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ENGAGEMENT AGREMENT
By and Between Kit Bromley & Company, Inc.
(Business Development); and,
Cyntech Technologies, Inc.
THIS ENGAGEMENT AGREEMENT (hereinafter referred to as "Agreement") is
entered into on this 3rd 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 "CLIENT") and Kit Bromley & Company, Inc. and/or
Assign(s), (hereinafter referred to as "CONSULTANT").
1. INFORMATION RE: CLIENT
CLIENT's address is: 0000 Xxxxxxxxxx Xxxxx XX,
Xxxxxxx, XX 00000-0000
CLIENT's telephone number is: Office: (000) 000-0000
CLIENT's Electronic Mail Account is: xxxxx@xxx.xxx
CLIENT's authorized Agent(s): R. Xxxxx Xxxxx, CEO
2. SERVICES TO BE PROVIDED BY CONSULTANT
CLIENT retains CONSULTANT to provide business development services
regarding CLIENT, expressly Cyntech Technologies, Inc. as follows: (1) Initial
Independent Due Diligence Compilation and Review; (2) Compilation of certain
business development documents including (i) High Level Comprehensive Business
Plan as related directly to CLIENT's initial core operations, including (1)
feasibility study; (2) capital requirement study; (3) pro-forma cash flow
statements; (4) pro-forma income statements; (5) pro-forma balance sheet; (6)
Executive Summary; (7) Synopsis of Operations; (8) Current and Past Financial
Statements to be provided by CLIENT; and, (ii) Perform those functions deemed
necessary to the success of the aforementioned duties and agreed upon in writing
by the Parties. Those documents and related work product referenced in Section
2(i) above shall be provided one (1) original to CLIENT in both print copy and
on floppy disk tandem upon completion of said services aforementioned.
3. COOPERATION OF CLIENT
CLIENT understands that CONSULTANT cannot work effectively on CLIENT's
behalf without CLIENT cooperation and lack of cooperation may result in higher
fees, time delays, and possibly termination of this agreement. CLIENT agrees to
(a) Provide CONSULTANT with an address and telephone number(s) at which all
authorized Agents of CLIENT can be reached, and immediately inform CONSULTANT of
all changes; (B) Notify CONSULTANT immediately if CLIENT receives or comes into
possession of material information or knowledge of any material omissions or
material errors in connection with the operations of CLIENT or the Securities
Offering or bridge financing aforementioned in section two (2); (c) Promptly
provide all documentation and information as requested by CONSULTANT; (d) Make
all related parties available for telephone and office consultations and/or
inquires as well as other related activities; (e) Promptly advise CONSULTANT of
all events or changes of circumstances which may effect CLIENT's material
standing; (f) Do all things reasonably necessary for the preparation,
expedition, and execution of this matter; (g) Be truthful with CONSULTANT; (h)
Pay CONSULTANT on time.
4. RATE OF CONSULTING FEES
CLIENT 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 CONSULTANT. CONSULTANT's rate is $60,000.00
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.
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Payment of fees shall be as follows:
1. The sum of $300,000USD to be paid to and received by CONSULTANT no
later than the 15th of April, 1998;
2. The sum of $300,000USD to be paid to and received by CONSULTANT no
later than the 15th of May, 1998;
Said retainer sum referenced hereinabove is to be paid to and received by
CONSULTANT from CLIENT immediately upon receipt of the aforesaid funds by CLIENT
or directly from the established escrow account established for the purpose of
collecting such funds. Client hereby stipulates to the express utilization of an
escrow account of mutual approval for the purpose of receiving and disbursing
all funds raised for the benefit of CLIENT during the term of this Agreement. If
CLIENT 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 CONSULTANT immediately. Further, upon material
delinquency in payment for services rendered By CONSULTANT for the benefit of
CLIENT, CONSULTANT may pursue all injunctive relief necessary and CLIENT 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. CLIENT agrees to arrange and pay
for on a timely and expeditious manner, at CONSULTANT's prudent request, all
necessary travel and lodging arrangements, round trip basis (ie., from portal to
portal) in connection with the above referenced matter. CLIENT hereby
acknowledges that CONSULTANT, as a courtesy and in good faith and trust, shall
initiate said services referenced hereinabove prior to the receipt of any funds,
and that CONSULTANT shall bear certain economic and monetary risk on behalf of
CLIENT.
