Exhibit 10(v)
INVESTMENT BANKING RIDER
This Agreement (the "Agreement") is dated April 18, 2000 and is entered into by
and between CAPITA RESEARCH GROUP, INC. (hereinafter "CEEG" or "CLIENT") and THE
CHARTERBRIDGE FINANCIAL GROUP, INC. (hereinafter "CFG"), and is a rider to the
Agreement for Financial Public Support/Retail Support of same date entered into
between the parties.
1. CONDITIONS. This Agreement will not take effect, and CFG will have no
obligation to provide any service whatsoever, unless and until CLIENT returns a
signed copy of this Agreement to CFG (either by mail or facsimile copy). In
addition, CLIENT shall be truthful with CFG in regard to any relevant or
material information provided by CLIENT, verbally or otherwise which refers,
relates, or otherwise pertains to the CLIENT's business, this Agreement or any
other relevant transaction. Breach of either of these conditions shall be
considered a material breach and will automatically grant CFG the right to
terminate this Agreement and all monies paid or owing as of the date of
termination by CFG shall be forfeited without further notice.
Agreed, CLIENT'S INITIALS: DBH
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Upon execution of this Agreement, CLIENT agrees to fully cooperate with CFG in
carrying out the purposes of this Agreement, keep CFG informed of any
developments of importance pertaining to CLIENT's business and abide by this
Agreement in its entirety.
2. SCOPE AND DUTIES. During the term of this Agreement, CFG will perform
the following services for CLIENT:
2.1 Advice and Counsel. CFG will provide advice and counsel
regarding CLIENT's strategic business and financial plans,
strategy and negotiations with potential lenders/investors,
joint venture, corporate partners and others involving
financial and financially-related transactions.
2.2 Mergers and Acquisitions. CFG will provide assistance to
CLIENT, as mutually agreed, in identifying merger and / or
acquisition candidates, assisting in any due diligence
process, recommending transaction terms and providing advice
and assistance during negotiations, as needed.
2.3. Introductions to the Investment Community. CFG has a
familiarity or association with numerous broker/dealers and
investment professionals across the country and will enable
contact between CLIENT and/or CLIENT's affiliate to facilitate
business transactions among them. CFG shall use its contacts
in the brokerage community to assist CLIENT in establishing
relationships with private equity capital sources (venture
capital, etc.) and securities dealers while providing the most
recent information about CLIENT to interested securities
dealers on a regular and continuous basis. CFG understands
that this is in keeping with CLIENT's business objectives and
plan to market CLIENT's business or project to the investment
community.
2.4 CLIENT and/or CLIENT's Affiliate Transaction Due Diligence.
CFG will participate and assist CLIENT in the due diligence
process, as needed, on all proposed financial transactions
affecting CLIENT of which CFG is notified in writing in
advance, including conducting investigation of and providing
advice on the financial, valuation and stock price
implications of the proposed transaction(s).
2.5 Ancillary Document Services. If necessary, CFG will assist and
cooperate with CLIENT in the development, editing and
production of such documents as are reasonably necessary to
procure the agreed upon capital. These documents may include
an investment marketing memorandum, or other documents as
necessary. However, this Agreement will not include the
preparation or procuring of legal documents or those documents
normally prepared by an attorney.
2.6 Additional Duties. CLIENT and CFG shall mutually agree, in
writing, for any additional duties that CFG may provide to
CLIENT for compensation paid or payable by CLIENT under this
Agreement. Although there is no requirement to do so, such
additional agreement(s) may be attached hereto and made a part
hereof by written amendments to be listed as "Exhibits"
beginning with "Exhibit A" and initialed by both parties.
2.7 Standard of Performance. CFG shall devote such time and
efforts to the affairs of the CLIENT as is reasonably
necessary to render the services contemplated by this
Agreement. Any work or task of CFG provided for herein which
requires CLIENT to provide certain information to assist CFG
in completion of the work shall be excused (without effect
upon any obligation of CLIENT) until such time as CLIENT has
fully provided all information and cooperation necessary for
CFG to complete the work. The services of CFG shall not
include the rendering of any legal opinions or the performance
of any work that is in the ordinary purview of a certified
public accountant, or other licensed professional. CFG cannot
guarantee results on behalf of CLIENT, but shall use
commercially reasonable efforts in providing the services
listed above. If an interest is communicated to CFG regarding
satisfying all or part of CLIENT's financial needs, CFG shall
notify CLIENT and advise it as to the source of such interest
and any terms and conditions of such interest. CFG's duty is
to "introduce and market" CLIENT's funding request to
appropriate funding sources. CFG will in no way act as a
"broker-dealer" under state or federal securities laws.
