EXHIBIT 10.1
AGREEMENT BETWEEN XECHEM INTERNATIONAL AND XXXXX XXXXXXX
DATED OCTOBER __, 2001
CONSULTING AGREEMENT
BETWEEN
XXXXX XXXXXXX
AND
XECHEM INTERNATIONAL, INC.
THIS CONSULTING AGREEMENT ("Agreement") is made and entered into in
duplicate this _____ day of October, 2001 ("Effective Date"), by and between
Xechem International, Inc., a Delaware corporation ("Corporation" or "ZKEM"), on
the one hand and Xxxxx Xxxxxxx, an individual, ("Consultant"), on the other
hand.
RECITALS
A. The Corporation has a need for a consultant to perform certain
services.
B. The Corporation has decided to be assured of the consultant's services
on the terms and conditions hereinafter set forth.
C. The Corporation is current in its reporting requirements as a fully
reporting company with the Securities and Exchange Commission ("SEC") and has
decided to take the steps necessary to engage the Consultant.
D. The Consultant provides Business Consulting Services, which the
Corporation needs.
E. As a result, the Board of Directors of the Corporation have determined
that it is in the best interests of the Corporation and its shareholders that
the Corporation retain the services of a consultant to consult with the (i)
Board of Directors of the Corporation ("Board"), (ii) officers of the
Corporation, and (iii) administrative staff of the Corporation concerning issues
which may occur relating to the business of the Corporation, including assisting
the Corporation in preparing to expand its operations.
F. It is the desire of the Corporation to engage the services of the
Consultant, on and independent contractor basis, to consult with the (i) Board
(ii) officers of the Corporation, and (iii) administrative staff of the
Corporation concerning issues which may occur relating to the business of the
Corporation, including assisting the Corporation in preparing to expand its
operations.
G. It is the desire of the Consultant to consult, on an independent
contractor basis, with the (i) Board, (ii) the officers of the Corporation, and
(iii) administrative staff of the Corporation regarding the business of the
Corporation, including assisting the Corporation in preparing to expand its
operations.
NOW, THEREFORE, IN CONSIDERATION OF THE MUTUAL PROMISES, COVENANTS AND
UNDERTAKINGS SPECIFIED HEREIN AND FOR OTHER GOOD AND VALUABLE CONSIDERATION, THE
RECEIPT AND SUFFICIENCY OF WHICH ARE HEREBY ACKNOWLEDGED, WITH THE INTENT TO BE
OBLIGATED LEGALLY AND EQUITABLY, THE PARTIES AGREE WITH EACH OTHER AS FOLLOWS:
1. TERM OF AGREEMENT. This Agreement shall be in full force and effect
commencing upon the date hereof and concluding at the close of business on the
same date in 2003. The respective duties and obligations of the parties shall
commence on the date specified in the Preamble of this Agreement and shall
continue until the close of business on the same date in 2003.
2. CONSULTATIONS. The Consultant shall make appropriate personnel
available to consult with the Board, the officers of the Corporation, and the
department heads of the administrative staff of the Corporation, at reasonable
times, concerning matters relating to any issue of importance regarding the
business affairs of the Corporation.
3. MANAGEMENT AUTHORITY OF CONSULTANT. The Consultant shall have no
management authority of or for the Corporation.
4. MANAGEMENT POWER OF CONSULTANT. The business affairs of the
Corporation, which affect, directly or indirectly, the operation of business of
the Corporation and which arise in the ordinary course of business, shall be
conducted by the administrative staff and officers of the Corporation. All the
members of the administrative staff shall be employees of the Corporation. The
Consultant shall have no control or charge of the administrative staff and no
control or authority to employ, discharge, direct, supervise, or control any
member of the administrative staff or other employee of the Corporation. It is
the intention of the Corporation not to confer on the Consultant any power of
direction, management, supervision, or control of the administrative staff or
other employee of the Corporation.
5. NO POWER OF CONSULTANT TO ACT AS AGENT. The Consultant shall have no
right, power or authority to be, or act, as an agent of the Corporation for any
purpose whatsoever. In that regard, the Consultant shall not attempt or purport
to obligate the Corporation to any obligation or agreement. The Consultant shall
not, nor shall the Corporation require it, to provide any service that is in
connection with the offer or sale of securities in a capital- raising
transaction, nor shall the Consultant be required to directly or indirectly
promote or maintain a market for the Corporation's securities.
