MAXIMUM DYNAMICS, INC. ENGAGEMENT AGREEMENT
This business services engagement agreement ("Agreement") dated the
15th day of December, 2001 by and between Maximum Dynamics, Inc. (MDI), a
Colorado corporation whose address is 0 X. Xxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxxx
Xxxxxxx, XX 00000 and Barrington Gap, Inc., ("Company"), a Colorado corporation,
having an address of 0 X. Xxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxxx Xxxxxxx, XX
00000.
WHEREAS, MDI provides customized financial software and consulting
services; and,
WHEREAS, Company wishes to engage the services of MDI;
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the parties hereto agree as follows:
1. MDI will act as the Company's core project team in reconstructing the
hedge fund records of The Equivest Family of Funds, ("Fund"), a
Bahamian hedge fund. As consultants to the Company, MDI will assist
with the following:
(a) Contacting customers to obtain account records, copies of checks
and bank wires that demonstrate account activity, and pertinent
information to reconstruct each account.
(b) Managing customer relations such as account maintenance, customer
inquiries and customer access to web-based account information.
(c) Reconstructing all accounts and calculating redemptions and the
proper balances of accounts and the fund in general.
(d) Generating customer statements that can be audited by the fund's
accountants and thus conclude the reconstruction project.
2. The retention by the Company of MDI as heretofore described shall be
for a period of not less than ten months from the date hereof in order
to provide MDI a reasonable opportunity to perform its services (as
outlined above). Following this ten 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. Any parties introduced to the Company by MDI, even if declining
participation hereby, shall be deemed a "Protected Party" and
thereafter the Company shall not directly deal with the Protected Party
without the prior written consent of MDI.
4. In connection with MDI's activities on the Company's behalf, the
Company will cooperate with MDI and will furnish MDI with all
information and data concerning the Company (the "Information") or the
Fund, which MDI deems appropriate and will provide MDI with access to
the Company's officers, directors, employees, independent accountants,
and legal counsel. The Company represents and warrants that all
Information made available to MDI by the Company will, at all times
during the period of engagement of MDI 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. The Company
further represents and warrants that any information provided by it to
MDI will have been prepared in good faith and will be based upon
assumptions, which, in light of the circumstances under which they are
made, are reasonable. The Company acknowledges and agrees that, in
rendering its services hereunder, MDI may be using and relying on the
Information without independent verification thereof by MDI or
independent appraisal by MDI of any of the information held by the
Company or the Fund. MDI does not assume responsibility for any
information regarding the Company or the Fund. Any recommendations
rendered by MDI pursuant to this Agreement may not be disclosed
publicly without our prior written consent.
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5. In consideration of its services pursuant to this Agreement, MDI shall
be entitled to receive, and the Company agrees to pay MDI, consulting
fees according to the attached Schedule A, which may change from time
to time with ample notice provided to the Company before any changes
that may effect the course or charges for services rendered by MDI.
6. In addition to the consideration paid as described in Paragraph 5
above, MDI 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 MDI, upon request, for all such
pre-approved expenses incurred by MDI (which may include fees and
disbursements of counsel, and of other consultants and advisors
retained by MDI) in connection with the matters contemplated by this
Agreement.
7. 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 MDI up to the date of
termination or completion, as the case may be, (ii) the reimbursement
of expenses incurred by MDI up to the date of termination or
completion, as the case may be, (iii) the provisions of Paragraphs 5
through 8 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.
8. Should this Agreement be terminated by either party as described in
Paragraph 2 and Paragraph 7, MDI will keep the fees it received for
each month that MDI was retained.
9. The Company agrees to indemnify and hold harmless MDI 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 MDI is a party), directly
or indirectly, caused by, relating to, based upon, arising out of, or
in connection with MDI's acting for the Company, including, without
limitation, any act or omission by MDI in connection with its
acceptance of or the performance or non-performance of its obligations
under this Agreement; provided, however, such indemnity shall not
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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 primarily
and directly from the willful misconduct of MDI. The Company also
agrees that MDI 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 MDI, 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 MDI's willful misconduct.
These indemnification provisions shall be in addition to any liability
which the Company may otherwise have to MDI or the persons indemnified
below in this sentence and shall extend to the following: MDI, its
affiliated entities, directors, officers, employees, legal counsel,
agents, and controlling persons (within the meaning of the federal
securities laws). All references to MDI 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 MDI proposes to demand indemnification, it shall notify the
Company with reasonable promptness; provided, however, that any failure
by MDI to notify the Company shall not relieve the Company from its
obligations hereunder. MDI 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 MDI made with
the Company's written consent, which consent shall not be unreasonably
withheld. The Company shall not, without the prior written consent of
MDI, 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 MDI of an unconditional release from all
liability in respect of such claim.
