EXHIBIT 10.12
CONSULTING SERVICES AGREEMENT
This CONSULTING AGREEMENT is effective as of November 21, 2002 by and between
Concentrax, Inc. ("Client" or "CTRX") and United Investments Management, Inc.
("Consultant") with reference to the following facts:
WHEREAS, CTRX is a Nevada corporation located in Houston, Texas, and its common
stock trades on the NASDAQ Over the Counter Bulletin Board under the symbol
"CTRX"; and, WHEREAS, Consultant, an international financial advisory company,
possess experience, skills, knowledge, abilities and background in the fields of
business development, financial consulting, and investor relations; WHEREAS,
CTRX and Consultant desire to enter into an Agreement providing for the services
of Consultant for the benefit of CTRX;
NOW THEREFORE, in consideration of the promises and mutual covenants contained
herein, and intending to be legally bound, it is mutually covenanted and agreed
by and between the parties to the terms and conditions hereinafter set forth.
1. ENGAGEMENT. Client hereby engages Consultant on a non-exclusive basis, and
Consultant hereby accepts the engagement to become a strategic financial
consultant to the Client and to render such advice, consultation, information
and services to the Client regarding general financial and business matters
including, but not limited to:
A. Listing Services:
- Consultant shall prepare an application for a listing of the Client's
common stock on a German Stock exchanges, e.g. on the Frankfurt, Berlin or
Hamburg Stock Exchange, and introduction to local securities dealers and market
makers, if Client so desires. Client understands that Consultant cannot
guarantee that Client's securities will be listed for trading on any German
exchange because the final decision to list securities for trading rests with
the exchange itself. Two Thirds of the fee associated with listing will be
returned to Client if Consultant is unsuccessful in obtaining a German Stock
exchange listing for Client;
- Consultant shall deliver further detailed information regarding the
listing application process and the specific stock exchange.
B. Investor Relations Service:
- Consultant intends to (i) introduce members of Client's management to
individuals, corporations, banks, and financial institutions, securities
dealers, (including, among others, investment bankers who may assist Client with
equity financing; (ii) advise Client with respect to its plans and strategies
for raising capital; (iii) assist
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Client in its discussions with underwriters, investors, brokers and institutions
and other professionals retained or to be retained by Client; (iv) assist Client
with identifying possible acquisitions or merger candidates; and (v) advise and
assist Client with public relations and promotions matters.
C. Corporate Finance Services:
- Corporate finance consulting in connection with any equity financing,
including introduction to the Consultant's investors network of over 150
institutions and their investment advisors plus various potential private
investors capable of financing public companies.
- Information on financings against equity as collateral, loans, credit
lines, debt financings and other forms of funding that could function as bridge
financing in connection with the aforementioned fund raising services.
- Introduction to various banks and other European financial
institutions, e.g. offering credit line facilities against stock, assistance in
opening banking and/or brokerage accounts in Europe with any banks or financial
institutions, and assistance in applying for a credit line facility at any bank
or financial institution
D. Consultant shall, during the term of this Agreement, devote such time,
attention, skill, and efforts to the performance of duties on behalf of CTRX,
provide such identified services for CTRX to the extent the parties mutually
agree is necessary under the circumstances.
E. To the best of his ability and experience Consultant shall loyally and
conscientiously perform all of the duties and obligations required of it either
expressly or implicitly by the terms of this Agreement.
F. Consultant's performance of its duties hereunder shall at all times be
rendered to CTRX's satisfaction and may be rendered at the offices maintained by
Consultant or at any other location deemed suitable by Consultant and CTRX.
G. LIMITATIONS ON SERVICES. The parties recognize that certain responsibilities
and obligations are imposed by federal and state securities laws and by the
applicable rules and regulations of stock exchanges, the National Association of
Securities Dealers, in-house "due-diligence" or "compliance" departments of
brokerage houses, etc. Accordingly, Consultant agrees:
(i) Consultant shall NOT release any financial or other
information or data about the Client without the consent and approval of the
Client.
(ii) Consultant shall not conduct any meetings with financial
analysis without informing the Client in advance of the proposed meeting and the
format or agenda of such meeting and the Client may elect to have a
representative of the Client attend at such meeting.
