EXHIBIT 10.4
CONSULTING AGREEMENT
This consulting agreement (the "Agreement"), made effective as of February l5th,
2002, will confirm the understanding between Neurotech Corp, mad its affiliates
and/or subsidiaries (collectively, the "Company") and Robscott Trading & Inc,
("Consultant"), pursuant to which the Company has retained Consultant in
connection with (i) short and long term strategic planning; (ii) short term
crisis management -, (iii) short and long term marketing; (iv) meeting
with/selecting qualified companies for joint business ventures-, (v) contracting
and interviewing qualified accounting firms and legal counsel (vi) recruitment
selection of key executives and staff, and (vii) identification/selection of
board members, with all such services (the "Services") on the terms and subject
to the condition set forth herein.
1. Retention. The Company hereby retains Consultant to provide the services.
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Consultant shall, devote time and effort as Consultant deems necessary to
provide the Services.
2. Further Agreements. This Agreement does not constitute any agreement express
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or implied, on the part of Consultant or the Company or any commitment by
Consultant, or by the Company to engage Consultant to underwrite, purchase,
place, or cause the placement of any securities or indebtedness or to advise the
Company or negotiate on behalf of the Company in connection with any sale of any
securities or its business or assets or in connection with any merger,
consolidation or similar transaction.
3. Compensation. Company will pay consultant for the services 4,000,000 shares
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of free trading stock, and 1,000,000 shares of restricted stock,
4. Termination. The tem of this Agreement shall be 6 mints.
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5. Indemnity. The Company agrees to indemnify the Indemnified Persons (as
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defined in Schedule as set forth in Schedule A hereto, which Schedule A is
incorporated herein and made a part hereof.
6. Representations and Warranties of the Company. In addition to any
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representations and warranties for which provision is made in any other
agreement between the Company and Consultant, the Company represents and
warrants to Consultant that at the commencement of the Services and at the time
of the provision of the Services during the term of this Agreement:
(a) The Company will furnish Consultant and its agents and Counsel with all
information concerning the Company that the Consultant and its agents
reasonably deem appropriate and agree to provide Consultant and its agents
with reasonable access to the Company's officers, directors, accountants,
counsel, consultants and other appropriate agents and representatives. The
Company acknowledges the Consultant and its agents may rely upon the
completeness and accuracy of information and data furnished to any of them
by or on behalf of the Company and that the Company will use its best
efforts to ensure that such information will not contain any untrue
statement of a material fact or omit to state a material fact necessary to
make the statements made therein in light of the circumstances under which
they were made, not misleading.
(b) All payments of compensation to Consultant shall not cause the Company to
violate any law or regulation applicable to the Company and that in the
event payment is in the form of securities or instruments convertible to
securities, each registration statement, preliminary and final prospectus
required to be filed or previously with the Securities and Exchange
Commission (the "Commission pursuant to the Securities Act of 1953, as
amended, and each document required to be filed or previously filed with
the Commission pursuant to the provisions of the Securities Exchange Act of
1934, as amended, pertaining to any such securities or instruments
convertible into securities and each appendix, attachment, amendment, or
supplement to any of the foregoing and all related documents, including but
not limited to each related letter of transmittal will not, and no other
report, filing, document, release or communication mailed, delivered,
published, or filed by or on behalf of the Company will, contain any untrue
statement of a material fact or omit to state a material fact necessary to
make the statements made therein, in light of the circumstances under which
they were made, not misleading; and
(c) This Agreement had been, and the Services contemplated hereby at the time
of the time of the commencement and consummation thereof shall be duly
authorized by the Company.
