Services Agreement
THIS AGREEMENT (hereinafter referred to as "Agreement") is entered into
on this 17th day of April, 1999 by and between Cyntech Technologies, Inc., a
corporation promulgated under the laws of the State of UTAH, and all
Subsidiaries, Successors, Affiliates, Designees, Legatees, and Assign(s), whose
primary place of business is 0000 Xxxxxxxxxx Xxxxx XX, Xxxxxxx, XX 00000-0000
(hereinafter referred to as "CYNT") and California Business Intelligence, Inc.
and/or Assign(s), (hereinafter referred to as "CBI").
SERVICES TO BE PROVIDED BY CBI
CYNT retains CBI to provide business development services regarding
CYNT, as follows: (1) Corporate Investigations; (2) background checks; (3) due
diligence investigations; and, (4) security analysis.
COOPERATION OF CYNT
CYNT understands that CBI cannot work effectively on CYNT's behalf
without CYNT cooperation and lack of cooperation may result in higher fees, time
delays, and possibly termination of this agreement. CYNT agrees to (a) Provide
CBI with an address and telephone number(s) at which all authorized Agents of
CYNT can be reached, and immediately inform CBI of all changes; (B) Notify CBI
immediately if CYNT receives or comes into possession of material information or
knowledge of any material omissions or material errors in connection with the
operations of CYNT or the Securities Offering or bridge financing aforementioned
in section two (2); (c) Promptly provide all documentation and information as
requested by CBI; (d) Make all related parties available for telephone and
office consultations and/or inquires as well as other related activities; (e)
Promptly advise CBI of all events or changes of circumstances which may effect
CYNT's material standing; (f) Do all things reasonably necessary for the
preparation, expedition, and execution of this matter; (g) Be truthful with CBI;
(h) Pay CBI on time.
RATE OF CONSULTING FEES
CYNT agrees to pay a flat, previously agreed rate for business
development services and activities (as further defined in Section 2
hereinabove) spent on this matter by CBI. CBI's rate is $200,000.00 for such
services performed as referenced in Section 2 above. It is understood that time
is of the essence in this undertaking. Usual office hours are 10:00AM PST to
6:00PM PST on weekdays except for holidays.
Payment of fees shall be as follows:
1. The sum of $50,000USD to be paid to and received by CBI no later than
the 17th of April, 1999;
2. The sum of $50,000USD to be paid to and received by CBI no later than
the 1st of May, 1999;
3. The sum of $50,000USD to be paid to and received by CBI no later than
the 17th of May, 1999;
4. The sum of $50,000USD to be paid to and received by CBI no later than
the 1st of June, 1999;
If CYNT shall become materially delinquent in excess of seven (7)
calendar days in any payment hereinabove, all services shall cease and the full
retainer shall become due and payable to CBI immediately. Further, upon material
delinquency in payment for services rendered By CBI for the benefit of CYNT, CBI
may pursue all injunctive relief necessary and CYNT hereby expressly waives the
posting of any or all bond inherent to such relief, for the sole purpose of
collecting such fees. This rate set forth above covers general office work,
conferences, research, telephone calls and for any other tasks associated with
the above referenced matter. CYNT agrees to arrange and pay for on a timely and
expeditious manner, at CBI's prudent request, all necessary travel and lodging
arrangements, round trip basis (ie., from portal to portal) in connection with
the above referenced matter. CYNT hereby acknowledges that CBI, as a courtesy
and in good faith and trust, shall initiate said services referenced hereinabove
prior to the receipt of any funds, and that CBI shall bear certain economic and
monetary risk on behalf of CYNT.
COSTS AND EXPENSES
In addition to paying CBI's fee as defined in Section 4 of this
Agreement, CYNT shall reimburse CBI for any and all extraordinary costs and
expenses CBI may incur that is agreed by CYNT to be outside the context of
general office work covered by Section 4 above. These extraordinary other costs
and expenses are to be confirmed and when possible, in writing, with all
necessary proof provided, prior to CYNT disbursing the funds in a prudent and
timely manner. CYNT shall be obligated to pay only those expenses that are
incurred with CYNT's consent and/ or implied consent, All promotional
activities, entertainment expenses, legal fees, deposits, engagement and/or
commitment fees, and all other costs and expenses to be disbursed on behalf of
CYNT for CYNT's benefit shall be disbursed directly by CYNT in a prudent and
timely manner or if CBI is to advance such costs, at the sole discretion of CBI,
CYNT shall reimburse CBI for such costs upon request by CBI. CBI shall have no
obligation to advance any sums for costs. Further, CYNT agrees to retain and/or
engage any or all additional legal and accountancy counsel referred by CBI for
matters being undertaken by CBI for the benefit of CYNT. CYNT recognizes that if
s/he fails to provide funds for costs when requested by CBI, actions necessary
or helpful to CYNT's matter may not be taken.