6. LIMITED LIABILITY. With regard to the services to be performed by the
Consultant pursuant to the provisions of this Agreement, the Consultant shall
not be liable to the Corporation, or to any person who may claim any right
because of that person's relationship with the Corporation, for any acts or
omissions in the performance of said services on the part of the Consultant or
on the part of the agents or employees of the Consultant, except when said acts
or omissions of the Consultant are due to the Consultant's gross negligence. The
Consultant makes no warranties, representations or guarantees regarding any
financing attempted by the Corporation or the eventual effectiveness of the
services provided by Consultant. The Corporation shall hold the Consultant and
the agents and employees of the Consultant free and harmless from any and all
obligations, costs, claims, judgements, attorneys fees, and attachments arising
from or growing out of the services rendered to the Corporation pursuant to the
provisions of this Agreement or in any way connected with or relating to the
rendering of said services, except when the same shall arise because of the
gross negligence of the Consultant, and the Consultant is adjudged to be guilty
of the gross negligence by a court of competent jurisdiction.
7. CONSIDERATION. The Consultant shall receive from the Corporation an
aggregate of Twelve Million shares of the Corporation's $0.00001 par value
common stock ("Shares") which shall be registered by the Corporation with the
SEC on Form S-8 (the "Form S-8") of the Securities Act of 1933, as amended, no
later than five (5) business days from the execution of this Agreement. The
number of Shares which will be issued pursuant to this Agreement shall be
adjusted to reflect any splits, recapitalization, reverse splits,
capitalizations, mergers, consolidations, sale of assets or other corporate
reorganizations.
a. The Consultant shall receive Three Million Shares one day after
the effectiveness of the Form S-8.
b. The Consultant shall receive additional shares from time to time
during the Term as it performs its duties for the Corporation. The
initial total of these additional Shares shall be Nine Million Shares,
resulting in Consultant having received a total of Twelve Million
Shares, subject to Consultant satisfactorily fulfilling his duties as
described herein at the sole discretion of the Corporation. In the
event the Corporation determines that the Consultant has not performed
his duties as described herein, this Agreement shall be terminated in
accordance with Section 36 hereunder and ZKEM's decision as to the
number of Shares to be issued to Consultant shall be final.
8. EXPENSES. In addition to the fees as set forth above, the Corporation
will reimburse Consultant, promptly upon request from time to time, for its
reasonable out-of-pocket expenses incurred in connection with this Agreement, as
approved by the Corporation in advance, including fees and expenses of its legal
counsel. Consultant cannot guarantee the total amount of fees and expenses of
both Consultant and the Corporation for legal, accounting, printing, travel,
entertainment and other similar costs connected with this Agreement nor does
Consultant agree to limit its expenses; provided, however, that (1) reasonable
and justifiable expenditures for legal, accounting, travel, sales and marketing
meetings, entertainment and the like will be discussed with and agreed upon by
the Corporation in advance; (2) no expenses incurred by any person other than
Consultant, its employees and counsel will be reimbursable by the Corporation
without its prior approval; and (3) no part of Consultant's general and
administrative expenses will be allocated to the services provided under this
Agreement nor will a request for reimbursement of such expenses be forwarded to
the Corporation.
9. PAYMENT OF CONSIDERATION. Notwithstanding anything to the contrary
contained herein, the provisions concerning the Corporation's obligations to
issue Consultant the consideration described herein, to subsequently register
the Shares and pay or reimburse expenses contained herein will survive any such
expiration or termination of this Agreement.