Because all final decisions pertaining to any particular
investment are to be made by CLIENT, CLIENT may be required to
communicate directly with potential funding sources.
2.8 Non-Guarantee. CFG MAKES NO GUARANTEE THAT CFG WILL BE ABLE TO
SUCCESSFULLY MARKET AND IN TURN SECURE A LOAN OR INVESTMENT
FINANCING FOR CLIENT, OR TO SUCCESSFULLY PROCURE SUCH LOAN OR
INVESTMENT WITHIN CLIENT'S DESIRED TIMEFRAME OR TO GUARANTEE
THAT IT WILL SECURE ANY LOAN OR INVESTMENT FINANCING WITH A
SPECIFIC OR MINIMUM RETURN, INTEREST RATE OR OTHER TERMS.
NEITHER ANYTHING IN THIS AGREEMENT TO THE CONTRARY NOR THE
PAYMENT OF DEPOSITS TO CFG BY CLIENT PURSUANT TO FEE
AGREEMENTS FOR SERVICES NOT CONTEMPLATED HEREIN SHALL BE
CONSTRUED AS ANY SUCH GUARANTEE. ANY COMMENTS MADE REGARDING
POTENTIAL TIME FRAMES OR ANYTHING THAT PERTAINS TO THE OUTCOME
OF CLIENT'S FUNDING REQUESTS ARE EXPRESSIONS OF OPINION ONLY,
AND FOR PURPOSES OF THIS AGREEMENT ARE SPECIFICALLY DISAVOWED.
CLIENT ACKNOWLEDGES AND AGREES IT IS NOT REQUIRED TO MAKE
EXCLUSIVE USE OF CFG FOR ANY SERVICES OR DOCUMENTATION DEEMED
NECESSARY FOR THE PURPOSE OF SECURING INVESTMENTS. CFG HAS
MADE NO SUCH DEMANDS IN ORDER FOR CLIENT'S PROJECT TO BE
MARKETED UNDER THE TERMS OF THIS AGREEMENT. CFG HOLDS NO
EXCLUSIVE RIGHTS TO THE MARKETING OF CLIENT'S PROJECT.
Agreed, CLIENT INITIALS: DBH
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3. Compensation to CFG.
3.1 CEEG will pay for services described herein. The fees shown below (which
summarize those outlined in 3.2, 3.3 and 3.4 below) shall be payable as
follows:
A] INITIAL PAYMENT DUE UPON ACCEPTANCE OF THIS INVESTMENT BANKING RIDER
AGREEMENT:
= 40,000 UNREGISTERED CEEG SHARES
B] 5% Commission on successful Capital Formation (DIRECT INVESTMENT) AND MERGERS
/ACQUISITIONS
1] In addition, in the event of a successful merger or acquisition
transaction, CFG shall receive 3% of the value of any combined, merged, or
surviving entity (whichever is larger) in the form of the surviving entity's
free trading stock.
C] DUE ON AUGUST 1, 2000 = 40,000 UNREGISTERED CEEG SHARES
D] DUE IN NOVEMBER 1, 2000 = 40,000 UNREGISTERED CEEG SHARES
E] DUE IN FEBRUARY 1, 2001 = 40,000 UNREGISTERED CEEG SHARES
CEEG shall have no obligation to make the payments listed in Section 3.1(C),
(D), and (E) if this Agreement is terminated prior to the dates such payments
become due. CEEG understands that such amounts shall become due on such dates as
long as this Agreement has not been terminated, and CEEG will continue to be
responsible for such amounts after termination of this Agreement until such
amounts are paid.