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(iii) Consultant shall NOT release any information or data
about the Client to any selected or limited person(s), entity, or group if
Consultant is aware that such information or data has not been generally
released or promulgated.
(iv) After notice by the Client of filing for a proposed
public offering of securities of the Client, and during and period of
restriction on publicity, Consultant shall not engage in any public efforts not
in the normal course without approval of counsel for the Client and of counsel
for the underwriter(s), if any.
(v) Consultant shall NOT, for themselves or either of them,
take any action or advice or knowingly permit the Client to take any action,
which would violate any foreign securities laws or rules and regulations issued
thereunder.
2. TERM OF AGREEMENT. The term of this Agreement ("Term") shall commence on the
date hereof and continue for a period of twelve (12) months as follows: The
filing of the application for listing on a German exchange will begin promptly
after receipt of the Engagement Fee (please see below). The promotion campaign
will begin immediately upon notice by Consultant that the listing application
has been approved ("Listing Approval"), and will continue for a period of 6
months. Professional maintenance and continuing communication with the
established network will continue thereafter for an additional 6 months. All
other obligations under this Agreement shall be terminated and/or satisfied only
as otherwise indicated herein. 3. FEES AND CONSIDERATIONS. as consideration for
Consultant entering into this Agreement, Client and Consultant agree to the
following:
A. Listing Fee: An additional Listing Fee ("Listing Fee") of US $15,000 payable
by Client to Consultant. The Listing Fee will be satisfied by a cash payment of
US $15,000 by Client to Consultant on the date hereof. If Consultant is
unsuccessful in obtaining a listing on any German exchange at the end of a
90-day period from the initial date of payment, two thirds, or $10,000, will be
returned to Client immediately.
B. Bonus Fee: An additional Bonus Fee ("bonus Fee") payable to Consultant based
on performance benchmarks as follows:
Benchmarks "A": A Bonus Fee of 400,000 shares of Client's common stock is
payable to Consultant when or if the share price of Client's common stock
reaches or exceeds at any stock exchange US $3.00 (and not less than 500,000
shares trading volume at U.S. Stock exchanges) or when or if the aggregate
trading volume of Client's common stock at U.S. Stock exchanges(s) reaches or
exceeds the entire sum of 1,000,000 shares. Summary of benchmarks:
SHARE PRICE: U.S. $3.00 + 500,000 or more shares of Common Stock
Exchange(s)
TOTAL VOLUME: 1,000,000 shares at US stock exchange(s)
TIME FRAME: Benchmark(s) to be fulfilled within 180 days after Listing -
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Benchmarks "B": A Bonus Fee of 300,000 shares of Client's common stock is
payable to Consultant when or if the share price of Client's common stock
reaches or exceeds at any stock exchange US $5.00 or when or if the aggregate
trading volume of Client's common stock at U.S. Stock exchanges(s) reaches or
exceeds the entire sum of 1,500,000 shares. Summary of benchmarks:
SHARE PRICE: US $5.00
TOTAL VOLUME: 1,500,000 shares at US stock exchange(s)
TIME FRAME: Benchmark(s) to be fulfilled within 240 days after Listing
Approval
Benchmarks "C": A Bonus Fee of 300,000 shares of Client's common stock is
payable to Consultant when or if the share price of Client's common stock
reaches or exceeds at any stock exchange US $7.50 or when or if the aggregate
trading volume of Client's common stock at U.S. Stock exchanges(s) reaches or
exceeds the entire sum of 3,000,000. Summary of benchmarks:
SHARE PRICE: US $7.50
TOTAL VOLUME: 3,000,000 shares at US Stock exchange(s)
TIME FRAME: Benchmark(s) to be fulfilled within 360 days after Listing
The shares transferred under this paragraph C will be freely tradable, duly
authorized, validly issued and outstanding, fully paid and non-assessable and
will not be subject to any liens or encumbrances.
Client and Consultant agree to establish an escrow account with an Escrow Agent
("Escrow Agent"), to be identified, for compensation and delivery of payable
Bonus Fee(s). (See Escrow Appointment and Leak Out Agreement) Upon completion of
the Bonus Fee(s) payment(s) or expiration of the Agreement or earlier request of
the Escrow Agent, Client shall reimburse the Escrow Agent for its fees and
out-of-pocket expenses incurred in performance of its services hereunder.
