EX-10.4
BUSINESS DEVELOPMENT SERVICES AGREEMENT
BUSINESS DEVELOPMENT SERVICES AGREEMENT
This Business Development Services Agreement ("Agreement"),
dated July 3, 2006 is made by and between Pangea Investments GmbH, a
company resident at 000x Xxxxxxxxxxxxx, XX-0000 Xx,xxxxxx / XX,
Xxxxxxxxxxx ("Pangea"), and Andain Inc, ("Andain"), having its
principal office at 0000 Xxxx Xxxx, Xxxxx 000, Xxxx, Xxxxxx 00000.
WHEREAS, Andain is a publicly reporting issuer, and desires to
further develop its assets, operations and its business lines by
additional acquisitions and continues business development and growth
of its existing portfolio; and
WHEREAS, Andain desires to engage Pangea to provide such business
opportunities, technologies, products, and companies synergetic to
Andain's operations ("Business Development") as a deal flow of
business opportunities to be presented to Andain of such
technologies, products, potential mergers and acquisitions of
companies technologies and products, developed by Pangea for Andain.
WHEREAS, Pangea desires to be engaged by Andain to provide such
Business Development services to Andain on the terms and subject to
the conditions set forth herein;
NOW, THEREFORE, in consideration for those services Pangea provides
to Andain, the parties agree as follows:
1. Services of Pangea.
Pangea agrees to perform for Andain Business Development activities
required to bring about the effectiveness of Andain's business
portfolio according to Andain's financial plans of its operations. As
such, Pangea will provide bona fide the Business Development as
services to Andain. The Business Development services to be provided
by Pangea will not be in connection with the offer or sale of Andain's
securities in a capital-raising transaction, and will not directly or
indirectly promote or maintain a market for Andain's securities.\
2. Consideration.
Andain agrees to pay Pangea, as agreed fee and consideration for
Business Development services provided,
2.1 Success-based Commission - If during the Term
of this Agreement or within twenty four (24) months thereafter Andain
will be engaged in a transaction of acquiring technology, products
companies, or business in any equity or monitory transaction of any
of the business opportunities presented to Andain as of Pangea's
Business Development service provided to Andain, then Andain will
grant Pangea an irrevocable option (the "Option") to acquire a number
of Andain's Ordinary Shares, at their nominal value of $0.001 each,
up to 13% of the transaction value as reflected at Andain share price
at the date that Andain's counterparty signs the transaction agreement.
2.2 Purchase Notice - Upon written notice to
Andain of Pangea's intent to exercise either of the First Option, the
Additional Option, Andain shall issue to Pangea the respective
securities free and clear of all debts, liens, encumbrances, charges,
equities, claims, hypothecations, attachments, seizures and any other
liability and right of any third party (including preemptive rights)
against payment by Pangea of the applicable exercise price as
prescribed herein.
2.3 Expiration of the Option - Each Option may be
exercised by Pangea at any time, at Pangea's sole and absolute
discretion within three (3) years from the respective date on which
it was granted to Pangea.
2.4 Payable Commission - The grant of the Option,
as applicable, shall be made by Andain to Pangea within seven (7)
days of the date of the of this Agreement or from the closing of such
acquisition or merger transaction as set in the Business Development
services herein, respectively.
3. Confidentiality.
Each party agrees that during the course of this Agreement,
information that is confidential or of a proprietary nature may be
disclosed to the other party, including, but not limited to, product
and business plans, software, technical processes and formulas,
source codes, product designs, sales, costs and other unpublished
financial information, advertising revenues, usage rates, advertising
relationships, projections, and marketing data ("Confidential
Information"). Confidential Information shall not include information
that the receiving party can demonstrate (a) is, as of the time of
its disclosure, or thereafter becomes part of the public domain
through a source other than the receiving party, (b) was known to the
receiving party as of the time of its disclosure, (c) is
independently developed by the receiving party, or (d) is
subsequently learned from a third party not under a confidentiality
obligation to the providing party.
