Lexington Lexington Xxxxxx Technologies, Inc.
Xxxxxx 000 X. Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxxxx Xxxxxxxx Xxxxxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
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CUSTOMER AGREEMENT
This business services engagement agreement ("Agreement") dated the
15th day of May, 2001 by and between Lexington Xxxxxx Technologies,
Inc. (LBT), a Colorado corporation whose address is 0 X. Xxxxxxx
Xxxxxx, Xxxxx 0000, Xxxxxxxx Xxxxxxx, XX 00000 and Xxxxx Corporation,
("Company"), an Arizona corporation, having an address of 00000 X
Xxxxxx Xxxxxx Xxxxxxxxx, Xxxxxx, XX 00000.
WHEREAS, LBT assists companies with strategy, financial planning,
marketing services, corporate structuring, and technical analysis;
and,
WHEREAS, Company wishes to engage the services of LBT;
NOW, THEREFORE, in consideration of the premises and for other
good and valuable consideration, the parties hereto agree as follows:
1. LBT will assist the Company in connection with its business
endeavors in the fields of corporate structuring, business
planning and market analysis, and other such services that are
mutually agreed upon by both parties from time to time. Schedule
A sets forth the deliverables that LBT commits to delivering.
2. The retention by the Company of LBT as heretofore described shall
be for a period of not less than two months from the date hereof
in order to provide LBT a reasonable opportunity to perform its
services (as outlined above). Following this two month period,
this Agreement will automatically renew on a month-to-month basis
unless terminated by either party upon 30 day advanced written
notice.
3. In connection with LBT's activities on the Company's behalf, the
Company will cooperate with LBT and will furnish LBT with all
information and materials concerning the Company (the
"Information"), which LBT deems appropriate and will provide LBT
with access to the Company's officers, directors, employees,
independent accountants, and legal counsel as appropriate. The
Company represents and warrants that all Information made
available to LBT by the Company will, at all times during the
period of engagement of LBT hereunder, be complete and correct in
all material respects and will not contain any untrue statement
of a material fact or omit to state a material fact necessary in
order to make the statements therein not misleading in the light
of the circumstances under which such statements are made. LBT
does not assume responsibility for any information regarding the
Company.
4. In consideration of its services pursuant to this Agreement, LBT
shall be entitled to receive, and the Company agrees to pay LBT,
consulting fees according to the attached Schedule A, which may
change from time to time with ample notice provided to the
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Company before any changes that may effect the course or charges
for services rendered by LBT.
5. In addition to the consideration paid as described in Paragraph 4
above, LBT agrees that it will charge the Company for any added
expenses only if such expenses are pre-approved by the Company.
The Company agrees to promptly reimburse LBT, upon request, for
all such pre-approved expenses incurred by LBT (which may include
fees and disbursements of counsel, and of other consultants and
advisors retained by LBT) in connection with the matters
contemplated by this Agreement.
6. Either party hereto may terminate this Agreement at any time upon
30 days' prior written notice, following the initial engagement
period as stated in Paragraph 2 without liability or continuing
obligation, except as set forth in the following sentence.
Neither termination of this Agreement nor completion of the
assignment contemplated hereby shall affect: (i) any compensation
earned by LBT up to the date of termination or completion, as the
case may be, (ii) the reimbursement of expenses incurred by LBT
up to the date of termination or completion, as the case may be,
(iii) the provisions of Paragraphs 4 through 7 of this Agreement
and (iv) the attached Indemnification Provisions which are
incorporated herein, all of which shall remain operative and in
full force and effect.
7. Should this Agreement be terminated by either party as described
in Paragraph 2 and Paragraph 6, the Company agrees to pay LBT's a
minimum retainer equal to one-fourth (1/4) of the total contract.