However, no such, reimbursement for fees, cost and expenses, indemnification for
any damages incurred by the Escrow Agent, or any monies whatsoever shall be paid
out of chargeable to the funds on deposit in the escrow account. Furthermore
Client agrees to save harmless, indemnify and defend the Escrow Agent for, from
and against any loss, damage, liability, judgment, cost and expense whatsoever,
including attorney's fees, suffered or incurred by it by reason of, or on
account of, any misrepresentation made to it or its status or activities as
Escrow Agent under this Agreement.
C. Financing Fee: In the event and upon closing of an equity financing in which
funding is provided by one or more investors, Consultant shall be paid an
additional placement fee ("Finder's Fee" or "Cash Commission") as follows:
(a) Financing: $500K - $1M = 8% Cash Commission + that number of CTRX shares
equaling 20% of the gross amount of financing, or $200,000 worth of CTRX stock
valued
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at 80% of the 90 day trailing average price per share for shares to be
registered. Restricted Shares shall be valued at 50% of the 90-day trailing
average price per share.
(b) Financing: $1.01m - $5M = 6% Cash Commission + that number of CTRX shares
equaling 20% of the gross amount of financing, or, up to $200,000 worth of
shares valued at 80% of the 90 day trailing average price per share for shares
to be registered. Restricted Shares shall be valued at 50% of the 90-day
trailing average price per share.
(c) Financing: $5.01m or more = 4% Cash Commission + that number of CTRX shares
equaling 20% of the gross amount of financing. Shares to be registered will be
valued at 80% of the 90-day trailing average price per share. Restricted Shares
shall be valued at 50% of the 90-day trailing average price per share.
(d) Debt Financing: Upon request by Client, Consultant will negotiate for debt
financing for Client of up to $1,000,000 to be collateralized by CTRX treasury
stock at terms agreeable to Client. Consultant to be paid 2% cash fee of gross
financing facility plus that number of CTRX shares equaling 20% of the gross
amount of financing, Free Trading Shares at 80% of the 90 day trailing average
price per share. Restricted Shares valued at 50% of the 90-day trailing average
price per share.
Any Finder's Fee or Cash Commission owed to Consultant under this paragraph
shall be paid to Consultant promptly after closing of the respective financing.
D. Success Fee: Except as set forth differently in this Agreement, Client will
pay a success fee of 8.0% to Consultant in connection with any acquisitions,
projects, or any other findings or transactions involving products, commodities,
services, currencies, additions, renewals, extensions, rollovers, amendments,
new contracts, re-negotiations, parallel contracts or agreements or third party
assignments hereof.
4. ESCROW APPOINTMENT AND LEAK OUT AGREEMENT
A. Escrow Agent will be ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq., with offices at ▇▇ ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇.
B. A total of 1,000,000 Shares of CTRX Stock will be issued and placed into
escrow account and released as bonus shares in accordance with the achievement
of various Benchmarks. The Escrow Agent will have the authority from both client
and consultant to release shares in accordance with outlined Benchmarks reached
by Consultant. Confirmation of achieved Benchmarks shall come from various
sources and must be provided to authorize the release of shares.
(i) All stock purchased by consultants must be purchased on the U.S.
Market (OTCBB), then electronically transferred to the German Exchange, so that
tracking of purchased stock can be immediately identified by the removal of
stock from U.S. Market i.e. D.T.C. Sheets.
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(ii) Any application to register new shares on U.S. Market through
either attorney of record (▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq.) and/or stock transfer agent
must be reported to all parties in order to maintain fair and accurate
accounting records.
(iii) Leak Out Agreement. The Escrow Agent will be provided with
current daily D.T.C. Sheets, and weekly sheets in order to follow purchases and
removal of stock from the US Exchanges, as well as weekly reports from the stock
transfer agent and attorney with regard to any new registrations. As benchmarks
are reached and bonus shares are distributed, Consultant agrees to a leak out no
more than of 20% of the bonus shares per month.