NOTE: CFG SHALL HAVE NO OBLIGATION TO PERFORM ANY DUTIES PROVIDED FOR HEREIN IF
PAYMENT [CASH AND/OR STOCK] IS NOT RECEIVED BY CFG WITHIN 7 DAYS OF MUTUAL
EXECUTION OF THIS AGREEMENT BY THE PARTIES. IN ADDITION, CFG'S OBLIGATIONS UNDER
THIS AGREEMENT SHALL BE SUSPENDED IF ANY PAYMENT OWING HEREUNDER IS MORE THAN
FIFTEEN (15) DAYS DELINQUENT. FURTHERMORE, THE RECEIPT OF ANY FEES [CASH AND
STOCK] DUE TO CFG UPON EXECUTION OF THIS AGREEMENT ARE NOT CONTINGENT UPON ANY
PRIOR PERFORMANCE OF ANY DUTIES WHATSOEVER DESCRIBED WITHIN THIS AGREEMENT.
3.2 REGISTRATION OF SHARES. CFG shall have `piggy-back' registration rights
for all shares issued in accordance with this agreement. Appropriate
registration shall be delivered to CFG within 3 business days of filing.
3.3 Fees for Direct Investment, Merger/Acquisition. In the event that CFG, on a
non-exclusive basis, introduces CLIENT or a CLIENT affiliate to any third party
funding source(s), underwriter(s), merger partner(s) or joint venture(s) who
then enters into a funding, underwriting, merger, joint venture or similar
agreement with CLIENT or CLIENT's affiliate, CLIENT hereby agrees to pay CFG
advisory fees pursuant to the following schedule which are based on the
aggregate amount of such funding, underwriting, merger, joint venture or similar
agreement with CLIENT or CLIENT's affiliate. Advisory fees are deemed earned and
shall be due and payable at the first close of the transaction, however, in
certain circumstances when payment of advisory fees at closing is not possible,
within 24 hours after CLIENT has received the proceeds of such investment. This
provision shall survive this Agreement for a period of one year after
termination or expiration of this Agreement. In other words, the advisory fee
shall be deemed earned and due and payable for any funding, underwriting,
merger, joint venture or similar transaction which first closes within a year of
the termination or expiration of this Agreement as a result of an introduction
as set forth above. CFG shall also be entitled to 50.0% of the investment
marketing fee outlined in paragraph 3.3 A or B below in connection with any and
all investment offers from CLIENT or any other source (not including those
introduced by CFG) when CFG is invited to participate or assist in negotiations.
Agreed, CLIENT INITIALS: ________________
A. Direct Investment. For a direct investment made in
CLIENT by a third party investor either introduced to
CLIENT by CFG or which contacted CLIENT directly as a
result of CFG's efforts, CLIENT shall pay CFG a
finder' s fee of 5.0 % of total investment amount
received by CLIENT from the third party investor.
B. Merger/Acquisition. For a merger/acquisition entered
into by CLIENT as a result of the efforts of, or an
introduction by CFG during the term of this
Agreement, Client shall pay CFG 5.0% of the total
value of the transaction. The 5.0% shall be paid in
cash upon the date of the closing of the
merger/acquisition. Additionally, (i) if stock is
used as part or all of the consideration in the
transaction, CFG shall receive freely trading stock
equivalent to 10% of the stock (used for the
transaction) upon close of transaction, and (ii) upon
close of a successful merger or acquisition, CFG
shall receive 3% of the value of the combined, merged
or surviving entity (whichever is larger) in the form
of the surviving entity's free trading stock.
THE FEES PROVIDED FOR IN SECTIONS 3.2 AND 3.3 ARE NOT
INTENDED TO AND WILL NOT APPLY CUMULATIVELY TO THE
SAME FUNDING; HOWEVER, EACH MAY APPLY TO DIFFERENT
PORTIONS OF A TRANSACTION COMPRISING DIFFERENT
FUNDING SOURCES.
3.4 Expenses. If CLIENT accepts any investment provided under this
Agreement, CLIENT shall reimburse CFG for reasonable expenses
incurred in performing its duties pursuant to this Agreement
(including printing, postage, express mail, photo
reproduction, travel, lodging, and long distance telephone and
facsimile charges); provided, however, that CFG must receive
prior written approval from CLIENT for any expenses over $500.
