| 10-K - FORM 10-K YEAR ENDED MARCH 31, 2010 - RTS Oil Holdings, Inc. | k033110.htm |
| EX-31.02 - RTS Oil Holdings, Inc. | ex3102k033110.htm |
| EX-10.04 - RTS Oil Holdings, Inc. | ex1004k033110.htm |
| EX-32.01 - RTS Oil Holdings, Inc. | ex3201k033110.htm |
| EX-10.02 - RTS Oil Holdings, Inc. | ex1002k033110.htm |
| EX-31.01 - RTS Oil Holdings, Inc. | ex3101k033110.htm |
| EX-32.02 - RTS Oil Holdings, Inc. | ex3202k033110.htm |
| NATIONAL | Established 1947 | |
| SECURITIES | Member FINRA/SIPC |
May 28,
2010
Jeffrey
T. Jensen
President
& Chief Executive Officer
Geo Point
Technologies, Inc.
1306 East
Edinger Avenue, Unit C
Santa
Ana, CA 92705
Dear
Jeff:
National
Securities Corp. (“National”) is pleased to act as exclusive financial advisor
to Geo Point Technologies, Inc. (the “Company”) with respect to (i) advising the
Company regarding its strategy and financial alternatives, (ii) providing
investment banking services to the Company, which may include representing the
Company on a “best efforts” basis to obtain financing in the form of
equity, debt, convertible securities or any other securities (a “Capital Raising
Transaction”) (iii) advising the Company in the review of a potential
acquisition of various targeted companies (the “Targeted Companies”) (in one or
a series of transactions), by purchase, merger, consolidation and other business
combination involving all, or a substantial amount of, the business, securities,
or assets of the Targeted Companies (an “Acquisition Transaction”) (iv)
assisting the Company in identifying acquirers (the “Acquirer”) and evaluating,
prioritizing and negotiating proposals to sell the Company, in whole or parts by
sale, merger, consolidation and other business combinations involving all or
substantial amount of the business, securities, or assets of the Company (a
“Sale Transaction”). It is understood that during the term of this engagement,
the Company or National may add additional companies to the list of Targeted
Companies or Acquirers. The company is free, at its sole discretion,
to accept or reject the terms of any proposed capital raising, acquisition or
sale transaction, and may modify, postpone or abandon the transaction(s) at its
sole discretion for any reason or no reason at all.
1. Services. In
connection with this engagement, National will perform the following
services:
a. Capital Raising
Services. National will assist the Company in a Capital
Raising Transaction(s). National will introduce the Company to
potential investors who may have an interest in financing the Company and will
advise the Company with respect to the proposed structure and terms and
conditions of the Capital Raising Transaction. National will help the
Company prepare for investor meetings, management presentations, responses to
requests for data, negotiating and closing the Capital Raising
Transaction. This includes reviewing proposals from potential
financing sources, analyzing the terms of such proposals and participating in
presentations to the Company’s Board of Directors regarding any proposals, as
well as reviewing the transaction documentation and other customary closing
activities.
Geo Point
Technologies, Inc.
May 28,
2010
Page
2
b. Advisory
Services. National will advise the Company with respect to its
strategy and financial options, Acquisition Transaction(s) or Sale
Transaction(s). We will participate in presentations to the Company’s
Board of Directors relating to our advisory work, assess the proposed structures
for a transaction and offer the Company guidance in negotiating the terms of the
transaction and will assist the Company in the closing of the transaction,
including formulating and presenting responses and counteroffers, conducting due
diligence, and documenting the transaction.
2. Information Provided to
National. In connection with our engagement, the Company has
agreed to furnish to National, on a timely basis, all relevant information
needed by National to perform our obligations under the terms of this
agreement. During our engagement, it may be necessary for us: to
interview the management of, the auditors for, and the consultants and advisors
to, the Company and/or the Targeted Companies or Acquirers; to rely (without
independent verification) upon data furnished to us by you and by them; and to
review any financial and other reports relating to the business and financial
condition of the Company and/or Targeted Companies or Acquirers as we may
determine to be relevant under the circumstances. In this connection,
the Company will make available to us such information as we may request,
including information with respect to the assets, liabilities, earnings, earning
power, financial condition, historical performance, future prospects and
financial projections and the assumptions used in the development of such
projections of the Company. We agree that all non-public information
obtained by us in connection with our engagement will be held by us in strict
confidence and will be used by us solely for the purpose of performing our
obligations relating to our engagement.