STATEMENTS AND LIABILITY FOR CHARGES
CBI shall submit statements if any outstanding balances exist, to CYNT
indicating the current status of the account and such balances due and payable
to CBI for services rendered. CYNT should review these statements carefully. If
CYNT does not notify CBI within forty-eight (48) hours of CYNT's receipt of the
statements of any objections CYNT may have to the statement, CBI will assume
that CYNT approves of the services rendered and charges. In reliance on that
implied approval, CBI will continue to render services pursuant to the terms of
this Agreement provided that a method of resolving all outstanding balances to
be paid to CBI is agreed to solely by CBI prior to the re-initiation of said
services.
All additional fees in excess of retainer are to be paid on the first
and the fifteenth of every month in respective amounts. CYNT is liable to CBI
for all actual services rendered and costs associated therewith at the time
services are rendered or costs are incurred. CYNT shall pay CBI's statements as
indicated on the statement received. CYNT shall pay statement in full each
billing statement.
DELINQUENCY OF STATEMENTS
The statements are due and payable immediately upon receipt unless
other specific written arrangements have been made. If any charges are not paid
as required by billing statement, they will be considered delinquent. In such
event, CYNT shall pay a late payment charge equal to one percent (1%) of the
fees and costs in arrears for each month in which any of the fees remain unpaid.
This late payment charge is intended as liquidated damages for failure to pay
fees when due, and represents from time fees are withheld plus reasonable
administrative costs of collecting and accounting for unpaid fees. CYNT
understands and acknowledges that separate calculation of actual damages for
each instance of late payment would be extremely difficult and impractical, and
further acknowledges that the foregoing provision for liquidated damages is
reasonable under the circumstances existing as of the date of this Agreement.
In the event that CBI is required to enforce the terms of this
Agreement or if same must be referred to a collection agency for collection, the
prevailing party shall also receive reimbursement for attorney's fees and court
costs expended.
DISCHARGE AND WITHDRAWAL
CYNT may discharge CBI at any time for the following: felony
conviction, bankruptcy, material unremedied breach of the terms and conditions
of this Agreement, breach of fiduciary duty, or any proven unlawful or unethical
activities, provided that final payment for any outstanding balances are
received in full with written notice of termination.
CBI may not withdraw without CYNT's consent unless CYNT materially
breaches the terms of this Agreement, CYNT's failure to pay CBI fees, CYNT's
refusal to cooperate with CBI or to follow CBIs advice or requests on any
material matter, or any other CYNT action, in action, or caused circumstance by
CYNT that would render CBI's services unlawful or unethical, felony conviction
or indictment, bankruptcy, any proven unlawful or unethical activities by CYNT.
Furthermore, upon CBI's withdrawal for Good Cause, CYNT shall forfeit any or all
remaining retainer balance, or if any future retainer payments have not come due
at the time of CBI's withdrawal for Good Cause, such retainer payments shall
immediately become due, payable, and immediately forfeited by CYNT to CBI.
INDEMNIFICATION
The CYNT agrees to indemnify and hold harmless CBI, and his affiliates,
agents, subsidiaries, successors, predecessors, legatees, designees,
representatives, employees, and assigns from and against any and all Losses of
CYNT, directly or indirectly, as a result of, or based upon or arising from (i)
any inaccuracy in or breach of non-performance of any of the representations,
warranties, covenants, or agreements made by the CYNT in or pursuant to this
Agreement, or (ii) any other matter as to which the CYNT in other provisions of
this Agreement has agreed to indemnify CBI.