Such reimbursement shall be payable within 24 hours after
CLIENT's receipt of CFG invoice for same.
3.5 Additional Fees. CLIENT and CFG shall mutually agree upon any
additional fees that CLIENT may pay in the future for services
rendered by CFG under this Agreement. Such additional
agreement(s) may, although there is no requirement to do so,
be attached hereto and made a part hereof as Exhibits
beginning with Exhibit A.
3.6 Interest on Funds Due. CLIENT shall pay interest on all
payments in arrears due CFG, at the rate of one percent (1.0%)
per each thirty (30) days after payment is first due.
3.7 Investment Source(s) Disclosure. It is fully understood that
in some cases CFG's investment/lending sources are sources
that may be public sources which may independently approach
CLIENT without the assistance of CFG. CFG makes no claims to
have special relationships with sources and is not to be
considered as having any capabilities of expediting or
`pushing' CLIENT's case through any approval channels outside
the norm of any request of this type. The sources in the CFG
database are sources compiled by CFG from created
relationships as well as lists purchased or requested for the
purpose of building a comprehensive lender/investor marketing
service.
Agreed, CLIENT INITIALS: DBH
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4. Indemnification. The CLIENT agrees to indemnify and hold harmless CFG,
each of its officers, directors, employees and shareholders against any
and all liability, loss and costs, expenses or damages, including but
not limited to, any and all expenses whatsoever reasonably incurred in
investigating, preparing or defending against any litigation, commenced
or threatened, or any claim whatsoever or howsoever caused by reason of
any injury (whether to body, property, personal or business character
or reputation) sustained by any person or to any person or property,
arising out of any act, failure to act, neglect, any untrue or alleged
untrue statement of a material fact or failure to state a material fact
which thereby makes a statement false or misleading, or any breach of
any material representation, warranty or covenant by CLIENT or any of
its agents, employees, or other representatives. Nothing herein is
intended to nor shall it relieve either party from liability for its
own willful act, omission or negligence. All remedies provided by law,
or in equity shall be cumulative and not in the alternative.
CFG agrees to indemnify and hold harmless CLIENT, each of its officers,
directors, employees and shareholders against any and all liability,
loss and costs, expenses or damages, including but not limited to, any
and all expenses whatsoever reasonably incurred in investigating,
preparing or defending against any litigation, commenced or threatened,
or any claim whatsoever or howsoever caused by reason of any injury
(whether to body, property, personal or business character or
reputation) sustained by any person or to any person or property,
arising out of any act, failure to act, neglect, any untrue or alleged
untrue statement of a material fact or failure to state a material fact
which thereby makes a statement false or misleading, or any breach of
any material representation, warranty or covenant by CFG or any of its
agents, employees, or other representatives. Nothing herein is intended
to nor shall it relieve either party from liability for its own willful
act, omission or negligence. All remedies provided by law, or in equity
shall be cumulative and not in the alternative
5. CLIENT Representations. CLIENT hereby represents, covenants and
warrants to CFG as follows:
5.1 Authorization. CLIENT and its signatories herein have full
power and authority to enter into this Agreement and to carry
out the transactions contemplated hereby.
5.2 No Violation. Neither the execution and delivery of this
Agreement nor the consummation of the transactions
contemplated hereby will violate any provision of the charter
or by-laws of CLIENT, or violate any terms of provision of any
other material agreement to which CLIENT is a party or any
applicable statute or law.
5.3 Contracts in Full Force and Effect. All contracts, agreements,
plans, leases, policies and licenses to which CLIENT is a
party are valid and in full force and effect.
5.4 Litigation. Except as set in Schedule 1 attached hereto (if
necessary), there is no action, suit, inquiry, proceeding or
investigation by or before any court or governmental or other
regulatory or administrative agency or commission pending or,
to the best knowledge of CLIENT, threatened against or
invoking CLIENT, or which questions or challenges the validity
of this Agreement or its subject matter and CLIENT does not
know or have any reason to know of any valid basis for any
such action, proceeding or investigation.