5. INDEPENDENT CONTRACTOR. The parties agree that:
A. No relationship of employer and employee is intended or created by this
Agreement. Consultant shall act as an independent contractor and shall have no
claim under this Agreement or otherwise against CTRX. B. Consultant, as an
independent contractor, is responsible for the payment of all federal, state,
local and employment taxes that may arise because of monies or other benefits
that it receives from CTRX under this Agreement.
6. TAX WITHHOLDING. In the event that it is finally determined by the proper tax
authority that Consultant is not an independent contractor but an employee of
CTRX, then Consultant shall have the right to deduct or withhold from the
compensation due to Consultant hereunder any and all sums required for federal
income, Social Security taxes and all state or local taxes now applicable or
that may be enacted and become applicable in the future.
7. TRADE SECRETS. The parties acknowledge and agree that, during the term of
this Agreement, and, in the course of the discharge of its duties hereunder,
Consultant shall have access to and become acquainted with information
concerning the operation of CTRX including, without limitation, financial,
personnel, credit reports, customer names and addresses, economic data, sales
and other information that is owned by CTRX and regularly used in the operation
of CTRX's business, and, that such information shall be the exclusive property
of CTRX and constitutes CTRXs trade secrets.
A. Consultant specifically agrees that it shall not misuse, misappropriate, or
disclose any such trade secrets, directly or indirectly, to any person or use
them in any way, either during the term of this Agreement or at any other time
thereafter, except as is required in the course of its duties hereunder.
B. Consultant acknowledges and agrees that the sale or unauthorized use or
disclosure of any of CTRX 's trade secrets, including information concerning
CTRX's current or any future and proposed work, services, or products, the facts
that any such work, services, or products are planned, under consideration, or
in production, as well as any descriptions thereof, constitute unfair
competition.
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C. Consultant further agrees that all files, records, documents, drawings,
specifications, equipment, and similar items relating to CTRX 's business,
whether prepared by CTRX, Consultant or others, are and shall remain exclusively
the property of CTRX and that they shall be removed from the premises of CTRX
only with the express prior written consent of CTRX's Board of Directors.
D. On termination of this Agreement, Consultant shall not be entitled to keep or
reproduce CTRX's records, files, documents, drawings, specifications, equipment,
and similar items related to any customer.
8. TERMINATION OF CONTRACT. This Agreement may be terminated as follows:
A. On any specified agreed date, if CTRX and Consultant shall mutually agree in
writing to terminate this Agreement.
B. Upon expiration of the term of this Agreement, provided either party gives
prior written notice to the other party of that party's decision not to renew
this Agreement.
C. With the exception of Paragraph 1A(iv) which shall survive Consultant and
become part of his estate, immediately after Consultant has been unable or
unwilling to perform his obligations as described in Paragraph 1A (i) and (ii);
D. Immediately on the filing of a petition in bankruptcy by CTRX.
E. Unless otherwise indicated by CTRX, immediately upon the adoption by CTRX of
a plan to sell or change management of the business or terminate its business
and liquidate its assets, or, if CTRX is ordered to be liquidated pursuant to a
judicial proceeding.
F. Unless otherwise indicated by CTRX, immediately in the event of any merger or
consolidation or transfer of assets. CTRX's rights, benefits, and obligations
hereunder may not be assigned to the surviving or resulting corporation.
G. Immediately upon the insolvency of CTRX or Consultant.
H. Immediately if Consultant fails, refuses or neglects to perform faithfully or
diligently the duties of the Agreement, or for any reason that is deemed to be
for cause under Nevada law.
I. Immediately if CTRX or Consultant commits an act of dishonesty, fraud,
material misrepresentation, or serious moral turpitude.
9. OBLIGATIONS AFTER TERMINATION. In the event of termination of this Agreement,
CTRX shall be obligated only to pay for the compensation earned by Consultant
prior to termination, specifically CTRX must honor paragraph 4A(iv) even in the
event of early termination. Consultant shall remain obligated to CTRX to fulfill
its
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remaining obligations under this Agreement notwithstanding the termination of
this Agreement.
