ENGAGEMENT AGREEMENT
This business services engagement agreement ("Agreement") dated the
14th day of March, 2003 by and between Maximum Dynamics, Inc. ("Company"), a
Colorado corporation whose address is 2 N. Cascade Avenue, Suite 1100, Colorado
Springs, CO 80903 and Connie Gargano, ("Consultant"), a Colorado corporation,
having an address of 106 Mainhill, Main Road, Greenpoint, South Africa, 8002.
WHEREAS, CONSULTANT provides relocation services, business introduction
and set up services; and,
WHEREAS, Company wishes to engage the services of CONSULTANT;
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the parties hereto agree as follows:
1. CONSULTANT will act as the Company's point person for setting up an
office in Cape Town, South Africa. As consultant to the Company,
CONSULTANT will assist with the following:
(a) Identifying and negotiating for office space;
(b) Place ads, screen and interview pool of applicants for positions
with the Company;
(c) Arrange for the company to set up bank accounts, mail facilities,
Internet connection and other services needed to run a business;
and
(d) Conduct marketing efforts in the area to generate leads for the
Company's products and services.
2. The retention by the Company of CONSULTANT as heretofore described
shall be for a period of not less than six months from the date hereof
in order to provide CONSULTANT a reasonable opportunity to perform its
services (as outlined above). Following this six month period, this
Agreement will automatically terminate unless renewed by either party
upon 30 days advanced written notice.
3. Any parties introduced to the Company by CONSULTANT, even if declining
participation hereby, shall be deemed a "Protected Party" and
thereafter the Company shall not directly deal with the Protected Party
without the prior written consent of CONSULTANT.
4. In connection with CONSULTANT's activities on the Company's behalf, the
Company will cooperate with CONSULTANT and will furnish CONSULTANT with
all information and data concerning the Company (the "Information"),
which CONSULTANT deems appropriate and will provide CONSULTANT with
access to the Company's officers, directors, employees, independent
accountants, and legal counsel as needed. The Company represents and
warrants that all Information made available to CONSULTANT by the
Company will, at all times during the period of engagement of
CONSULTANT hereunder, be complete and correct in all material respects
and will not contain any untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein
not misleading in the light of the circumstances under which such
statements are made. The Company further represents and warrants that
any information provided by it to CONSULTANT will have been prepared in
good faith and will be based upon assumptions, which, in light of the
circumstances under which they are made, are reasonable. The Company
acknowledges and agrees that, in rendering its services hereunder,
CONSULTANT may be using and relying on the Information without
independent verification thereof by CONSULTANT or independent appraisal
by CONSULTANT of any of the information held by the Company. CONSULTANT
does not assume responsibility for any information regarding the
Company.
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5. In consideration of its services pursuant to this Agreement, CONSULTANT
shall be entitled to receive, and the Company agrees to pay CONSULTANT,
consulting fees according to the attached Schedule A, which may change
from time to time with ample notice provided to the Company before any
changes that may effect the course or charges for services rendered by
CONSULTANT.
6. In addition to the consideration paid as described in Paragraph 5
above, CONSULTANT agrees that it will charge the Company for any added
expenses only if such expenses are pre-approved by the Company. The
Company agrees to promptly reimburse CONSULTANT, upon request, for all
such pre-approved expenses incurred by CONSULTANT (which may include
fees and disbursements of counsel, and of other consultants and
advisors retained by CONSULTANT) in connection with the matters
contemplated by this Agreement.
7. Either party hereto may terminate this Agreement at any time upon 30
days' prior written notice, following the initial engagement period as
stated in Paragraph 2 without liability or continuing obligation,
except as set forth in the following sentence. Neither termination of
this Agreement nor completion of the assignment contemplated hereby
shall affect: (i) any compensation earned by CONSULTANT up to the date
of termination or completion, as the case may be or (ii) the
reimbursement of expenses incurred by CONSULTANT up to the date of
termination or completion, as the case may be.
8. Should this Agreement be terminated by either party as described in
Paragraph 2 and Paragraph 7, CONSULTANT will keep one sixth (1/6) the
fees it received for each month that CONSULTANT was retained.