5.5 Consents. No consent of any person, other than the signatories
hereto, is necessary to the consummation of the transactions
contemplated hereby, including, without limitation, consents
from parties to loans, contracts, lease or other agreements
and consents from governmental agencies, whether federal,
state, or local.
5.6 CFG Reliance. CFG has and will rely upon the documents,
instruments, their contents and any other written information
furnished to CFG by CLIENT, its officers or designated
employees.
5.7 CLIENT's Material. All representations and statements provided
herein about CLIENT are true and complete and accurate. CLIENT
agrees to indemnify, hold harmless, and defend CFG, its
officers, directors, agents and employees, at CLIENT's expense
for any proceeding or suit which may raise out of any
inaccuracy or incompleteness of any such material or written
information supplied to CFG per Section 4 herein.
5.8 CLIENT'S Affiliates and Other Material. To the best of
CLIENT's knowledge, CLIENT warrants and affirms that all
representations and warranties provided herein regarding
CLIENT are true, complete and accurate with respect to and if
applied to CLIENT's affiliates as well.
6. CFG Representations. CFG hereby represents, covenants and warrants to
CLIENT as follows:
6.1 Authorization. CFG and its signatories herein have full power
and authority to enter into this Agreement and to carry out
the transactions contemplated hereby.
6.2 No Violation. Neither the execution and delivery of this
Agreement nor the consummation of the transactions
contemplated hereby will violate any provision of the charter
or by-laws of CFG, or violate any terms of provision of any
other material agreement to which CFG is a party or any
applicable statute or law.
6.3 Contracts in Full Force and Effect. All contracts, agreements,
plans, leases, policies and licenses to which CFG is a party
are valid and in full force and effect.
6.4 Litigation. Except as set in Schedule 2 attached hereto (if
necessary), there is no action, suit, inquiry, proceeding or
investigation by or before any court or governmental or other
regulatory or administrative agency or commission pending or,
to the best knowledge of CFG, threatened against or invoking
CFG, or which questions or challenges the validity of this
Agreement or its subject matter and CFG does not know or have
any reason to know of any valid basis for any such action,
proceeding or investigation.
6.5 Consents. No consent of any person, other than the signatories
hereto, is necessary to the consummation of the transactions
contemplated hereby, including, without limitation, consents
from parties to loans, contracts, lease or other agreements
and consents from governmental agencies, whether federal,
state, or local.
6.6 CLIENT Reliance. CLIENT has and will rely upon the documents,
instruments, their contents and any other written information
furnished to CLIENT by the CFG, its officers or designated
employees.
6.7 CFG's Material. All representations and statements provided
herein about CFG are true and complete and accurate. CFG
agrees to indemnify, hold harmless, and defend CLIENT, its
officers, directors, agents and employees, at CFG's expense
for any proceeding or suit which may raise out of any
inaccuracy or incompleteness of any such material or written
information supplied to CLIENT per Section 4 herein.
6.8 CFG's Affiliates and Other Material. To the best of CFG's
knowledge, CFG warrants and affirms that all representations
and warranties provided herein regarding CFG are true,
complete and accurate with respect to and if applied to CFG's
affiliates as well.
7. Services Not Expressed or Implied.
7.1. CFG is not and will not be a market-maker (but may act as a
placement agent by other "Selling Agreement" from
time-to-time) in CLIENT's securities or in any securities or
securities in which CLIENT or CLIENT's affiliates has an
interest; and,
7.2. Any payments made herein to CFG are not, and shall not be
construed as, compensation to CFG for the purpose of making a
market, to cover CFG's out-of-pocket expenses for making a
market, or for the submission by CFG of an application to make
a market in any securities; and,
7.3. No payments made herein to CFG are for the purpose of
affecting the price of any security or influencing any
market-making functions, including but not limited to, bid/ask
quotations, initiation and termination of quotations, retail
securities activities, or for the submission of any
application to make a market.
8. Confidentiality.
8.1 CFG and CLIENT each agree to keep confidential and provide
reasonable security measures to keep confidential information
where release may be detrimental to their respective business
interests. CFG and CLIENT shall each require their employees,
agents, affiliates, other licensees, and others who will have
access to the information through CFG and CLIENT respectively,
to first enter appropriate non-disclosure Agreements requiring
the confidentiality contemplated by this Agreement in
perpetuity.