4. Late Payment.
Andain shall pay to Pangea all consideration due hereunder within
seven (7) days of the due date. Failure of Andain to finally pay any
of the consideration within seven (7) days after the applicable due
date shall be deemed a material breach of this Agreement, justifying
suspension of the performance of the "Services" provided by Pangea,
and will be sufficient cause for immediate termination of this
Agreement by Pangea. Any such suspension will in no way relieve
Andain from payment of consideration, and, in the event of collection
enforcement, Andain shall be liable for any costs associated with
such collection, including, but not limited to, legal costs,
attorneys' fees, courts costs, and collection agency fees.
5. Indemnification.
(a) Andain.
Andain agrees to indemnify, defend, and shall hold harmless Pangea
and /or his agents, and to defend any action brought against said
parties with respect to any claim, demand, cause of action, debt or
liability, including reasonable attorneys' fees to the extent that
such action is based upon a claim that: (i) is true, (ii) would
constitute a breach of any of Andain's representations, warranties,
or agreements hereunder, or (iii) arises out of the negligence or
willful misconduct of Andain, or any Andain information to be
provided by Andain, which violates any rights of third parties,
including, without limitation, rights of publicity, privacy, patents,
copyrights, trademarks, trade secrets, and/or licenses.
(b) Notice.
In claiming any indemnification hereunder, the indemnified party
shall promptly provide the indemnifying party with written notice of
any claim, which the indemnified party believes falls within the
scope of the foregoing paragraphs. The indemnified party may, at its
expense, assist in the defense if it so chooses, provided that the
indemnifying party shall control such defense, and all negotiations
relative to the settlement of any such claim. Any settlement intended
to bind the indemnified party shall not be final without the
indemnified party's written consent, which shall not be unreasonably
withheld.
6. Limitation of Liability.
Pangea shall have no liability with respect to Pangea's obligations
under this Agreement or otherwise for consequential, exemplary,
special, incidental, or punitive damages even if Pangea has been
advised of the possibility of such damages. In any event, the
liability of Pangea to Andain for any reason and upon any cause of
action, regardless of the form in which the legal or equitable action
may be brought, including, without limitation, any action in tort or
contract, shall not exceed ten percent (10%) of the consideration
paid by Andain to Pangea for the specific service provided that is in
question.
7. Termination and Renewal.
(a) Term.
This Agreement shall become effective on the date of this Agreement
and terminate ten (10) years thereafter. Unless otherwise agreed upon
in writing by Pangea and Andain, this Agreement shall automatically
be renewed beyond its Term.
(b) Termination.
Either party may terminate this Agreement on ninety (90)-calendar
days written notice, or if prior to such action, the other party
materially breaches any of its representations, warranties or
obligations under this Agreement. Except as may be otherwise provided
in this Agreement, such breach by either party will result in the
other party being responsible to reimburse the non-defaulting party
for all costs incurred directly as a result of the breach of this
Agreement, and shall be subject to such damages as may be allowed by
law including all attorneys' fees and costs of enforcing this Agreement.
(c) Termination and Payment.
Upon any termination or expiration of this Agreement, Andain shall
pay all unpaid and outstanding consideration through the effective
date of termination or expiration of this Agreement. And upon such
termination or expiration, Pangea shall provide and deliver to Andain
any and all outstanding services due through the effective date of
termination or expiration.
8. Miscellaneous.
(a) Independent Contractor.
This Agreement establishes an "independent contractor" relationship
between Pangea and Andain.
(b) Rights Cumulative; Waivers.
The rights of each of the parties under this Agreement are
cumulative. The rights of each of the parties hereunder shall not be
capable of being waived or varied other than by an express waiver or
variation in writing. Any failure to exercise or any delay in
exercising any of such rights shall not operate as a waiver or
variation of that or any other such right. Any defective or partial
exercise of any of such rights shall not preclude any other or
further exercise of that or any other such right. No act or course
of conduct or negotiation on the part of any party shall in any way
preclude such party from exercising any such right or constitute a
suspension or any variation of any such right.