We do not
assume any responsibility for, or with respect to, the accuracy, completeness or
fairness of the information and data supplied to us by the Company and/or
Targeted Companies or Acquirers or their representatives. In
addition, the Company acknowledges that we will assume, without independent
verification, that all information supplied to us with respect to the Company
and/or Targeted Companies or Acquirers will be true, correct and complete in all
material respects and will not contain any untrue statements of material fact or
omit to state a material fact necessary to make the information supplied to us
not misleading. If at any time during the course of our engagement
the Company becomes aware of any material change in any of the information
previously furnished to us, it will promptly advise us of the
change. Notwithstanding the foregoing, in its dealings and
communications with third parties on behalf of the Company, and subject to its
right to rely on the veracity and completeness of all information provided to it
by or on behalf of the Company, National shall not make any untrue statements of
material fact or fail to state a material fact necessary to make the statements
and information contained therein, in light
of the circumstances under which they are made, not false or
misleading..
Geo Point
Technologies, Inc.
May 28,
2010
Page
3
3.
Scope of
Engagement. The Company acknowledges that we will not make, or
arrange for others to make, an appraisal of any physical assets of the Targeted
Companies, or the Company. Nonetheless, if we determine that any such
appraisal is necessary or desirable, we will so advise the Company and, if
approved by the Company in writing, the costs incurred in connection with such
appraisal(s) will be borne by the
Company.
No
additional persons or entities, including co-underwriters, co-placement agents,
co-initial purchasers or co-arrangers shall participate in any transaction in
any capacity without the prior written consent of National and the
Company.
National
is being engaged by the Company only in connection with the matters described in
this letter agreement and for no other purpose. We have not made, and
will assume no responsibility to make any representation in connection with our
engagement as to any legal matter. National shall not be required to
render any advice or reports in writing or to perform any other
services.
4. Term of
Engagement. Our representation will continue for a period of
six (6) months from the date first set forth above; however National’s
engagement hereunder may be terminated at any time by either National or the
Company upon written notice thereof to the other party, with or without cause,
without liability or continuing obligation on the part of the Company or
National, provided, however, that no
termination or expiration of this letter agreement shall affect the matters set
forth in Sections 2, 6, 9 and 14 and the indemnification provisions of this
Agreement. Notwithstanding the foregoing, in the event of termination or
expiration of this agreement, National will be entitled to a Financing
Completion Fee and/or Advisory Completion Fee (as defined under Section 5) if a
transaction is Consummated (as defined below)
by the Company during the twelve (12) month period following expiration
or termination of this letter agreement with any Targeted Companies, Acquirers
and/or investors contacted during the term of this letter agreement (“Tail
Period”). Upon termination or expiration of this letter agreement National and
the Company will compile a list which shall serve as the final definitive list
of investors, Targeted Companies and identified Acquirers which shall include
any and all companies that were introduced to the Company directly or indirectly
by National or contacted directly by the Company or approached National or the
Company directly or indirectly during the term of this letter
agreement. A transaction shall be
deemed “Consummated” by the Company upon execution of the definitive agreements
for such transaction by the Company.
5. Fees and
Expenses. As compensation for our professional services,
National will receive compensation payable under clause 5(a) through 5(c)
below. The Company also agrees to reimburse any reasonable
out-of-pocket expenses actually incurred by National during the term of its
engagement hereunder, which have been previously approved in writing by the
Company. The Company also agrees to reimburse National for all legal expenses actually incurred by National for services
provided by outside counsel, which have been previously approved in writing by
the Company, whether or not a Capital Raising, Acquisition, or Sale Transaction
occurs.
Geo Point
Technologies, Inc.
May 28,
2010
Page
4
Compensation
for our services will be as follows:
a. Strategic
Advisory.