7. Certain, Other Covenants of the Company. Other than to the Company's
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representatives, the Company agrees that no advice or recommendations rendered
or summarized, excerpted from or otherwise referred to without Consultant's
prior written consent. In addition, other than to the Company's representatives,
Consultant may not be otherwise referred to by the Company without Consultant's
prior written consent or unless required by law,
8. Survival of certain Provisions. The compensation provisions contained in
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paragraph 3 above, the indemnity contained in paragraph 5 hereof (including
Schedule B hereto) and the representations and warranties of the Company
contained in paragraph 6 hereof and this paragraph 8 shall remain operative and
in full force and effect regardless of (i) any investigation made by or on
behalf of Consultant or by or on behalf of any Indemnified Person (as such is
defined in Schedule A hereto), and (ii) any termination or expiration of this
Agreement, and shall be binding upon, and shall inure to the benefit of, any
successors, assigns, heirs and personal representatives of the Company,
Consultant, and any and all Indemnified Persons.
9. Notices. Notice given pursuant to any of the provisions of this Agreement
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shall be in writing and shall be wailed or delivered (i) to the Company at
Neurotech Corp. 00 Xxxxx Xxxxx Xxxx, Xxxx Xxxx, X.X. 00000 Attention: Xxxxxxx
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Xxxx (ii) Robscott Trading, Inc, 0000 Xxxxx Xxx, Xxxxx, Xxxxxxx 00000,
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10. Construction. This Agreement including Schedule A hereto, incorporates the
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entire under3tanding of the parties and supersedes all previous agreements and
shall be governed by, and constructed in accordance with, the laws of the State
of Florida as applied to contracts made and performed in such State. The Company
and Consultant each hereby irrevocably submits to the exclusive jurisdiction of
the Federal and Florida State courts located in Miami-Dade County, Florida in
connection with any suit, action, or proceeding related to this Agreement or any
of the matters contemplated ) irrevocably waives any defense of lack of personal
jurisdiction and irrevocably agrees that all claims in respect of any such suit,
action or proceeding may be heard and determined in any such court. The Company
and Consultant each irrevocably waives, to the fullest extent it may effectively
do so under applicable law, any objection which it may now or hereafter have to
the laying of venue of any such suit, action or proceeding brought in any such
court and any claim that any such suit, action or proceeding brought in my such
court had been brought in an inconvenient forum. Each Indemnified Person (as
defined in Schedule A to this Agreement) is intended to be a third party
beneficiary of the provisions of paragraph 5 hereof and schedule A. All
obligations of the Company hereunder and under Schedule A shall be joint and
several Obligations of the Company and its affiliates and subsidiaries,,
1. Severability. Any determination that any Provision Of this Agreement
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(including any provision of Schedule A) may be, or is unenforceable shall not
affect the enforceability of the remainder of this Agreement (including Schedule
A)
12. Headings. The paragraph headings in this Agreement have been inserted as a
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matter of convenience of reference and are not part of this Agreement.
13. Counterparts. This Agreement may be executed in two or more counterparts and
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by facsimile, each of which shall be deemed an original, but all of which shall
constitute one and the same instrument.
14. Third Party Beneficiaries. This Agreement has been and is made solely for
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the benefit of the Company and Consultant (including other Indemnified Persons
for purposed of paragraph 5 hereof and Schedule A only) and Schedule A hereof
and their respective successors and assign, and no other person shall acquire or
have any right under or by virtue of this Agreement.
15. Modification. This Agreement may not be modified or amended except in
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writing, duly executed by the parties hereto.
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If the foregoing terms correctly set forth our agreement, please confirm this by
signing, and returning to Consultant a duplicate copy of this letter. Thereupon,
this letter, as Signed in counterpart, shall constitute our agreement on the
subject matter herein.
/S/ Xxxxxx Waldenbaum
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Xxxxxx Xxxxxxxxxx
Confirmed and agreed to as of
the date first above written:
NEUROTECH DEVELOPMENT CORPORATION
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By: /S/ Xxxxxxx Xxxx
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Name: Xxxxxxx Xxxx
Title: Chairman, CFO
Date: February 15, 2002
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Schedule A
Indemnity
This Schedule A is a part of and is incorporated into that certain
consulting agreement (the "Consulting Agreement" and together with this Schedule
A, the "Agreement"), Neurotech (collectively, the "Company") and Robscott
Trading, Inc. ("Consultant'). Capitalized terms used herein without definition
shall have the meanings ascribed to them in the Letter Agreement.
