Management Consulting Agreement
This Management Consulting Agreement (the ?Agreement) is entered into
effective the 5th day of June, 2009, between BioCube, Inc., a Nevada
corporation (the ?Company), and Spring Creek Capital Corp. (the Consultant)
for the purpose of engaging the Consultant to advise and assist the Company
by providing management consulting services as hereafter set forth.
1. Services. The Consultant shall provide management consulting and
advisory services and assistance to the Company, including assisting in
compliance with periodic reporting requirements, assistance in structuring
acquisitions, performing due diligence and similar services, as well as
assisting in maintaining the corporate and financial books and records of
the Company, and such other duties and functions as may be requested by the
Company. If desired by Company, at the appropriate time and at the Company
request, Consultant also will facilitate and prepare Company for completing
a reverse merger, IPO or self-directed underwriting in conjunction with future
growth capital raises as agreed by the part
The services provided will include at least the following advice and
assistance through the term of the agreement:
The ?Director? positions as described below;
Advice on Corporate Governance including setting up and monitoring
committees such as Governance, Audit, Compensation and others;
Review and advice on operating plans, strategies and execution therein;
Review, advice and assistance with the financial reporting and financial
systems of the Company;
Other such matters as are agreed between the parties from time to time.
2. Confidentiality of Services. Introductions to and use of professionals
and other consultants made by the Company will be considered exclusive for
purposes of this Agreement. Documents prepared by Consultant in connection
with this Agreement and the services provided shall not be disclosed or given
to third parties, without prior approval from the Company, except as required
by SEC rules and regulations relating to filing and disclosure or otherwise
required to be disclosed by law or administrative or judicial process.
3. Information provided by the Company. In connection with Consultant?s
activities hereunder, the Company will furnish the Consultant with material
and information regarding the business and financial condition of the Company
and its business plans (all such information so furnished being the
Information). The Consultant agrees to keep the Information confidential,
so long as it is and remains non-public, unless disclosure is required by law
or is requested by any government or regulatory agency or body, and the
Consultant will not make use thereof, except in connection with services
provided hereunder for the Company.
4. Compensation. As compensation for the Consulting Services rendered
and to be rendered hereunder by the Consultant, the Company agrees to pay to
the Consultant the sum of $5,000 per month, payable $2,500 in cash and $2,500
in common stock of the Company, valued at the lowest average closing price of
the stock for the last 5 trading days of the prior month, for a period of 1
(one) year from the date of the initial funding. The parties may agree from
time to time to further defer and accrue such fees if an undue hardship would
be incurred if it were paid when due. In the event there is no trading market
for the common shares of the Company, then the Company and Consultant shall
agree on a per share price.
Not included in such fee would be the compensation for any officer positions
that participants in Consultant might be asked to provide.
Any out of pocket expenses incurred by Consultant for travel, telephone,
postage, and other items shall be reimbursed by the Company, on presentation
ofan expense report and receipts for such expenses. It is understood and
agreedthat the services provided under this Agreement are not the exclusive
services of Consultant and that Consultant, through its agents and employees,
may provide similar and other services to other unrelated or related parties,
without regard to the time allocated to the Services and any services
rendered to other parties.
5. Term and Termination. The initial term of this Agreement shall be
twelve (12) months from the date of execution; however, the term shall be
extended automatically at the end of each twelve month period for an
additional twelve month period unless and until terminated as provided herein.
This Agreement may not be assigned by a party without the consent of the
other party. The Consultant, with thirty days prior written notice, without
cause, may terminate this engagement at any time after the end of the first
twelve months of the term of this Agreement. The Company may terminate this
Agreement at any time on sixty (60) days prior notice, except that a
termination may be immediate if such termination is for willful misfeasance,
bad faith or gross negligence in the performance of the Consultant?s duties,
or by reason of the reckless disregard for the Consultant ?s duties and
obligations under this Agreement.
