Amended Consulting Services Agreement
This Amended Consulting Services Agreement originally entered into on the
9th day of February, 1996, amended as of July 11, 1997, by and among Diplomat
Corporation ("Diplomat"), Biobottoms, Inc. (the "Company") and Xxxx Xxxxxx (the
"Consultant"), with respect to consulting services to Diplomat.
1. This Agreement will terminate upon a minimum thirty days written notice
by any party hereto to the other parties, unless terminated earlier or extended
pursuant to Section 4 of this Agreement.
2. Consultant agrees to render consulting services ("Services") to
Diplomat, at the Consultant's convenience and subject to reasonable notice by
Diplomat, up to a maximum four (4) days per month, to Diplomat for the term of
this Agreement. Consultant's duties shall include, but are not limited to,
advising with regard to marketing, public relations, personnel and product
development and such other duties as Diplomat and the Consultant may from time
to time agree upon.
3. (a) Consultant shall be paid a minimum of $2,000 per month regardless of
the time actually provided by Consultant. For each hour spent per month over 32
hours, the Consultant shall be paid a minimum of $80 per hour, exclusive of
travel time, for time spent performing Consultant's duties under this Agreement.
Such payments shall be made no later than the tenth (10th) day of the month
following the month in which the services were performed. In addition, Diplomat
shall reimburse Consultant for reasonable long distance travel (transportation,
lodging and meals) and telephone expenses Consultant is required to incur in
providing the Services. Consultant shall provide Diplomat with invoices
detailing the expense reimbursements that Consultant believes are due under this
Agreement, and shall itemize and provide receipts for expenses upon request.
Diplomat agrees to pay approved invoices within 15 days of receipt.
(b) (i) Diplomat shall issue to Consultant 29,204 shares of its common
stock (the "Shares") and shall, within four weeks of the date hereof, file a
registration statement on Form S-8 for the purpose of registering the Shares
provided to the Consultant and Diplomat will use its best efforts to have said
registration statement declared effective as quickly as reasonably possible.
(ii) Upon effectiveness of such registration statement, the
Consultant shall be free to sell the Shares. Should Consultant elect to effect
such sale within 60 days of the effective date of the registration statement and
such sale is effected through Diplomat's market-maker EC Capital, Inc., Diplomat
shall pay Consultant the difference between the amount realized and $87,611,
should the amount realized be less. Should Consultant not be able to sell the
Shares for failure of Diplomat to obtain an effective registration thereof
within three months of the date hereof, Diplomat shall, at the request of
Consultant, repurchase the stock at an aggregate price of $87,611. Should such
failure to obtain an effective registration result from events within the
control of Diplomat, then Diplomat shall repurchase said stock at the greater of
the average trading
price for the prior five trading days or $87,611.
(iii) Should Diplomat close the proposed acquisition of Xxx Xxxxxx
Ltd. then, while Consultant holds the above referenced shares of Diplomat stock,
upon such closing, Diplomat shall immediately notify Consultant of such fact and
Consultant shall have 10 trading days thereafter to effect the sale of the stock
contemplated by paragraph 3(b)(ii) hereof. At the date of closing, should any
sum be due pursuant to paragraph 3(b)(ii) hereof as a result of either the
inability of the Consultant to sell said Diplomat stock because of the failure
to register said stock or because the amount realized on sale was less than an
aggregate of $87,611, then Diplomat shall, at or prior to the closing of the Xxx
Xxxxxx Ltd. transaction, pay the amount due to Consultant.
4. Each of the parties to this Agreement agrees that this Agreement may be
terminated by the Consultant, for any reason, with or without cause, by giving
written notice to Diplomat; termination to be effective upon Diplomat's receipt
of notice. The parties further agree that Diplomat may not terminate this
Agreement until the later of (a) the date payment is effected pursuant to
paragraph 3(b)(ii) above or (b) if Consultant elects to hold the Shares, the
date two months from the effective date of the registration statement referred
to in paragraph 3(b)(i) above.
5. Consultant is an independent contractor and is solely responsible for
all taxes, withholdings, and other similar statutory obligations, including, but
not limited to, Workers' Compensation Insurance.
6. Consultant has no authority to act on behalf of or to enter into any
contract, incur any liability or make any representation on behalf of Diplomat.
7. Consultant's performance under this Agreement shall be conducted with
due diligence and in full compliance with the highest professional standards of
practice in the industry. Consultant shall comply with all applicable laws and
Diplomat safety rules in the course of performing the Services.
8. Consultant agrees that any dispute in the meaning, effect or validity of
this Agreement shall be resolved in accordance with the laws of the State of
California without regard to the conflict of laws provisions thereof. Consultant
further agrees that if one or more provisions of this Agreement are held to be
illegal or unenforceable under applicable California law, such illegal or
unenforceable portion(s) shall be limited or excluded from this Agreement to the
minimum extent required and the balance of the Agreement shall be interpreted as
if such portion(s) were so limited or excluded and shall be enforceable in
accordance with its terms.
9. This Agreement shall be binding upon Consultant, and inure to the
benefit of, the parties hereto and their respective heirs, successors, assigns,
and personal representations; provided, however, that it shall not be assignable
by Consultant.
10. This Agreement contains the entire understanding of the parties
regarding its
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subject matter.
11. All notices required or given therewith shall be addressed to the
parties to this Agreement at the designated addresses shown below by registered
mail, special delivery, or by certified courier service:
a. To Diplomat Corporation or Diplomat Sub:
Diplomat Corporation
00 Xxx Xxxxx Xxxxx
Xxxxx Xxxxx, XX 00000
With a copy to:
Xxxxxxx, Savage, Kaplowitz, Xxxxxxxxxx
& Xxxxxx, LLP
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
b. To Biobottoms, Inc.:
Biobottoms, Inc.
000-X Xxxxxx Xxxxxx
Xxxxxxxx, XX 00000
c. To Consultant:
000 Xxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxx Xxxxxx
13. If any action at law or in equity is necessary to enforce or interpret
the terms of this Agreement, the prevailing party shall be entitled to
reasonable attorneys' fees, costs and necessary disbursements, in addition to
any other relief to which the party may be entitled.
14. This Agreement may be executed in one or more counterparts and by fax
and when so executed by each party hereto shall comprise one agreement binding
upon the parties.
CONSULTANT HAS READ THIS AGREEMENT CAREFULLY AND UNDERSTANDS AND ACCEPTS
THE OBLIGATIONS WHICH IT IMPOSES UPON CONSULTANT WITHOUT RESERVATION. NO
PROMISES OR REPRESENTATIONS
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HAVE BEEN MADE TO CONSULTANT TO INDUCE CONSULTANT TO SIGN THIS AGREEMENT.
CONSULTANT SIGNS THIS AGREEMENT VOLUNTARILY AND FREELY.
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Consultant
Accepted and Agreed to:
DIPLOMAT CORPORATION
By:
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Printed Name:
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BIOBOTTOMS, INC.
By:
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Printed Name:
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