The CYNT agrees to indemnify, defend, and hold harmless the CBI ,
including but not limited to, the following: (i) any Tax payable by or on behalf
of the CYNT or any of its Affiliates, (ii) any deficiencies in any Tax payable
by or on behalf of the CYNT or any of its Affiliates arising from any audit by
any taxing agency or authority, (iii) Taxes of any member of a consolidated or
combined tax group of which the CYNT or any of its Affiliates is, or was at any
time, a member, for which CBI is jointly or severally liable as a result of
inclusion in such group, (iv) any claim or demand for reimbursement or
indemnification resulting from any transfer by the CYNT of any Tax benefits or
credits to any other Person, and (v) any Tax liabilities arising out of the
transfer of the Shares.
The CYNT shall have the responsibility for, and the right to control,
at the CYNT's expense, the audit (and disposition thereof) of any Tax Return and
to participate in and approve the disposition of the audit of any tax return if
such audit or disposition thereof could give rise to a claim for indemnification
hereunder. CBI shall have the right directly or through its designated
representatives, to review in advance and comment upon a submissions made in the
course of audits or appeals thereof to any Governmental Entity and to approve
the disposition of any audit adjustment with respect to such periods if such
disposition will or might reasonably be expected to result in an increase in
Taxes of the CYNT as to which CBI is jointly or severally liable as a result of
inclusion in such group. Any party seeking indemnification with respect to any
Loss shall give notice to the party required to provide indemnity hereunder (
the "Indemnifying Party").
If any claim, demand, or liability is asserted against any third party
against an Indemnified Party, the Indemnifying Party shall upon written request
of the Indemnified Party, defend any actions or proceedings brought against the
Indemnified Party in respect of matters embraced by the indemnity, but the
Indemnified Party shall have the right to conduct and control the defense,
compromise or settlement of any Indemnifiable Claim if the Indemnified Party
chooses to do so, on behalf of and for the account and risk of the Indemnifying
Party who shall be bound by the result so obtained to the extent provided
herein. If, after a request to defend any action or proceeding, the Indemnifying
Party neglects to defend the Indemnified Party, a recovery against the latter
suffered by it in good faith, is conclusive in its favor against the
Indemnifying Party, provided however that, if the Indemnifying Party has not
received reasonable notice of the action or proceeding against the Indemnified
Party, or is not allowed to control its defense, judgment against the
Indemnified Party is only presumptive evidence against the Indemnifying Party.
Each Party hereto, to the extent that it is or becomes an Indemnifying Party,
hereby stipulates that a judgment against an Indemnified Party shall be
conclusive against the Indemnifying Party. The parties shall cooperate in the
defense of all third party claims, which may give rise to Indemnifiable Claims
hereunder. In connection with the defense of any claim, each party shall make
available to the party controlling such defense, any books, records or other
documents within its control that are reasonably requested in the course of such
defense and necessary or appropriate for such defense.
This Section 9 shall survive any termination of this Agreement. This
indemnification shall further survive the termination and term of this Agreement
and shall remain in effect for a period of the late of (i) two years after the
termination or term of this Agreement or (ii) such time as CBI believes, in the
exercise of reasonable discretion, that the risk of Losses to the CBI hereunder
is not material to CBI (the "Indemnification Period"). Any matter as to which a
claim has been asserted by notice to the other party that is pending or
unresolved by the end of any applicable limitation period shall continue to be
covered by this Section 10 notwithstanding any applicable statute of limitations
(which the parties hereby waive) until such matter is finally terminated or
otherwise resolved by the parties under this Agreement or by a court of
competent jurisdiction and any amounts payable hereunder are finally determined
and paid. The CYNT agrees to notify CBI of any liabilities, claims or
misrepresentations, breaches or other matters covered by this Section 9 upon
discovery or receipt of notice thereof ( other than from CBI ). This Section 9
shall not be deemed to preclude or otherwise limit in any way the exercise of
any other rights or pursuit of other remedies for the breach of this Agreement
or with respect to any misrepresentation.