(c) Benefit; Successors Bound.
This Agreement and the terms, covenants, conditions, provisions,
obligations, undertakings, rights, and benefits hereof, shall be
binding upon, and shall inure to the benefit of, the undersigned
parties and their heirs, executors, administrators, representatives,
successors, and permitted assigns.
(d) Entire Agreement.
This Agreement contains the entire agreement between the parties with
respect to the subject matter hereof. There are no promises,
agreements, conditions, undertakings, understandings, warranties,
covenants or representations, oral or written, express or implied,
between them with respect to this Agreement or the matters described
in this Agreement, except as set forth in this Agreement. Any such
negotiations, promises, or understandings shall not be used to
interpret or constitute this Agreement.
(e) Amendment.
This Agreement may be amended only by an instrument in writing
executed by all the parties hereto.
(f) Severability.
Each part of this Agreement is intended to be severable. In the
event that any provision of this Agreement is found by any court or
other authority of competent jurisdiction to be illegal or
unenforceable, such provision shall be severed or modified to the
extent necessary to render it enforceable and as so severed or
modified, this Agreement shall continue in full force and effect.
(g) Section Headings.
The Section headings in this Agreement are for reference purposes
only and shall not affect in any way the meaning or interpretation of
this Agreement.
(h) Construction.
Unless the context otherwise requires, when used herein, the singular
shall be deemed to include the plural, the plural shall be deemed to
include each of the singular, and pronouns of one or no gender shall
be deemed to include the equivalent pronoun of the other or no gender.
(i) Further Assurances.
In addition to the instruments and documents to be made, executed and
delivered pursuant to this Agreement, the parties hereto agree to
make, execute and deliver or cause to be made, executed and
delivered, to the requesting party such other instruments and to take
such other actions as the requesting party may reasonably require to
carry out the terms of this Agreement and the transactions
contemplated hereby.
(j) Notices.
Any notice which is required or desired under this Agreement shall be
given in writing and may be sent by personal delivery or by mail
(either a. United States mail, postage prepaid, or b. Federal Express
or similar generally recognized overnight carrier), addressed as
follows (subject to the right to designate a different address by
notice similarly given):
To Andain:
Andain Inc.
0000 Xxxx Xxxx, Xxxxx 000
Xxxx, Xxxxxx 00000
Attention: Xxx Xxxxxxxxx
To Pangea:
Pangea Investments GmbH:
000x Xxxxxxxxxxxxxx, Xxxxxxxxx XX 0000 Xxxxxxxxxxx
Attention: Xxxxx X. Xxxxxxxxx
Facsimile: x00(00) 000 0000
(k) Governing Law.
This Agreement shall be governed by the interpreted in accordance
with the laws of the State of Nevada without reference to its
conflicts of laws rules or principles. Each of the parties consents
to the exclusive jurisdiction of the federal courts of the State of
Nevada in connection with any dispute arising under this Agreement
and hereby waives, to the maximum extent permitted by law, any
objection, including any objection based on forum non coveniens, to
the bringing of any such proceeding in such jurisdictions.
(l) Consents.
The person signing this Agreement on behalf of each party hereby
represents and warrants that he has the necessary power, consent and
authority to execute and deliver this Agreement on behalf of such party.
(m) Survival of Provisions.
The provisions contained in paragraphs 3, 5, 6, and 8 of this
Agreement shall survive the termination or expiration of this
Agreement.
(n) Execution in Counterparts.
This Agreement may be executed in any number of counterparts, each of
which shall be deemed an original and all of which together shall
constitute one and the same agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed and have agreed to and accepted the terms herein on the date
written above.
ANDAIN INC.
By: /s/ Xxx Xxxxxxxxx
Xxx Xxxxxxxxx, President
PANGEA INVESTMENTS GMBH
By: /s/ Xxxxx X. Xxxxxxxxx
Xxxxx X. Xxxxxxxxx, President