10. MINIMUM AMOUNT OF SERVICE. The Consultant shall devote as much time as
it deems necessary to the affairs of the Corporation as the Consultant, in the
Consultant's sole discretion, determines to be necessary or appropriate; and the
Consultant may represent, perform services for, and be employed by, any
additional persons as the Consultant, in the Consultant's sole discretion,
determines to be necessary or appropriate. The Consultant services to be
performed shall include, but not be limited to:
a. ADVICE. The Consultant shall provide the Corporation with advice
relating to, but not limited to, developing a corporate
identification, sales and marketing, web site design, networking,
documentation, business strategy and the selection of industry
professionals to complete the Corporation's objectives. Such advice
shall not be guaranteed by the Consultant, but shall be provided based
on certain beliefs reasonably held by the Consultant.
b. MARKETING. The Consultant shall assist the Corporation in the
marketing and advertising of the Corporation and its product line.
c. NETWORKING. The Consultant may provide certain professional
networking opportunities for the Corporation. Such opportunities may
include introductions to, and the formulation and maintenance of
relationships with, key business and potential buyers of the
Corporation's product line in the United States and Europe.
d. MISCELLANEOUS. In addition to the services set forth above in
this Section 10, the Consultant may provide additional guidance
reasonably related to the administrative and corporate development of
the Corporation.
e. LIMITATIONS. Nothing in this Agreement shall in any way demand,
entice or require Consultant to circumvent or violate the provisions
of Form S-8 of the Securities Act of 1933, as amended, including, but
not limited to, providing any service that is in connection with the
offer or sale of securities in a capital-raising transaction or to
directly or indirectly promote or maintain a market for the
Corporation's securities.
11. CORPORATION TO PROVIDE. The Corporation will engage counsel and
certified public accountants to assist in the preparation of any and all forms
and registration statements as necessary who are experienced, competent and
current in matters of securities law and disclosure requirements. All of the
financial statements of the Corporation contained in any registration will be
prepared in accordance with Generally Accepted Accounting Principles and the
latest annual financial statement will have been audited. The financial
information provided to the Consultant and otherwise available to Consultant
must demonstrate to the satisfaction of Consultant that the Corporation will be
able to meet all of its financial responsibilities and is a going concern.
Counsel for the Corporation will be required to give its opinion as to matters
normally expected in a securities registration, including, nut not limited to,
Form S-8 compliance, due authorization, qualification to do business and good
standing, no litigation, and 10b-5 compliance where applicable.
12. CHANGE OF CONTROL. Any provision of this Agreement to the contrary
notwithstanding, in the event the Corporation experiences either a "change in
control" transaction, including, but not limited to, a merger, acquisition or
sale of a controlling interest in the Corporation, the terms and conditions of
this Agreement shall remain in effect and in full force, and such action by the
Corporation shall not in any way diminish, affect or compromise the Consultant's
rights, including but not limited to, all consideration and subsequent S-8
registration as described in Section 7 herein.
13. HOLD HARMLESS. The Corporation and the Consultant also mutually agree
to indemnify and hold harmless each party and each of its affiliates, counsel,
stockholders, directors, officers, employees and controlling persons, within the
meaning of Section 15 of the Securities Act of 1933, as amended, or Section 20
of the Securities Exchange Act of 1934, for any violations of state or federal
securities laws by either party or any of its officers, other employees, agents,
affiliates, counsel, stockholders, directors, and controlling persons. The
Corporation acknowledges and affirms that it will not request, require or
otherwise induce Consultant to become involved in any activities whatsoever that
would result in Consultant violating any provisions of the Securities Act of
1933, as amended, or the Securities Exchange Act of 1934, as amended, including,
but not limited to, the provisions of Form S-8, Regulations S-K and S-B, and the
Corporation agrees to indemnify and hold harmless Consultant from any violation
thereof.
14. CONFIDENTIALITY. Consultant agrees to keep confidential all material,
non-public information provided to it by the Corporation, except as
required by law or as contemplated by the terms of this Agreement.
Notwithstanding anything to the contrary herein, Consultant may disclose non-
public information to its agents and advisors whenever Consultant determines
that such disclosure is necessary or advisable to provide the services
contemplated hereunder. Consultant shall inform all parties who receive
disclosure of non- public information or who have access to such information of
the obligation of confidentiality, and shall inform the Corporation of any
disclosure of non-public information to any party other than Consultant's
independent public accountants or attorneys.
15. FAILURE TO ACT BY ONE PERSON. Any direction or consultation given or
service performed by one of the persons acting on behalf of the Consultant,
pursuant to the provisions of this Agreement, shall constitute the direction or
consultation or the performance of service of the Consultant. If, for any
reason, any person acting on behalf of the Consultant is unable or unwilling to
act or perform pursuant to the provisions of this Agreement, that event shall
not void this Agreement or diminish its effect, and the performance by any
person acting on behalf of the Consultant shall constitute full and complete
performance of this Agreement on the part of the Consultant.