COVENANTS, REPRESENTATIONS, AND WARRANTIES OF CYNT AND PRINCIPALS
10.01. CYNT and its PRINCIPALS hereby jointly covenant, represent and
warrant to and with the CYNT, the fulfillment and accuracy of each covenant,
representation and warranty hereinbelow, and further agree and covenant that
each such covenant, representation, and warranty is a condition precedent to
CYNT's obligations pursuant to this Agreement, and further that all such
covenants, representations, and warranties shall survive the execution of the
Agreement. CYNT and its PRINCIPALS hereby covenant, represent, and warrant:
(a) CYNT is a Corporation, duly organized, validly existing, and in
good standing under the laws of the State of Colorado, has all necessary powers
to own its properties and to carry on its business as now owned and operated by
it and is duly qualified to conduct business in the State of Colorado, and is in
the process of obtaining good standing in all other jurisdictions where its
business requires it to be so qualified and in good standing.
(b) The persons signing this Agreement as its PRINCIPALS own, whether
of record. or beneficially, directly or indirectly, a majority of the common
stock, voting rights, and equitable interest in the CYNT.
(c) The CYNT has no subsidiaries.
(d) The CYNT is not a registered and reporting COMPANY under the
Exchange Act.
(e) The execution and delivery of this Agreement, the issuance of the
Shares by the CYNT to CBI and the compliance by the CYNT with all the provisions
of this Agreement (i) are within the corporate power and authority of the CYNT,
(ii) do not require the approval or consent of any stockholders of the CYNT, and
(iii) have been authorized by all requisite proceedings on the part of the CYNT.
Assuming due execution and delivery of this Agreement by CYNT, this Agreement is
a valid, legal, and binding obligation of CYNT enforceable in accordance with
its terms except (a) only as the CYNT's obligations may be affected by
bankruptcy, insolvency, reorganization or similar laws, or by equitable
principles relating to or limiting creditors' rights generally, and (b) that the
remedies of specific performance, injunction, and other forms of equitable
relief are subject to certain tests of equity jurisdiction, equitable defenses,
and the discretion of the court before which any proceeding therefore may be
brought.
(g) The total outstanding obligations of the CYNT do not exceed the sum
of $1,000,000.00 owed to various creditors, and other operating expenses.
(h) The CYNT does not have any accounts payable except as specifically
set forth herein.
(i) The CYNT does not have any material liabilities, whether accrued,
contingent or otherwise, and whither due or to become due, probable of assertion
or not, except liabilities that are reflected or disclosed herein.
(j) Except as otherwise set forth herein or previously disclosed to
CBI, there are no Orders or Actions pending, or, to the best knowledge of the
CYNT, threatened, against or affecting the CYNT or any of its properties or
assets that individually or when aggregated with one or more other Orders or
Actions has or might reasonably be expected to have a material adverse effect on
the business, on the CYNT's ability to perform under this Agreement, or any
aspect of the transactions contemplated by this Agreement. Except as otherwise
set forth herein, there are no matters for which the CYNT has received any
notice, claim or assertion, or, to the best knowledge of the CYNT, which
otherwise has been threatened or is reasonably expected to be threatened or
initiated, against or affecting the CYNT or any director, officer, employee,
agent, or representative of the CYNT or any other Person, nor to the best
knowledge of the CYNT is there any reasonable basis therefore.
(k) Minute Books. The minute books of the CYNT accurately reflect all
actions and proceedings taken to date by the respective shareholders, boards of
directors and committees of the CYNT, and such minute books contain true and
complete copies of the charter documents of the CYNT and all related amendments.
the stock record books of the CYNT reflect accurately all transactions in the
capital stock of the CYNT.
(l) Accounting Records. The CYNT has records that accurately and
validly reflect their respective transactions, and accounting controls
sufficient to insure that such transactions are executed in accordance with
management's general or specific authorization.
(m) Insurance. True copies of all insurance policies of the CYNT have
been made available for review by, or delivered to, CBI.
(n) Permits. To the best knowledge of the CYNT, the CYNT holds all
Permits that are required by a Governmental Entity to permit it to conduct
business as now conducted, and all such Permits are valid and in full force and
effect and will remain so upon consummation of the transactions contemplated by
this Agreement. No suspension, cancellation, or termination of any such Permits
is threatened or imminent.
(o) Compliance with Law. To the best knowledge of the CYNT, the CYNT is
organized and has conducted business in accordance with applicable Laws, and the
forms, procedures and practices of the CYNT are in compliance with all
applicable Laws, in all material respects.
