Exhibit 10.4
Xxxxxxx X. Xxxxxxxx, Esq.
0000 X. Xxxxxxx Xx.
Xxxxx XX 00000
Phone: 000.000.0000
Fax: 000.000.0000
e-mail: xxxxxx@xxxxxxxx.xx.xxx
June 17, 2002
Cypost Corporation
900 0000 Xxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, X.X. X0X-0X0
Via e-mail and fax
Re: Engagement Agreement
Dear Sirs:
This letter sets forth the terms by which I shall be engaged in connection
with matters described below. I agree that the terms and conditions of the
engagement shall be as set forth in this letter.
1. Engagement. I have been engaged as special counsel for Cypost
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Corporation ("Company").
The engagement shall be limited to assistance in the following matters:
- The preparation of a Forms 10K-SB, 10Q-SB, and 8-K
- The preparation of Forms 3, 4, 5, and 13D
- The preparation of 144 opinions
- Assistance with matters related to the AGM and related proxy
issues
- Availability to respond to general securities law questions
2. Fees, Costs and Expenses. My fee shall be 450,000 shares of Common
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Stock of the Company, which you agree to register on Form S-8 as soon as
possible.
The fees shall include stenographic and word processing services, but shall
not include copying charges, long distance telephone expenses, delivery fees,
filing fees, computerized legal research, if any, electronic facsimile
transmission and similar charges.
I will xxxx separately for those expenses at the actual costs incurred. In the
event that I advance expenses or filing fees on your behalf, the Company will be
expected to promptly reimburse us for such advances.
Invoices will summarize the nature of the work performed during the billing
period and will itemize generally the work performed. Xxxxxxxx will not itemize
the amount of time spent on each task identified. Detailed back-up for any
invoice shall be available for any proper purpose and if legitimate questions
arise, I will provide more detailed itemized statements for your information.
If at any time you abandon a project whether or not the work is completed,
all fees and stock paid to date be retained by this firm for services rendered
to date of termination or completion.
3. Other Understandings. Attached to this letter is a document
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entitled "Understandings with Clients of Xxxxxxx X. Xxxxxxxx, Esq" The
attachment is incorporated in this letter by reference and contains certain
additional terms and conditions of the engagement of this firm and therefore
should be reviewed carefully by you.
4. Arbitration of Any Disputes. It is agreed that any dispute arising
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out of this Agreement, or my representation of you, shall be resolved by binding
arbitration in Tampa Florida by the American Arbitration Association or the
Legal Fee Arbitration Committee of the Hillsborough County Bar Association at my
election. However, notwithstanding the foregoing, I may elect to collect
amounts owed for services rendered and costs incurred through suit in any court
of competent jurisdiction. If I elect to xxx in court, any counterclaim shall
still be subject to arbitration as described above.
5. Conflicts of Interest. It is recognized that I am not in a position
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to represent conflicting interests of different clients. Upon accepting any new
client or new matter, I will attempt to determine whether the engagement would
present a conflict with any other matters pending for any other client. Based
upon my review, I have no conflict. Conflicts between the interests of various
clients may be discovered after the engagement is undertaken or may develop
during the representation. Upon the discovery of any such conflict of interest,
I will immediately inform you of the conflict and will endeavor to work with you
toward a resolution which is acceptable. However, if the conflict can be
resolved only by my withdrawing as your counsel, my obligation to you as a
result shall be limited solely to working with you to find an acceptable
replacement. In such event, I shall be entitled to be compensated for all
services performed, including time spent working with you to resolve the
conflict, in accordance with this agreement.
When engaged by a corporation or the issuer of securities (if not a
corporation), it is the corporation or the issuer which is my client.
Therefore, I will prefer the interests of the corporation or the issuer to the
interests of any individual member of management or any security holder of the
issuer. If a conflict arises between the corporation or the issuer and any such
individual or any security holder of the issuer, such person must understand
that I am not representing such person in his individual capacity. I shall be
entitled to continue to represent the issuer notwithstanding the conflict and
each individual may be represented by other counsel. Obviously, if a serious
conflict arises, this is often the best procedure.
6. Ownership of Files and Records. Except as to original records or
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any records or files which I accept upon the understanding that they belong to
you, it hereby is agreed that all files, copies of documents, correspondence or
other materials which I may accumulate in connection with your representation,
including copies of materials filed with any regulatory agency, shall be the
property of this firm. Upon the termination of the engagement, I will return
any property belonging to you upon your request. Copies of my files and other
materials which I may have accumulated during my representation will be made
available to you at your expense; however, it is specifically agreed that I
shall have the right, at my discretion, to dispose of these files without notice
at such time as I determine in my discretion that such files need not be
retained any longer. After such destruction, the files will no longer be
available.
IT IS OF THE UTMOST IMPORTANCE FOR ME TO KNOW AT ALL TIMES THAT YOU ARE
SATISFIED WITH THE LEGAL SERVICES PROVIDED BY THIS OFFICE. So that there will
always be full and open communication between us, and so that I may clearly
understand and promptly deal with any concerns you may have about my services,
you agree to let us know immediately in writing of any concerns you may have
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about the services I perform for you or invoices which have been rendered. If
you wait to inform us of your concerns until a later time, it may no longer be
possible for us to take any meaningful steps to address those concerns. At no
time will I make any charge for time spent discussing such matters.
If there are any questions concerning this agreement or the attachments
hereto, please contact the undersigned.
If it is agreed that the foregoing sets forth the conditions of my
engagement by the Company, please sign the extra copy of this letter where
indicated and return it. The shares will be issued upon filing of the S-8
registration statement.