16. INDEMNIFICATION. In addition to the limitation of liability
contemplated by the provisions of Paragraph 6 and Paragraph 13 of this
Agreement, the Corporation shall save the Consultant harmless from and against
and shall indemnify the other for any and all liabilities, losses, costs,
expenses, or damages howsoever caused by reason of any injury (whether to body,
property, or personal or business character or reputation) sustained by any
person or to any person or to property by reason of any act, neglect, default,
or omission of the Consultant or any of the Consultant's agents, employees, or
other representatives in Consultant's carrying out its duties as defined in this
Agreement as a result of any misrepresentation or misconduct by the Corporation.
In the event the Consultant is sued in any court for damages by reason of the
Consultant's relationship with the Corporation and as a result of any
misrepresentation or misconduct by the Corporation, the Corporation shall defend
that court action (or cause that court action to be defended), at the
Corporation's sole expense and the Corporation shall pay and discharge any
judgment that may be rendered in any such court action. In the event the
Corporation fails or neglects to defend the Consultant in any such court action,
the Consultant may defend such court action and any expenses, including
attorney's fees, which the Consultant may pay or incur in defending any such
court action and the amount of any judgment which the Consultant may be required
to pay shall be reimbursed promptly by the Corporation to the Consultant upon
demand therefor by the Consultant.
17. EQUITABLE REMEDIES. As a result of the uniqueness of the services to
be performed by the Consultant for the Corporation, and because the Consultant's
reputation in the community may be affected by the financial success or failure
of the Corporation, in addition to the other rights and remedies that the
Consultant may have for a breach of this Agreement, the Consultant shall have
the right to enforce this Agreement, in all of its provisions, specific
performance, or other relief in a court or equity.
18. RELATIONSHIP CREATED. The Consultant is not an employee of the
Corporation for any purpose whatsoever, but is an independent contractor. The
Consultant is not an affiliate of the Corporation as defined in the Securities
Act of 1933, as amended, or the Securities Act of 1934, as amended. The
Corporation is interested only in the results obtained by the Consultant, who
shall have the sole control of the manner and means of performing pursuant to
this Agreement. The Corporation shall not have the right to require the
Consultant to collect accounts, investigate customer complaints, attend
meetings,
periodically report to the Corporation, follow prescribed itineraries, keep
records of business transacted, make adjustments, conform to particular policies
of the Corporation, to provide any service that is in connection with the offer
or sale of securities in a capital-raising transaction, to directly or
indirectly promote or maintain a market for the Corporation's securities or do
anything else which would jeopardize the relationship of independent contractor
between the Corporation and the Consultant, nor shall the Corporation do
anything that would in any way cause the Consultant to be classified as an
affiliate as defined in the Securities Act of 1933, as amended, or the
Securities Act of 1934, as amended.
19. CONSULTANT'S REPRESENTATIVES. The Consultant shall have the right to
appoint or otherwise designate suitable and desirable employees, agents and
representatives ("Consultant's Representatives"). The Consultant shall be solely
responsible for the Consultant's Representatives and their acts. The
Consultant's Representatives shall be at the Consultant's own risk, expense and
supervision, and the Consultant's Representatives shall not have any claim
against the Corporation for salaries, commissions, items of cost, or other form
of compensation or reimbursement. The Consultant represents, warrants, and
covenants that the Consultant's Representatives shall be subordinate to the
Consultant and subject to each and all of the terms, provisions and conditions
applying to the Consultant specified in this Agreement.
20. RECOVERY OF LITIGATION COSTS. If any legal or equitable action or
other proceeding is commenced for the enforcement or interpretation of this
Agreement, or because of an alleged dispute, breach, default or
misrepresentation regarding any of the provisions of this Agreement, the
successful or prevailing party in such action or proceeding shall be entitled to
recover reasonable attorneys' fees and all costs incurred in such action or
proceeding, in addition to any other relief to which such party may be entitled.