8.2 CFG will not, either during its engagement by the CLIENT
pursuant to this Agreement or at any time thereafter,
disclose, use or make known for its or another's benefit any
confidential information, knowledge, or data of the CLIENT or
any of its affiliates in any way acquired or used by CFG
during its engagement by the CLIENT. Confidential information,
knowledge or data of the CLIENT and its affiliates shall not
include any information that is, or becomes generally
available to the public other than as a result of a disclosure
by CFG or its representatives.
9. Miscellaneous Provisions.
9.1 Amendment and Modification. This Agreement may be amended,
modified and supplemented only by written agreement of CFG and
CLIENT.
9.2 Waiver of Compliance. Any failure of either party hereto to
comply with any obligation, agreement, or condition herein may
be expressly waived in writing, but such waiver or failure to
insist upon strict compliance with such obligation, covenant,
agreement or condition shall not operate as a waiver of, or
estoppel with respect to, any subsequent or other failure.
9.3 Expenses, Taxes, Etc. Other than as expressly set forth in
this Agreement, the parties shall bear their own costs and
expenses, including any applicable taxes, in carrying out the
provisions of this Agreement.
9.4 Compliance with Regulatory Agencies. Each party agrees that
all actions, direct or indirect, taken by it and its
respective agents, employees and affiliates in connection with
this Agreement and any financing or underwriting hereunder
shall conform to all applicable Federal and State securities
laws.
9.5 Notices. Any notices to be given hereunder by either party to
the other may be effected either by personal delivery in
writing, by a reputable, national overnight delivery service,
by facsimile transmission or by mail, registered or certified,
postage prepaid with return receipt requested. Notices shall
be addressed to the "Contact Person" at the addresses
appearing on the signature page of this Agreement, but any
party may change his address or Contact Person by written
notice in accordance with this subsection. Notices delivered
personally shall be deemed delivered as of actual receipt,
notices sent by facsimile shall be deemed delivered one (1)
day after electronic confirmation of receipt, notices sent by
overnight delivery service shall be deemed delivered one (1)
day after delivery to the service, mailed notices shall be
deemed delivered as of five (5) days after mailing.
9.6 Assignment. This Agreement and all of the provisions hereof
shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and permitted assigns.
The obligations of either party hereunder cannot be assigned
without the express written consent of the other party.
9.7 Publicity. Neither CFG nor CLIENT shall make or issue, or
cause to be made or issued, any announcement or written
statement concerning this Agreement or the transactions
contemplated hereby for dissemination to the general public
without the prior written consent of the other party. This
provision shall not apply, however, to any announcement or
written statement required to be made by law or the
regulations of any Federal or State governmental agency,
except that the party required to disclose shall consult with
and make reasonable efforts to accommodate changes to the
required disclosure and the timing of such announcement
suggested by the other party.
9.8 Governing Law; Venue. This Agreement and the legal relations
among the parties hereto shall be governed by and construed in
accordance with the laws of the State of California, without
regard to its conflict of law doctrine. CLIENT and CFG agree
that if any action is instituted to enforce or interpret any
provision of this Agreement, the jurisdiction and venue shall
be San Diego County, California.
9.9 Counterparts. This Agreement may be executed simultaneously in
two or more counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and
the same instrument.
9.10 Headings. The heading of the sections of this Agreement are
inserted for convenience only and shall not constitute a part
hereto or affect in any way the meaning or interpretation of
this Agreement.
9.11 Entire Agreement. This Agreement including any Exhibits
hereto, and the other documents and certificates delivered
pursuant to the terms hereto, set forth the entire agreement
and understanding of the parties hereto in respect of the
subject matter contained herein, and supersedes all prior
agreements, promise, covenants, arrangements, communications,
representations or warranties, whether oral or written, by any
officers employee or representative of any party hereto.
9.12 Third Parties. Except as specifically set forth or referred to
herein, nothing herein express or implied is intended or shall
be construed to confer upon or give to any person or entity
other than the parties hereto and their successors or assigns,
any rights or remedies under or by reason of this Agreement.
