Engagement Agreement between Cyntech Technologies, Inc.
and Xxxxx & Associates, Inc.
This Engagement Agreement ("Agreement"), entered into on this 31st day of
December, 2000, will document all prior verbal and the written agreement dated
December 31, 1997, entered into by and among Cyntech Technologies, Inc.
(Nevada), Cyntech Technologies, Inc. (Utah) and all affiliates, including,
parent companies, subsidiaries, successors, affiliates, assign(s), designees and
legatees ("Cyntech" or "Client"), excluding Windstar Research & Engineering,
Inc.; and Xxxxx & Associates, Inc. (Georgia) and/or any successors and assign(s)
(the "Consultant" or "Xxxxx")
Cyntech hereby retains Xxxxx & Associates, Inc. as a general management advisor
and consultant to Cyntech, for the three-year period from December 31, 1997 and
ended on December 31, 2000, and for the three-year period ending December 31,
2003, at which time this Agreement will automatically convert to a month to
month basis. The Agreement will remain in effect until December 31, 2003 or such
additional time period until as a new agreement becomes effective or Xxxxx,
Cyntech or the Consultant provides a 60-day written notice of its intent to
terminate this Agreement to the other party.
The Consultant will work directly for and under the control and supervision of
R. Xxxxx Xxxxx, the President and founder of Cyntech, unless agreed to in
writing by Xxxxx, Cyntech and Consultant. Consultant will work on projects
assigned by Xxxxx, as a general management advisor and consultant. Subject to
the authority and control retained by Cyntech, Consultant shall provide
management advisory services, in exchange for the fees set forth in this
Agreement.
Consultant will assist Cyntech with assigned projects, including general
management advisory and consultation services, including providing assistance in
the review and/or preparation of the following: 1) Perform assigned projects,
based on written or verbal assignments, to assist with financial planning models
and forecasted financial statements, based solely on the information submitted
by the Company and/or obtained by or from Xxxxx and/or Cyntech, and other
assignments for one or more proposed hydrocarbon reclamation and conversion
(waste tire, rubber & plastics recovery) facilities; 2) Perform assigned
projects, based on written or verbal assignments, to assist with financial
planning models and forecasted financial statements, based solely on the
information submitted by the Company and/or obtained by or from Xxxxx and/or
Cyntech, for one or more co-generation plants; and 3) Perform other assigned
projects and functions deemed necessary to the success of Cyntech and its
subsidiaries and affiliates as Xxxxx and Xxxxx or Cyntech may agree upon from
time to time (based solely on the information submitted by the Company and/or
obtained by or from Xxxxx and/or Cyntech).
All reports prepared will be 1) intended for internal use, 2) prepared on plain
paper, and 3) financial statements, if any, will not be accompanied by an
accountant's report, and not presented in any way to be construed as being
audited, reviewed or compiled by the Consultant. Nothing in this document shall
be construed as the consultant is acting in the capacity as an independent
Certified Public Accountant.
Xxxxx and/or Cyntech will assume full responsibility for issuing all reports,
including business plans and actual, prospective, pro forma and/or forecasted
unaudited and/or audited financial statements, including all related
assumptions, notes, accounting policies and disclosures, based on presenting
information that is solely the representation of Xxxxx and/or Cyntech. The
Consultant will not examine financial statements, assumptions or other
supporting data, and will not express an opinion or provide any other form of
assurance on the financial statements, assumptions other supporting data. Should
Cyntech, and/or any subsidiary and/or affiliate seek to become listed for public
trading, Xxxxx and/or Cyntech will be responsible for all information
incorporated in the documents filed with the Securities and Exchange Commission
and all other reporting agencies, including, but not limited to: 1) Historical
and prospective unaudited and audited financial statements and related notes and
disclosures; 2) All other applicable filings with the Securities and Exchange
Commission and others; 3) Federal and state income tax returns; 4) Business
plans; and, 5) Any other reports and filings.
Xxxxx & Associates, Inc. can not and will not undertake to perform services as
an independent Certified Public Accountant, including, but not limited to: 1)
compilation services; 2) expression of an opinion; or 3) provide assurance on
the accuracy of such historical and/or prospective reports, fillings and/or
audited or unaudited financial statements.
In performing its obligations under this Agreement, Consultant shall use its
best efforts to: 1) devote so much of the time of its principal consultant or
employees or other consultants as is reasonably necessary to perform the
assigned duties and obligations, as set forth in this Agreement; 2) manage and
perform the assigned projects in a businesslike manner; 3) periodically report
to and consult with Xxxxx and/or other designated individuals; and, 4) act in
good faith and with reasonable diligence.