5. COSTS AND EXPENSES
In addition to paying Consultant's fee as defined in Section 4 of this
Agreement, CLIENT shall reimburse CONSULTANT for any and all extraordinary costs
and expenses Consultant may incur that is agreed by CLIENT 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 CLIENT disbursing the funds in a prudent
and timely manner. CLIENT shall be obligated to pay only those expenses that are
incurred with CLIENT'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
CLIENT for CLIENT's benefit shall be disbursed directly by CLIENT in a prudent
and timely manner or if CONSULTANT is to advance such costs, at the sole
discretion of CONSULTANT, CLIENT shall reimburse CONSULTANT for such costs upon
request by CONSULTANT. CONSULTANT shall have no obligation to advance any sums
for costs. Further, CLIENT agrees to retain and/or engage any or all additional
legal and accountancy counsel referred by CONSULTANT for matters being
undertaken by CONSULTANT for the benefit of CLIENT. CLIENT recognizes that if
s/he fails to provide funds for costs when requested by CONSULTANT, actions
necessary or helpful to CLIENT's matter may not be taken.
6. STATEMENTS AND LIABILITY FOR CHARGES
CONSULTANT shall submit statements if any outstanding balances exist,
to CLIENT indicating the current status of the account and such balances due and
payable to CONSULTANT for services rendered. CLIENT should review these
statements carefully. If CLIENT does not notify CONSULTANT within forty-eight
(48) hours of CLIENT's receipt of the statements of any objections CLIENT may
have to the statement, CONSULTANT will assume that CLIENT approves of the
services rendered and charges. In reliance on that implied approval, CONSULTANT
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
CONSULTANT is agreed to solely by CONSULTANT 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. CLIENT is liable to
CONSULTANT for all actual services rendered and costs associated therewith at
the time services are rendered or costs are incurred. CLIENT shall pay
CONSULTANT's statements as indicated on the statement received. CLIENT shall pay
statement in full each billing statement.
7. 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, CLIENT 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. CLIENT
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 CONSULTANT 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.
8. DISCHARGE AND WITHDRAWAL
CLIENT may discharge CONSULTANT 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.
CONSULTANT may not withdraw without CLIENT's consent unless CLIENT
materially breaches the terms of this Agreement, CLIENT's failure to pay
CONSULTANT fees, CLIENT's refusal to cooperate with CONSULTANT or to follow
CONSULTANTs advice or requests on any material matter, or any other CLIENT
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action, in action, or caused circumstance by CLIENT that would render
CONSULTANT's services unlawful or unethical, felony conviction or indictment,
bankruptcy, any proven unlawful or unethical activities by CLIENT. Furthermore,
upon CONSULTANT's withdrawal for Good Cause, CLIENT shall forfeit any or all
remaining retainer balance, or if any future retainer payments have not come due
at the time of CONSULTANT's withdrawal for Good Cause, such retainer payments
shall immediately become due, payable, and immediately forfeited by CLIENT to
CONSULTANT.
9. INDEMNIFICATION
The CLIENT agrees to indemnify and hold harmless CONSULTANT, and his
affiliates, agents, subsidiaries, successors, predecessors, legatees, designees,
representatives, employees, and assigns from and against any and all Losses of
CLIENT, 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 CLIENT in or
pursuant to this Agreement, or (ii) any other matter as to which the CLIENT in
other provisions of this Agreement has agreed to indemnify CONSULTANT.
The CLIENT agrees to indemnify, defend, and hold harmless the
CONSULTANT , including but not limited to, the following: (i) any Tax payable by
or on behalf of the CLIENT or any of its Affiliates, (ii) any deficiencies in
any Tax payable by or on behalf of the CLIENT 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 CLIENT or any of its Affiliates
is, or was at any time, a member, for which CONSULTANT 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 CLIENT of
any Tax benefits or credits to any other Person, and (v) any Tax liabilities
arising out of the transfer of the Shares.
The CLIENT shall have the responsibility for, and the right to control,
at the CLIENT'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. CONSULTANT 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 CLIENT as to which CONSULTANT 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 CONSULTANT believes,
in the exercise of reasonable discretion, that the risk of Losses to the
CONSULTANT hereunder is not material to CONSULTANT (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 CLIENT agrees to
notify CONSULTANT 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 CONSULTANT ). 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.