6. Use of Name. The Company agrees that any reference to the Consultant in
any release, communication, or material distributed to prospective investors
or lenders is subject to the Consultant?s prior written approval, which will
not be unreasonably withheld. If the Consultant resigns prior to the
dissemination of any such release, communication or material, no reference
shall be made therein to the Consultant.
7. Representations and Warranties.
a. The Company represents and warrants to the Consultant
(i) that this Agreement has been duly authorized, executed and delivered
by the Company, and, assuming the due execution by the Consultant, constitutes
a legal, valid and binding Agreement of the Company enforceable against the
Company in accordance with its terms. The Company represents that, to the
best of its knowledge, the Information will not, when delivered to Consultant
specifically for inclusion in regulatory filings, contain any untrue statement
of a material fact or omit to state a material fact necessary to make the
statements therein in light of the circumstances under which they were made not
misleading. The Company agrees to advise the Consultant promptly of the
occurrence of any event or any other change prior to any filing known to it
which results in the Information containing any untrue statement of a material
fact or omitting to state any material fact necessary to make the statements
contained therein, in light of the circumstances under which they were made,
not misleading.
(ii) Organization. The Company is duly organized, validly existing
and in good standing under the laws of the State of Nevada and has its
principal place of business in the State of Florida.
(ii) Authorization. The Company has full power, legal capacity and
authority to enter into this Agreement, and to perform all of its obligations
hereunder. This Agreement has been effectively authorized by all necessary
action, corporate or otherwise, on the part of the Company, which
authorizations remain in full force and effect, has been duly executed and
delivered by the Company, and no other proceedings on the part of the Company
are required to authorize this Agreement. This Agreement constitutes the
legal, valid and binding obligation of the Company and is enforceable with
respect to the Company in accordance with its terms, except as enforcement
hereof may be limited by bankruptcy, insolvency, reorganization, priority or
other laws of court decisions relating to or affecting generally the
enforcements of creditors' rights or affecting generally the availability of
equitable remedies. Neither the execution and delivery of this Agreement,
nor the performance by the Company of the services contemplated hereby, or
compliance with any of the provisions hereof, will violate any judgment,
order, injunction, decree, statute, rule applicable to the Company or the
transactions or services contemplated hereby. No authorization, consent or
approval of any public body of authority or any third party is necessary for
the Company to perform the services contemplated by this Agreement.
(iii) No Pending Material Litigation or Proceedings. There are no
actions, suits or proceedings pending or, to the best of the Company?s
knowledge, threatened against or affecting the Company at law or in equity
or before or by any federal, state, municipal or other governmental
department, commission, court, board, bureau, agency or instrumentality,
domestic or foreign, or affecting any of the officers or directors or
principal stockholders of the Company in connection with the business,
operations or affairs of the Company, which might result in any adverse
change in the business of the Company, or which might prevent the Company
from undertaking the obligations contemplated by this Agreement.
(iv) Compliance with Law and Government Regulations. The Company is in
compliance, and during the term of this Agreement will be in compliance, with
all applicable statutes, regulations, decrees, orders, restrictions, guidelines
and standards, whether mandatory or voluntary, imposed by the United States of
America, any state, county, municipality or agency of any thereof, which the
Company is subject. Without limiting the generality of the foregoing, the
services contemplated by this Agreement does not and will not: (a) involve
effecting transactions in any security, or inducing, attempting to induce the
purchase or sale of any security which would require the Company or its
officers or employees to register under the Securities Exchange Act of 1934,
as amended; (b) activities which would require the Company or its agents to
register under the Investment Advisors Act of 1940, as amended; or (c)
activities which would under state regulation relating to broker-dealers or
investment advisors require registration or licensing, unless the Company
satisfies any such requirements.
b. The Consultant represents and warrants to the Company that:
(i) Organization. The Consultant is duly organized, validly
existing and in good standing under the laws of the State of Nevada and has
its principal place of business in the State of Florida.
