Consulting Agreement
This agreement ("Agreement") is made and entered into as of
July 1st 2000, by and between de Jong & Associates, Inc., a
California Corporation ("Consultant"), and
BSD Medical Corporation, Inc. ("Company") a Delaware
corporation.
Witnesseth:
Whereas, Consultant is engaged in the business of providing
business consulting services, promotion and investor
relations services to companies for investors, stock
brokerages, and the investment community, and:
Whereas Consultant will provide such services and perform
promotion and investor relation's services for Company, all
on the terms and condition contained herein.
NOW, THEREFORE, in consideration of the foregoing premises
and the mutual covenants contained herein, and for other
good and valuable consideration, the receipt and adequacy of
which is hereby acknowledged, the parties agree as follows:
1. Engagement. Company hereby engages Consultant and
Consultant hereby accepts engagement from Company as a
consultant. Consultant shall perform services for Company
for the period and upon the terms and conditions set forth
in this Agreement. The term "Company" as used herein shall
mean the Company and its subsidiaries and related entities
now existing or hereafter formed.
2. Scope of Services.
2.1. Services.
2.1.1. Advising Company and providing assistance in the
area of investor relations, bring the Company to the
favorable attention of the investment community;
2.1.2. Promote meetings and communications in which the
public and securities industry professionals shall be
introduced to the Company as circumstances may require;
2.1.3. Assist Company in the development of due diligence
packages for brokers, investors and analysts if needed;
2.1.4. Assist Company in the development of a corporate
recognition program that identifies Consultant as the point
of contact for brokers and investors;
2.1.5. Coordinating with other outside consultants
engaged by the Company during the term of this agreement;
2.1.6. Assisting Company in identifying and contracting
with required professionals as needed;
Consultant will perform these services understanding
that the above-referenced services will be performed
in various parts of the United States and that Company
will have the option of making presentations at any
meeting arranged for the Company.
Consultants and Company acknowledge that it is the
Company's responsibility to provide Consultant with
weekly DTC sheets, Stock Transfer sheets and regularly
updated lists of shareholders.
2.2 Performance of Services. Consultant shall serve
Company faithfully and to the best of its ability and devote
such time, attention, skill and effort as is required to
effectively discharge its duties hereunder, consistent with
the standards of conduct and professionalism applicable to
the securities industry. The manner, means and methods of
conducting the Services are under the joint control of
Consultant and Company, requiring the knowledge and approval
of Company, which shall not be unreasonably withheld so long
as they are lawful and consistent with the terms of this
Agreement.
2.3 Use of Services or Advice. It is understood that there
may be times when Company does not use the services or
advice of Consultant. The failure of Company to use, or
seek in writing Consultant advise and/or services and/or
assistance, as set forth in this paragraph 2, shall not be
deemed as non-performance of Consultant.
3. Term
3.1. Term. The term of this agreement shall commence as of
July 1st 2000, and shall continue for twelve (12) months.
This agreement may be terminated by either party after 90
days by providing 30 days notice in writing.
4. Compensation.
4.1 Stock and Warrants The Company agrees to issue to the
Consultant or, in lieu thereof or in addition thereto, any
person(s) whose names are furnished to the Company, by the
Consultant, a share certificate for 25,000 shares of the
Company's common stock, and a warrant to purchase 75,000
shares of the Company's common stock at $3.00 per share.
Terms of this warrant are to be provided separately in the
Warrant to Purchase as issued by the Company.
Delivery of the above mentioned stock certificates and
warrants reflecting the warrants granted in terms of
this agreement (4.1) to de Jong & Associates will be
completed within 28 days from the signing of this
agreement.
4.1. Cash Compensation. Company shall pay Consultant a
monthly consulting fee of Five Thousand Dollars per month
($5000.00) commencing on the date of the signing of this
agreement. Subsequent payments to be due and payable on the
1st day of each calendar month for the term of this
agreement.
4.4 Expenses. Expenses shall be negotiated on a case by
case basis. Postage and printing expenses for Company shall
be reimbursable on a monthly basis, upon receipt by the
Company of acceptable document support.
4.5 Office Facilities. Consultant shall be responsible
for its office facilities as well as such staff equipment
and materials as Consultant may deem necessary for
Consultant, agents and representatives to fulfill its duties
under this Agreement.
