CONSULTING AGREEMENT
This
CONSULTING AGREEMENT (“AGREEMENT”), effective November 15, 2007, is entered into
by and between Intertech Bio
Corporation, a Texas corporation (the “Company”), and Xxxxxx Xxxxxx, PhD
(the
“Consultant”), an individual.
WHEREAS,
the Company desires
to engage the service of the Consultant as its Chief Technology Officer –
Consulting Services; and
WHEREAS,
the Consultant is
willing to enter into this Agreement with the Company upon the terms and
conditions herein set forth; and
WHEREAS,
in connection with
entering into this Agreement, the Consultant is willing to enter into the
redemption agreement (“Redemption Agreement”) and lock-up/leak-out agreement
(“Lock-Up Agreement”);
NOW,
THEREFORE, in
consideration of the premises and covenants herein contained, the parties hereto
agree as follows:
1.
Term of
Agreement. Consultant’s engagement under this Agreement shall
be for a term of 6 months from the Commencement Date (defined below); which
term
may be extended by the Company for additional consecutive 3 month periods.
Consultant’s engagement may be terminated under any of the following
circumstances:
(a)
By the Company any time, upon 30 days written notice.
(b)
By the Consultant at any time, upon 30 days written notice.
2. Duties
and
Responsibilities. Consultant shall devote his time, energy,
and best efforts to the business and affairs of Company. Consultant’s
duties include business development and such other duties that the chief
executive officer of the Company may assign from time-to-time (collectively,
the
“Duties”). Consultant agrees to perform faithfully, industriously,
and to the best of Consultant’s ability, experience, and talents, all of the
Duties that may be required by the express and implicit terms of this Agreement,
to the reasonable satisfaction of the Company, on at least 8 to 15 days each
month (“Working Days”). Notwithstanding the above, Consultant is not
obligated to commence performance of his Duties until January 15, 2008
(“Commencement Date”).
3. Status. Consultant
shall be acting on behalf of the Company as its agent and will at all times
owe
the Company fiduciary duties of good faith and loyalty. Consultant
shall be deemed for all purposes to be an independent
contractor. Therefore, the Company shall not withhold any sums from
the gross payment to be made to Consultant for social security or other federal,
state, or local tax liabilities or contributions, and all withholdings,
liabilities, and contributions shall be solely the responsibility of
Consultant. Consultant shall not participate in any employee benefit
program of the Company during the term of this Agreement.
4.
Compensation During
the Term.
(a)
Shares of
Stock. Upon execution of this Agreement, Consultant shall be
issued 300,000 common stock shares of Edgeline Holdings, Inc., the Company’s
parent, which shares shall be subject to the Redemption Agreement and the
Lock-Up Agreement.
(b)
Compensation. Upon
the Commencement Date, the Consultant will be compensated $1,000 per Working
Day.
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(c)
Expense
Reimbursement. Upon the Commencement Date, the Consultant
shall be entitled to reimbursement of all reasonable, ordinary and necessary
business related expenses incurred by him in the course of his duties, including
all travel-related expenses, and upon compliance with the Company’s
procedures. Consultant agrees to obtain prior written approval from
the Company for any expenses in excess of $500.
(d)
Miscellaneous. Upon
the Commencement Date, the Company shall provide Consultant with a Company
laptop and a Company mobile phone, and shall pay all ordinary and necessary
business expenses related to the laptop and mobile phone. Consultant
shall return the laptop and mobile phone to the Company upon termination of
this
Agreement.
5.
Consultant’s Inability
To Contract For Company. Consultant
shall not
have the right to execute or make any contracts or commitments for or on behalf
of the Company without first obtaining the express written consent of the
Company.
6.
Confidentiality.
(a)
In connection with the performance of the Duties, the Consultant acknowledges
that it will acquire Proprietary Information (as defined below) from the Company
and/or its affiliates (collectively the “Company Group”). The use of
the word “Company” in this Agreement shall also include when referring to the
rights or obligations of the Company shall include the Company Group as
appropriate or applicable in the context used. The Consultant agrees
that all Proprietary Information acquired by him hereunder shall be safeguarded
with the same degree of control and care as a reasonably prudent person would
exercise with respect to his or her own similar information, and that the same
shall be returned to the owner of such Proprietary Information upon the owner’s
request.