10. COVENANTS, REPRESENTATIONS, AND WARRANTIES OF CLIENT AND PRINCIPALS
10.01. CLIENT and its PRINCIPALS hereby jointly covenant, represent and
warrant to and with the CLIENT, 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
CLIENT's obligations pursuant to this Agreement, and further that all such
covenants, representations, and warranties shall survive the execution of the
Agreement. CLIENT and its PRINCIPALS hereby covenant, represent, and warrant:
(a) CLIENT 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.
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(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 CLIENT.
(c) The CLIENT has no subsidiaries.
(d) The CLIENT 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 CLIENT to CONSULTANT and the compliance by the CLIENT with all the
provisions of this Agreement (i) are within the corporate power and authority of
the CLIENT, (ii) do not require the approval or consent of any stockholders of
the CLIENT, and (iii) have been authorized by all requisite proceedings on the
part of the CLIENT. Assuming due execution and delivery of this Agreement by
CLIENT, this Agreement is a valid, legal, and binding obligation of CLIENT
enforceable in accordance with its terms except (a) only as the CLIENT'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 CLIENT do not exceed the
sum of $1,000,000.00 owed to various creditors, and other operating expenses.
(h) The CLIENT does not have any accounts payable except as
specifically set forth herein.
(i) The CLIENT 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
CONSULTANT, there are no Orders or Actions pending, or, to the best knowledge of
the CLIENT, threatened, against or affecting the CLIENT 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 CLIENT'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 CLIENT has received any
notice, claim or assertion, or, to the best knowledge of the CLIENT, which
otherwise has been threatened or is reasonably expected to be threatened or
initiated, against or affecting the CLIENT or any director, officer, employee,
agent, or representative of the CLIENT or any other Person, nor to the best
knowledge of the CLIENT is there any reasonable basis therefore.
(k) Minute Books. The minute books of the CLIENT accurately reflect all
actions and proceedings taken to date by the respective shareholders, boards of
directors and committees of the CLIENT, and such minute books contain true and
complete copies of the charter documents of the CLIENT and all related
amendments. the stock record books of the CLIENT reflect accurately all
transactions in the capital stock of the CLIENT.
(l) Accounting Records. The CLIENT 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 CLIENT have
been made available for review by, or delivered to, CONSULTANT.
(n) Permits. To the best knowledge of the CLIENT, the CLIENT 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 CLIENT, the
CLIENT is organized and has conducted business in accordance with applicable
Laws, and the forms, procedures and practices of the CLIENT are in compliance
with all applicable Laws, in all material respects.
(p) Accuracy of Information. To the best knowledge of the CLIENT, none
of the information supplied or to be supplied on behalf of the CLIENT (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
CLIENT, 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 CLIENT
will promptly notify CONSULTANT in writing of such fact and reason for such
change.
11. CONFLICTS OF INTEREST
CLIENT hereby acknowledges that CONSULTANT may have material
relationships with NASD member Broker/Dealers or other entities and may have and
hold current NASD licenses through and by certain NASD member firms independent
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of CONSULTANT's outside business activities; which is not represented to be by
and through such NASD member. CLIENT further acknowledges that services
performed herein are independent of said NASD members as outside business
practices and as such, shall be disclosed as required by regulatory authorities
and CLIENT herein waives all potential conflicts of interests arising from said
services, this Agreement, or material relationships herein described or with any
other entity past, current, or future that may or may not be in direct
competition or conflict with CLIENT.
12. NON-EXCLUSIVITY BY CONSULTANT / EXCLUSIVITY BY CLIENT
CLIENT hereby acknowledges that CONSULTANT may have material
relationships with other CLIENTs as Retainors for similar services past,
currently, or in the future. CLIENT hereby waives all rights to exclusive
representation by CONSULTANT unless otherwise agreed by the parties in writing.