10. The Company understands that to the extent MDI utilizes any third
parties that these third parties constitute the proprietary
intellectual property of MDI. Such contacts, partners and related
information represent a substantial value to MDI that MDI uses to offer
services to clients and retain a competitive advantage in the
marketplace. Therefore the Company aggress to work with MDI, and agrees
not to circumvent in any manner, directly or indirectly, MDI with
regard to any third parties, clients or contacts that have been
identified by MDI, or MDI's clients or contacts. All contacts,
discussions and resources with all identified third parties or partners
of MDI shall be conducted by, through or in conjunction with MDI.
Written confirmation identifying an introduction will be provided by
MDI. 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.
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11. 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.
12. The benefits of this Agreement shall inure to the respective successors
and assigns of the parties hereto and of the indemnified parties
hereunder and their successors and assigns and representatives, and the
obligations and liabilities assumed in this Agreement by the parties
hereto shall be binding upon their respective successors and assignees.
13. 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.
14. Services provided by MDI 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.
15. MDI hereby represents and warrants as follows:
(a) MDI 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 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 MDI of and the
consummation of the transactions contemplated in this Agreement
have been duly and validly authorized by the Board of Directors of
MDI, and MDI 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 MDI, and
no consent or approval of or notice to any other person or entity
is required in connection with the execution and delivery by MDI
of or the consummation by MDI of the transactions contemplated in
this Agreement.
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(c) The execution, delivery, and performance of this Agreement by MDI
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 MDI; (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 MDI
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 MDI; or (v) the creation or imposition of any
lien, charge, or encumbrance on any of the assets of MDI.
16. 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 Colorado, 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 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.
17. In its performance hereunder, MDI and its agents shall be an
independent contractor. MDI shall complete the services required
hereunder according its own means and methods of work, shall be in the
exclusive charge and control of MDI 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 MDI to provide services to Company in any specific
place or manner. Payments to MDI hereunder shall not be subject to
withholding taxes or other employment taxes as required with respect to
compensation paid to an employee.
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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:
Maximum Dynamics, Inc. Barrington Gap, Inc
---------------------- --------------------
A) Maximum Dynamics, Inc. B) Barrington Gap, Inc.
0 X. Xxxxxxx Xxxxxx, Xxxxx 0000 0000 X. Xxxxxx Xxxxxx
Xxxxxxxx Xxxxxxx, XX 00000 Xxxxxx, XX 00000
Tel: (000) 000-0000 Tel: (000) 000-0000
Fax: (000) 000-0000 Fax: (000) 000-0000
Email: xxxx@xxxx.xxx Email: xxxxxx@xxx.xxx
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In witness whereof the parties have set their hands and seals as of the date
first written above.
Maximum Dynamics, Inc. Barrington Gap, Inc.
---------------------- ---------------------
By: Xxxx X. Xxxxxx By: Xxxxxx X. Xxxxxxx
Signature: /s/ Xxxx X. Xxxxxx Signature: /s/ Xxxxxx X. Xxxxxxx
-------------------------- --------------------------
Title: Chief Executive Officer Title: Chief Financial Officer
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SCHEDULE A
A. Service Fee. The Company will engage MDI for the services described in
this Agreement. The service fee charged to the Company for this service
is seventy five thousand dollars ($75,000.00). The fee of $75,000.00 is
payable in any mixture of the following forms at MDI's discretion:
(i) By Company check made payable to: Maximum Dynamics, Inc.
(ii) Money order or cashier's check;
The Company agrees to pay two thousand dollars ($2,000.00) as an up
front payment prior to MDI's commencing of the project. The Company
agrees to make such payment within thirty (30) days of the signing of
this Agreement.
Once the up front payment of $2,000.00 is made, the Company will make
monthly payments of seven thousand five hundred dollars ($7,500.00)
with the first one due 30 days after the up front payment is made. The
first monthly payment shall be $$5,500, or $7,500.00 minus the up front
payment.
B. Maximum Dynamics, Inc. deliverables: MDI's efforts and services will
focus on the following areas:
i. Contacting customers to obtain account records, copies of checks
and bank wires that demonstrate account activity, and pertinent
information to reconstruct each account.
ii. Managing customer relations such as account maintenance, customer
inquiries and customer access to web-based account information.
iii. Reconstructing all accounts and calculating redemptions and the
proper balances of accounts and the fund in general.
iv. Generating customer statements that can be audited by the fund's
accountants and thus conclude the reconstruction project.
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