(b)
The Consultant agrees (i) to treat in strict confidence any proprietary or
other
confidential information received from the Company Group (whether written or
verbal), including, without limitation, client lists, lists of referral sources,
business prospects, pricing and cost information, operating results, employees’
names, compensation and other information, regulatory and legal issues,
accounting and reporting matters, trade secrets, patents, copyrights, concepts,
inventions, processes, formulas, know-how, data and information, whether such
information is of a technical or a business nature, and all copies of any of
the
foregoing whether or not in writing or in any electronic or computer storage
medium (“Proprietary Information”), (ii) that he will not disclose any
Proprietary Information to third parties, except as specifically permitted
herein, and (iii) that he will not use any Proprietary Information for any
purpose not contemplated by this Agreement without the written permission of
the
Company, including any use for personal gain or benefit whether directly or
indirectly.
(c)
Information that is to be excluded from the term “Proprietary Information” is
any information that:
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(i)
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has
been published or is otherwise in the public domain at the time of
the
disclosure;
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(ii)
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becomes
public through no fault of Consultant or of the party receiving such
information;
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(iii)
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was
already in the possession of Consultant prior to employment or the
party
receiving such information is rightfully in possession thereof without
knowledge of, or a breach of, any applicable confidentiality requirements
or other restrictions;
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(iv)
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is
obtained from a third party who is lawfully in possession of said
information and is not subject to a contractual or fiduciary relationship
to the party receiving or providing such information or any other
person;
or
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(v)
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is
disclosed pursuant to a mandatory requirement of a governmental agency
or
by operation of law.
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(d)
The provisions of this Section 6 shall apply for so long as Consultant provides
services to the Company Group in any capacity, whether or not pursuant to this
Agreement, and shall survive the termination of this Agreement for so long
as
the information remains Proprietary Information.
7.
Covenant Not To
Compete. It is a mandatory and material condition imposed by
the Company for Consultant to enter into this Agreement and grant the Company
the covenant contained herein, and in consideration provided for herein
Consultant agrees with the Company that during the period of this Agreement
and
for a period of one (1) year (the “Restricted Period”) following his termination
of services for any reason, Consultant will not compete, whether directly or
indirectly as an owner, partner, shareholder, member, sole proprietor,
consultant, manager, officer, director or in any other capacity except as a
passive investor without managerial responsibilities, in the acquisition,
development, operation or ownership of any prospect the Company or its
affiliates has invested in, is developing or is operating or is contemplating
investing in, developing or operating. Consultant acknowledges that
the consideration being paid pursuant to this Agreement is sufficient
consideration for agreeing to the provisions of this Section 7, and that he
shall not be entitled to severance pay or any other additional payments of
consideration for this covenant not to compete.
8.
Representations. Consultant
represents and warrants that:
(a)
he shall refrain, both during the term of this Agreement and for one year
thereafter, from publishing any oral or written statements about Company or
any
of its, or its subsidiaries' or affiliates', directors, officers, employees,
agents or representatives that are slanderous, libelous, or defamatory;
(b)
he is authorized to enter into this Agreement, and that entering into this
Agreement will not violate any terms, conditions, representations or covenants
contained in any other agreement in which Consultant or his affiliates may
be a
party;
(c)
he is acting as an agent of the Company and based on his access to information,
he shall owe the
Company and its affiliates a fiduciary duty of loyalty, fidelity and allegiance
to act in the best interests of Company and its affiliates at all times;
(d)
he will do no act which would injure the business, interests, or reputation
of
the Company and its affiliates; and
(e)
during the term of this Agreement (i) he shall not knowingly become involved
in
a conflict of interest with Company or its affiliates, or upon discovery
thereof, allow such a conflict to continue, and (ii) he shall disclose to
Company’s chief executive officer any facts which might involve such a conflict
of interest; and
(f)
he will execute the Redemption Agreement, attached hereto as Exhibit
A, and the
Lock-Up Agreement, attached hereto as Exhibit
B.
9.
Opportunities. During
the term of this Agreement, Consultant shall make full disclosure to Company
of
all business opportunities pertaining to the Company’s business. In
addition, during the term of this Agreement and for one year thereafter,
Consultant shall not take any action which might divert from the Company any
opportunity learned about by him during the term of this Agreement with the
Company which would be within the scope of any of the businesses then engaged
in
or planned to be engaged in by the Company.
10.
