Exhibit 99.15
BayHill Group LC
December 16, 04
Mr. ▇▇▇▇ ▇▇▇▇
Chairman and CEO
▇▇▇▇▇.▇▇▇, Inc.
Re: Services Agreement
BayHill Group LC
Dear ▇▇▇▇,
This Services Agreement (the "Agreement") is made and entered into
effective as of November 1, 2004, by and between ▇▇▇▇▇.▇▇▇, Inc., a Washington
Corporation with principal offices located at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("Vista"), and BayHill Group LC, a Utah Limited Liability
Company with principal offices located at ▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇, ▇▇▇▇
▇▇▇▇▇ ("BayHill Group LC"). The Agreement will confirm the understanding between
Vista and BayHill Group LC, whereby BayHill Group LC will act as an advisor to
Vista in regard to general business matters as requested by Vista.
In consideration of the mutual promises and covenants set forth in this
Agreement and for other good and valuable consideration, the receipt, adequacy
and legal sufficiency of which are hereby acknowledged, Vista and BayHill Group
LC mutually agree as follows:
1. Services. ▇▇▇ Bench, a Member of BayHill Group LC, will serve as CFO of Vista
and BayHill Group LC through its other Members, will be available from time to
time, as requested, in writing, by Vista, to assist Vista in developing business
strategies and other corporate matters. BayHill Group LC Members may also serve
as Vista executives and senior managers as specified from time to time by Vista.
2. Term. This Agreement will be for a term of Twelve (12) months from the date
of this Agreement (the "Term"). The Term will be automatically extended for
successive periods of Twelve months each, unless cancelled by either party upon
ninety (90) days written notice given prior to the end of each Twelve month
period.
3. Compensation. During the Term of this Agreement BayHill Group LC shall
receive from Vista for services rendered by ▇▇▇ Bench a fee of Five Thousand
Dollars ($5,000) for November 2004 and a fee of Ten Thousand Dollars ($10,000)
for December 2004, January, February, and March of 2005 and Fifteen Thousand
Dollars ($15,000) for each month thereafter. Each of these payments will be due
and payable on the first day of each month. BayHill Group LC shall receive from
Vista for services rendered by other members of BayHill Group LC fees as
mutually agreed and set forth in writing as addendums to this Agreement. Each
addendum will set forth the scope of the services, the period of services, and
the amount of fees to be paid for the services.
4. Equity Participation Rights. In addition to the Compensation set forth in
section 3.above, BayHill Group LC shall be granted five-year warrants to
purchase shares of common stock, restricted stock
awards, or similar equity participation rights ("Equity Participation Rights").
The Equity Participation Rights agreement shall be drafted and executed as soon
as practicable following the execution of this Agreement and after approval of
the Board of Directors.
5. Performance Commitment. Vista and BayHill Group LC agree that during the Term
of the Agreement, BayHill Group LC shall: Assist Vista in its strategic planning
activities, raising capital, becoming public, and serve in various management
capacities as requested.
6. Expense Reimbursement. Vista will reimburse all reasonable expenses of
BayHill Group LC incurred on behalf of Vista in connection with this Agreement
when invoiced. Reasonable professional expenses expected to exceed $5,000 per
month will be approved by Vista in advance.
7. Indemnification.
a) In connection with BayHill Group LC providing services, as provided
herein, Vista agrees to indemnify and hold harmless BayHill Group LC, including
its members, officers, directors, stockholders, employees, agents and
representatives, against any and all losses, claims, damages, liabilities or
reasonable costs (including reasonable legal fees and expenses) directly or
indirectly, relating to or arising out of BayHill Group LC's activities on
behalf of Vista as provided herein, provided, however, such indemnity agreement
shall not apply to any such loss, claim, damage, liability or cost to the extent
it is found in a final judgment by a court of competent jurisdiction to have
resulted primarily and directly from the negligence or willful misconduct of
BayHill Group LC. Vista agrees that BayHill Group LC shall not have any
liability whether direct or indirect, in contract or otherwise, to Vista for or
in connection with the engagement of BayHill Group LC as provided herein except
for any such liability for losses, claims, damages, liabilities or costs that is
found in a final judgment by a court of competent jurisdiction (not subject to
further appeal) to have resulted primarily and directly from BayHill Group LC's
negligence or willful misconduct.
b) BayHill Group LC agrees to indemnify, defend and hold harmless Vista and
its affiliates and controlling persons and their respective officers, managers,
members, partners, directors, shareholders, employees, representatives and
agents (all such persons and entities being collectively referred to as the
"Indemnified Parties") from and against any and all actual losses, demands,
actions, causes of action, assessments, damages, liabilities, costs or expenses,
including without limitation interest, penalties, fines, fees, deficiencies,
claims of damage, court and arbitration costs and fees, and disbursements of
attorneys, accountants, consultants, and other experts as and when incurred or
sustained by any Indemnified Party as a result of or arising from any breach by
BayHill Group LC of paragraph 1 hereof.