The Company agrees to indemnify and hold harmless Consultant, his
affiliates and their respective directors, officers, agents, and employees
(Consultant and each such entity or person are an "Indemnified Person" from and
against any losses, claims, damages, judgments, assessments,, costs, and other
liabilities (collectively "Liabilities"), and will reimburse each Indemnified
Person for all reasonable fees and reasonable expenses (including the reasonable
fees and reasonable expenses of counsel at trial and on appeal (collectively,
"Expenses") as they are incurred in an investigating, preparing, Pursuing, or
defending any claim, action, proceeding or investigation, whether or not in
connection with pending or threatened litigation and whether or not any
indemnified person is a party (collectively, "Actions"), (i) caused by, arising
out of or in connection with the Company's breach of this Agreement including,
but not limited to the breach of any representation, warranty or term contained
in the Consulting Agreement, or services rendered or to be rendered by any
Indemnified Person pursuant to the Consulting Agreement, The Company will not be
responsible for any Liabilities or Expenses of any Indemnified Person that are
determined by a judgment of a court of competent jurisdiction which is no longer
subject to appeal or further review to have resulted solely from the gross
negligence, bad f4ith or willful misconduct of an Indemnified Person in
connection with any of the Services referred to in the Consulting Agreement. The
Company also agrees to reimburse each Indemnified Person for all Expenses as
they are incurred in connection with enforcing such Indemnified Person's rights
under this Agreement (including, without limitation, its rights under this
Schedule A) and the Consulting Agreement.
Upon receipt by an Indemnified Person of actual notice of an Action
against such Indemnified Person with respect to which indemnity may be sought
under this Agreement, such Indemnified Person shall promptly notify the Company
in writing; provided that failure so to notify the Company shall not relieve the
Company from any liability which the Company may have on account of this
indemnity or otherwise, except to the extent the Company shall have been
materially prejudiced by such failure. The Company shall, if requested by
Consultant or at the Company's option, assume the defense of any such Action
including the employment of counsel selected by the Company that is reasonably
satisfactory to Consultant, Notwithstanding the Company's option to assume a
defense of an 1ndemnifled Person, any Indemnified Person shall have the right to
employ separate counsel in any such Action and participate in the defense
thereof, with the fees and expenses of such counsel shall be at the expense of
the Company. The Company shall not be liable for any settlement of any Action
effected without its prior written consent (which shall not be unreasonably
withheld). In addition, the Company will not, without prior written consent of
Consultant settle, compromise or consent to the entry of any judgment in or
otherwise seek to terminate any pending or threatened Action in respect of which
indemnification or contribution may be sought hereunder (whether or not any
Indemnification Person is party thereto) unless such settlement, compromise,
consent or termination includes an unconditional release of each Undefined
Person from all Liabilities arising out of such Action.
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The Company also agrees that no Indemnified Person shall have any
liability (whether direct or indirect, in contract or tort or otherwise) to the
company for or in connection with Services rendered or to be rendered by the
Indemnified Person pursuant to this Agreement. the transactions, contemplated
hereby or any Indemnified Person's actions or inactions in connection with any
such Services except for Liabilities competent jurisdiction which is no longer
subject to appeal or further review to have resulted solely from the gross
negligence, bad faith, or willful misconduct of an Indemnified Person in
connection with such Services.
The reimbursement and indemnity obligations of the Company set forth
herein shall apply to any modification of this Agreement and the Consulting
Agreement and shall remain in full force and effect regarded less of any
termination of, or the completion of any Indemnified Person's Services under or
in the connection with, this Agreement and the Consulting Agreement.
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