9. The Company agrees to indemnify and hold harmless CONSULTANT against
any and all losses, claims, damages, obligations, penalties, judgments,
awards, liabilities, costs, expenses, and disbursements (and any and
all actions, suits, proceedings, and investigations in respect thereof
and any and all legal and other costs, expenses, and disbursements in
giving testimony or furnishing documents in response to a subpoena or
otherwise), including, without limitation the costs, expenses, and
disbursements, as and when incurred, of investigating, preparing, or
defending any such action, suit, proceeding, or investigation (whether
or not in connection with litigation in which CONSULTANT is a party),
directly or indirectly, caused by, relating to, based upon, arising out
of, or in connection with CONSULTANT's acting for the Company,
including, without limitation, any act or omission by CONSULTANT in
connection with its acceptance of or the performance or non-performance
of its obligations under this Agreement; provided, however, such
indemnity shall not apply
to any portion of any such loss, claim, damage, obligation, penalty,
judgment, award, liability, cost, expense, or disbursement to the
extent it is found in a final judgment by a court of competent
jurisdiction (not subject to further appeal) to have resulted primarily
and directly from the willful misconduct of CONSULTANT. The Company
also agrees that CONSULTANT shall not have any liability (whether
direct or indirect, in contract or tort or otherwise) to the Company
for or in connection with the engagement of CONSULTANT, except to the
extent that any such liability is found in a final judgment by a court
of competent jurisdiction (not subject to further appeal) to have
resulted primarily and directly from CONSULTANT's willful misconduct.
These indemnification provisions shall be in addition to any liability
which the Company may otherwise have to CONSULTANT or the persons
indemnified below in this sentence and shall extend to the following:
CONSULTANT, its affiliated entities, directors, officers, employees,
legal counsel, agents, and controlling persons (within the meaning of
the federal securities laws). All references to CONSULTANT in these
indemnification provisions shall be understood to include any and all
of the foregoing.
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If any action, suit, proceeding, or investigation is commenced, as to
which CONSULTANT proposes to demand indemnification, it shall notify
the Company with reasonable promptness. CONSULTANT shall have the right
to retain counsel of its own choice to represent it, and the Company
shall pay the fees, expenses, and disbursements of such counsel; and
such counsel shall, to extent consistent with its professional
responsibilities, cooperate with the Company and any counsel designated
by the Company. The Company shall be liable for any settlement of any
claim against CONSULTANT made with the Company's written consent, which
consent shall not be unreasonably withheld. The Company shall not,
without the prior written consent of CONSULTANT, settle or compromise
any claim, or permit a default or consent to the entry of any judgment
in respect thereof, unless such settlement, compromise, or consent
includes, as an unconditional term thereof, the giving by the claimant
to CONSULTANT of an unconditional release from all liability in respect
of such claim.
10. The Company understands that to the extent CONSULTANT utilizes any
third parties that these third parties constitute the proprietary
intellectual property of CONSULTANT. Such contacts, partners and
related information represent a substantial value to CONSULTANT that
CONSULTANT uses to offer services to clients and retain a competitive
advantage in the marketplace. Therefore the Company aggress to work
with CONSULTANT, and agrees not to circumvent in any manner, directly
or indirectly, CONSULTANT with regard to any third parties, clients or
contacts that have been identified by CONSULTANT, or CONSULTANT's
clients or contacts. All contacts, discussions and resources with all
identified third parties or partners of CONSULTANT shall be conducted
by, through or in conjunction with CONSULTANT. Written confirmation
identifying an introduction will be provided by CONSULTANT. Company
agrees that electronic mail may be used for this purpose. The Company
agrees that this non-circumvention clause will remain in effect for a
period of not less than 6 months following the termination of this
agreement by either party.
11. The validity and interpretation of this Agreement shall be governed by
the laws of South Africa, district of Cape Town, applicable to
agreements made and to be fully performed therein. The Company
irrevocably submits to the jurisdiction of any court in Cape Town,
South Africa for the purpose of any suit, action, or other proceeding
arising out of this Agreement, or any of the agreements or transactions
contemplated hereby, which is brought by or against the Company.
12. The benefits of this Agreement shall inure to the respective successors
and assigns of the parties hereto and of the indemnified parties
hereunder and their successors and assigns and representatives, and the
obligations and liabilities assumed in this Agreement by the parties
hereto shall be binding upon their respective successors and assignees.
13. For the convenience of the parties hereto, any number of counterparts
of this Agreement may be executed by the parties hereto. Each such
counterpart shall be, and shall be deemed to be, an original
instrument, but all such counterparts taken together shall constitute
one and the same Agreement. This Agreement may not be modified or
amended except in writing signed by the parties hereto.
14. Services provided by CONSULTANT to and on behalf of the Company in
connection with this Agreement will be suspended forthwith in the event
of nonpayment of fees or expenses.
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15. CONSULTANT hereby represents and warrants as follows:
(a) CONSULTANT is duly authorized to carry on its businesses where and
as now conducted and to own, lease, and operate its assets as it
now does.
(b) The execution, delivery, and performance by CONSULTANT of and the
consummation of the transactions contemplated in this Agreement
have been duly and validly authorized by the Board of Directors of
CONSULTANT, and CONSULTANT represents and warrants that it has the
right, power, legal capacity, and authority to enter into and
perform its obligations under this Agreement, and that no consent
or approval of, notice to, or filing with any governmental
authority having jurisdiction over any aspect of the business or
assets of CONSULTANT, and no consent or approval of or notice to
any other person or entity is required in connection with the
execution and delivery by CONSULTANT of or the consummation by
CONSULTANT of the transactions contemplated in this Agreement.
