Management and Business Development Agreement - Synerteck Inc. and SportsNuts Inc.
MANAGEMENT AND BUSINESS DEVELOPMENT AGREEMENT
This Management and Business Development Agreement (this "Agreement")
is entered into as of April 1, 2004, by and between Synerteck Incorporated., a
Delaware corporation ("Synerteck" or the "Company"), and SportsNuts, Inc., a
Delaware corporation ("Manager").
RECITALS
WHEREAS, Synerteck desires to engage and Manager desires to provide
certain administrative, management, and business development services in
accordance with the terms and conditions set forth below.
In consideration of the foregoing recitals (which hereby are made a
part of this Agreement) and the mutual covenants and promises contained herein,
the parties agree as follows:
1. DUTIES OF MANAGER
1.1. General Management and Administration. Manager hereby is engaged by
SYNERTECK to provide and perform for and on behalf of the Company such
management and administrative services reasonably necessary for the proper and
efficient operation of SYNERTECK during the term of this Agreement, which
services shall include, but not be limited to, those items set forth in this
Article 1. Manager hereby is exclusively authorized to provide and perform for
and on behalf of SYNERTECK all services required of Manager pursuant to the
terms of this Agreement in such manner as Manager deems reasonable and
appropriate in order to meet the day-to-day requirements of SYNERTECK. In
performing such services for SYNERTECK, Manager may advance or pay on
SYNERTECK's behalf all necessary or appropriate sums pursuant to this Agreement,
including but not limited to the Management Fee and Manager's Costs (as defined
below). Manager may subcontract with other persons to perform all or any part of
the services required of Manager hereunder. SYNERTECK acknowledges that Manager
shall only be required to spend the hours necessary or appropriate to perform
its duties hereunder and shall not be prohibited hereby from undertaking other
activities, whether in SYNERTECK's service area or otherwise. SYNERTECK will
cooperate with Manager's business arrangements and will not interfere with
Manager's efficient management of the day-to-day operations of SYNERTECK.
1.2. Financial Services.
1.2.1. Manager shall establish and maintain bookkeeping and
accounting systems for and on behalf of SYNERTECK, including, but not limited
to, payroll processing, accounts payable, accounts receivable, billing and
collection, the maintenance, custody and supervision of all of SYNERTECK's
business records and the preparation of reports and forms required by
shareholders or various regulatory bodies.
1
<PAGE>
1.2.2. Manager shall establish and maintain SYNERTECK
accounts, assist in the development and adoption of an annual operating and
capital budget, maintain financial and accounting records, prepare monthly,
quarterly, and annual financial statements and provide for an annual audit by an
outside public accountant selected by SYNERTECK.
1.3. Legal. Manager shall pay for and, through its counsel provide, limited
corporate legal services for SYNERTECK, including, but not limited to,
assistance with drafting agreements, negotiating routine transactions,
assistance with corporate filings, and advice on corporate governance and
general liability issues.
1.4. Information Technology and Management Information System. Manager
shall provide telecommunications equipment and use of computer servers for
SYNERTECK personnel.
1.5. Facilities, Supplies and Support Personnel. SYNERTECK shall have
reasonable access to and use of Manager's facilities. Such access shall be
provided during normal business hours. Networking, photocopying, printing,
telephone, and facsimile access, and miscellaneous office supplies shall be
provided to SYNERTECK personnel so long as the provision of such access does not
constitute an unreasonable expense on behalf of Manager.
2. MANAGEMENT FEES & COSTS
2.1. Management Fee. In consideration of Manager's services described in
this Agreement, SYNERTECK shall pay Manager a monthly management fee
("Management Fee") equal to $750.00.
2.2. Timing and Manner of Payment. The SYNERTECK shall pay the Management
Fee and any Manager's Costs on or before the tenth (10th) day of each month with
respect to services provided in the prior month.
2.3. Survival of Obligations. The obligations of SYNERTECK hereunder
(including, without limitation, the Management Fee and Manager's Costs) which
accrue prior to termination of this Agreement shall survive termination of this
Agreement.