Future Acquisition
& Employment. It is contemplated that the Company will be
acquired by a public company (“PubCo”) within 6 months from the date hereof
(“Acquisition”). It is further contemplated that, upon such
Acquisition and with the consent of the Company’s chief executive officer,
Consultant will enter into an employment agreement with PubCo to serve as its
president and chief operating officer and to serve as a member on PubCo’s board
of directors. The proposed terms of such contemplated employment
agreement are as follows:
(a)
The term of the employment agreement will be for a period of 3 years, the first
6 months of which may be on a part-time basis, and thereafter shall be on a
full-time basis. Upon being employed on a full-time basis, Consultant shall
have
60 days to relocate his residence to Houston, Texas, and PubCo will reimburse
Consultant for all expenses incurred in his relocation.
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(b)
The employment agreement may be terminated by either party upon 15 days notice.
Upon termination, Consultant shall be entitled to severance in the amount of
3
months salary from the date of the termination notice, payable in 3 equal
monthly installments.
(c)
Upon execution of the employment agreement, Consultant shall be issued shares
of
PubCo’s common stock in an amount equal to 4% to 4.99% of PubCo, at PubCo’s
discretion, less 300,000 (“PubCo Shares”), which PubCo Shares shall be subject
to a redemption agreement and a lock-up/leak-out agreement.
(d)
The Consultant shall be compensated approximately $150,000 per year on a
part-time basis and $300,000 per year on a full-time basis. Consultant shall
also be entitled to reimbursement of all reasonable, ordinary and necessary
business related expenses incurred in the scope of his employment.
(e)
In connection with the employment agreement, Consultant shall execute a
redemption agreement, which will allow PubCo to redeem the PubCo Shares issued
to Consultant pursuant to the employment agreement upon the following
terms:
(i)
PubCo shall redeem 50% of the PubCo Shares if, at any time before December
31,
2008, Consultant elects to work on less than a full time basis.
(ii)
PubCo shall redeem 25% of the PubCo Shares if, at any time before December
31,
2009, Consultant elects to work on less than a full time basis.
(f)
In connection with the employment agreement, Consultant shall execute a
lock-up/leak-out agreement, which will restrict Consultant’s ability to sell,
transfer or otherwise dispose of
the PubCo Shares pursuant to the terms and provisions set forth
therein.
11.
Contents of Agreement,
Parties in Interest, Assignment, etc. This Agreement sets
forth the entire understanding of the parties hereto with respect to the subject
matter hereof. All of the terms and provisions of this Agreement
shall be binding upon and inure to the benefit of and be enforceable by the
respective heirs, representatives, successors and assigns of the parties hereto,
except that the duties and responsibilities of Consultant hereunder which are
of
a personal nature shall neither be assigned nor transferred in whole or in
part
by Consultant. This Agreement shall not be amended except by a
written instrument duly executed by the parties.
12.
Severability. If
any term or provision of this Agreement shall be held to be invalid or
unenforceable for any reason, such term or provision shall be ineffective to
the
extent of such invalidity or unenforceability without invalidating the remaining
terms and provisions hereof, and this Agreement shall be construed as if such
invalid or unenforceable term or provision had not been contained herein.
13.
Notices. Any
notice, request, instruction or other document to be given hereunder by any
party to the other party shall be in writing and shall be deemed to have been
duly given when delivered personally or five (5) days after dispatch by
registered or certified mail, postage prepaid, return receipt requested, to
the
party to whom the same is so given or made:
If
to the Company addressed
to:
Intertech
Bio Corporation
0000
Xxxxxxxxxx Xxxxx
Xxxxx
Xxxx, XX 00000
If
to Consultant addressed to:
the
addresses set forth on the
signature page below
or
to
such other address as the one party shall specify to the other party in
writing.
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14.
Counterparts and
Headings. This agreement may be executed in one or more
counterparts, each of which shall be deemed an original and all which together
shall constitute one and the same instrument. All headings are
inserted for convenience of reference only and shall not affect the meaning
or
interpretation of this agreement.
15.