8. Confidentiality.
c) Both parties to this Agreement agree to maintain all confidential
information (as defined below) regarding both this Agreement and any of the
information obtained as a result of this Agreement in strict confidence. Such
information may be shared with related professionals and those parties with a
specific need to know (collectively, "Representatives") provided sufficient
procedures are established to preserve confidentiality and all such persons are
made aware of this agreement and agree to keep such information confidential.
The parties desire to maintain the confidentiality of all Confidential
Information disclosed to the other party and to preserve for itself the
commercial benefits of the utilization of such information. "Confidential
Information" includes, without limitation, all information disclosed, directly
or indirectly, through any means of communication and/or observation, by or on
behalf of the disclosing party (the "Disclosing Party"): (i) concerning the
Disclosing Party's investments, liquidity, marketing
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activities, product designs, proprietary software and/or tonic, administrative
techniques, financial condition, research and development, pricing, strategic
plans, customers, vendors, contractors, software, equipment, forecasts,
personnel, wages, sales organization, plant operations, and business operating
initiatives; (ii) that is similar to the items described in (i), but provided to
Disclosing Party by, and concerning, the existing or potential customers or
vendors of Disclosing Party; (iii) any other material or information that is
non-public, confidential, or proprietary in nature, (iv) extracts, conclusions
from and summaries of such material and information. Confidential Information
does not include information that is publicly available other than by acts or
omissions of the recipient of such information or its agents, representatives or
employees in violation of this Agreement. The receiving party hereby agrees that
Confidential Information will also include information that is not specifically
encompassed in the definition above, but that should reasonably be expected to
be considered confidential by the Disclosing Party.
a) b) Vista understands that, in rendering the Services required hereunder,
BayHill Group LC will be using and relying on publicly available information and
the information furnished to BayHill Group LC by Vista without independent
verification thereof. BayHill Group LC fully understands and accepts its insider
responsibility with regard to all non-public information provided by Vista.
BayHill Group LC agrees to abide by Vista's policy and insider guidelines upon
written receipt of such. BayHill Group LC will treat as confidential any
non-public information provided to it hereunder and will not disclose the same
to third parties at any time unless approved by Vista or required by applicable
law. In such event that disclosure of Confidential Information is required to be
made by BayHill Group LC, BayHill Group LC will give Vista prompt notice thereof
so that Vista may seek an appropriate protective order or other appropriate
remedy and/or waive compliance with the provisions of this agreement (and if
Vista seeks such an order, BayHill Group LC will provide such cooperation as
Vista shall reasonably request). If, in the absence of a protective order,
BayHill Group LC is nonetheless legally compelled to disclose such Confidential
Information, BayHill Group LC will furnish only that portion of the Confidential
Information which BayHill Group LC reasonably believes it is legally required to
furnish; provided, however, that BayHill Group LC will give Vista written notice
of the information to be disclosed as far in advance of its disclosure as is
practicable and use its best efforts to obtain assurances that confidential
treatment will be accorded to such information. In addition, BayHill Group LC
will use its reasonable best efforts to comply with all applicable state and
federal securities laws in the performance of this Agreement.
b) Upon a Disclosing Party's request, the recipient of Confidential
Information from such Disclosing Party will promptly return to the Disclosing
Party all copies (and shall retain no copies) of all Confidential Information
furnished to the recipient or the recipient's Representatives and will, at the
request of the Disclosing Party, destroy all analyses, compilations, summaries,
studies and other material prepared by the recipient or the recipient's
Representatives based in whole or in part on, or otherwise containing or
reflecting any of, the Confidential Information.
c) Notwithstanding any other provision of this Agreement, each party agrees
that money damages would not be a sufficient remedy for any breach of this
paragraph 7 by the recipient of Confidential Information from a Disclosing Party
(or any Representative of such recipient), and that, in addition to all other
remedies, any Disclosing Party shall be entitled to specific performance and
injunctive or other equitable relief as a remedy for any such breach, and such
recipient further agrees to waive (or cause any of its Representatives to waive,
if applicable) any requirement for the securing or posting of any bond in
connection with any such remedy.
9. Choice of Law and Jurisdiction. This Agreement shall be governed by and
construed in accordance with the laws of the State of Utah. The parties (i)
agree that any legal suit, action or
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proceeding arising out of or relating to this Agreement shall be instituted
exclusively in the federal or state courts located in the State of Utah, (ii)
waive any objection to the venue of such suit, action or proceeding and the
right to assert that such forum is not a convenient forum, and (iii) irrevocably
consent to the jurisdiction of any such court in any suit, action or proceeding.