21. GOVERNMENTAL RULES AND REGULATIONS. The provisions of this Agreement
are subject to any and all present and future orders, rules and regulations of
any duly constituted authority having jurisdiction of the relationship
contemplated by the provisions of this Agreement.
22. NOTICES. All notices, requests, demands or other communications
pursuant to this Agreement shall be in writing or by telex or facsimile
transmission and shall be deemed to have been duly given (i) on the date of
service, if delivered in person or by telex or facsimile transmission (with the
telex or facsimile confirmation of transmission receipt acting as confirmation
of service when sent and provided telexed or telecopied notices are also mailed
by first class, certified or registered mail, postage prepaid); or (ii) 48 hours
after mailing by first class, registered or certified mail, postage prepaid, and
properly addressed as follows:
If to the Corporation: Xechem International, Inc.
000 Xxxxxx Xxxxxx
Xxxxxxxx X, Xxxxx 000
Xxx Xxxxxxxxx, Xxx Xxxxxx 00000
Telephone: 000.000.0000
Telecopier: 732.247-4090
If to the Consultant: Xxxxx Xxxxxxx
0000 Xxxxxxx Xxxxxxx, #00
Xxxxxxxx, Xxx Xxxx 00000
Telephone: 000.000.0000
Telecopier: 516.795.4258
or at such other address as the party affected my designate in a written notice
to such other party in compliance with this paragraph.
23. ENTIRE AGREEMENT. This Agreement supersedes any and all other
agreements, either oral or in writing, between the parties regarding the subject
matter of this Agreement and specifies all the covenants and agreements between
the parties with respect to that subject matter, and each party acknowledges
that no representations, inducements, promises, or agreements, orally or
otherwise, have been made by any party, or anyone acting on behalf of any party,
which are not specified in this Agreement; and any other agreement, statement or
promise concerning the subject matter specified in this Agreement shall be of no
force or effect in a subsequent modification in writing signed by the party to
be charged.
24. SEVERABILITY. In the event any part of this Agreement, for any reason,
is determined to be invalid, such determination shall not affect the validity of
any remaining portion of this Agreement, which remaining portion shall remain in
complete force and effect as of this Agreement had been executed with the
invalid portion of this Agreement eliminated. It is hereby declared the
intention of the parties that the parties would have executed the remaining
portion of this Agreement without including any such part, parts or portion
which, for any reason, hereafter my be determined invalid.
25. CAPTIONS AND INTERPRETATION. Captions of the paragraphs of this
Agreement are for convenience and reference only, and the words contained in
those captions shall in no way be held to explain, modify, amplify or aid in the
interpretation, construction or meaning of the provisions of this Agreement. The
language in all parts to this Agreement, in all cases, shall be construed in
accordance with the fair meaning of that language as if that language was
prepared by all parties and not strictly for or against any party.
26. FURTHER ASSURANCES. Each party shall take any and all action
necessary, appropriate or advisable to execute and discharge such party s
responsibilities and obligations created by the provisions of this Agreement and
to further effectuate, perform and carry out the intents and purposes of this
Agreement and the relationship contemplated by the provision of this Agreement.
27. NUMBER AND GENDER. Whenever the singular number is used in this
Agreement, and when required by the context, the same shall include the plural,
and vice versa; the masculine gender shall include the feminine and neuter
genders, and vice versa; and the word "person" shall include corporation, firm,
trust, association, governmental authority, municipality, association, sole
proprietorship, joint venture, association, organization, estate, joint stock
company, partnership, or other form of entity.
28. EXECUTION IN COUNTERPARTS. This Agreement may be prepared in multiple
copies and forwarded to each of the parties for execution. This Agreement shall
become effective when the Consultant receives a copy or copies of this Agreement
executed by the parties in the names as those names appear at the end of this
Agreement. All of the signatures of the parties may be affixed to one copy or to
separate copies of this Agreement and when all such copies are received and
signed by all the parties, those copies shall constitute one agreement that is
not otherwise separable or divisible. The Consultant shall keep all of such
signed copies and shall conform one copy to show all of those signatures and the
dates thereof and shall mail a copy of such conformed copy to each of the
parties within thirty (30) days after the receipt by such counsel of the last
signed copy, and shall cause one such conformed copy to be filed in the
principal office of the Consultant.