8. The Company agrees to indemnify and hold harmless LBT against any
and all losses, claims, damages, obligations, penalties,
judgments, awards, liabilities, costs, expenses, and
disbursements (and any and all actions, suits, proceedings, and
investigations in respect thereof and any and all legal and other
costs, expenses, and disbursements in giving testimony or
furnishing documents in response to a subpoena or otherwise),
including, without limitation the costs, expenses, and
disbursements, as and when incurred, of investigating, preparing,
or defending any such action, suit, proceeding, or investigation
(whether or not in connection with litigation in which LBT is a
party), directly or indirectly, caused by, relating to, based
upon, arising out of, or in connection with LBT's acting for the
Company, including, without limitation, any act or omission by
LBT in connection with its acceptance of or the performance or
non-performance of its obligations under this Agreement;
provided, however, such indemnity shall not apply to any portion
of any such loss, claim, damage, obligation, penalty, judgment,
award, liability, cost, expense, or disbursement to the extent it
is found in a final judgment by a court of competent jurisdiction
(not subject to further appeal) to have resulted directly from
the willful misconduct of LBT. The Company also agrees that LBT
shall not have any liability (whether direct or indirect, in
contract or tort or otherwise) to the Company for or in
connection with the engagement of LBT, except to the extent that
any such liability is found in a final judgment by a court of
competent jurisdiction (not subject to further appeal) to have
resulted primarily and directly from LBT's willful misconduct.
These indemnification provisions shall be in addition to any
liability which the Company may otherwise have to LBT or the
persons indemnified below in this sentence and shall extend to
the following: LBT, its affiliated entities, directors, officers,
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employees, legal counsel, and agents. All references to LBT in
these indemnification provisions shall be understood to include
any and all of the foregoing.
If any action, suit, proceeding, or investigation is commenced,
as to which LBT proposes to demand indemnification, it shall
notify the Company with reasonable promptness; provided, however,
that any failure by LBT to notify the Company shall not relieve
the Company from its obligations hereunder. LBT shall have the
right to retain counsel of its own choice to represent it, and
the Company shall pay the fees, expenses, and disbursements of
such counsel; and such counsel shall, to extent consistent with
its professional responsibilities, cooperate with the Company and
any counsel designated by the Company. The Company shall be
liable for any settlement of any claim against LBT made with the
Company's written consent, which consent shall not be
unreasonably withheld. The Company shall not, without the prior
written consent of LBT, settle or compromise any claim, or permit
a default or consent to the entry of any judgment in respect
thereof, unless such settlement, compromise, or consent includes,
as an unconditional term thereof, the giving by the claimant to
LBT of an unconditional release from all liability in respect of
such claim.
9. The Company understands that to the extent LBT utilizes any third
parties that these third parties constitute the proprietary
intellectual property of LBT. Such contacts, partners and
related information represent a substantial value to LBT that LBT
uses to offer services to clients and retain a competitive
advantage in the marketplace. Therefore the Company aggress to
work with LBT, and agrees not to circumvent in any manner,
directly or indirectly, LBT with regard to any third parties,
clients or contacts that have been identified by LBT, or LBT's
clients or contacts. All contacts, discussions and resources
with all identified third parties or partners of LBT shall be
conducted by, through or in conjunction with LBT. Written
confirmation identifying an introduction will be provided by LBT.
Company agrees that electronic mail may be used for this purpose.
The Company agrees that this non-circumvention clause will remain
in effect for a period of not less than 18 months following the
termination of this agreement by either party.