5 Confidentiality. Consultant shall, and shall cause its
directors, officers and employees to hold confidential and
not to publish, disclose or make accessible to any other
person not bound by an obligation of confidentiality all
information which (i) Company provides to Consultant, its
officers and employees in relation to Company's financial
condition, results of operations, business, property, assets
or liabilities, and (ii) which Company specifically
designates or marks as being confidential. Any information
that is provided orally shall be considered confidential if
Company provides Consultant with written notice of its
intention that such information remain confidential within
five business days of the date of disclosure of such
information.
Notwithstanding the foregoing, information shall not be
deemed confidential if (i) it becomes public knowledge,
(ii) Consultant is aware of the information prior to its
disclosure by Company, or (iii) Consultant learns of the
information through a third party not under an obligation
of confidentiality to Company.
6 Indemnification.
6.1. Company's Indemnification. Consultant shall have no
liability with respect to decisions made or actions taken by
Company in reliance on advice or recommendations given by
Consultant or transactions presented to Company by
Consultant. Company agrees to indemnify and hold harmless
Consultant and its Affiliates, the respective members,
agents and employees and each other person, if any,
controlling Consultant or any of their Affiliates
(collectively, the "Consultant Parties"), to the full extent
lawful, from and against all losses, claims, damages,
liabilities and expenses incurred by them (including
attorney's fees and disbursements) that result from actions
taken or omitted to be taken (including any untrue
statements made or any statements omitted to be made) by
Company, its agents or employees.
6.2. Consultants Indemnification. Company shall have no
liability with respect to decision made or actions taken by
Consultant in reliance on advice or recommendations given by
Company or transactions presented to Consultant by company.
Consultant agrees to indemnify and hold harmless Company,
and the respective directors, officers, agents and employees
or Company, to the full extent lawful, from and against all
losses, claims, damages, liabilities and expenses incurred
by them (including attorney's fees and disbursements) that
results from actions taken or omitted to be taken (including
any untrue statements made or any statements omitted to be
made) by Consultant, its agents or employees.
6.3. Process of Indemnification. Each person or entity
seeking indemnification hereunder (the "Indemnified Party")
shall promptly notify the other (the "Indemnifying Party")
of any loss, claim, damage, or expense for which the
Indemnifying Party may become liable pursuant to this
Section. The Indemnifying Party shall have the opportunity
to defend any claim for which it may be liable hereunder,
provided it notifies the Indemnified Party within fifteen
days of notice of the claim.
The Indemnified Party shall not pay, settle or
acknowledge liability under any such claim without
consent of the Indemnifying Party, and shall permit
the Indemnifying Party a reasonable opportunity to
cure any underlying problem or to mitigate actual or
potential damages. The rights stated pursuant to this
Section shall be in addition to any rights that the
Indemnified party may have at common law or otherwise,
including, but not limited to, any right to
contribution.
6.4. Scope. The scope of this indemnification shall be
limited to, and pertain only to certain transactions
contemplated or entered into pursuant to this Agreement.
7. Representations and Warranties of the Company. The
Company represents and warrants to Consultant that:
7.1.1. The Company is (i) a corporation duly organized,
validly existing and in good standing under the laws of the
State of Delaware and (ii) has the corporate power and
corporate authority to enter into this Agreement.
7.1.2. The execution and delivery of this Agreement and
the performance of the obligations and consummation of the
transactions herein contemplated will not conflict with or
constitute a breach of or default under the Article of
Incorporation or Bylaws of the Company.
8. Covenants of Consultant
8.1.1. Consultant covenants and agrees to comply with any
applicable requirements of the Securities Act, the
Securities Exchange Act of 1934 ("Exchange Act"), applicable
Blue Sky securities laws and the published rules and
regulations thereunder (including, but not limited to,
Sections 3(b), 4(2) and 4(6) of the Securities Act and Rules
505 and 506 thereunder, and the Rules of Fair Practice of
the National Association of Securities Dealers ("NASD").
8.1.2. Consultant is not authorized to act as agent of
the Company in any connection or transaction, and Consultant
agrees not to act as such agent and not to purport to do so
without the prior written approval of the Company.
8.1.3. Consultant, by performance of this Agreement,
shall not violate any of his existing contracts.
8.2. Further Assurances. The parties shall execute,
acknowledge and deliver any further documents, instruments,
or other assurances and shall take any other action
consistent with the terms of this Agreement that may be
reasonably requested by the other party or its counsel for
the purpose of confirming or effectuating any of the
transactions contemplated by this Agreement.