CLIENT hereby agrees that CLIENT shall be exclusive to CONSULTANT with regards
to the services performed pursuant to Section 2 hereof, in whole or in part, for
a period of sixty (60) months following the execution of this Agreement, at the
annual rate expressly referenced in Section 4 of this Agreement. In the event
that Section 4 is modified or amended at a later date, the original,
non-modified, non-amended Section 4 hereunder shall be utilized solely for
reference under this Section 13 hereof. In the event that CLIENT desire to
utilize a third party for such services referenced in Section 2 hereunder,
CLIENT must obtain express prior written consent from CONSULTANT prior to
engaging any third party for said services.
13. 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.
14. 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
CONSULTANT and the CLIENT 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 CONSULTANT and the CLIENT 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.
15. 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.
16. 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
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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 CLIENT. Upon
material breach of this Section 17 by CLIENT, CONSULTANT may pursue all
injunctive relief necessary and CLIENT hereby waives the posting of any or all
bond inherent to such relief, for the sole purpose of preventing any further
breach.
17. 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.
18. 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.
19. 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.
20. 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 CONSULTANT: Kit Bromley & Company, Inc.
Business Development
00000 Xxx Xxx Xxxx Xxxxx 000
Xxxxxxxx, XX 00000
If to CLIENT: Cyntech Technologies, Inc. and Successors
0000 Xxxxxxxxxx Xxxxx XX
Xxxxxxx, XX 00000-0000
Attention: R. Xxxxx Xxxxx, CEO
21. 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.
22. 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.
23. 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.
24. SUCCESSORS AND ASSIGNS
This agreement shall be binding upon the successor and assigns of each
of the parties.
25. 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.
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26. SPECIFIC PERFORMANCE; SEVERABILITY
CLIENT hereby acknowledges and agrees that irreparable damage would
occur in the event any of the provisions of this Agreement were not performed
CLIENT 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 CLIENT that CONSULTANT 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 CONSULTANT may be entitled at law or equity, and CLIENT 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 CONSULTANT, 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.
27. DISPOSITION OF INTELLECTUAL PROPERTY
All work product produced by CONSULTANT hereunder shall remain the sole
property of CONSULTANT and all rights of ownership shall be exclusive and sole
to CONSULTANT. All work product referenced herein may not be reproduced,
disseminated, quoted, replicated, published, or transmitted in whole or in part
and all rights are reserved expressly and solely by CONSULTANT for such work
product. Said work product may be copyrighted or seek similar intellectual
property protection afforded to CONSULTANT under this express provision.
28. 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.
CONSULTANT: Kit Bromley & Company, Inc. CLIENT: Cyntech Technologies, Inc.
and Successors and/or Assigns Successors and/or Assigns
_______________/s/__________________ _____________/s/_________________
Authorized Agent: Kit Bromley, Managing Director Authorized Agent: R. Xxxxx Xxxxx, CEO
INITIALS_______, _____________ DATE INITIALS________, ________ DATE
EXHIBIT "A"
Page 1 of 5 Inclusive
NON-CIRCUMVENTION, CONFIDENTIALITY &
NONDISCLOSURE AGREEMENT
This Non-circumvention, Confidentiality & Nondisclosure Agreement (hereinafter,
the "Agreement") is made this 15th day of July 1999, by and among, Kit Bromley &
Co., Inc.; Xxxxxxxxxxx X. Xxxxxxx, jointly and severally, located at 00000 Xxx
Xxx Xxxx Xxxxx 000; Xxxxxxxx, XX 00000 and :
Company Name and Address
1. Centech Technology Group, Inc.: 0000 Xxxxxxxxxx Xxxxx; Xxxxxxx, XX 00000
Regarding any potential business transactions or relationships.
Whereas, the parties are mutually desirous of exploring and/or transacting
various business transactions in cooperation with one another for their mutual
benefit and, whereas the parties recognize that in order to explore the
possibility of entering into various business transactions it may be necessary
to share with one another confidential and proprietary information. The parties
therefore agree and understand that the disclosure of any proprietary or
confidential information with one another shall not constitute a waver of trade
secret status for any such information. It is further agreed that neither party
will use, for its own benefit or the benefit of any third party, the
confidential or proprietary information supplied to it by the other party, or
learned by it in the course of dealing with the other party. Such information
may be used only with the written authorization of the other party, and only
within the scope of that authorization.