10. NON-CIRCUMVENTION: Client, intending to be legally bound, hereby irrevocably
agrees not to circumvent, avoid, bypass, or obviate Consultant directly or
indirectly, to avoid payments or fees, commissions, or any other form of
compensations to Consultant in any transaction with any corporation,
partnership, or individual, revealed by either party to the other, in connection
with any projects, or currency exchanges, or any loans or collaterals, or any
findings, or any financings, or any other transactions involving products,
commodities, services, additions, renewals, extensions, rollovers, amendments,
new contracts, re-negotiations, parallel contracts or agreements or third party
assignments hereof.
11. EXCLUSIVITY: PERFORMANCE: CONFIDENTIALITY. The services of Consultant
hereunder shall not be exclusive, and Consultant and its agents may perform
similar or different services for other persons or entities whether or not they
are competitors of Client. Consultant shall be required to expand only such time
as is necessary to service Client in a commercially reasonable manner.
Consultant acknowledges and agrees that confidential and valuable information
proprietary to Client and obtained during its engagement by the Client, shall
not be, directly or indirectly, disclosed without the prior express written
consent of the Client, unless and until such information is otherwise known to
the public generally or is not otherwise secret and confidential. All such
confidential information provided not otherwise secret and confidential. All
such confidential information provided to Consultant by Client shall be clearly
and conspicuously marked with the work "Confidential." Consultant may disclose
Client's confidential information pursuant to applicable law or regulations or
by operation of law, provided that the Consultant may disclose only such
information as is legally required.
12. INDEPENDENT CONTRACTOR. In its performance hereunder, Consultant and its
agents shall be an independent contractor. Consultant shall complete the
services required hereunder according to its own means and methods of work,
shall be in the exclusive charge and control of Consultant and shall not be
subject to the control or supervision of Client. Client acknowledges that
nothing in this Agreement shall be construed to require Consultant to provide
services to Client at any specific time, or in any specific place or manner,
unless otherwise mutually agree.
13. INDEMNIFICATION. Client agrees to save harmless, indemnify and defend
Consultant, its agents and employees from and against any cost, loss, damage,
liability, judgment and expense whatsoever, including attorney's fees, suffered
or incurred by it by reason of, or on account of, any misrepresentation made to
it or its status or activities as Consultant under this Agreement. Furthermore
Client hereby represents and warrants to Consultant that it is duly organized
and in good standing under State Law and under Federal Law, is current in its
filings and disclosures with the appropriate regulatory bodies and has all
requisite power and authority to carry on business as now conducted and as
contemplated herein.
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14. ASSIGNMENT. No right or interest in this Agreement shall be assigned by
either party without the written permission of the other party and no delegation
of any obligation owed or of the performance of any obligation shall be made
without the written permission of the parties. Any attempted assignment or
delegation shall be wholly void and completely ineffective for all purposes
unless made in conformity with this Agreement. Services performed by Consultant
for CTRX and any revenues derived from same (as related specifically to CTRX)
shall be considered the business and the income of CTRX.
15. SUCCESSORS AND ASSIGNS. Except as provided in the preceding paragraph, this
Agreement shall inure to the benefit of and be binding upon the parties hereof,
and each of their successors and assigns.
16. ENTIRE AGREEMENT. This writing is intended by the parties as a final
statement of their Agreement, is intended also as a complete and exclusive
statement of the terms of this, the sole and only, Agreement between them,
correctly sets forth their obligations to each other as of this date and
contains all of the covenants and agreements between the parties with respect to
those services. No course of prior dealings between the parties and no usage of
the trade shall be relevant to supplement or explain any term used in this
Agreement. Acceptance or acquiescence in a course of performance rendered under
this Agreement shall not be relevant to determine the meaning of this Agreement
even though the accepting or acquiescing party has knowledge of the nature of
the performance and opportunity for objection. Each party to this Agreement
acknowledges that no representations, inducements, promises, or agreements, oral
or otherwise, have been made by any party, or anyone acting on behalf of any
party, that are not embodied herein, and that no other agreement, statement, or
promise not contained in this Agreement shall be valid or binding.
17. MODIFICATION. This Agreement or any of its terms cannot be modified,
changed, altered, appealed, discharged or terminated except by an instrument in
writing (referring specifically to this Agreement) executed by the party against
whom enforcement of any such modification is sought.