9.13 Attorneys' Fees and Costs. If any action is necessary to
enforce and collect upon the terms of this Agreement, the
prevailing party shall be entitled to reasonable attorneys'
fees and costs, in addition to any other relief to which that
party may be entitled. This provision shall be construed as
applicable to the entire Agreement.
9.14 Survivability. If any part of this Agreement is found, or
deemed by a court of competent jurisdiction, to be invalid or
unenforceable, that part shall be severable from the remainder
of the Agreement.
9.15 Further Assurances. Each of the parties agrees that it shall
from time-to-time take such actions and execute such
additional instruments as may be reasonably necessary or
convenient to implement and carry out the intent and purposes
of this Agreement.
9.16 Relationship of the Parties. Nothing contained in this
Agreement shall be deemed to constitute either party becoming
the partner of the other, the agent or legal representative of
the other, nor create any fiduciary relationship between them,
except as otherwise expressly provided herein. It is not the
intention of the parties to create nor shall this Agreement be
construed to create any commercial relationship or other
partnership. Neither party shall have any authority to act for
or to assume any obligation or responsibility on behalf of the
other party, except as otherwise expressly provided herein.
The rights, duties, obligations and liabilities of the parties
shall be separate, not joint or collective. Each party shall
be responsible only for its obligations as herein set out and
shall be liable only for its share of the costs and expenses
as provided herein.
9.17 No Authority to Obligate the CLIENT. Without the consent of
the Board of Directors of CLIENT, CFG shall have no authority
to take, nor shall it take, any action committing or
obligating CLIENT in any manner, and it shall not represent
itself to others as having such authority.
10. Arbitration. ALL DISPUTES, CONTROVERSIES, OR DIFFERENCES BETWEEN CLIENT, CFG
OR ANY OF THEIR OFFICERS, DIRECTORS, LEGAL REPRESENTATIVES, ATTORNEYS,
ACCOUNTANTS, AGENTS OR EMPLOYEES, OR ANY CUSTOMER OR OTHER PERSON OR ENTITY,
ARISING OUT OF, IN CONNECTION WITH OR AS A RESULT OF THIS AGREEMENT, SHALL BE
RESOLVED THROUGH ARBITRATION RATHER THAN THROUGH LITIGATION. WITH RESPECT TO THE
ARBITRATION OF ANY DISPUTE, THE UNDERSIGNED HEREBY ACKNOWLEDGE AND AGREE THAT:
A. ARBITRATION IS FINAL AND BINDING ON THE PARTIES;
B. THE PARTIES ARE WAIVING THEIR RIGHT TO SEEK REMEDY IN
COURT, INCLUDING THEIR RIGHT TO JURY TRIAL;
C. PRE-ARBITRATION DISCOVERY IS GENERALLY MORE LIMITED
AND DIFFERENT FROM COURT PROCEEDING;
D. THE ARBITRATOR'S AWARD IS NOT REQUIRED TO INCLUDE
FACTUAL FINDINGS OR LEGAL REASONING AND ANY PARTY'S
RIGHT OF APPEAL OR TO SEEK MODIFICATION OF RULING BY
THE ARBITRATORS IS STRICTLY LIMITED;
E. THIS ARBITRATION PROVISION IS SPECIFICALLY INTENDED
TO INCLUDE ANY AND ALL STATUTORY CLAIMS WHICH MIGHT
BE ASSERTED BY ANY PARTY;
F. EACH PARTY HEREBY AGREES TO SUBMIT THE DISPUTE FOR
RESOLUTION TO THE AMERICAN ARBITRATION ASSOCIATION,
IN SAN DIEGO, CALIFORNIA WITHIN FIVE (5) DAYS AFTER
RECEIVING A WRITTEN REQUEST TO DO SO FROM THE OTHER
PARTY;
G. IF EITHER PARTY FAILS TO SUBMIT THE DISPUTE TO
ARBITRATION ON REQUEST, THEN THE REQUESTING PARTY MAY
COMMENCE AN ARBITRATION PROCEEDING, BUT IS UNDER NO
OBLIGATION TO DO SO;
H. ANY HEARING SCHEDULED AFTER AN ARBITRATION IS
INITIATED SHALL TAKE PLACE IN SAN DIEGO COUNTY,
CALIFORNIA;
I. IF EITHER PARTY SHALL INSTITUTE ANY COURT PROCEEDING
IN AN EFFORT TO RESIST ARBITRATION AND BE
UNSUCCESSFUL IN RESISTING ARBITRATION OR SHALL
UNSUCCESSFULLY CONTEST THE JURISDICTION OF ANY
ARBITRATION FORUM LOCATED IN SAN DIEGO COUNTY,