29. SUCCESSORS AND ASSIGNS. This Agreement and each of the provisions of
this Agreement shall obligate and inure to the benefit the heirs, executors,
administrators, successors and assigns of each of the parties; provided,
however, nothing specified in this paragraph shall be a consent to the
assignment or delegation by any party of such party's respective rights and
obligations created by the provisions of this Agreement.
30. RESERVATION OF RIGHTS. The failure of any party at any time hereafter
to require strict performance by any other party of any of the warranties,
representations, covenants, terms, conditions and provisions specified in this
Agreement shall not waive, affect or diminish any right of such failing party to
demand strict compliance and performance therewith and with respect to any other
provisions, warranties, terms and conditions specified in this Agreement. Any
waiver of any default not waive or affect any other default, whether prior or
subsequent thereto, and whether the same or of a different type. None of the
representations, warranties, covenants, conditions, provisions and terms
specified in this Agreement shall be deemed to have been waived by any act or
knowledge of either party or such party's agents, officers or employees, and any
such waiver shall be made only by an instrument in writing, signed by the
waiving party and directed to each non-waiving party specifying such waiver.
Each party reserves such party's rights to insist upon strict compliance with
the terms, conditions, warranties, obligations, representations, covenants and
provisions of this Agreement at all times.
31. CONCURRENT REMEDIES. No right or remedy specified in this Agreement
conferred on or reserved to the parties is exclusive of any other right or
remedy specified in this Agreement or by law or equity provided or permitted;
but each such right and remedy shall be cumulative of, and in addition to, every
other right and remedy specified in this Agreement or now or hereafter existing
at law or in equity or by statute or otherwise, and may be enforced concurrently
therewith or from time to time. The termination of this Agreement for any reason
whatsoever shall not prejudice any right or remedy which either party may have,
either at law, in equity or pursuant to the provisions of this Agreement.
32. CHOICE OF LAW AND CONSENT TO JURISDICTION. This Agreement shall be
deemed to have been entered into in the County of Nassau, State of New York, and
all questions concerning the validity, interpretation or performance of any of
the terms, conditions and provisions of this Agreement or of any of the rights
or obligations of the parties shall be governed by, and resolved in accordance
with, the laws of the State of New York. Any and all actions or proceedings, at
law or in equity, to enforce or interpret the provisions of this Agreement shall
be litigated in courts having situs within the State of New York, and each party
hereby consents expressly to the jurisdiction of any local, state or federal
court located within the County of Nassau, State of New York and consents that
any service of process in such action or proceeding may be made by personal
service upon such party wherever such party may be then located, or by certified
or registered mail directed to such party at such party's last known address.
33. ASSIGNABILITY. Neither party shall sell, assign, transfer, xxxxx or
encumber this Agreement or any right or interest in this Agreement or pursuant
to this Agreement, or suffer or permit any such sale, assignment, transfer or
encumbrance to occur by operation of law without the prior written consent of
the other party. In the event of any sale, assignment, transfer or encumbrance
consented to by such other party, the transferee or such transferee's legal
representative shall agree with such other party in writing to assume
personally, perform and be obligated by the covenants, obligations, warranties,
representations, terms, conditions and provisions specified in this Agreement.
34. CONTINUING PROVISIONS. Notwithstanding anything to the contrary
contained herein, the provisions concerning confidentiality, indemnification,
contribution and the Corporation's obligations to pay fees and pay or reimburse
expenses contained herein and in the indemnification provisions hereof will
survive any such expiration or termination of this Agreement.
35. FORCE MAJEURE.
a. If any party is rendered unable, completely or partially, by the
occurrence of any event of "force majeure" (hereinafter defined) to
perform such party's obligations created by the provisions of this
Agreement, other that the obligation to make payments of money, such
party shall give to the other party prompt written notice of the event
of "force majeure" with reasonably complete particulars concerning
such event; thereupon, the obligations of the party giving such
notice, so far as those obligations are affected by the event of
"force majeure", shall be suspended during, but no longer than, the
continuance of the event of "force majeure." The party affected by
such event of "force majeure" shall use all reasonable diligence to
resolve, eliminate and terminate the event of "force majeure" as
quickly as practicable.