10. The validity and interpretation of this Agreement shall be
governed by the laws of the State of Colorado applicable to
agreements made and to be fully performed therein. The Company
irrevocably submits to the jurisdiction of any court of the State
of Colorado for the purpose of any suit, action, or other
proceeding arising out of this Agreement, or any of the
agreements or transactions contemplated hereby, which is brought
by or against the Company and (i) hereby irrevocably agrees that
all claims in respect of any such suit, action, or proceeding may
be heard and determined in any such court and (ii) to the extent
that the Company has acquired, or hereafter may acquire, any
immunity from jurisdiction of any such court or from any legal
process therein, the Company hereby waives, to the fullest extent
permitted by law, such immunity. The Company hereby waives, and
agrees not to assert in any such suit, action, or proceeding, in
each case, to the fullest extent permitted by applicable law, any
claim that (a) the Company is not personally subject to the
jurisdiction of any such court, (b) the Company is immune from
any legal process (whether through service or notice, attachment
prior to judgment, attachment in aid of execution, execution, or
otherwise) with respect to the Company's property or (c) any such
suit, action, or proceeding is brought in an inconvenient forum.
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11. The benefits of this Agreement shall inure to the respective
successors and assignees of the parties hereto and of the
indemnified parties hereunder and their successors and assignees
and representatives. The obligations and liabilities assumed by
the parties in this Agreement hereto shall be binding upon their
respective successors and assignees.
12. For the convenience of the parties hereto, any number of
counterparts of this Agreement may be executed by the parties
hereto. Each such counterpart shall be, and shall be deemed to
be, an original instrument, but all such counterparts taken
together shall constitute one and the same Agreement. This
Agreement may not be modified or amended except in writing signed
by the parties hereto.
13. Services provided by LBT to and on behalf of the Company in
connection with this Agreement will be suspended forthwith in the
event of nonpayment of fees or expenses.
14. LBT hereby represents and warrants as follows:
(a) LBT is a corporation duly incorporated, validly existing,
and in good standing under the laws of the State of Colorado,
and has the corporate power and is duly authorized to carry on
its business where and as now conducted and to operate its
assets as it now does.
(b) The execution, delivery, and performance by LBT of and the
consummation of the transactions contemplated in this
Agreement have been duly and validly authorized by the Board
of Directors of LBT, and LBT represents and warrants that it
has the right, power, legal capacity, and authority to enter
into and perform its obligations under this Agreement, and
that no consent or approval of, notice to, or filing with any
governmental authority having jurisdiction over any aspect of
the business or assets of LBT, and no consent or approval or
notice to any other person or entity is required in connection
with the execution and delivery by LBT or the consummation by
LBT of the transactions contemplated in this Agreement.
(c) The execution, delivery, and performance of this Agreement
by LBT and the consummation of the transactions contemplated
hereby and thereby, do not and will not result in or
constitute (i) a breach of any term or provision of this
Agreement; (ii) a default, breach, or violation, or an event
that, with notice or lapse of time or both, would be a
default, breach, or violation of any of the terms, conditions,
or provisions of the Articles of Incorporation or Bylaws of
LBT; (iii) a default, breach, or violation, or an event that,
with notice or lapse of time or both, would be a default,
breach, or violation of any of the terms, conditions, or
provisions of any lease, license, promissory note, security
agreement, commitment, indenture, mortgage, deed of trust, or
other agreement, instrument, or arrangement to which LBT is a
party or by which it or any of its assets are bound; (iv) an
event that would permit anyone to terminate or rescind any
agreement or to accelerate the maturity of any indebtedness or
other obligations of LBT; or (v) the creation or imposition of
any lien, charge, or encumbrance on any of the assets of LBT.
15. The Company hereby represents and warrants as follows:
(a) Company is a corporation duly incorporated, validly
existing, and in good standing under the laws of the state of
Arizona, and has the corporate power and is duly authorized to
carry on its businesses where and as now conducted and to own,
lease, and operate its assets as it now does.
(b) The execution, delivery, and performance by Company of and
the consummation of the transactions contemplated in this
Agreement have been duly and validly authorized by the Board
of Directors of Company, and Company represents and warrants
that it has the right, power, legal capacity, and authority to
enter into and perform its obligations under this Agreement,
and that no consent or approval of, notice to, or filing with
any governmental authority having jurisdiction over any aspect
of the business or assets of Company, and no consent or
approval of or notice to any other person or entity is
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required in connection with the execution and delivery by
Company of or the consummation by Company of the transactions
contemplated in this Agreement.