(c) The execution, delivery, and performance of this Agreement by
CONSULTANT and the consummation of the transactions contemplated
hereby and thereby, do not and will not result in or constitute (i)
a breach of any term or provision of this Agreement; (ii) a
default, breach, or violation, or an event that, with notice or
lapse of time or both, would be a default, breach, or violation of
any of the terms, conditions, or provisions of the Articles of
Incorporation or Bylaws of CONSULTANT; (iii) a default, breach, or
violation, or an event that, with notice or lapse of time or both,
would be a default, breach, or violation of any of the terms,
conditions, or provisions of any lease, license, promissory note,
security agreement, commitment, indenture, mortgage, deed of trust,
or other agreement, instrument, or arrangement to which CONSULTANT
is a party or by which it or any of its assets are bound; (iv) an
event that would permit anyone to terminate or rescind any
agreement or to accelerate the maturity of any indebtedness or
other obligations of CONSULTANT; or (v) the creation or imposition
of any lien, charge, or encumbrance on any of the assets of
CONSULTANT.
16. The Company hereby represents and warrants as follows:
(a) Company is a corporation duly incorporated, validly existing, and
in good standing under the laws of the State of Colorado, and has
the corporate power and is duly authorized to carry on its
businesses where and as now conducted and to own, lease, and
operate its assets as it now does.
(b) The execution, delivery, and performance by Company of and the
consummation of the transactions contemplated in this Agreement
have been duly and validly authorized by the Board of Directors of
Company, and Company represents and warrants that it has the right,
power, legal capacity, and authority to enter into and perform its
obligations under this Agreement, and that no consent or approval
of, notice to, or filing with any governmental authority having
jurisdiction over any aspect of the business or assets of Company,
and no consent or approval of or notice to any other person or
entity is required in connection with the execution and delivery by
Company of or the consummation by Company of the transactions
contemplated in this Agreement.
(c) The execution, delivery, and performance of this Agreement by
Company and the consummation of the transactions contemplated
hereby and thereby, do not and will not result in or constitute (i)
a breach of any term or provision of this Agreement; (ii) a
default, breach, or violation, or an event that, with notice or
lapse of time or both, would be a default, breach, or violation of
any of the terms, conditions, or provisions of the Articles of
Incorporation or Bylaws of Company; (iii) a default, breach, or
violation, or an event that, with notice or lapse of time or both,
would be a default, breach, or violation of any of the terms,
conditions, or provisions of any lease, license, promissory note,
security agreement, commitment, indenture, mortgage, deed of trust,
or other agreement, instrument, or arrangement to which Company is
a party or by which it or any of its assets are bound; (iv) an
event that would permit anyone to terminate or rescind any
agreement or to accelerate the maturity of any indebtedness or
other obligations of Company; or (v) the creation or imposition of
any lien, charge, or encumbrance on any of the assets of Company.
17. In its performance hereunder, CONSULTANT and its agents shall be an
independent contractor. CONSULTANT shall complete the services required
hereunder according 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 the Company, except as to the results of
the work. Company acknowledges that nothing in this Agreement shall be
construed to require CONSULTANT to provide services to Company in any
specific place or manner. Payments to CONSULTANT hereunder shall not be
subject to withholding taxes or other employment taxes as required with
respect to compensation paid to an employee.
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All notices and writings, required or given pursuant to this Agreement, shall be
signed by the party relying thereon to be sent by prepaid postal mail rates or
by facsimile transmission, to a location or number set forth below:
Maximum Dynamics, Inc. Connie Gargano
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A) Maximum Dynamics, Inc. B) Connie Gargano
2 N. Cascade Avenue, Suite 1100 106 Mainhill
Colorado Springs, CO 80903 Main Road, Greenpoint
South Africa 8002
Tel: (719) 381-1728 Tel: (27) 72.599.5413
Fax: (435) 203-9028 Fax:
In witness whereof the parties have set their hands and seals as of the date
first written above.
Maximum Dynamics, Inc. Connie Gargano
By: Eric R. Majors By: Connie Gargano
Signature: /s/ Eric R. Majors Signature: /s/ Connie Gargano
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Title: Chief Executive Officer Title: Consultant
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SCHEDULE A
A. Service Fee. The Company will engage Consultant for the services
described in this Agreement. The service fee charged to the Company for
this service is seventeen thousand five hundred dollars ($17,500.00).
The fee of $17,500.00 is payable in any mixture of the following forms
at CONSULTANT's discretion:
(i) By Company check made payable to: Connie Gargano
(ii) 1,296,000 shares of registered S-8 shares of Common Stock of
Maximum Dynamics, Inc. (priced at $0.0135 per share, or a 25%
discount off of today's bid of $0.018)