8.3. Notices. All notices required or desired to be given
hereunder shall be deemed to be duly given upon personally
delivering such notice or upon delivery by fax or other
electronic means, or three days after mailing it, via
certified or registered mail, postage prepaid to the parties
at the following addresses:
If to Consultant: de Jong & Associates
000 Xxxxx Xxxxx Xxxxxxx 000, Xxxxx. X
Xxxxxxxxx, XX 00000
Attn: Xx. Xxxxxx xx Xxxx
If to Company: BSD Medical Corporation, Inc.
0000 X 0000 Xxxxx
Xxxx Xxxx Xxxx, XX
Attn: Xx. Xxxxx X. Xxxx
Giving written notice in the manner provided for above may
change the above address.
8.4. Binding Effect. This Agreement and any amendment
hereto, shall be binding upon the parties hereto, their
successors, heirs, next of kin, executors, administrators,
personal representatives, legal representatives, assignees,
creditors, including receivers, and all other persons with
notice or knowledge of the provisions hereof.
8.5. Independent Contractor. Consultant shall have no
authority to bind Company to any agreement or obligation
with a Relationship of Parties. The relationship of the
parties hereto is one of independent contractors. Nothing in
this Agreement shall be construed to constitute the parties
as partners with each other.
8.6. Governing Law and Venue. This Agreement shall be
deemed to have been executed in the State of California and
shall be governed and construed as to both substantive and
procedural matters in accordance with the laws of the State
of California, but excepting any State of California rule
which would result in the application of the law of a
jurisdiction other than the State of California. Any legal
proceeding arising out of this Agreement shall be brought
only in a state or federal court of competent jurisdiction
sitting in the County of San Diego, State of California, and
all parties hereto agree that venue shall lie therein and
agree to submit themselves to the personal jurisdiction of
such court.
8.7. Attorney's Fees. In any legal proceeding arising out
of this Agreement, including with respect to any instrument,
document or agreement made under or in connection with this
Agreement, the prevailing party shall be entitled to recover
its costs and actual attorney's fees. As used in this
Agreement, "actual attorneys' fees" shall mean the full and
actual cost of any legal services actually performed in
connection with the matters involved, calculated on the
basis of the usual hourly fees charge by the attorneys
performing such services.
8.8. Construction. The captions contained in this Agreement
are for convenience of reference only and are not to be
considered in construing this Agreement. The language of
this Agreement shall be construed as to its fair meaning and
not strictly for or against any party.
8.9. Entire Agreement. This Agreement and any related
agreements referred to herein, constitute the entire
agreement between the parties with respect to its subject
matter and there are no representations, warranties or
agreements between the parties which are not expressed
herein. This Agreement supercedes and replaces all prior
understandings and agreements between the parties hereto,
whether written or oral, expressed or implied, with respect
to its subject matter.
8.10. Amendment. This Agreement may not be amended,
modified, superceded, canceled or terminated, and any of the
matters, covenants, representations, warranties or
conditions hereof may not be waived, except by written
instrument executed by the parties hereto or, in the case of
a waiver, by the party to be charged with such a waiver.
8.11. Severability. The provisions of this Agreement
are independent of and severable from each other, and no
provision shall be affected or rendered invalid or
unenforceable by virtue of the fact that for any reason any
other or others of them may be invalid or unenforceable in
whole or in part. Further, if a court of competent
jurisdiction determines that any provision of this Agreement
is invalid or unenforceable as written, such court may
interpret, construe, rewrite or revise such provision, to
the fullest extent allowed by law, so as to make it valid
and enforceable consistent with the intent of the parties
hereto.
8.12. Assignment. This Agreement shall not be
assignable, in whole or in part, by either party without the
written consent of the other party.
8.13. Counterparts. This Agreement may be executed in
any number of counterparts, each of which shall be deemed to
be an original as against any party hereto whose signatures
appears hereon, and all of which shall together constitute
one and the same instrument. This Agreement shall become
binding when one or more counterparts hereof, individually
or taken together, shall bear the signature of all of the
parties reflected hereon as the signatories.
8.14. Supersede and Replacement. This Agreement
supersedes and replaces any previous Agreement(s)
between the Consultant and the Company, and releases
the Consultant and the Company from the terms and
conditions of any previous Agreement(s).
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed as of the date first above
written:
de Jong & Associates Inc.
By:____\s\ Xxxxxx de Jong___________________________________
Xxxxxx xx Xxxx, President
BSD Medical Corporation, Inc.
By.____\s\ Xxxxx X. Mead___________________________________
Xxxxx X. Xxxx, CEO
