CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT is made and entered into as of this 30th day
of September, 2002 by and between GENE-CELL, INC., hereinafter referred to
as "Company", with its principal place of business at 0000 Xxxxxx Xxxxx,
Xxxxxxx Xxxxx, XX, 00000, and, XXXXX HEAD, with his place of business at
000 Xxxxxxxx Xxxxx, Xxxxx 000, Xxxxxx Xxxxx, XX 00000 hereinafter referred
to as "Consultant".
RECITALS
WHEREAS, the Company desires to continue the consulting services
of the Consultant in the areas of Corporate Image Advertising, Business
Development, and Business Strategy for the Company (the "Services") in
connection with the Company's business, namely, Bio Technology (the
"Business");
WHEREAS, in consideration for Services, the Company shall issue
its common stock that shall be registered on Form S-8 upon the terms and
conditions hereafter set forth.
NOW, THEREFORE, in consideration of the promises and the mutual
agreements hereinafter set forth, the parties hereto agree as follows:
1. Engagement. The Company hereby retains and engages Consultant to
perform the following consulting services (the "Services");
1.1 Duties of Consultant. The Consultant will provide such services
and advice to the Company so as to advise the Company in business
development, business strategy and corporate image.. Without limiting the
generality of the foregoing, Consultant will also assist the Company in
developing, studying and evaluating acquisition proposals, prepare reports
and studies thereon when advisable, and assist in matters of executive
compensation and discussions pertaining thereof. Nothing contained herein
constitutes a commitment on the part of the Consultant to find an
acquisition target for the Company or, if such target is found, that any
transaction will be completed. This Agreement is not a contract for
listing services, and nothing in this Agreement will require the Consultant
to negotiate on behalf of the Company with corporations that are involved
with listings or making a market in corporate securities in the OTC
markets. Consultant shall undertake such services under the direction of
Xxxxxx Xxxxx, CEO for the Company.
2. Duties Expressly Excluded. This Agreement expressly excludes the
Consultant from providing any and all capital formation and/or public
relation services to the Company inclusive of but not limited to (i) direct
or indirect promotion of the Company's securities; (ii) assistance in
making a market in the Company's securities; and (iii) assistance in
obtaining debt and/or equity financing. The Consultant shall not have the
power of authority to bind the Company to any transaction without the
Company's prior written consent.
29
3. Consideration. Company and Consultant agree that Consultant
shall receive from the Company a fee of One Hundred Thirty Three Thousand
(133,000) shares of Company's common stock, as consideration for the
services rendered pursuant to this Agreement. The Company shall file within
five (5) days of the execution of this Agreement a registration statement
on Form S-8 covering such issuance.
4. Term. This Agreement shall be effective for a term of three (3)
months starting from November 26, 2002 unless sooner terminated upon mutual
written agreement of the parties hereto.
5. Expenses. Consultant shall bear his out-of-pocket costs and
expenses incident to performing the Consulting Services, with a right of
reimbursement from the Company if such expenses are pre-approved by the
Company.
6. Consultant's Liability. In the absence of gross negligence or
willful misconduct on the part of the Consultant or the Consultant's breach
of any terms of this Agreement, the Consultant shall not be liable to the
Company or to any officer, director, employee, stockholder or creditor of
the Company, for any act or omission in the course of or in connection with
the rendering or providing of services hereunder. Except in those cases
where the gross negligence or willful misconduct of the Consultant or the
breach by the Consultant of any terms of this Agreement is alleged and
proven, the Company agrees to defend, indemnify, and hold the Consultant
harmless from and against any and all reasonable costs, expenses and
liability (including reasonable attorney's fees paid in the defense of the
Consultant) which may in any way result from services rendered by the
Consultant pursuant to or in any connection with this Agreement. This
indemnification expressly excludes any and all damages as a result of any
actions or statements, on behalf of the Company, made by the Consultant
without the prior approval or authorization of the Company.
7. Company's Liability. The Consultant agrees to defend, indemnify,
and hold the Company harmless from an against any and all reasonable costs,
expenses and liability (including reasonable attorney's fees paid in
defense of the Company) which may in any way result pursuant to its gross
negligence or willful misconduct or in any connection with any actions
taken or statements made, on behalf of the Company, without the prior
approval or authorization of the Company or which are otherwise in
violation of applicable law.