The
Company shall pay National a non-refundable, cash advisory fee of $10,000 (Ten
thousand dollars) (the “Strategic Advisory Fee”) upon execution of this
agreement. In addition, commencing 30 days after execution of the
agreement, the Company shall pay a continuing cash advisory fee of $5,000 (Five
thousand dollars) per month (the “Continuing Fee”) for a period not to exceed
sixty (60) days. The Company shall also issue to National and/or its
designees two tranches of common stock purchase warrants (“Advisory Warrants”)
in a total amount equal to Five hundred thousand (500,000) shares at an exercise
price of $1.75 per share. The first tranche of two hundred fifty
thousand (250,000) shall be issued within ten (10) days of execution of this
agreement, with the remaining tranche to be issued upon success of the
engagement. “Success” shall be defined as obtaining a letter of
intent (LOI/Term Sheet) signed by an institution/investor and the Company for
the raising of capital based on terms acceptable to the Company. The
Advisory Warrants shall contain customary terms, including without limitation,
change of control, price based anti-dilution, and customary piggyback
registration rights and provisions for ‘cash-less” exercise. The
Strategic Advisory Fee and Continuing Fee shall be creditable against the cash
component of any fee payable under Section 5(b) or 5(c) below.
b. Capital
Raising.
(i) Financing Completion
Fee. During the term of this agreement and the Tail Period, at
the time the Capital Raising Transaction closes, National will be paid a cash
fee (the “Financing Completion Fee”) equal to 6.0% of the total amount of cash received by the Company in an equity or equity-linked transaction
and 3.0% of the total amount of debt received by the Company, upon the sale of
its securities to investors, whether introduced to the Company by National or
from any other investors, during the term of this agreement.
(ii) Warrants. As part
of the Financing Completion Fee, National will receive warrants to purchase
common stock in an amount equal to 6.0% of the number of shares of common stock
(or common stock equivalents) purchased by investors in a Capital Raising
Transaction and that the investors obtain a right to acquire through purchase,
conversion, or exercise of convertible securities issued by the Company in a
Capital Raising Transaction that closes during the term of this agreement and
the Tail Period. The warrants will include piggyback registration
rights, a net exercise provision, as well as other customary conditions, and
will have a term of five (5) years from the closing date of the Capital Raising
Transaction. The warrants will be immediately exercisable at the
price per share at which the investor can acquire the common stock, adjusted for
conversion, stock splits or other dilutive events. In the event there
is no public market for the Company’s common stock and investors do not receive
warrants in a Capital Raising Transaction, the exercise price of the warrants
due National will be equal to 110% of price per share that investors in the
Capital Raising Transaction are able to purchase securities from the
Company.
Geo Point
Technologies, Inc.
May 28,
2010
Page
5
c. Merger & Acquisition
Advisory Services.
(i) Advisory Completion
Fee. During the term of this agreement (and thereafter as
provided in Section 4 above) at the
time an Acquisition or Sale Transaction closes, the Company will pay National a
cash fee (the “Advisory Completion Fee”) equal to the greater of (i) 2.0% times
the Transaction Value (as defined in Appendix A) and (ii) $100,000 (one hundred
thousand US dollars), at the closing of the Acquisition or Sale Transaction; as
and when actually received by the Company.
(ii) If
an Acquisition or Sale Transaction is Consummated whereby, directly or indirectly, less
than a 50% interest in the Company or the targeted companies, as the case may
be, or any of their securities, businesses or assets are transferred for
consideration, or if a transaction is consummated consisting of a minority
investment, the formation of a joint venture, partnership or other business
entity or entry into a strategic alliance (such as an agreement, relationship or
arrangement involving supply, distribution or sales representation of products
or services, research and development, technology, product licensing or similar
arrangement), the Company will pay National a cash fee equal to the greater of
(i) 3.0% times the Transaction Value (as defined in Appendix A) and (ii)
$100,000 (one hundred thousand US dollars), upon the occurrence of such
event.
(iii) If
an Acquisition or Sale Transaction is not Consummated and the Company is entitled to
receive a termination or break-up or topping fee (the “Break-up Fee”) or any
other form of compensation, then the Company shall pay National, upon receipt of
the Break-up Fee an amount equal to 30% of the Break-up Fee in the same form of
compensation as received by the Company.
d. Fee
Exceptions.