Sincerely,
/s/ Xxxxxxx X. Xxxxxxxx
Xxxxxxx X. Xxxxxxxx, Esq.
The above is understood and agreed to:
CYPOST CORPORATION
By /s/ Xxxxx Xxxxxxx
Xxxxx Xxxxxxx, Authorized Officer
UNDERSTANDINGS WITH CLIENTS OF
Xxxxxxx X. Xxxxxxxx, Esq.
This statement is for the purpose of describing the understandings
regarding the matters mentioned below between Xxxxxxx X. Xxxxxxxx, Esq., Tampa
Florida, and clients represented by me, especially as regards corporate and
securities matters. If this statement is attached to an engagement letter, it
shall be considered incorporated in and a part of the engagement letter.
1. Complete Information. A condition of my engagement is that the client
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and all persons connected with the client will supply me with all information
which I may request from time to time. In many instances this will include
information concerning the background of each member of management and
especially his business activities. Often, a form to be completed, signed and
returned to me by each member of a client's management will be requested. It is
understood that all persons of whom information is requested will not only
provide the information requested but also volunteer any other information
which might pertain to the matters being considered. Unless I have full
information concerning a client, I am not in a position to properly represent
the client.
You further agree that you, as the Company's Authorized Officer, and the
Company' s other officers and directors will be required to sign an affidavit
attesting that:
- The Registration Statement has been read and understood;
- All documents provided to my office in connection with preparation of
the Registration Statement are true and correct;
- All matters contained in the Registration Statement are true and
correct; and
- The Registration Statement does not contain any misstatements or
omissions of any facts necessary to make the Registration Statement
not misleading.
2. Reading and Meetings. Often it is necessary to have members of an
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issuer's management meet in order to review information to be presented to the
Securities and Exchange Commission, other regulatory bodies or to investors. It
is understood that all members of the client's management agree to make
themselves available for such meetings and to do the preliminary reading which
is necessary to make such meetings meaningful and expeditious.
3. Conflicts. If the engagement is by a corporation or other issuer of
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securities (if not a corporation), it is the issuer which is my client.
Therefore, I will represent the interests of the corporation or the issuer and
not the interests of any individual member of management or any security holder
of the issuer. If a conflict arises between the corporation or the issuer and
any such individual or any security holder of the issuer, such person must
understand that I am not representing the person in his or her individual
capacity. I shall be entitled to continue to represent the issuer
notwithstanding the conflict and each individual may be represented by other
counsel. Obviously, if a serious conflict arises, this is often the best
procedure
4. Opinions. A part of the work of a lawyer is to render legal opinions.
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However, the work of a lawyer also involves many other matters which involve
recommendations as to how to proceed, strategy, business judgments and other
expressions which are not legal opinions. If a client wishes to act in reliance
on a legal opinion, a request for a written legal opinion should be made, and if
proper, a written legal opinion will be rendered. No oral statements should be
construed as legal opinions and the undersigned will not acknowledge that it has
rendered a legal opinion unless set forth in a written opinion letter and signed
by me. No third party shall be entitled to rely on my opinion given to you
unless I have agreed upon the terms of such reliance. Further, the client
should understand that a legal opinion is my best judgment as to the law when
applied to a given set of facts presented by a client. In many areas the law is
not specific and, therefore, a legal opinion should not be construed as a
guarantee by me that a Court subsequently examining the same set of facts would
reach the same conclusion.
5. Results. Clients usually engage lawyers to assist in resolving a
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problem which may involve litigation but usually does not. In many instances
the result sought by a client can not be fully achieved. The recommendations of
a lawyer are based upon his judgment as to a procedure which is believed likely
to achieve results sought by the client. However, a lawyer is not in a position
to assure results, and I will not do so in my representation of you as the
client.
6. Right to Terminate Engagement. Because I am merely the representative
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of a client, you may terminate the engagement at any time. Further, because of
the nature of the work which I am performing, I reserve the right to terminate
such work at any time by giving written notice to the client. However, I would
not normally exercise this prerogative unless circumstances occur which cause me
to believe that it would be improper to continue the engagement, if the client
fails to furnish timely information or assistance necessary for me to properly
complete assigned work, if you do not meet financial responsibilities to me, or
if other unusual circumstances would tend to adversely affect the working
attorney/client relationship.
It shall be our mutual understanding that the attorney-client relationship
shall terminate when a substantial period of time has passed during which I have
not furnished services or been requested to furnish services or advice to you.
7. State Securities Laws and 1934 Act Registration. If I am engaged by an
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issuer to provide legal services in connection with a public or private offering
of the issuer's securities and if I am engaged by the issuer to provide legal
services in connection with registration or qualification of the issuer's
securities under any state securities law; the following conditions to such
engagement are applicable:
(a) At least 20 days prior to any proposed offer of the issuer's
securities in any state, the issuer shall notify me in writing of (i) the
name of such state, (ii) the number and amount of securities proposed to be
offered in such state, (iii) the number of persons in such state to whom
the securities are proposed to be offered, and (iv) the name of the
person(s) who will be offering such securities in such state.
(b) The issuer agrees not to proceed with the offer or sale of such
securities in such state(s) until I have notified such issuer in writing
that
the proposed offer(s) or sale(s) may legally be made in such state(s) or of
the conditions under which such offer(s) may legally be made in such
state(s).
If I provide legal services in connection with the (i) registration,
qualification, or exemption of the issuer's securities for secondary trading
purposes in any state or (ii) registration of the issuer's securities under the
Securities Exchange Act of 1934, as amended, such services shall be agreed to
beforehand and charges and expenses incurred shall be in addition to other
charges or expenses incurred on other matters.