As a consultant to Cyntech, Xxxxx & Associates, Inc., including its principal
consultant Xxxx X. Xxxxx, will not be liable to Xxxxx and/or Cyntech, its
subsidiaries and affiliates for monetary damages due to breach of fiduciary
duty, unless the breach is a result of gross negligence, willful misconduct or
illegal actions of the Consultant or its employees or other consultants engaged
by the Consultant. Xxxxx and/or Cyntech shall indemnify and hold Consultant and
its officers, directors, employees, independent contractors and shareholders
harmless from and against all losses, damages costs and expenses including legal
fees resulting from Consultant's involvement in the operation and management of
Cyntech. Nothing in this document shall be construed as the consultant is acting
in the capacity as an independent Certified Public Accountant.
Cyntech and Xxxxx acknowledge that, as long as this Agreement remains in effect,
that Xxxx X. Xxxxx cannot and will not serve in any capacity as a director,
officer or employee of Cyntech, without the express written consent of the
Consultant and Xxxx X. Xxxxx, in the form of a written agreement, including but
not limited to a Modification to this Engagement Agreement and an Employment
Agreement.
Fees for such services performed by Xxxxx & Associates, Inc. will be paid by
Cyntech Technologies, Inc. (Nevada), Cyntech Technologies, Inc. (Utah) and all
parent companies, subsidiaries, successors, affiliates, assign(s), designees and
legatees and/or Xxxxx, at the rate of $150.00 per hour, and all reasonable auto,
travel and office expenses, which may be increased from time to time based on
written notice to Xxxxx and/or Cyntech, for the actual time spent or minimum
hours, whichever is greater, plus all reasonable out-of-pocket costs. Cyntech
agrees to engage Consultant for 100 hours per month (a total of 2,100 hours for
the period ended September 30, 1999) beginning January 1, 1998 through September
30, 1999; and, a minimum of 35 hours per month (a minimum of 420 hours per
fiscal year) beginning October 1, 1999 through the end of this agreement, for
each month this Agreement remains in effect. Payments will be due and payable on
the fifth business day of the following month. Past due amounts during Cyntech's
development phase which may be deferred and other amounts due thereafter,
whether billed or not, will be subject to interest at the maximum rate
permitted, based on the laws of the State of Georgia.
If the Consultant, including its principal consultant Xxxx X. Xxxxx, is
discharged from this Agreement, prior to the expiration date 1) for any reason
except gross negligence, other willful misconduct or illegal acts; or 2) is
unable to work by reason of disability of Xxxx X. Xxxxx; or 3) resigns as a
Consultant to Cyntech because of significant changes in Cyntech's management
policy which is unacceptable to the Consultant or because of significant changes
in Cyntech's management personnel which are not acceptable to the Consultant,
the Consultant will be paid by Cyntech and/or Xxxxx, including any successors,
at the minimum rate of $60,000 per annum, commencing with date of such
discharge, disability or resignation through December 31, 2003, instead of at
the minimum rate, as determined in the preceding paragraph.
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During the term of this agreement, Xxxxx & Associates, Inc., is hereby granted
stock options, as a consultant to Cyntech, to purchase a minimum 1,000,000 (one
million) shares of the common stock of Cyntech. The options will vest at the
rate of 25% per year, or 250,000 per year, retroactive to December 31, 1997, the
date of the prior Agreement, and will expire on December 31, 2004, unless
exercised. The price of the shares shall be $0.20 (twenty cents) per share.
If any term or provision of this Agreement or the application thereof to any
person or circumstance shall, to any extent, be invalid or unenforceable, the
remainder of the Agreement shall continue in full force and effect with respect
to any other existing or subsequent breach thereof.
This Agreement shall inure to the benefit of and shall be binding upon the
successors of the parties hereto. This Agreement shall be binding on any person,
corporation, partnership, or other entity succeeding to the ownership and/or
operation of Cyntech in any manner whatsoever including by operation of law. 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.
This Agreement and the performance hereunder shall be construed in accordance
with the laws of the State of Georgia. If any action, special proceedings, or
other proceedings that may be brought arising of, in connection with, or by
reason of this agreement, the laws of the State of Georgia shall be applicable
and shall govern to the exclusion of the law of any other forum.
This instrument contains the entire Agreement between the parties. It may not be
changed orally, but only by written agreement, signed by the party against whom
enforcement of any waiver, change, modification or discharge is sought.
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 date and year above
written.
Client: Cyntech Technologies, Inc. Consultant: Xxxxx & Associates, Inc.
and Successors and/or Assigns and Successors and/or Assigns
Xxxxx & Associates, Inc.
By: /s/ R. Xxxxx Xxxxx By: /s/ Xxxx X. Xxxxx
Authorized Agent: R. Xxxxx Xxxxx Authorized Agent: Xxxx X. Xxxxx,
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