The fees
for Capital Raising, Acquisition or Sale Transactions under this agreement shall
not apply to transactions with the individuals and entities and the respective
subsidiaries, affiliates and related parties identified in Appendix
C. In addition, all entities and individuals that become or will
become customers or suppliers of the Company in the ordinary course of business
as a result of the Company’s efforts shall also be excluded for fee
purposes. Notwithstanding the foregoing, if National introduces the
Company to entities or individuals not identified in Appendix C and related
parties, that become or will become customers, suppliers or joint venture
partners of the Company in the ordinary course of business or if the Company
engages the services of National with respect to any entity or individual to
complete a Capital Raising, Acquisition, Sale Transaction or Joint Venture,
National shall be entitled to the fee specified in this agreement for such
entity or individual. All formulas and calculations based on
the shares of the Company shall refer to the post Sinur Oil LLP acquisition
capital structure of 30,315,000 shares.
Geo Point
Technologies, Inc.
May 28,
2010
Page
6
6. Indemnity and
Contribution. The parties agree to the terms of National’s
indemnification agreement, which is attached hereto as Appendix B and
incorporated herein by reference. The provisions of this paragraph 6
shall survive any termination of this agreement.
7. Other
Business. Except in the event this agreement is terminated by
the Company due to National’s breach of this agreement, the Company grants
National a right of first refusal to provide investment banking
services to the Company on an exclusive basis in all matters for which
investment banking services are sought by the Company during the term of this
engagement letter and for a period of twelve (12) months from the expiration or
termination of this letter agreement in the case that a Capital Raising,
Acquisition or Sale Transaction is consummated as contemplated by this
Engagement Letter (such right, the “Right of First Refusal”). For these
purposes, investment banking services shall include, without limitation, (i)
acting as sole bookrunner and lead manager for any underwritten public offering
of securities, including equity, equity-linked or senior, senior subordinated or
junior debt securities with a minimum of 60% economics; (ii) acting as exclusive
placement agent and/or financial advisor in connection with any private offering
of securities, including equity, equity-linked or debt securities of the
Company; (iii) acting as exclusive financial advisor in connection with any
acquisition, merger, consolidation and other business combination involving all
or substantial amount of the business, securities, assets of another entity; and
(iv) acting as exclusive financial advisor in connection with any sale or other
transfer by the Company, directly or indirectly, of a majority or controlling
portion of its capital stock or assets to another entity, any purchase or other
transfer by another entity, directly or indirectly, of a majority or controlling
portion of the capital stock or assets of the Company, and any merger or
consolidation of the Company with another entity. National shall notify the
Company of its intention to exercise the Right of First Refusal within 10
business days following notice in writing by the Company of its intention to
retain a financial advisor/agent/underwriter. Any decision by
National to act in any such capacity shall be contained in separate agreements,
which agreements would contain, among other matters, provisions for customary
fees for transactions of similar size and nature, as may be mutually agreed
upon, and indemnification of National and its affiliates and shall be subject to
general market conditions. If National declines to exercise the Right
of First Refusal, the Company shall have the right to retain any other person or
persons to provide such services on terms and conditions which are not
materially more favorable to such other person or persons than the terms
declined by National. As compensation for any of the foregoing
services, National will be paid customary fees to be mutually agreed upon at the
appropriate time.
Geo Point
Technologies, Inc.
May 28,
2010
Page
7
8. Other National
Activities. National is a full service securities firm engaged
in securities trading and brokerage activities as well as investment banking and
financial advisory services. In the ordinary course of our trading
and brokerage activities, National or its affiliates may hold positions, for its
own account or the accounts of customers, in equity, debt or other securities of
the Company or any other company that may be involved in an Acquisition or Sale
Transaction. The Company also acknowledges that National and its
affiliates are in the business of providing financial services and consulting
advice to others. Nothing herein contained shall be construed to
limit or restrict National in conducting such business with respect to others,
or in rendering such advice to others, except as such advice may relate to
matters relating to the Company’s business and properties and that might
compromise confidential information delivered by the Company to
National.