(p) Accuracy of Information. To the best knowledge of the CYNT, none of
the information supplied or to be supplied on behalf of the CYNT (i) to any
Person for inclusion in any document or application filed with any Governmental
Entity having jurisdiction over or in connection this Agreement; or (ii) to
CYNT, its agents or representatives in connection with this Agreement or
negotiations leading up to this Agreement did contain, or at the respective time
such information was delivered, will contain any untrue statement of material
fact, or omitted or will omit to state any 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. If any such
information at any time subsequent to delivery and prior to the execution of
this Agreement becomes untrue or misleading, in any material respect, the CYNT
will promptly notify CBI in writing of such fact and reason for such change.
GOVERNING LAW
This Agreement shall be interpreted and governed by applicable
commercial and civil law of the State of California. In the event that any Party
hereto be domiciled in a jurisdiction other than the State of California, that
certain Party hereby waives all rights and privileges under such jurisdiction
and further stipulates solely to the State of California for jurisdiction of
prevailing law.
CHOICE OF LAW; BINDING ARBITRATION AS EXCLUSIVE REMEDY
Should a dispute or controversy arise relating in any way to this
Agreement, or to the rights and responsibilities set forth hereunder, the CBI
and the CYNT shall make a reasonable attempt to settle the matter amicably
between themselves. Notwithstanding remedy(s) referenced in Section 4
hereinabove, failing such settlement, any action to enforce or interpret this
Agreement, or to resolve disputes between the CBI and the CYNT shall be settled
by binding arbitration in the State of California, in accordance with the rules
of the American Arbitration Association. Any such Arbitration shall take place
in Los Angeles, California, and shall be conducted by a single arbitrator.
The decision of the Arbitrator shall be final and binding. Either party
may commence arbitration by sending a written demand for arbitration to the
other parties. Such demand shall set forth the nature of the matter to be
resolved by arbitration. The substantive law of the State of California shall be
applied by the Arbitrator to the resolution of the dispute. The prevailing party
shall be entitled to reimbursement of attorney fees, costs, and expenses
incurred in connection with the arbitration.
All decisions of the Arbitrator shall be final, binding, and conclusive
on all parties. The Arbitrator shall award to the prevailing party, or parties,
attorney fees, costs, and expenses incurred in connection with the arbitration,
unless the arbitrator, in its reasonable discretion, determines such an award to
be unjust. Any award rendered by the Arbitrator, including an award of costs and
attorney's fees, may be enforced in any court having jurisdiction over the
person against whom the award is rendered. Judgment may be entered upon any such
decision in accordance with applicable law in any court having jurisdiction
thereof. The Arbitrator (if permitted under applicable law), or such court, may
issue a writ of execution to enforce the Arbitrator's decision.
REGARDING SUCH ARBITRATION, THE PARTIES UNDERSTAND THE FOLLOWING:
- the parties are waiving their right to a jury trial and their right
to seek remedies available in court proceedings;
- pre-arbitration discovery is generally more limited than and
different from court proceedings;
- the arbitrator's award is not required to include factual findings or
legal reasoning; and,
- any party's right to appeal or to seek modification of the award is
strictly limited and the award is final and binding on the parties.
REMEDIES CUMULATIVE
All rights and remedies of either party hereunder are cumulative and
are in addition to and shall not exclude any other right or remedy allowed by
law. All rights and remedies may be exercised concurrently.
NON-DISCLOSURE AND NON-CIRCUMVENTION
The Parties hereto agree to abide by and adhere to the principles of
non-disclosure, non-circumvention, and ethical business practices, and each
further agrees not to disclose the nature or extent of the transactions or
business opportunities involved, so that the confidentiality and proprietary
nature of the information obtained by all parties shall be maintained for a
period of Five (5) years unless otherwise waived in writing by CYNT. Upon
material breach of this Section 17 by CYNT, CBI may pursue all injunctive relief
necessary and CYNT hereby waives the posting of any or all bond inherent to such
relief, for the sole purpose of preventing any further breach.
MUTUAL FIDELITY
Each of the Parties hereto shall deal with the other Parties hereto in
all matters relating to the above services with the fullest degree of fiduciary
responsibility to each other to this Agreement. Each party shall give all
material information, documents, and contracts (or copies thereof) as
necessitates to the above-mentioned matter.