b. The requirement that an event of "force majeure" shall be
remedied with all reasonable dispatch as herein above specified, shall
not require the settlement of strikes, lockouts or other labor
difficulties by the party involved, contrary to such party's wishes,
and the resolution of any and all such difficulties shall be handled
entirely within the discretion of the party concerned.
c. The term "force majeure" as used herein shall be defined as and
mean any act of God, strike, civil disturbance, lockout or other
industrial disturbance, act of the public enemy, war, blockage, public
riot, earthquake, tornado, hurricane, lightning, fire, public
demonstration, storm, flood, explosion, governmental action,
governmental delay, restraint or inaction, unavailability of
equipment, and any other cause or event, whether of the kind
enumerated specifically herein, or otherwise, which is not reasonably
within the control of the party claiming such suspension.
36. TERMINATION. ZKEM and Consultant may terminate this Agreement prior to
the expiration of the Term upon thirty (30) days written notice with mutual
written consent. Failing to have mutual consent, without prejudice to any other
remedy to which the terminating party may be entitled, if any, either party may
terminate this Agreement with thirty (30) days written notice under the
following conditions:
(1) By ZKEM.
(i) If during the Primary Term of this Agreement or any Extension
Period, Consultant is unable or fails to provide the Services as
set forth herein for thirty (30) consecutive business days
because of illness, accident, or other incapacity of
Consultant's Personnel; or,
(ii) If Consultant willfully breaches or neglects the duties required
to be performed hereunder; or,
(iii) At Company's option without cause upon 30 days written notice to
Consultant; or
(2) By Consultant.
(i) If ZKEM breaches this Agreement, fails to register the shares as
described in Section 7 herein as soon as practicable after the
execution hereof, fails to make any payments or provide
information required hereunder; or,
(ii) If ZKEM ceases business or sells a controlling interest to a
third party, or agrees to a consolidation or merger of itself
with or into another corporation, or enters into such a
transaction outside of the scope of this Agreement, or sells
substantially all of its assets to another corporation, entity
or individual outside of the scope of this Agreement; or,
(iii) If ZKEM subsequent to the execution hereof has a receiver
appointed for its business or assets, or otherwise becomes
insolvent or unable to timely satisfy its obligations in the
ordinary course of, including but not limited to the obligation
to pay the Consultancy Fee; or,
(iv) If ZKEM subsequent to the execution hereof institutes, makes a
general assignment for the benefit of creditors, has instituted
against it any bankruptcy proceeding for reorganization for
rearrangement of its financial affairs, files a petition in a
court of bankruptcy, or is adjudicated a bankrupt; or,
(v) If any of the disclosures made herein or subsequent hereto by
ZKEM to Consultant are determined to be materially false or
misleading.
In the event Consultant elects to terminate without cause or this Agreement
is terminated prior to the expiration of the Term by mutual written agreement,
or by ZKEM for the reasons set forth in 1(i) and (ii) above, ZKEM shall only be
responsible to pay Consultant for un-reimbursed expenses, Consultancy Fee earned
and accrued up to and including approved upon the effective date of termination.
If this Agreement is terminated by ZKEM for any other reason, or by Consultant
for reasons set forth in 2(i) through (v) above, Consultant shall be entitled to
any outstanding unpaid portion of approved reimbursable expenses, and for the
remainder of the un-expired portion of the applicable term of the Agreement.
37. CONSENT TO AGREEMENT. By executing this Agreement, each party, for
itself, represents such party has read or caused to be read this Agreement in
all particulars, and consents to the rights, conditions, duties and
responsibilities imposed upon such party as specified in this Agreement.
Executed at Massapequa, New York effective as of the date specified in the
preamble of this Agreement.
XECHEM INTERNATIONAL, INC., XXXXX XXXXXXX,
a Delaware corporation an Individual
By: By:
------------------------------- -------------------------------
Xx. Xxxxxx X. Xxxxxx Xxxxx Xxxxxxx
President Consultant
Xechem International, Inc. 0000 Xxxxxxx Xxxxxxx, #00
000 Xxxxxx Xxxxxx, Xxxxxxxx, Xxx Xxxx 00000
Xxxxxxxx X, Xxxxx 000
Xxx Xxxxxxxxx, Xxx Xxxxxx 00000