3. TERM AND TERMINATION
3.1. Term. This agreement shall continue in full force and effect from the
date first set forth above and shall be terminable by either SYNERTECK or
Manager with 90 days written notice.
3.2. Effect of Termination. Expiration or termination of this Agreement
shall not release or discharge either party from any obligation, debt or
liability which shall have previously accrued and remain to be performed upon
the date of expiration or termination. Upon expiration
2
<PAGE>
or termination, SYNERTECK shall reimburse Manager for all Manager's Costs
incurred prior to the date of such expiration or termination and for all
compensation due hereunder to Manager with respect to all applicable periods
prior to such expiration or termination.
4. RECORDS
All business records, papers and documents of SYNERTECK (including, but
not limited to, client information, business plans, projections, business and
regulatory filings, financial data and records of SYNERTECK) are the property of
SYNERTECK (except for property of Manager which is designated as such) and shall
be available for inspection and copying by Manager during regular business
hours. Upon the termination of this Agreement, manager shall promptly return to
SYNERTECK in an orderly manner all business records, papers and documents of
SYNERTECK then in the possession of Manager. SYNERTECK agrees that Manager may
retain a copy of all such records, papers and documents for regulatory
reporting, archival purposes and resolution of rights under this Agreement.
5. DISPUTE RESOLUTION
Except as provided below, no civil action concerning any dispute under
this Agreement shall be instituted before any court, and all such disputes shall
be submitted to final and binding arbitration before the American Arbitration
Association. The place for any arbitration shall be in Salt Lake County, and the
laws of the State of Utah shall govern, and the arbitrator solely shall apply
them to, the interpretation and construction of this Agreement. Such arbitration
shall be in accordance with the Commercial Rules of the American Arbitration
Association then in effect ("Commercial Rules") before a single neutral
arbitrator; except that either party may request an expedited arbitration
pursuant to the Commercial Rules. If possible, the choice of arbitrators
presented to the parties shall include persons who have experience with
healthcare management agreements and commercial matters. Discovery shall be
allowed in arbitration in accordance with the statutory discovery provisions of
the state in which the arbitration is conducted. Any award issued shall be made
in accordance with the governing law of the state in which the arbitration is
conducted and shall include the award to the prevailing party of its costs and
expenses (including but not limited to attorneys' fees and costs and arbitration
costs and arbitrator's fees and the costs of all dispute resolution proceedings
(including, but not limited to those incurred in or relating to any and all
trial and appellate proceedings)). An award shall be final and binding and may
not be appealed or reviewed, except upon the ground of malfeasance or fraud by
the arbitrator. Judgment upon the award may be enforced in any court of
competent jurisdiction, wherever located. Notwithstanding the foregoing, either
party shall have the right, at its sole discretion, to seek equitable relief
from a court of competent jurisdiction, without being limited in recourse to
arbitration, in the event that a breach by the other party of this Agreement
shall result in irreparable injury to it or if monetary damages would be
inadequate and impossible to calculate adequately, which equitable relief shall
include (but not be limited to) the entering of a temporary restraining order
and/or a preliminary injunction. This Section shall survive the termination of
this Agreement for any reason.
3
<PAGE>
6. INDEPENDENT CONTRACTOR RELATIONSHIP
In the performance of the work, duties and obligations described
hereunder, it is mutually understood and agreed that each party is at all times
acting and performing as an independent contractor with respect to the other and
that no relationship of partnership, joint venture, or employment is created by
this Agreement. Neither party, nor any other person performing services on
behalf of either party pursuant to this Agreement, shall have any right or claim
against the other party under this Agreement for social security benefits,
workers' compensation benefits, disability benefits, unemployment insurance
benefits, health benefits, vacation pay, sick leave, or any other employee
benefits of any kind.