(ii) Authorization. The Consultant has full power, legal capacity and
authority to enter into this Agreement, and to perform all of its obligations
hereunder. This Agreement has been effectively authorized by all necessary
action, corporate or otherwise, on the part of the Consultant, which
authorizations remain in full force and effect, has been duly executed and
delivered by the Consultant, and no other corporate proceedings on the part of
the Consultant are required to authorize this Agreement. This Agreement
constitutes the legal, valid and binding obligation of the Consultant and is
enforceable with respect to the Consultant in accordance with its terms,
except as enforcement hereof may be limited by bankruptcy, insolvency,
reorganization, priority or other laws of court decisions relating to or
affecting generally the enforcements of creditors' rights or affecting
generally the availability of equitable remedies. Neither the execution and
delivery of this Agreement, nor the performance by the Consultant of the
services contemplated hereby, or compliance with any of the provisions hereof,
will violate any judgment, order, injunction, decree, statute, rule applicable
to the Consultant or the transactions or services contemplated hereby. No
authorization, consent or approval of any public body of authority or any
third party is necessary for the Consultant to perform the services
contemplated by this Agreement.
(iv) No Pending Material Litigation or Proceedings. There are no
actions, suits or proceedigs pending or, to the best of the Consultant?s
knowledge, threatened against or affecting the Consultant at law or in
equity or before or by any federal, state, municipal or other governmental
department, commission, court, board, bureau, agency or instrumentality,
domestic or foreign, or affecting any of the officers or directors or
principal stockholders of the Consultant in connection with the business,
operations or affairs of the Consultant, which might result in any adverse
change in the business of the Consultant, or which might prevent the
Consultant from performing the services contemplated by this Agreement.
(v) Compliance with Law and Government Regulations. The Consultant is
in compliance, and during the term of this Agreement will be in compliance,
with all applicable statutes, regulations, decrees, orders, restrictions,
guidelines and standards, whether mandatory or voluntary, imposed by the
United States of America, any state, county, municipality or agency of any
thereof, which the Consultant is subject. Without limiting the generality
of the foregoing, the services contemplated by this Agreement does not and
will not: (a) involve effecting transactions in any security, or inducing,
attempting to induce the purchase or sale of any security which would require
the Consultant or its officers or employees to register under the Securities
Exchange Act of 1934, as amended; (b) activities which would require the
Consultant or its agents to register under the Investment Advisors Act of
1940, as amended; or (c) activities which would under state regulation
relating to broker-dealers or investment advisors require registration or
licensing.
8. Solicitation of Employees and Consultants. Upon termination of
the consulting services with the Company under this Agreement, with cause or
without cause by the Consultant, then Consultant shall not, for a period of
one (1) year following the date of such termination:
(a) Solicit or attempt to hire any person who is then employed by
the Company or its Clients or who, to Consultant?s knowledge, was employed
by the Company at any time during the year before the termination of
Consultant?s consulting services with the Company under this Agreement; or
(b) Encourage any such person to terminate his or her employment
with the Company.
9. Conditions of Engagement. It is understood that the execution of this
Agreement shall not be deemed or construed as obligating the Consultant to
place or arrange any financing for the Company or its Clients. It is further
understood and agreed that Consultant, and any agent or representative of
Consultant providing services under this Agreement, shall be an independent
contractor, and shall not be considered an employee or elected officer of the
Company or any Client. Consultant agrees to pay all employment taxes and
similar charges due to any local, state or federal agency relating to the
Consulting Services or the compensation payable under Section 4 of this
Agreement and further agrees to hold the Company harmless from any such taxes
or charges.
10 Notices. Notice given pursuant to any of the provisions of this
Agreement shall be in writing and shall be mailed or delivered as follows:
if to the Company, at
BioCube, Inc.
0000 X. Xxxxxxxxx Xxxxxxx, Xxxxx 0
Xxxxxxx Xxxxxx, XX 00000
X.X. Xxx 000
Xxxxx, XX 00000-0000
Telephone 000-000-0000
Facsimile 000-000-0000
if to Consultant, at:
Spring Creek Capital Corp.