10. Relationship. The parties hereto do not intend this Agreement or the
relationship hereunder to constitute a joint venture or partnership of any kind.
The parties hereto agree that BayHill Group LC is an independent contractor in
performing the services hereunder and, as such, BayHill Group LC shall be the
sole employer of BayHill Group LC's employees. Under no circumstance shall one
party's employees be construed to be employees of the other party, nor shall one
party's employees be entitled to participate in the profit sharing, pension or
other plans established for the benefit of the other party's employees.
11. Entire Agreement. This Agreement, as amended from time to time, constitutes
the entire understanding between the parties hereto with respect to the subject
matter hereof and supersedes all negotiations, representations, prior
discussions and agreements (whether written or oral) between the parties
relating to the subject matter hereof. All Exhibits attached to this Agreement
are expressly made a part of this Agreement as though completely set forth in
it. The Agreement may not be amended or modified in any way except by a written
instrument signed by a duly authorized of officer of BayHill Group LC and Vista.
In executing this Agreement, each party acknowledges that it does not rely on
any inducements, promises or representations of the other party or any agent of
the other party, other than the terms and conditions specifically set forth in
this Agreement. The Agreement shall inure to and bind the successors and assigns
of the respective parties hereto.
12. Assignment. Except in conjunction with the sale of all or substantially all
of its assets, neither party hereto may sell or assign any of its rights or
delegate any of its duties or obligations under the terms of the Agreement
without the prior written consent of the other party, which consent shall not be
unreasonably withheld. No such permitted sale or assignment shall relieve either
party of its obligations under the Agreement.
13. Survivability of Obligations. Termination of this Agreement as provided
herein shall not relieve either Vista or BayHill Group LC of any obligation
arising hereunder prior to such termination.
14. Waiver. Any waiver by any party hereto of any breach of any kind or
character whatsoever by any other party, whether such waiver be direct or
implied, shall not be construed as a continuing waiver of, or consent to, any
subsequent breach of the Agreement on the part of the other party or parties. No
course of dealing or performance between the parties hereto, nor any delay in
exercising any rights or remedies hereunder or otherwise, shall operate as a
waiver of any of the rights or remedies of any party hereto.
4. Miscellaneous. If BayHill Group LC's employees are working on the premises of
Vista, BayHill Group LC's employees shall observe the working hours, working
rules and security procedures established by Vista.
5. Severability. In the event that any provision of this Agreement should he
declared illegal or unenforceable for any reason by any legally constituted
court or government authority, the remaining provisions shall not be invalidated
on account thereof and shall remain in full force and effect provided, however,
that if as a result of a declaration of illegality or unenforceability of a part
of this Agreement the essential purposes of this Agreement cannot be fulfilled,
the Agreement shall terminate forthwith, and all provisions of this Agreement
relating to or governing termination thereof shall come into effect.
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6. Good Faith Dealings. The parties hereto shall deal with each other at all
times in good faith.
7. Counterparts. This Agreement may be executed in separate counterparts, and
all such counterparts will constitute one and the same instrument.
Signature page follows
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If the foregoing confirms our agreement, kindly execute in the space
provided below.
Very truly yours,
BayHill Group LC
By:
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Agreed and Accepted:
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▇▇▇▇ ▇▇▇▇ CEO
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ADDENDUM TO SERVICES AGREEMENT
JANUARY 1, 2005
This Addendum to that Services Agreement ("Agreement") between ▇▇▇▇▇.▇▇▇, Inc.
and BayHill Group LC Dated December 16, 2004 incorporates the following per
Section 1, 2, and 3 of that Agreement:
1. Services. BayHill Group LC through its Members, will be available as
requested, by Vista, to assist Vista in developing and executing an acquisition
strategy. BayHill Group LC Members may also serve as Vista executives and senior
managers as specified from time to time by Vista.
2. Term. This Agreement will be for a term of Twelve (12) months from the date
of this Agreement (the "Term"). The Term will be automatically extended for
successive periods of Twelve months each, unless cancelled by either party upon
ninety (90) days written notice given prior to the end of each Twelve month
period.
3. Compensation.During the Term of this Agreement BayHill Group LC shall receive
from Vista for services rendered by its Members, a fee of Five Thousand Dollars
($5,000) for January 2005 and a fee of Ten Thousand Dollars ($10,000) for each
month thereafter. Each of these payments will be due and payable on the first
day of each month.
All other terms and conditions as set forth in the Agreement will apply to this
Addendum.
If the foregoing confirms our agreement, kindly execute in the space provided
below.
Very truly yours,
BayHill Group LC
By:
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Agreed and Accepted:
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▇▇▇▇ ▇▇▇▇ CEO