7. NOTICE
Any notice required hereunder to be given by either party shall be in
writing and shall be delivered personally or sent by certified or registered
mail, postage prepaid, or by private courier, with written verification of
delivery, or by facsimile transmission to the other party to the address or
facsimile number set forth below or to such other address or facsimile number as
either party may designate from time to time according to this provision. A
notice delivered personally shall be effective upon receipt. A notice sent by
facsimile transmission shall be effective twenty-four hours after the dispatch
thereof. A notice delivered by mail or by private courier shall be effective on
the seventh day after the day of mailing.
Manager: SportsNuts, Inc.
11585 South State
Suite 102
Draper, Utah 84020
Attn: General Counsel
Telefax (801) 816-2599
SYNERTECK: 11585 South State
Suite 102
Draper, Utah 84020
Attn: CEO
Telefax (801) 816-2599
8. THIRD PARTY BENEFICIARIES
This Agreement is expressly entered into only by and between the
parties signatory hereto and is only for their benefit. The parties hereby
expressly agree that there is no intent by either party to create or establish
third party beneficiary status rights or their equivalent in any other
4
<PAGE>
referenced individual, subcontractor, or third party, and no such third party
shall have any right to enforce any right or enjoy any benefit created or
established under this Agreement.
9. SEVERABILITY
Any terms or provisions of this Agreement which shall prove to be
invalid, void or illegal shall in no way affect, impair, or invalidate any other
term or provisions herein and such remaining terms and provisions shall remain
in full force and effect. All such terms or provisions which are determined by a
court of competent jurisdiction or other dispute resolution proceeding to be
invalid, void or illegal shall be construed and limited so as to allow the
maximum effect permissible by law.
10. ATTORNEYS' FEES
In the event that either party to this Agreement shall bring any action
at law or in equity to enforce any term, covenant, or condition of this
Agreement, the prevailing party in such action shall be entitled to recover all
costs and expenses, including reasonable attorneys' fees and costs and the costs
of any dispute resolution proceedings (including but not limited to those
incurred in or relating to any and all trial and appellate proceedings),
incurred by such party in connection with such action. This section will survive
termination of this Agreement for any reason.
11. GOVERNING LAW
The existence, validity, and construction of this Agreement shall be
governed by the laws of the State of Utah.
12. ASSIGNMENT
Any assignment of this Agreement by a Party shall require the written
consent of the other Party.
13. SUCCESSORS AND ASSIGNS
Subject to the provisions of this Agreement regarding assignment, the
terms, covenants and conditions contained herein shall be binding upon and inure
to the benefit of the successors and assigns of the parties hereto.
14. WAIVER
The waiver by either party to this Agreement of any one or more
defaults, if any, on the part of the other, shall not be construed to operate as
a waiver of any other or future defaults under the same or different terms,
conditions or covenants contained in this Agreement.
5
<PAGE>
15. CAPTION AND HEADINGS
The captions and headings throughout this Agreement are for convenience
of reference only and shall in no way be held or deemed to be a part of or
affect the interpretation of this Agreement.
16. ENTIRE AGREEMENT; AMENDMENT
This Agreement states the entire contract between the parties in
respect to the subject matter of this Agreement and supersedes any oral or
written proposals, statements, discussions, negotiations, or other agreements
prior to or contemporaneous with this Agreement. The parties acknowledge that
they have not been induced to enter into this Agreement by any oral or written
representations or statements not expressly contained in this Agreement. This
Agreement may be modified only by mutual agreement of the parties provided that,
before any modification shall be operative or valid, it be reduced to writing
and signed by both parties. All rights of party are cumulative and not
exclusive, unless otherwise explicitly stated herein.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized representatives to be effective as of the date
first set forth above. This Agreement may be signed in counterparts, all of
which shall constitute one and the same instrument.
MANAGER: SPORTSNUTS, INC.
a Delaware corporation:
/s/ Kenneth I. Denos
--------------------------------------
Kenneth I Denos
Chief Executive Officer
SYNERTECK: a Delaware corporation
/s/ Clayton Barlow
-------------------------------------
Clayton Barlow
President
6