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Consulting Agreement
THIS AGREEMENT is made and entered into this 8th day of July, 1998,
between INFECTECH, INC. ("Company"), and BREAKTHRU TECHNOLOGIES,
L.L.C., a limited liability company, with an office located in
Bethesda, Maryland (''Consultant''). In consideration of the mutual
agreements contained in this document, the parties, intending to be
legally bound, agree as follows:
RECITALS
A. Consultant is a public relations and financial consulting and
advisory company which specializes in the public relations and
financial consulting industry; and
B. Company is a private company which desires to enter into the public
market; and
C. Company also desires to publicize itself in order to make its name
and business better known in the industry, to its shareholders,
investors and brokerage houses;
D. Company desires to enter into this Agreement with Consultant to
provide public relations and financial consulting services on a non-
exclusive basis; and
E. Consultant is willing to accept Company as a client upon the terms
and conditions set forth hereunder.
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, it is agreed:
1. Recitals Incorporated. The Recitals set forth in Paragraphs A
through E above are incorporated herein by reference as though fully
set forth herein.
2. Company's Disclosure. Company shall furnish an Information Package
to Consultant including disclosure and filing materials, financial
statements, business plans, promotional materials, annual reports and
press releases ("Information Package"). Consultant may rely on, and
assume the accuracy of the Information Package.
The Company shall also be obligated to provide copies of the Company's
xxxxx-cial statements for the last three years or from its inception
date, whichever is less.
The Company agrees to notify Consultant immediately of any changes in
the status or nature of its business, the possibility of any litigation
or any other developments that may require further disclosure in the
offering documents or render the Information Package to be materially
false or misleading.
3. Services to be Provided by Consultant. Consultant will provide
various public relations and financial consulting services in an effort
to expose the Company to the brokerage community. Such services may
include organizing road shows and speaking engagements, press and news
releases, broker packages, mail outs and broker and market maker
follow-up.
(a) Consultant will assist the Company in the coordination of a
private and/or public offering of its securities utilizing equity,
warrant or debt instruments.
(b) Consultant will aid the Company in the obtainment of investors for
any proposed private or public offering. Consultant makes no
guarantees as to the success or failure of his efforts in this matter.
(c) Consultant will aid the Company in the obtainment of investment
opportunities, grant providers and equity candidates, as well as other
possible business combinations or financial transactions which infuse
capital, revenues or assets into the Company.
(d) Consultant shall assist in arranging the preparation of such
packaging and promotional materials as Consultant and the Company shall
deem necessary. The Company and securities counsel shall approve all
materials prior to completion.
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(e) Consultant agrees to use its expertise and business contacts to
arrange for the continued promotion of the Company's securities. This
promotion may be evidenced by the implementation of a financial
relations program created by the Company with the advice from
Consultant.
(f) Consultant agrees to assist in establishing relationships between
the Company and licensed securities broker/dealers for the purpose of
completing the initial capitalization as a public company.
(g) Consultant shall make itself available to render advice to the
Company concerning shareholders relations, market strategy, broker
relations and additional capitalization.
(h) Company will utilize Consultant's interest and expertise in this
regard, and Consultant will accept such assignments for the period of
One (1) year from the date hereof (the ''Consulting Term'') to
undertake such duties and to perform such services as reasonably may be
assigned to it by the Board of Directors of Company or by its officers.
(i) Consultant shall be an independent contractor and not an employee,
joint venturer, partner or other business relationship of Company and
will determine his own methods of operation in accomplishing such tasks
as may be assigned.
Consultant will not be entitled to receive any compensation or benefits
other than those expressly provided in this Agreement.
(j) Nothing herein shall be interpreted or construed to prohibit
Company from utilizing the services of others for the same or similar
services, including other consultants, nor from soliciting or obtaining
equity investments in the Company on a commissioned or non-commissioned
basis or otherwise. The services of others, including other
consultants, shall not be of no consequence to nor need be considered
by Company when evaluating the performance or compensation of
Consultant under this Agreement.