CALIFORNIA, OVER ANY MATTER WHICH IS THE SUBJECT OF
THIS AGREEMENT, THE PREVAILING PARTY SHALL BE
ENTITLED TO RECOVER FROM THE LOSING PARTY ITS LEGAL
FEES AND ANY OUT-OF-POCKET EXPENSES INCURRED IN
CONNECTION WITH THE DEFENSE OF SUCH LEGAL PROCEEDING
OR ITS EFFORTS TO ENFORCE ITS RIGHTS TO ARBITRATION
AS PROVIDED FOR HEREIN;
J. THE PARTIES SHALL ACCEPT THE DECISION OF ANY AWARD AS
BEING FINAL AND CONCLUSIVE AND AGREE TO ABIDE
THEREBY;
K. ANY DECISION MAY BE FILED WITH ANY COURT AS A BASIS
FOR JUDGMENT AND EXECUTION FOR COLLECTION;
11. Term/Termination. This Agreement is a quarterly agreement for the term
of one (1) year and shall terminate automatically on April 17, 2001. However,
CLIENT or CFG shall have the right to terminate the balance of this Agreement at
any time seventy (70) days after the date hereof, provided written notice is
given to the other party at least fifteen (15) days prior to the expiration of
the current quarter of the Agreement.
10. Registration Of Shares. CFG shall have standard piggyback registration
rights of all shares issued in accordance with this agreement.
12. Non Circumvention. In and for valuable consideration, CLIENT hereby agrees
that CFG may introduce (whether by written, oral, data, or other form of
communication) CLIENT to one or more opportunities, including, without
limitation, existing or potential investors, lenders, borrowers, trusts, natural
persons, corporations, limited liability companies, partnerships, unincorporated
businesses, sole proprietorships and similar entities (hereinafter an
"Opportunity" or ""Opportunities""). CLIENT further acknowledges and agrees that
the identity of the subject Opportunities, and all other information concerning
an Opportunity (including without limitation, all mailing information, phone and
fax numbers, email addresses and other contact information) introduced hereunder
are the property of CFG, and shall be treated as confidential and proprietary
information by CLIENT, it affiliates, officers, directors, shareholders,
employees, agents, representatives, successors and assigns. CLIENT shall not use
such information, except in the context of any arrangement with CFG in which CFG
is directly and actively involved, and never without CFG's prior written
approval. CLIENT further agrees that neither it nor its employees, affiliates or
assigns, shall enter into, or otherwise arrange (either for it/him/herself, or
any other person or entity) any business relationship, contact any person
regarding such Opportunity, either directly or indirectly, or any of its
affiliates, or accept any compensation or advantage in relation to such
Opportunity except as directly though CFG, without the prior written approval of
CFG. CFG is relying on CLIENT's assent to these terms and their intent to be
bound by the terms by evidence of their signature.
Without CLIENT's signed assent to these terms, CFG would not introduce any
Opportunity or disclose any confidential information to CLIENT as herein
described.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed, all as of the day and year first above written.
CLIENT:
CAPITA RESEARCH GROUP, INC.
Print Name: David B. Hunter
Sign Name: /s/ David B. Hunter
-------------------
Title: President & CEO
Date: 4/24/00
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Address: 591 Skippack Pike, Suite 300
------------------------------
Blue Bell, PA 19422
Contact Person: Steven Plisinski, CFO
CFG:
THE CHARTERBRIDGE FINANCIAL GROUP, INC.
Print Name: Richard H. Walker
Sign Name: /s/ Richard H. Walker
----------------------
Title: President & CEO
Date: 4/24/00
---------
Address: 350 W. Ash St. Ste. 1002
--------------------------
San Diego, CA 92101
Contact Person: Stuart Smith