9. Confidentiality of
Advice. Except as otherwise provided in this paragraph, any
written or other advice rendered by National pursuant to its engagement
hereunder is solely for the use and benefit of the Board of Directors of the
Company and shall not be publicly disclosed in whole or in part, in any manner
or summarized, excerpted from or otherwise publicly referred to or made
available to third parties, other than representatives and agents of the Board
of Directors, without National’s prior written approval, unless such disclosure
is required by law. In addition, National may not be otherwise publicly referred
to without its prior written consent.
10. Compliance with Applicable
Law. In connection with this engagement, the Company will
comply with all applicable federal, state and foreign securities laws and rules promulgated thereunder, and other applicable laws,
rules and regulations.
11. Independent
Contractor. National is and at all times during the term
hereof will remain an independent contractor, and nothing contained in this
letter agreement will create the relationship of employer and employee or
principal and agent as between the Company and National or any of its
employees. Without limiting the generality of the foregoing, all
final decisions with respect to matters about which National has provided
services hereunder shall be solely those of the Company, and National shall have
no liability relating thereto or arising therefrom. National shall
have no authority to bind or act for the Company in any respect. It
is understood that National responsibility to the Company is solely contractual
in nature and that National does not owe the Company, or any other party, any
other fiduciary duty as a result of its engagement.
12. Successors and
Assigns. This letter agreement and all obligations and
benefits of the parties hereto shall bind and shall inure to their benefit and
that of their respective successors and assigns. The indemnity and
contribution provisions incorporated into this letter agreement are for the
express benefit of the officers, directors, employees, consultants, agents and
controlling persons of National and their respective successors, assigns and
parent companies.
Geo Point
Technologies, Inc.
May 28,
2010
Page
8
13. Announcements. Upon
completion of a Capital Raising, Acquisition or Sale Transaction, the Company
grants to National the right to place customary announcement(s) of this
engagement in certain newspapers and to mail announcement(s) to persons and
firms selected by National, the whole subject to the Company’s prior approval
and all costs of such announcement(s) will be borne by National.
14. Governing Law and
Arbitration. This agreement shall be governed by and construed
under the laws of the State of New York applicable to contracts made and to be
performed entirely within the State of New York. Any dispute, claim
or controversy arising out of or relating to this agreement or the breach,
termination, enforcement, interpretation or validity thereof, including the
determination of the scope or applicability of this agreement to arbitrate,
shall be determined by binding arbitration in the City and County of New York,
before one arbitrator. The arbitration shall be administered by
JAMS. Judgment on the award may be entered in any court having
jurisdiction. This clause shall not preclude parties from seeking
provisional remedies in aid of arbitration from a court of appropriate
jurisdiction. Each party will bear its own costs for
arbitration. The prevailing party in arbitration shall be entitled to
reasonable attorneys’ fees. The provisions of this paragraph 14 shall
survive any termination of this agreement.
EACH OF
NATIONAL AND THE COMPANY (ON ITS OWN BEHALF AND, TO THE EXTENT PERMITTED BY LAW,
ON BEHALF OF ITS RESPECTIVE EQUITY HOLDERS AND CREDITORS) HEREBY WAIVES ANY
RIGHT IT MAY HAVE TO TRIAL BY JURY IN RESPECT OF ANY CLAIM BASED UPON, ARISING
OUT OF OR IN CONNECTION WITH THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED
HEREBY.
15. General
Provisions. No purported waiver or modification of any of the
terms of this letter agreement will be valid unless made in writing and signed
by the parties hereto. Section headings used in this letter agreement
are for convenience only, are not a part of this letter agreement and will not
be used in construing any of the terms hereof. This letter agreement
constitutes and embodies the entire understanding and agreement of the parties
hereto relating to the subject matter hereof, and there are no other agreements
or understandings, written or oral, in effect between the parties relating to
the subject matter hereof. No representation, promise, inducement or
statement of intention has been made by either of the parties hereto which is to
be embodied in this letter agreement, and none of the parties hereto shall be
bound by or liable for any alleged representation, promise, inducement or
statement of intention, not so set forth herein. No provision of this
letter agreement shall be construed in favor of or against either of the parties
hereto by reason of the extent to which either of the parties or its counsel
participated in the drafting hereof. If any provision of this letter
agreement is held by a court of competent jurisdiction to be invalid, illegal or
unenforceable, the remaining provisions hereof shall in no way be affected and
shall remain in full force and effect. This letter agreement may be
executed in any number of counterparts and by facsimile
signature.