4. Time of Performance. Services to be performed under this Agreement
shall commence upon execution of this Agreement and shall continue for
a period of one year from the date of this Agreement, unless terminated
hereunder or unless extended for an additional one year period by the
mutual written agreement of both parties.
5. Compensation and Expenses. In consideration of the services to be
performed by Consultant, Company agrees to pay compensation to
Consultant in the amount set forth below, time being of the essence:
(a) In connection with Consultant providing its public relations and
financial consulting services, Consultant shall receive a fee of
$1,000.00 per month to be paid to Consultant on a monthly basis or if
not paid, to be accrued and payable if not actually so paid. The term
of this Agreement is for twelve (12) months, unless terminated earlier
as provided herein.
(b) The Company, in addition to the fee described above shall also pay
to Consultant reasonable expenses in the amount of $500.00 per month.
These expenses typically include, telephone, copying, facsimile,
overnight service, cost and expenses for travel, hotel accommodations,
meals and miscellaneous costs and expenses actually incurred by
Consultant in performing the services described above. These costs and
expenses in excess of the per month payments shall be paid by the
Company upon presentation of a xxxx by Consultant. All such expenses,
in excess of $500.00 per month, if any, shall be subject to pre-
approval by the Company.
(c) ''Reasonable and appropriate expenses'' include those expenses
incident to completion of an assignment, including any travel expenses
to and from assignments that are distant from Company's principal
office or other location, lodging and meal expenses, and all other
expenses reasonably related to completion of the task, subject to prior
approval by the Company. However, for any consulting assignment
requiring Consultant to travel to the consulting location in no event
will Company be required to pay travel expenses greater than the then
prevailing tourist class round-trip airfare from Washington, D.C. to
the consulting location. Further, Company reserves the right to make
air travel arrangements for Consultant. Consultant will advise Company
in advance of any trips he may make to locations proximate to Company's
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headquarters so that, if convenient to both parties, consulting
assignments in the headquarters area may be arranged that involve less
travel expense to Company than travel from Washington, D.C. Upon
request, Consultant must document to the satisfaction of Company his
consulting expenses to Company including, when feasible, receipts for
travel, lodging and meals.
6. Representations.
A. The Company represents warrants and covenants the following:
(a) The Company will cooperate fully with Consultant in performing the
work the Company is required to perform in supplying information to
Consultant so that Consultant may perform its services under this
Agreement.
(b) The Company agrees to refrain from engaging in any activity scheme
or plan to circumscribe, prevent or refuse to pay the compensation
discussed above in Paragraph 5. In addition, Company agrees not to
circumvent this Agreement either directly or indirectly nor will it
interfere with, impair, delay or cause Consultant to perform work not
described in this Agreement.
(c) The Company and each of its subsidiaries is a corporation duly
organized and existing under the laws of its state or incorporation and
is in good standing with the jurisdiction of its incorporation in each
state where it is required to be qualified to do business.
(d) The Company will disclose to Consultant all material facts and
circumstances which may affect the decisions or course of conduct of
Consultant and the Company will be ultimately responsible for the
veracity of all disseminated information.
B. Consultant represents, warrants and covenants the following:
(a) Consultant will devote its energies and resources toward the
obtaining of investment through a public offering or otherwise as
contemplated in this Agreement.
(b) Consultant will disclose to Company all material facts and
circumstances which may affect its ability to perform its undertaking
herein.
(c) Consultant will cooperate in a prompt and professional manner with
the Company, its attorneys, accountants and agents in the performance
of the under-taking under this Agreement.
7. Confidentiality. Consultant agrees that all information received
from the Company shall be treated as confidential information and
Consultant shall not disclose, share or otherwise disseminate or permit
to be disseminated such information with any other person or entity,
except the S.E.C., and/or attorneys and accountants for the Company,
without the prior express written consent of the Company.