X.X. Xxx 000
Xxxxx, XX 00000
Telephone 000-000-0000
Facsimile: 000-000-0000
or at such other address as such person may hereafter give notice to the
others.
11. Counterparts. This Agreement may be executed in two or more
counterparts and the counterparts, when executed, shall constitute a single,
enforceable document. The signature on counterparts may be transmitted by
fax,with documents so transmitted having the same force and effect as the
executed originals.
12 Third Party Beneficiaries. This Agreement has been made and is made
solely for the benefit of the Company, and the Consultant, their respective
successors and assigns, and no other person shall acquire or have any right
under or by virtue of this Agreement.
13. Construction. This Agreement incorporates the entire understanding of
the parties and supersedes all previous agreements relating to the subject
matter hereof should they exist, and shall be governed by, and construed in
accordance with, the laws of the State of Florida, without regard to
principles of conflicts of law, and shall be enforced in any applicable court
in the State of Florida, except as otherwise provided in Section 16 below.
14. Headings. The section headings in this Agreement have been inserted as
a matter of convenience of reference and are not part of this Agreement.
15. Amendment. This Agreement may not be modified or amended except in
writing duly executed by the parties hereto.
16. Arbitration. The Parties agree that all questions or matters in
dispute with respect to this Agreement shall be submitted to arbitration on
the following terms:
a. It shall be a condition precedent to the right of any party to submit
any matter to arbitration pursuant to the provisions hereof, that any party
intending to refer any matter to arbitration shall have given not less than
five business days prior written notice of its intention to do so to the other
party together with particulars of the matter in dispute. On the expiration
of such five business days the party who gave such notice may proceed to refer
the dispute to arbitration as provided for below.
b. The party desiring arbitration shall appoint one arbitrator, and shall
notify the other party of such appointment, and the other party shall, within
five business days after receiving such notice, appoint an arbitrator, and the
two arbitrators so named, before proceeding to act, shall, within five business
days of the appointment of the last appointed arbitrator, unanimously agree on
the appointment of a third arbitrator, to act with them and be chairman of the
arbitration herein provided for. If the other party shall fail to appoint an
arbitrator within five business days after receiving notice of the appointment
of the first arbitrator, and if the two arbitrators appointed by the parties
shall be unable to agree on the appointment of the chairman, the chairman shall
be appointed in accordance with the rules for commercial arbitration of the
American Arbitration Association. Except as specifically otherwise provided in
this section, the arbitration herein provided for shall be conducted in
accordance with the rules for commercial arbitration of the American
Arbitration Association and shall be conducted in the State of Florida. The
chairman, or in the case where only one arbitrator is appointed, the single
arbitrator, shall fix a time and place for the purpose of hearing the evidence
and representations of the parties, and he shall preside over the arbitration
and determine all questions of procedure not provided for by the rules for
commercial arbitration of the American Arbitration Association. or this
section. After hearing any evidence and representations that the parties may
submit, the single arbitrator, or the arbitrators, as the case may be, shall
make an award and reduce the same to writing, and deliver one copy thereof to
each of the parties.
c. The Parties agree that the award of a majority of the arbitrators, or
in the case of a single arbitrator, of such arbitrator, shall be final and
binding upon each of them, and there shall be no appeal from such award.
d. Any award in the arbitration shall be limited to actual contractual
damages, and there shall be no award of consequential or punitive damages,
attorneys? fees or other expenses. Each party expressly waives and disclaims
the right to a jury trial relating to or arising out of this Agreement and
expressly accepts the arbitration procedure set forth herein as the sole
means of resolving any disputes or disagreements.
Executed and delivered by the undersigned, intending to be bound thereby,
as of and effective on the date above.
Consultant:
Spring Creek Capital Corp.
By: /s/ Xxxxx X. Xxxxxx Date: June 5, 2009
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Company:
BioCube, Inc.
By: /s/ Xxxxx Xxxxxxxxxxx Date: June 5, 2009
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