(c) The execution, delivery, and performance of this Agreement
by Company and the consummation of the transactions
contemplated hereby and thereby, do not and will not result in
or constitute (i) a breach of any term or provision of this
Agreement; (ii) a default, breach, or violation, or an event
that, with notice or lapse of time or both, would be a
default, breach, or violation of any of the terms, conditions,
or provisions of the Articles of Incorporation or Bylaws of
Company; (iii) a default, breach, or violation, or an event
that, with notice or lapse of time or both, would be a
default, breach, or violation of any of the terms, conditions,
or provisions of any lease, license, promissory note, security
agreement, commitment, indenture, mortgage, deed of trust, or
other agreement, instrument, or arrangement to which Company
is a party or by which it or any of its assets are bound; (iv)
an event that would permit anyone to terminate or rescind any
agreement or to accelerate the maturity of any indebtedness or
other obligations of Company; or (v) the creation or
imposition of any lien, charge, or encumbrance on any of the
assets of Company.
16. In its performance hereunder, LBT and its agents shall be an
independent contractor. LBT shall complete the services required
hereunder according to its own means and methods of work, shall
be in the exclusive charge and control of LBT and shall not be
subject to the control or supervision of the Company, except as
to the results of the work. Company acknowledges that nothing in
this Agreement shall be construed to require LBT to provide
services to Company at any specific time, or in any specific
place or manner. Payments to LBT shall not be subject to
withholding taxes or other employment taxes as required with
respect to compensation paid to an employee.
All notices and writings, required or given pursuant to this
Agreement, shall be signed by the party relying thereon to be sent by
prepaid postal mail rates or by facsimile transmission, to a location
or number set forth below:
Lexington Xxxxxx Technologies, Inc. Xxxxx Corporation
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A) Lexington Xxxxxx Technologies, Inc. B) Xxxxx Corporation
0 X. Xxxxxxx Xxxxxx, Xxxxx 0000 00000 X Xxxxxx Xxxxxx Xxxxxxxxx
Xxxxxxxx Xxxxxxx, XX 00000 Xxxxxx, Xxxxxxxxxx 00000
Tel: (000) 000-0000 Tel: (000) 000-0000
Fax: (000) 000-0000 Fax: __________________
In witness whereof the parties have set their hands and seals as of
the date first written above.
Lexington Xxxxxx Technologies, Inc. Xxxxx Corporation
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By: Xxxxxxx Xxxxxxx By: Xxxxx Xxxxxxxxx
Signature:__/s/___________ Signature:__/s/________
Title: Chief Executive Officer Title: Vice President
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SCHEDULE A
A. Service Fee. The Company will engage LBT for the services
described in this Agreement. The service fee charged to the
Company for this service is $2,500.00 (two thousand five hundred
dollars). The fee of $2,500.00 is payable in any mixture of the
following forms at LBT's discretion:
(i) By Company check made payable to: Lexington Xxxxxx
Technologies, Inc.
(ii) Money order or cashier's check, or
(iii) Wire (coordinates will be given upon request)
The Company agrees to pay the full amount within 30 days of
completion of the project by LBT.
After forty-five days of completion of the project, if payment
has not been received, LBT will charge a late payment fee of two
and a half (2.5%) percent of the total contract.
B. Lexington Xxxxxx Technologies, Inc. Deliverables: LBT's efforts
and services will focus on the following areas:
(a) Corporate structuring: LBT shall help the company to
structure itself optimally so that workflow is maximized and
shareholder value is optimized.
(b) Business planning: LBT will perform a feasibility study of
the company's business model and product offering. Included
in this feasibility study will be a market analysis. Once
this has been completed, LBT will work with the company to
develop the most appropriate business strategy and road map
for the company to follow. LBT's services will not include
assistance with fundraising for the company.
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