Geo Point
Technologies, Inc.
May 28,
2010
Page
9
If the
foregoing correctly sets forth your understanding of our agreement, please sign
the enclosed copy of this letter and return it to National.
Very
truly yours,
NATIONAL
SECURITIES CORP.
By: /s/
Jonathan C. Rich
The
undersigned hereby accepts, agrees to and becomes party to the foregoing letter
agreement, effective as of the date first written above.
GEO
POINT TECHNOLOGIES, INC.
By: /s/
Jeffrey T. Jensen
Jeffrey
T. Jensen
President
& Chief Executive Officer
APPENDIX
A —DEFINITION OF TRANSACTION VALUE
In the
context of this Agreement, for purposes of Acquisition or Sales Transactions
only and not applicable to Capital Raising transactions, “Transaction Value”
means the aggregate value of all cash, cash equivalents, securities, and any
other forms of payment paid to and actually received,
directly or indirectly, by the Company or the Targeted Companies, as the case
may be, and its share, option, warrant and debt holders including, without
limitation payments for stock or assets sold, funds loaned to the Company or the
Targeted Companies, prepaid royalties, advances against sales, licensing
agreements, reimbursed NRE (non-recurring engineering) and any and all other
payments that may be construed as advanced payments for products or services to
be delivered in the future. In addition, the Transaction Value shall include (A)
the aggregate amount of any dividends or other distributions to the shareholders
of the Company or the Targeted Companies following the date of this Agreement,
other than normal recurring cash dividends in amounts not materially greater
than currently paid; and (B) the fair market value at the time of payment of the
fees of (i) any of the Company’s or the Targeted Companies’ consolidated debt
(both long-term and short-term, including capitalized leases and excluding trade
liabilities or obligations, which is repaid, retired, extinguished (other than
by the Company or its affiliates and/or control persons) assumed or
refinanced at the closing or in anticipation of an Acquisition or Sale
Transaction, as the case may be; (ii) all options, warrants, stock purchase
rights or stock appreciation rights, whether or not vested, purchased or assumed
by an acquirer in connection with a transaction.
If part
or all of the Transaction Value in an Acquisition or Sale Transaction is
represented by securities, the value thereof for the purpose of computing the
fees shall be determined as follows:
(i) For
securities which are publicly traded prior to the consummation of such
transaction, the average last sale price for such securities for the ten trading
days prior to the consummation of such transaction;
(ii) For
newly-issued, publicly-traded securities, the average last sale price for such
securities for ten trading days subsequent to the consummation of such
transaction, with such portion of the fees being payable the eleventh trading
day subsequent to the consummation of such transaction; and
(iii) For
securities for which no market exists, the mutual agreement of the Company and
National as determined prior to the closing of such transaction.
If part
or all of the Transaction Value is fixed amounts of cash or other consideration
payable in the future, including any non-competition, but excluding employment
contracts, consulting agreements, employee benefit plans or similar
arrangements, then the calculation of the fees will be based on the present
value of those payments discounted using Bank of America’s reference rate as the
discount rate.