8. Notices. Any notice from either party in the other shall be deemed
received on the date such notice is personally delivered. Any notice
sent by fax transmission shall be deemed received by the other party on
the next business day after it has been transmitted. Any notice sent
by mail by either party to the other shall be deemed received on the
third business day after it has been deposited at a United States Post
Office. For purposes of delivering or sending notice to the parties to
this Agreement such notices shall be delivered or sent as follows:
If notice is delivered to Consultant to:
Breakthru Technologies, LLC
3 Democracy Center
0000 Xxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
If notice is delivered to the Company to:
Infectech, Inc.
ATTN: Xxxxxx X. Xxxxx, Chairman
c/o 00 Xxxxxxxxx Xxxxxx, Xxxxx 0
Xxxxxx, XX 00000
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and a copy to its attorney:
Xxxxxxx X. Xxxxx, III, Esquire
III, Esquire Road, Suite 000
Xxxxxxxx Xxxxx, X.X. Xxx 0000
Xxxxxxxxx, XX 00000
9. Validity. If for any reason any provision of this Agreement will
be determined to be invalid or unenforceable, the validity and effect
of the other provisions will not be affected.
10. Waiver of Breach. The waiver by Company or by Consultant of a
breach of any provision of this Agreement by the other party will not
operate, or be construed, as a waiver of any other breach of such other
party, or a subsequent breach of the same provision nor shall the same
be in any way construed or interpreted to be a modification or
amendment of this Agreement.
11. Termination Circumstances. This Agreement will terminate
immediately upon the death of Consultant during the Consulting Term.
Further, Company shall have the right to terminate this Agreement, with
or without cause, by providing thirty (30) days prior written notice to
Consultant. Consultant shall have the right to terminate this
Agreement upon written notice to Company. Should Consultant or Company
elect to terminate this Agreement then such termination shall terminate
the obligations of Company and Consultant hereunder and any right of
Consultant to any sums payable hereunder after the effective date of
the termination.
12. Assignment. This Agreement will inure to the benefit of, and be
binding upon, Company, its successors and assigns. This Agreement will
be binding on Consultant, Consultant's heirs, executors or
administrators, and legal representatives. However, this Agreement will
not be assignable by Consultant nor shall the obligations of Consultant
be delegated, without express written consent of the Company.
13. Entire Agreement. This Agreement represents the entire
understanding of the parties and there are no other outstanding
agreements or, provisions, except as set forth herein. This Agreement
may not be amended except by a writing signed by the party against whom
enforcement of any amendment is sought.
14. Applicable Law. The parties agree that this Agreement will be
construed and enforced pursuant to the laws of the Commonwealth of
Pennsylvania, and venue and jurisdiction will lie within said
Commonwealth, subject to the arbitration provisions set forth herein,
notwithstanding the principles of conflicts of laws.
15. Construction. This Agreement shall be construed as if both
parties participated equally in its negotiation and drafting. This
Agreement shall not be construed against one party over another party
due to the identity of the draftsman.
16. No Representation, Warranty or Guarantee of Success. Consultant
provides no representation, warranty or guarantee of success in the
capitalization of the Company.
17. Arbitration. The parties hereby agree that any dispute, claim or
controversy arising out of the construction, interpretation or
application of this Agreement and its provisions shall be decided by
mandatory arbitration conducted under the Rules of the American
Arbitration Association to be decided in Pittsburgh, Pennsylvania.
Enforcement and collection of any award made hereunder, however, shall
be available to the prevailing party in any court of competent
jurisdiction.
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IN WITNESS WHEREOF, the parties hereto, intending to be legally bound
in accord with the provisions of the Uniform Written Acknowledgements
Act (33 P.S. 1, et seq) have set their hands as of the day and year
first above written.
WITNESS/ATTEST:
CONSULTANT
Breakthru Technologies, L.L.C.
/S/ Xxxxxxx Xxxxxxx
Print Name/Title:
WITNESS/ATTEST:
COMPANY:
Infectech, Inc.
Xxxxxxxx X. Xxxxxx, MD
Print Name/Title:
Xxxxxxxx X. Xxxxxx, M.D.
Title: President & CEO