8. Representations. The Consultant makes the following
representations:
a. Consultant has no prior or existing legally binding
obligations that are in conflict with its entering into this Agreement;
b. Consultant shall not offer or make payment of any
consideration to brokers, dealers, or others for purposes of inducing the
purchase, making of a market or recommendation for the purchase of the
Company's securities;
c. Consultant is not currently the subject of an investigation
or inquiry by the Securities and Exchange Commission, the NASD, or any
state securities commission;
d. Consultant's activities and operations fully comply with now
and will comply with in the future all applicable state and federal
securities laws and regulations;
30
e. Consultant understands that, as a result of its services, it
may come to possess material non-public information about the Company, and
that it has implemented internal control procedures designed to reasonably
to insure that it and none of its employees, agents, Consultant or
affiliates, trade in the securities of Company companies while in
possession of material non-public information;
f. During the term of this Agreement and for a period of two
years thereafter, the Consultant shall treat as the Company's confidential
trade secrets all data, information, ideas, knowledge and papers pertaining
to the proprietary technical information of the Company as well as business
and financial information related thereto (the "Confidential Information").
Notwithstanding the foregoing , "Confidential Information" shall not
include and the provisions of this Agreement will not apply to any
information disclosed by the Company and/or Consultant (1) if such
information is demonstrated to be generally available to the public at the
time of disclosure to the Consultant; (2) after the time, if any, that such
information becomes generally available to the public without any breach by
Consultant; (3) was already in the Consultant's possession at the time of
disclosure to the Consultant (whether such time of disclosure is before or
after the date hereof); (4) is developed by the Consultant independently of
the Services; or (5) was lawfully received by the Consultant from a third
party without restriction as to disclosure or use.
g. The Consultant shall use the same effort to maintain
the confidentiality of the Company's confidential and proprietary
information as he would his own and shall maintain in strict confidence and
shall not disclose at any time, without the prior written consent of the
Company, any of the Confidential Information to any other person or entity,
unless such information has entered the public domain through lawful means,
without violation of this Agreement, or pursuant to requirements of law or
court order.
9. The Company makes the following representations:
a. The Company is not currently the subject of an investigation
or inquiry by the Securities and Exchange Commission, the NASD, or any
state securities commission;
b. The Company is in good standing in its state of
incorporation;
c. The Company and its senior management are not aware of any
materially adverse events not previously disclosed in the Company's annual
and quarterly reports with the Securities and Exchange Commission.
10. Entire Agreement. This Agreement embodies the entire agreement
and understanding between the Company and the Consultant and supersedes any
and all negotiations, prior discussions and preliminary and prior
agreements and understandings related to the primary subject matter hereof.
This Agreement shall not be modified except by written instrument duly
executed by each of the parties hereto.
11. Waiver. No waiver of any of the provisions of this Agreement
shall be deemed, or shall constitute a waiver of any other provisions, nor
shall any waiver constitute a continuing wavier. No waiver shall be
binding unless executed in writing by the party making the waiver.
31
12. Assignment and Binding Effect. This Agreement and the rights
hereunder may not be assigned by the parties (except by operation of law or
merger) and shall be binding upon and inure to the benefit of the parties
and their respective successors, assigns and legal representatives.
13. Notices. Any notice or other communication between the parties
hereto shall be sufficiently given if sent by certified or registered mail,
postage prepaid, or faxed and confirmed at the following locations:
Company:
GENE-CELL, INC..
0000 Xxxxxx Xxxxx,
Xxxxxxx Xxxxx, XX, 00000
Attn: Xxxxxx Xxxxx
Consultant:
XXXXX HEAD
000 Xxxxxxxx Xxxxx, Xxxxx 000,
Xxxxxx Xxxxx, XX 00000
Attn: Xxxxx Head
or at such other location as the addressee may have specified in a notice
duly given to the sender as provided herein. Such notice or other
communication shall be deemed to be given on the date of receipt.
14. Severability. Every provision of this Agreement is intended to
be severable. If any term or provision hereof is deemed unlawful or
invalid for any reason whatsoever, such unlawfulness or invalidity shall
not affect the validity of this Agreement.
15. Governing Law. This Agreement shall be construed and interpreted
in accordance with the laws of the State of Nevada, without giving effect
to conflicts of laws.
16. Headings. The headings of this Agreement are inserted solely for
the convenience of reference and are not part of, and are not intended to
govern, limit or aid in the construction of any term or provision hereof.
17. Further Acts. Each party agrees to perform any further acts and
execute and deliver any further documents that may be reasonably necessary
to carry out the provisions and intent of this Agreement.
18. Acknowledgment Concerning Counsel. Each party acknowledges that
it had the opportunity to employ separate and independent counsel of its
own choosing in connection with this Agreement.
32
19. Independent Contractor Status. There is no relationship,
partnership, agency, employment, franchise or joint venture between the
parties. The parties have no authority to bind the other or incur any
obligations on their behalf.
20. 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.
IN WITNESS WHEREOF, the parties hereto have duly execute this
Agreement as of the date first written above.
GENE-CELL, INC..
BY:_____________________________________
Xxxxxx Xxxxx, its CEO
XXXXX HEAD
_________________________________________
Xxxxx Head
33