Both parties agree to keep the confidential or proprietary information of the
other party, whether such information is discovered or disclosed, as strictly
confidential and secret. Neither party shall have the power or authority to
reveal the confidential or proprietary information of the other without specific
written authorization signed by the other party. Neither party shall have the
power or authority to wave the protected or trade secret status of the
confidential or proprietary information of the other party.
The parties hereby acknowledge, and intend to establish by this agreement, a
fiduciary relationship which is limited to the mutual nondisclosure, and
non-use, of the confidential, proprietary, or sensitive information which they
may disclose to one another or which might otherwise be learned by the parties
through there dealings with one another.
The parties understand and agree that the confidential and proprietary
information of each of them includes the names of their customers, investors,
financiers, suppliers, and persons or entities which are in privity of contract
with a party to this agreement. The parties further understand and agree that
the confidential and proprietary information of each of them includes the names
Initials:1._______2._______
EXHIBIT "A"
Page 2 of 5 Inclusive
of persons and entities which are their prospective; customers, investors,
financiers, suppliers, and persons or entities which are in the process of
negotiating contracts with a party to this agreement, when such prospective
relationship is known or disclosed to the other party.
The parties understand and agree that each of them has spent considerable time
effort and expense in developing their respective industry contacts, including,
but not limited to, contacts which are of assistance in investor relations,
finance, customer relations, marketing, and distribution. The parties therefore
agree that for purposes of this agreement, the names and identities of any such
contacts shall be considered confidential and proprietary information, which
shall not be used or disclosed by the other party.
Each party hereby agrees that it will take all reasonable steps necessary to
protect from disclosure the trade secrets or confidential or proprietary
information of the other party.
The parties further agree to abide by the following additional terms and
conditions set forth below:
1. This Agreement is to confirm that each of the named signatories separately
and individually, hereby agree that he/she/they will not make any contact with
or deal with any person, company, partnership, joint venture, trust,
association, or any employee, agency, officer, director, shareholder,
beneficiary, or partner thereof introduced by another of the signatories
separately or jointly without specific and agreed to permission in writing of
the introducing signatory or signatories.
2. This Agreement is for five (5) years from the date above and is to be applied
to any and all transactions entertained by the signatories including subsequent,
follow-up, repeat or re-negotiated transactions, as well as to the initial
transaction regardless of the success of the project. The signatories hereby
confirm that identities of any person, company, partnership, joint venture,
trust, association, or any employee, agent, officer, director, shareholder,
beneficiary, or partner thereof are currently and in the future the property of
the introducing signatory or signatories and shall remain so for the duration of
this Agreement.
Notwithstanding the five (5) year duration of this Agreement, neither
party shall have the power or authority to disclose at any time the trade
secrets of the other party. Neither party shall disclose the trade secrets of
the other bother during the course of this Agreement and following the
expiration of this Agreement.
3. The parties agree that they will protect and not disclose either directly or
indirectly, any confidential information disclosed by the other without the
prior express, written consent of the furnishing party. For the purpose of this
agreement, "CONFIDENTIAL INFORMATION" shall include, but is not limited to any
and all disclosures made by each to the other concerning facts; figures;
contracts; contacts; names or availability of buyers or sellers or names of
Initials:1._______2._______
EXHIBIT "A"
Page 3 of 5 Inclusive
agents of available buyers or sellers, descriptions, addresses, employees'
names, telephone, telex, and/or facsimile numbers, or other means of access
thereto; bank information, codes, or references; borrowers and lenders; and
businesses, trusts, corporations, groups, individuals, partners, brokers, and/or
any such other information either directly or indirectly introduced or made
known by any party hereto. Such confidential information is the property and the
business secrets of the party who provides, introduces or makes known such
confidential information to the other party. The signatories agree that they
will not in any manner solicit or accept any business from sources that are made
known to them by another party without the express permission of the party who
made the source available.
4. In the event of a violation or alleged violation of this Agreement, either
party hereto may bring suit in a court of competent jurisdiction to determine
the existence of a violation, enjoin a violation, or to recover damages,
including all court costs, expert witness fees and reasonable attorneys' fees.
5. It is also understood that a signatory cannot be considered or adjudged to be
in violation of this Agreement when the alleged violation is involuntary due to
situations beyond his/her/their control; some evident examples being acts of
God, civil disturbances, theft or prior provable knowledge or possession of
information regarding business activities.