APPENDIX
B — INDEMNIFICATION AGREEMENT
The
Company agrees to indemnify and hold harmless National and its officers,
directors, employees, consultants, attorneys, agents, affiliates, parent company
and controlling persons (within the meaning of Section 15 of the Securities Act
of 1933, as amended, or Section 20 of the Securities Exchange Act of 1934, as
amended) (National and each such other persons are collectively and individually
referred to below as an "Indemnified Party") from and against any and all loss,
claim, damage, liability and expense whatsoever, as incurred, including, without
limitation, reasonable costs of any investigation, legal and other fees and
expenses incurred in connection with, and any amounts paid in settlement of, any
action, suit or proceeding or any claim asserted, to which the Indemnified Party
may become subject under any applicable federal or state law (whether in tort,
contract or on any other basis) or otherwise, (i) arising out of or based upon
any untrue statement or alleged untrue statement of a material fact contained in
the private placement memorandum, registration statement (including documents,
incorporated by reference) (the “Registration Statement”) or in any other
written or oral communication provided by or on behalf of the Company to any
actual or prospective purchaser of the securities or arising out of or based
upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary in order to make the statements therein, in
light of the circumstances under which they were made, not misleading or (ii)
related to the performance by the Indemnified Party of the services contemplated
by this letter agreement (including, without limitation, the offer and sale of
the securities) and will reimburse the Indemnified Party for all expenses
(including legal fees and expenses) in connection with the investigation of,
preparation for or defense of any pending or threatened claim or any action or
proceeding arising therefrom, whether or not the Indemnified Party is a
party. The Company will not be liable under clause (ii) of the
foregoing indemnification provision to the extent that any loss, claim, damage,
liability or expense is found in a final judgment by a court or arbitrator, not
subject to appeal or further appeal, to have resulted directly from the
Indemnified Party's willful misconduct or gross negligence. The
Company also agrees that the Indemnified Party shall have no liability (whether
direct or indirect, in contract, tort or otherwise) to the Company related to,
or arising out of, the engagement of the Indemnified Party pursuant to, or the
performance by the Indemnified Party of the services contemplated by, this
letter agreement except to the extent that any loss, claim, damage, liability or
expense is found in a final judgment by a court or arbitrator, not subject to
appeal or further appeal, to have resulted directly from the Indemnified Party's
willful misconduct or gross negligence.
If the
indemnity provided above shall be unenforceable or unavailable for any reason
whatsoever, the Company, its successors and assigns, and the Indemnified Party
shall contribute to all such losses, claims, damages, liabilities and expenses
(including, without limitation, all costs of any investigation, legal or other
fees and expenses incurred in connection with, and any amounts paid in
settlement of, any action, suit or proceeding or any claim asserted) (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company and National under the terms of this letter agreement or (ii) if the
allocation provided for by clause (i) of this sentence is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i), but also the relative fault of the
Company and National in connection with the matter(s) as to which contribution
is to be made. The relative benefits received by the Company and
National shall be deemed to be in the same proportion as the fee the Company
actually pays to National bears to the total value of the consideration paid or
to be paid by the Company and/or the Company's shareholders in the Capital
Raising, Acquisition or Sale Transaction. The relative
Geo Point
Technologies, Inc.
May 28,
2010
Page
12
fault
of the Company and National shall be determined by reference to, among other
things, whether any untrue or alleged untrue statement of material fact or
omission or alleged omission to state a material fact relates to information
supplied by the Company or by National and the Company’s and National’s relative
intent, knowledge, access to information and opportunity to
correct. The Company and National agree that it would not be just or
equitable if contribution pursuant to this paragraph were determined by pro rata
allocation or by any other method of allocation which does not take into account
these equitable considerations. Notwithstanding the foregoing, to the
extent permitted by law, in no event shall the Indemnified Party's share of such
losses, claims, damages, liabilities and expenses exceed, in the aggregate, the
fee actually paid to the Indemnified Party by the Company. The
Company further agrees that, without National’s prior written consent, which
consent will not be unreasonably withheld, it will not enter into any settlement
of a lawsuit, claim or other proceeding arising out of the transactions
contemplated by this agreement unless such settlement includes an explicit and
unconditional release from the party bringing such lawsuit, claim or other
proceeding of all such lawsuits, claims, or other proceedings against the
Indemnified Parties.