18. AMENDMENTS. The provisions of this Agreement may be waived, altered,
amended, repealed, or otherwise changed, in whole or in part, only on the
written consent of all the parties to this Agreement.
19. EFFECT OF WAIVER. Failure to insist on strict compliance with any of the
terms, covenants, or conditions of this Agreement shall not be deemed a waiver
of that term, covenant, or condition, nor shall any waiver or relinquishment of
any right or power at any one time or times be deemed a waiver or relinquishment
of the right or power for all or any other times. Except as otherwise provided
herein, no claim of waiver, consent or acquiescence with respect to any
provision of this Agreement shall be made against either party except on the
basis of a written instrument executed by or on behalf of such party. Any party
shall have the unilateral right by written instrument to waive any condition or
extend the time for performance of any condition or act to be performed for its
benefit or
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approval, and a waiver of any condition, right or remedy shall not be deemed a
waiver of any other condition, right or remedy. The waiver by any party of the
performance of any covenant, condition or promise shall not invalidate this
Agreement nor shall it be considered a waiver by it of any other covenant,
condition or promise. The exercise of any remedy provided in this Agreement
shall not be a waiver of any consistent remedy provided by law, and the
provision of this Agreement for any remedy shall not exclude other consistent
remedies unless they are expressly excluded. The waiver of any breach of this
Agreement by either party shall not constitute a continuing waiver or a waiver
of any subsequent breach either of the same provision or any other provision of
this Agreement.
20. CONSTRUCTION. This Agreement shall be construed as a whole and in accordance
with its plain meaning. The organization of this Agreement is for convenience
only and shall not be used in construing the meaning of the provisions of this
Agreement.
21. SEVERABILITY AND INVALIDITY. It is intended that each provision of this
Agreement shall be viewed as separate and divisible. If any provision in this
Agreement is held by a court of competent jurisdiction to be invalid, void, or
unenforceable, the remaining provisions shall nevertheless continue in full
force without being impaired or invalidated in any way.
22. HEADINGS AND TITLES. The title headings of the respective sections and
paragraphs of this Agreement are inserted for convenience and ease of reference
only and shall not be deemed to be part of this Agreement or do not define,
limit, augment or describe the scope, content or intent of this Agreement or any
part or parts of this Agreement.
23. DRAFTING PARTIES. Each party executing this Agreement agrees that it has
fully participated in the drafting of this Agreement and that no party shall be
deemed to be the drafting party of this Agreement.
24. GENDER. When the context in which the words are used in this Agreement
indicates that such is the intent, the singular and plural number shall be
deemed to include the other, and, the masculine, feminine and neuter genders
shall be deemed to include the other.
25. GOVERNING LAW. This Agreement has been executed in the place indicated
below and shall be construed in accordance with, and governed by, the laws of
the Nevada.
26. ARBITRATION OF DISPUTES. Any controversy or claim between the parties
arising out of or relating to this Agreement, or the breach thereof, or any
claim hereunder, shall be settled by arbitration in the County of ▇▇▇▇▇▇ County,
State of Texas, in accordance with the Rules of the American Arbitration
Association, and judgment upon the award rendered in any state or federal court
having jurisdiction thereof. The fee of the arbitrator or arbitrators shall be
borne by the parties in accordance with the Rules of the
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American Arbitration Association and, insofar as may be feasible, the parties
shall designate an experienced arbitrator (or arbitrators) who is knowledgeable
of the type contemplated by this Agreement. The parties agree that as between
them, this arbitration provision shall not preclude either party from seeking
provisional judicial remedies to preserve the status quo.
27. REMEDY FOR BREACH. If either party breaches any provision of this Agreement,
the other party shall be entitled, if it so elects, to institute and prosecute
proceedings to obtain damages for breach of this Agreement or for any other
legal or equitable relief to which it may be entitled at law. It is further
agreed that any breach or evasion of any of the terms of this contract by either
party hereto will result in immediate and irreparable injury to the other party
and will authorize recourse to injunction and/or specific performance, if
appropriate, as well as to all other legal or equitable remedies to which such
injured party may be entitled hereunder.