6. This document shall be considered to include not only the parties hereto, but
their division(s), subsidiary(ies), officer(s), director(s), employee(s),
consultant(s), principal(s), agent(s), associate(s), business relation(s),
personal representative(s), family member(s), assignee(s), heir(s) and all other
persons or other entities wherever the context requires and admits.
7. The signatories of this document agree that no effort shall be made to
circumvent this Agreement or the agreed to terms hereof in an effort to gain
fees, commissions, remunerations to benefit one or more of the signatories of
this Agreement while excluding equal or agreed to benefit to any other of the
signatories of this document.
8. It is understood that this Agreement is a reciprocal bi-lateral agreement
between the signatories concerning their privileged information and contracts.
9. Full disclosure of business dealings and arrangements or agreements or fees,
commissions, remunerations or considerations between introduced parties and one
or more of the signatories shall be understood and adhered to as a principal of
this Agreement.
10. Each party hereto acknowledges that the other has other interests and
business, and that association is a non-exclusive association, and only related
to the commerce herein.
Initials:1._______2._______
EXHIBIT "A"
Page 4 of 5 Inclusive
11. This Agreement together with any Exhibit(s) attached hereto, incorporated
herein or referenced, contains the entire Agreement of the parties hereto and no
prior written or oral negotiations, representations, inducements, promises, or
agreements between them regarding the subject of this Agreement not embodied
herein shall be of any force or effect. No express or implied warranties,
covenants, or representations have been made concerning the subject matter of
this Agreement unless expressly stated herein.
12. This Agreement may not be superseded and none of the terms of this Agreement
can be waived or modified except by an express written agreement signed by all
parties hereto. Any oral representations or modifications concerning this
Agreement shall be of no force and effect unless contained in a subsequent
written modification signed by all parties.
13. This Agreement shall be construed and regulated and its validity and effect
shall be determined by the laws and regulations of the State of California,
County of Los Angeles. Any Party hereto residing or domiciled in any foreign or
alien jurisdiction outside of the agreed upon venue of competent jurisdiction
hereinabove hereby expressly waives any and all right to venue of competent
jurisdiction within such foreign or alien venue of domicile or residence.
14. The failure of any party to enforce any provision of this Agreement shall
not be construed as waiver of any such provision, nor prevent such party
thereafter from enforcing such provision or any other provision of this
Agreement. The rights and remedies granted all parties herein are cumulative and
the election of one shall not constitute a waiver of such party's rights to
assert all other legal remedies available under the circumstances.
15. The captions, subject, section, and paragraph headings in this Agreement are
included for convenience and reference and do not form a part hereof and do not
in any way codify, interpret or construe the intent of the parties or affect the
construction or interpretations of any provision of this Agreement.
16. The original of this Agreement and one or more copies hereof have been
prepared and may be signed as duplicate originals, and each of the parties
hereto may retain an originally signed copy hereof. Each duplicate original
shall be deemed an original instrument as against any party who has signed it.
17. If the copy of this Agreement executed by the parties is a facsimile, it
shall be deemed the original Agreement, binding and enforceable, until such time
that "hard" originals are executed in the presence of the contracting parties.
This contract is being transacted and executed via facsimile with the full
acknowledgment and agreement of the parties.
Initials:1._______2._______
EXHIBIT "A"
Page 5 of 5 Inclusive
18. If any clause or provision of this Agreement is struck down or found to be
unenforceable by a court of competent jurisdiction, then the same shall be
severed from the Agreement, and the remainder of this Agreement shall remain in
full force and effect.
19. The parties hereby agree that if at the time that any party to this
agreement discloses confidential or proprietary information, which is
within the prior knowledge of the party to whom the disclosure is made,
then the party to whom the disclosure is made shall immediately notify
the disclosing party of its prior knowledge of that information and
shall immediately produce documentation, or such evidence as is
available, of such prior knowledge.
Agreed and accepted as of the date above.
1. Kit Bromley & Co., Inc.
By: ___/s/________________________________ Date: July 15, 1999
Name: Xxxxxxxxxxx X. Xxxxxxx Title: Managing Director
2. Company: Centech Technology Group, Inc.
By: __/s/_________________________________ Date: July 15, 1999
Name: R. Xxxxx Xxxxx Title: President