The
Indemnified Party will give prompt written notice to the Company of any claim
for which it seeks indemnification hereunder, but the omission to so notify the
Company will not relieve the Company from any liability which it may otherwise
have hereunder except to the extent that the Company is damaged or prejudiced by
such omission or from any liability it may have other than under this Appendix
B. The Company shall have the right to assume the defense of any
claim, lawsuit or action (collectively an "action") for which the Indemnified
Party seeks indemnification hereunder, subject to the provisions stated herein
with counsel reasonably satisfactory to the Indemnified Party. After
notice from the Company to the Indemnified Party of its election to assume the
defense thereof, and so long as the Company performs its obligations pursuant to
such election, the Company will not be liable to the Indemnified Party for any
legal or other expenses subsequently incurred by the Indemnified Party in
connection with the defense thereof other than reasonable costs of
investigation. The Indemnified Party shall have the right to employ
separate counsel in any such action and to participate in the defense thereof at
its own expense; provided, however, that the reasonable fees and expenses of
such counsel shall be at the expense of the Company if (i) the employment
thereof has been specifically authorized by the Company in writing, (ii) the
Company has failed after a reasonable period of time to assume such defense and
to employ counsel or (iii) the named parties to any such action (including any
impleaded parties) include both the Indemnified Party and the Company and the
Indemnified Party shall have reasonably concluded, based on advice of counsel,
that there may be legal defenses
Geo Point
Technologies, Inc.
May 28,
2010
Page
13
available
to the Indemnified Party which are different from, or in conflict with, any
legal defenses which may be available to the Company (in which event the Company
shall not have the right to assume the defense of such action on behalf of the
Indemnified Party, it being understood, however, that the Company shall not be
liable for the reasonable fees and expenses of more than one separate firm of
attorneys for all Indemnified Parties in each jurisdiction in which counsel is
needed). Despite the foregoing, the Indemnified Party shall not settle any claim
without the prior written approval of the Company, which approval shall not be
unreasonably withheld, so long as the Company is not in material breach of this
Appendix B. Also, each Indemnified Party shall make reasonable
efforts to mitigate its losses and liabilities. In addition to the
Company's other obligations hereunder and without limitation, the Company agrees
to pay monthly, upon receipt of itemized statements therefore, all reasonable
fees and expenses of counsel incurred by an Indemnified Party in defending any
claim of the type set forth in the preceding paragraphs or in producing
documents, assisting in answering any interrogatories, giving any deposition
testimony or otherwise becoming involved in any action or response to any claim
relating to the engagement referred to herein, or any of the matters enumerated
in the preceding paragraphs, whether or not any claim is made against an
Indemnified Party or an Indemnified Party is named as a party to any such
action. Notwithstanding anything to the contrary in the foregoing
Indemnification Agreement, the Company shall only indemnify an Indemnified Party
to the extent any losses or claims against the Indemnified Party arise out of or
based upon any errors or omission or failure to perform any action required in
the Engagement Letter by the Company, or from any willful misconduct or gross
negligence by the Company.
Geo Point
Technologies, Inc.
May 28,
2010
Page
14
APPENDIX
C — PARTIES SUBJECT TO FEE CARVE-OUT
Adat
Group Ltd (Kazakhstan)
GLG
Partners (USA)
Sopra
Capital LLC (USA)
Geo Point
Technologies future spinoff company (USA)
GSM Oil
Holdings (Cyprus)
GSM Oil
BV (Netherlands)
Sinur Oil
LLP (Kazakhastan)
Eagle
Feather Energy Corp (or any of its proposed subsidiaries)
Zahid
Walid Group (Afghanistan & Dubai)
Kabul
Bank (Afghanistan)
Noor
Delawari & associates (Afghanistan)
Sistema -
Bashneft Group (Russia)
Pavlodar
Refinery (Kazakhstan)
MontagEngineering
Group (Kazakhstan)
Boris
Cherdabayev (Kazakhstan)
Valera
Tolkachev and his Maxwell bank (Russia)
Turan
Barlau Group (Kazakhstan)
Gennady's
Refinery (Kazakhstan)
Mirgali
Kunayev and his companies (Kazakhstan, BVI, Hong Kong, Costa Rica)
Caspian
Services Group (USA & Kazakhstan)
Bekem
Metals (USA & Kazakhstan)
BMB Munai
Inc. (USA & Kazakhstan)
Irina
Kochetkova and her Ecotechnique Group (Switzerland & Russia)
Firebird
Funds (USA)
Bakhytbek
Baisetov (Kazakhstan)
Lam Wang
Cheung Group (HK/China)
PetrolInvest
(Poland)