28. ATTORNEYS' FEES. If either party files any action or brings any proceeding
against the other arising out of this Agreement, then the prevailing party shall
be entitled to recover as an element of its costs of suit, and not as damages,
reasonable attorneys' fees to be fixed by court. The "prevailing party" shall be
the party who is entitled to recover its costs of suit, whether or not suit
proceeds to final judgment. A party not entitled to recover its costs shall not
recover attorneys' fees. No sum for attorneys' fees shall be counted in
calculating the amount of a judgment for purposes of determining whether a party
is entitled to its costs or attorneys' fees.
29. COUNTERPART EXECUTION. This Agreement may be executed in one or more
counterparts, each of which shall be deemed and fully effective as an original
and all of which together shall constitutes one and the same instrument.
30. FACSIMILE TRANSMISSION. In the event that any person utilizes a "facsimile"
transmission, including but not limited to signed documents, the parties agree
to accept the same as if they bore original signatures. The parties hereby agree
to provide the other parties, within seventy-two (72) hours of transmission,
such facsimile transmitted documents bearing the original signature, if any.
31. NOTICE. All notices, requests, demands, options and other communications
under this Agreement shall be in writing and shall be deemed to have been duly
given on the date of service, if given personally, or by telephone, telegram, or
electronic transmission to the President of the party to whom notice is being
given, or, if served personally on the party to whom notice is to be given, or
within seventy-two (72) hours after mailing, if mailed to the party to whom
notice is to be given, by first class mail, registered or certified, postage
prepaid, and if properly addressed to the party, at its address set forth on the
signature page of this Agreement or any other address that any party may
designate by written notice to the others.
Notices to Consultant shall be given as follows:
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INSERT ADDRESS OF CONSULTANT, PLEASE
Notices to CTRX shall be given as follows:
▇▇▇▇ ▇▇▇▇▇▇▇, President
Concentrax, Inc., ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, or other such addresses as
may be furnished to Consultant from time to time in writing.
32. TIME IS OF ESSENCE. Time is expressly declared to be the essence of this
Agreement.
33. COSTS OF PERFORMANCE. Any party breaching this agreement shall bear and save
the other party harmless from all costs and expenses required for securing any
court orders, court decrees, court approvals, inheritance tax clearances, and
estate tax clearances required to enable the non-breaching party to secure the
required performance of the breaching party.
34. REPRESENTATIONS AND WARRANTIES. Each party to this Agreement hereby
represents and warrants to the other parties to this Agreement as follows:
A. Each party believes the matter set forth in the Recitals to be true and
correct;
B. Each party has received independent legal advice from its attorneys with
respect to the advisability of entering into this Agreement;
C. Each party has carefully read this Agreement and understands this Agreement;
D. No party has previously assigned, encumbered, or in any manner transferred
all or any portion of any claim or right that may be covered by this Agreement;
E. No representation, warranty, or promise not expressly set forth in this
Agreement has been made by any party to this Agreement or by its agents,
representatives, or attorneys with respect to the subject matter of this
Agreement and no party has entered into this Agreement on the basis of any such
representation, warranty, or promise; and F. This Agreement is not intended to
be, and shall not be deemed or construed to be, an admission of liability by any
party for any purpose.
35. MISCELLANEOUS. No waiver of any of the provisions of this Agreement shall be
deemed or shall constitute a waiver of any other provision and no waiver shall
constitute a continuing waiver. No waiver shall be binding unless executed in
writing by the party making the waiver. No supplement, modification, or
amendment of this Agreement shall be binding unless executed in writing by all
parties. This Agreement
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constitutes the entire agreement between the parties and supersedes any prior
agreements or negotiations. This agreement may, if required, be signed in
counterparts, or by facsimile.
IN WITNESS WHEREOF, the parties hereto have entered into this Agreement
on the date first written above.
UNITED INVESTMENTS MANAGEMENT, INC.
Signature:
-----------------------
Name:
-----------------------
Title:
-----------------------
CONCENTRAX, INC.
Signature:
-----------------------
Name:
-----------------------
Title:
-----------------------
Share Price:
Total Volume:
Time Frame:
Approval
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