COUNTERPARTS
This Agreement may be executed in any number of counterparts, each of
which is considered to be an original, but all of which together are one and the
same document. Any changes, handwritten or otherwise, must be signed by all
signatories, or successor(s) or assign(s) thereto.
CAPTIONS
The captions appearing in this agreement have been inserted for
reference only and as a matter of convenience no way define, limit, or enlarge
the scope or meaning of this Agreement or any provision thereof.
NOTICES
All notices, demands, requests and other communications under this
Agreement shall be in writing, shall be considered to have been given and
received if delivered by certified mail return receipt requested, postage
prepaid, or by overnight courier to the following addresses:
If to CBI: California Business Intelligence, Inc.
0000 Xxxxxxxxx Xxxxx 00
Xxxxxxxxx, XX 00000
If to CYNT: Cyntech Technologies, Inc. and Successors
0000 Xxxxxxxxxx Xxxxx XX
Xxxxxxx, XX 00000-0000
Attention: R. Xxxxx Xxxxx, CEO
INUREMENT
This Agreement shall inure to the benefit of and be binding upon the
parties hereto and their respective heirs, legatees, designees, successors, and
permitted assigns.
WAIVER
No waiver of any terms or conditions of this Agreement shall be binding
or effective for any purpose unless expressed in writing and executed by the
party consenting the waiver.
ENTIRE AGREEMENT
The provisions described herein are the entire Agreement between the
parties and supersede all previous communications, representations, and
agreements whether verbal or written between the parties regarding the subject
matter hereof.
SUCCESSORS AND ASSIGNS
This agreement shall be binding upon the successor and assigns of each
of the parties.
GENDER, TENSE, ETC,
Whenever the masculine, feminine or neuter genders are use herein, as
required by the specific context or particular circumstance, they shall include
each of the other genders as appropriate. Whenever the singular or plural
numbers are used, they shall be deemed to be the other as required. Wherever the
past or present tense is utilized in this Agreement and the context or
circumstances require another interpretation, the present shall include the past
and the future, the future shall include the present, and the past shall include
the present.
SPECIFIC PERFORMANCE; SEVERABILITY
CYNT hereby acknowledges and agrees that irreparable damage would occur
in the event any of the provisions of this Agreement were not performed CYNT in
accordance with their specific terms or were otherwise breached and that such
damage would not be compensable in money damages and that it would be extremely
difficult or impracticable to measure the resultant damages. It is expressly
agreed by CYNT that CBI shall be entitled to an injunction or injunctions to
prevent breaches of the provisions of this Agreement and to enforce specifically
the terms and provisions hereof, in addition to any other remedy to which CBI
may be entitled at law or equity, and CYNT that is pursued for breach of this
Agreement expressly waives any defense that a remedy in damages would be
adequate and expressly waives any requirement in an action for specific
performance for the posting of a bond by CBI, the party bringing such action.
Should any part of this Agreement be declared or held invalid for any reason,
such invalidity shall not affect the validity of the remainder of the agreement,
which shall continue in full force and effect. Further, the Parties hereby agree
to immediately adopt, in writing, a substitute provision designed to implement
the Parties original intent herein, while fully complying with the rule,
statute, or ruling under which the previous provision was stricken or
unenforceable.
TELEFAX ACCEPTANCE
In the interest of saving time, this Agreement, any extensions or
modifications or supporting documentation shall be deemed to be an original if
executed and accepted or compliance therewith by telefax. AN EXECUTED TELEFAX
COPY OF THIS AGREEMENT IS A LEGALLY BINDING AGREEMENT. Said copy of originating
telefax is to be mailed or via courier to the receiving party within seventy two
(72) hours from the time of transmission.
IN WITNESS WHEREOF, the Parties hereto, through their authorized
signatories, have executed this Agreement in multiple counterparts and have set
their hands to same, intending to be legally bound thereby, as of the day and
year above written.
CBI: California Business Intelligence, Inc. CYNT: Cyntech Technologies, Inc.
and Successors and/or Assigns Successors and/or Assigns
/s/ /s/
------------------------------------ ------------------------------------
Authorized Agent: Xxxx Xxxxx, Principal Authorized Agent: R. Xxxxx Xxxxx, CEO
