Exhibit 10.1
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (the "Agreement") has been entered
into by and between Modern Medical Modalities Corporation, a New York
corporation with its principal place of business at 00 Xxxxxxx Xxxxxx, Xxxxx
000, Xxxxxxxxxx, Xxx Xxxxxx 00000 (the "Company") and Benson Shore Capital, LLC,
a New York Limited Liability Company with its principal place of business at 00
Xxxx Xxxxxx, Xxxxx 0000, Xxx Xxxx, Xxx Xxxx 00000 ("Consultant").
WHEREAS, Consultant possesses significant expertise in
analyzing and addressing management requirements, identifying strategic
alliances, negotiating contracts, strategic planning and analyzing
organizational structures of companies;
WHEREAS, the Company desires to avail itself of the services
of Consultant, and Consultant desires to provide to the Company the benefit of
such services; and
WHEREAS, the Company and Consultant expect to benefit from the
carrying out of the subject matter of this Agreement.
NOW THEREFORE, in consideration of the mutual promises herein
contained and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Company and Consultant hereby
agree as follows:
1. Engagement. The Company hereby engages Consultant and
Consultant accepts such engagement and agrees to use its best efforts in a good
and businesslike manner to provide services to the Company in accordance with
the terms of this Agreement.
2. Nature of Services. Upon the request of the Company,
Consultant shall render assistance to the Company by (a) analyzing and
addressing the Company's management requirements; (b) developing strategic
initiatives and related industry partnerships, including providing assistance
with respect to acquisitions, joint ventures, and strategic business alliances;
(c) assisting with the negotiation of contracts between the Company and its
suppliers and customers; (d) analyzing the Company's present and prospective
corporate organizational structure; (e) reviewing the Company's financial
position and budget proposals; and (f) meeting with and advising the Company's
board of directors at the request of the Board.
3. Term. The term of this Agreement shall commence as of the
date hereof, and continue for a period of twelve (12) months.
4. Remuneration. The consideration to be paid by the Company
to Consultant for services to be rendered hereunder shall be as follows:
(a) Common Stock. The Company shall issue to Consultant
350,000 shares of its common stock ("Shares").
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(b) Stock Options. The Company shall issue to
Consultant options to acquire up to an aggregate of Two
Hundred Seventy-Five Thousand (275,000) shares of its Common
Stock ("Options") exercisable at $1.00 per share, for a
period of twelve (12) months from the date hereof.
The Shares and the shares of common stock issuable upon
exercise of the Options referred to in this Section 4 shall collectively be
referred to as the "Consultant Shares."
(c) Form S-8 registration. The Company agrees to
prepare and file an S-8 registration statement under the
Securities Act covering the issuance of the Consultant
Shares, at its expense, and will use its best efforts to
cause such registration statement to be filed as soon as
practicable after the date of this Agreement.
5. Status of Consultant. The services of Consultant provided
pursuant to this Agreement shall be performed for the benefit of the Company by
Consultant in the capacity of an independent contractor. Consultant shall not be
considered, at any time that this Agreement is in force, to be an employee of
the Company. Consultant understands and acknowledges that this Agreement does
not create or imply any agency relationship between the parties, and Consultant
will not commit Company in any manner except when a commitment has been
specifically authorized in writing by the Company.
6. Confidentiality. Consultant will not at any time disclose
or use for its own benefit or purposes or the benefit or purposes of any other
person, firm, partnership, joint venture, association, corporation or other
business organization, entity or enterprise other than the Company and any of
its subsidiaries or affiliates, any trade secrets, information, data or other
confidential information relating to customers, development programs, costs,
marketing, trading, investment, sales activities, promotion, credit and
financial data, financing methods, plans, or the business and affairs of the
Company generally, or of any subsidiary or affiliate of the Company; provided,
however, that the foregoing shall not apply to information that is not unique to
the Company or that is or becomes through no fault of Consultant in generally
known to the industry or the public. All files and records relating to the
Company compiled by Consultant shall be the property of the Company and shall be
returned to the Company upon termination of this Agreement.
7. Investment Information to be Provided to Consultant. The
Company represents and warrants that it has provided Consultant with access to
all information available to the Company concerning the Company's condition,
financial and otherwise, its management, its management, its business and its
prospects. The Company represents that it has provided Consultant with all
copies of the Company's filings, for the prior twelve (12) months, made under
the rules and regulations promulgated under the Securities Act of 1933, as
amended, or the Securities and Exchange Act of 1934, as amended, if any (the
"Disclosure Documents"). Consultant acknowledges that the acquisition of any
shares of common stock upon exercise of any Options involves a high
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degree of risk. Consultant represents that it and its advisors have been
afforded the opportunity to discuss the Company with its management. The Company
represents that it has provided, and will continue to provide, Consultant with
any information or documentation necessary to verify the accuracy of the
information contained in the Disclosure Documents, and will promptly notify
Consultant upon the filing of any registration statement or other periodic
reporting documents filed pursuant to the Act or the Exchange Act.
8. Assignment. This Agreement may not be assigned by either
party hereto without the written consent of the other, but shall be binding upon
the successors of the parties.
9. Waiver of Rights. The failure of either party to insist, in
one or more instances, upon the performance of any of the terms, covenants,
agreements, or conditions of this Agreement, or to exercise any rights
hereunder, shall not be construed as a waiver or relinquishment of such party's
right to insist upon the future performance of such term, covenant, agreement,
or condition, or to the future exercise of any such right, and the obligations
of the other party with respect to such future performance shall continue in
full force and effect.
10. Severability. If any provision of this Agreement shall be
held or made invalid by a court decision, statute, rule or otherwise, the
remainder of this Agreement shall not be affected thereby and shall remain in
full force and effect as if the invalidated provision had not been included
herein.
11. Notices. Any notice required or desired to be given
pursuant to this Agreement shall be in writing and shall be deemed given when
delivered by facsimile transmission or three (3) days after it is deposited in
the mail to the addresses set forth below, or at such subsequent address
provided by the parties:
If to Consultant:
Benson Shore Capital
00 Xxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 10005
Attn: Xxxxx Xxxxxxxxx, Managing Member
If to the Company:
Modern Medical Modalities Corporation
00 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx, Xxx Xxxxxx 00000
Attn: Xxx Xxxxxxxx, Vice President
12. Applicable Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
13. Entire Agreement. This Agreement constitutes the entire
agreement and understanding between the parties regarding services to be
furnished to the Company by Consultant, and any and all prior agreements and/or
understandings relating thereto are superseded in their
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entirety by this Agreement.
14. Counterparts. This Agreement may be executed in counter-
parts, each of which shall be deemed an original, but all of which together
shall constitute one and the same agreement.
15. Binding Effect. The provisions of this Agreement shall be
binding upon the parties, their successors and assigns.
IN WITNESS WHEREOF, the Company and Consultant have executed
this Agreement as of the date and year written below.
Dated: June 18, 1998 MODERN MEDICAL MODALITIES
CORPORATION
/s/ Xxx Xxxxxxxx
By: Xxx Xxxxxxxx
Title: Vice President
Dated: June 18, 1998 BENSON SHORE CAPITAL, LLC
/s/ Xxxxx Xxxxxxxxx
By: Xxxxx Xxxxxxxxx
Title: Managing Member