GOVERNING
LAW, JURISDICTION, VENUE, AND
ATTORNEYS’ FEES. THIS AGREEMENT SHALL BE GOVERNED BY THE LAWS OF THE
STATE OF TEXASWITHOUT
REGARD TO THE CONFLICT OF LAWS
PRINCIPLES THEREOF. IN THE EVENT OF ANY CONFLICT RELATING TO OR
ARISING OUT OF THIS AGREEMENT, IN WHOLE OR IN PART, THE PARTIES AGREE TO THE
EXCLUSIVE JURISDICTION OF THE STATE OR FEDERAL DISTRICT COURTS IN HOUSTON,
XXXXXX COUNTY, TEXAS AND AGREE TO EXCLUSIVE VENUE IN SUCH COURTS. IN
THE EVENT OF LEGAL PROCEEDINGS HEREUNDER, THE PARTY SUBSTANTIALLY PREVAILING
ON
THE MERITS SHALL BE ENTITLED TO AN AWARD OF ATTORNEYS’ FEES AND
COSTS. ANY PARTY MAY REQUEST AND OBTAIN A NON-BINDING MEDIATION
HEARING AFTER FILING A LAWSUIT HEREUNDER IN HOUSTON, TEXAS, WITH COSTS TO BE
SHARED EQUALLY, AND THE MEDIATOR SHALL BE APPOINTED BY THE COURT IF THE PARTIES
CANNOT AGREE TO A MEDIATOR.
16.
BREACH OF CONSULTANT’S COVENANTS. If Consultant breaches or threatens
to breach Sections 6, 7, 8, and 9 hereof, Consultant specifically acknowledges
that such breach or breaches shall be conclusively presumed to cause irreparable
harm to the Company or Company Group entitling it to all equitable relief
available at law or in equity including but not limited to a temporary
restraining order, a temporary injunction and a permanent injunction and
Consultant stipulates and acknowledges that monetary recovery shall not be
sufficient alone to compensate the Company in such events and waives proof
thereof and the necessity for the Company to post a bond, except for the minimum
amount permitted by law.
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed and delivered as of the day and year first above written.
COMPANY:
CONSULTANT:
Intertech
Bio
Corporation
Xxxxxx Xxxxxx, PhD
By:
/s/
J. Xxxxxxx
Xxxxx
/s/
Xxxxxx Xxxxxx
Name:
J. Xxxxxxx
Xxxxx
Title:
Chief Executive
Officer
ACKNOWLEDGED
& AGREED:
By:
/s/
J. Xxxxxxx
Xxxxx
Name:
J. Xxxxxxx
Xxxxx
Title:
Chief Executive
Officer
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EXHIBIT
A
REDEMPTION
AGREEMENT
THIS
REDEMPTION
AGREEMENT(the “Agreement”)
is made and entered into as of the date set forth on the signature page below,
between Edgeline
Holdings,
Inc. (the “Company”), and
Xxxxxx
Xxxxxx,
PhD(“Holder”).
WHEREAS,
the Holder has agreed to serve as a
consultant and/or an employee of Intertech Corporation (“Intertech Bio”)
pursuant to the terms and conditions set forth in the consulting agreement
entered into by and between Holder and Intertech Bio (“Consulting
Agreement”);
WHEREAS,
the Holder received shares of the
Company’s common stock, in the amount set forth on the signature page below (the
“Edgeline Shares”), pursuant to the Consulting Agreement;
WHEREAS,
as consideration for receiving the
Edgeline Shares initially, the Holder hereby gives the Company the right to
redeem a portion of the Edgeline Shares if he fails to perform his Duties (as
defined in the Consulting Agreement) for less than 8 Working Days (as defined
in
the Consulting Agreement) per month during the term of the Consulting Agreement,
on the terms and conditions set forth herein;
NOW,
THEREFORE, for consideration of
the
foregoing premises and the mutual covenants contained herein, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. The
Holder has agreed in a
separate lock-up/leak-out agreement not to sell, pledge, hypothecate, transfer,
assign or in any other manner dispose of any of the Edgeline Shares on the
terms
and conditions set forth therein.
2. The
Holder agrees that if he fails
to perform his Duties (as defined in the Consulting Agreement) for less than
8
Working Days per month during the term of the Consulting Agreement, the Company
has the right to redeem 50% of the Edgeline Shares issued to Consultant pursuant
to Section 4(a) of the Consulting Agreement.
3. Except
as otherwise provided in
this Agreement or any other agreements between the parties, the Holder shall
be
entitled to his beneficial rights of ownership of the Edgeline Shares, including
the right to vote the Edgeline Shares for any and all purposes.
4. The
Holder agrees that if
Intertech Bio is acquired by a public company at any time during the term of
the
Consulting Agreement, Holder shall exchange its Edgeline Shares for a number
of
common stock shares of such acquiring public company equal to Holder’s current
percentage ownership in the Company.
5. If
the
Holder fails to fully adhere to the terms and conditions of this Agreement,
he
shall be liable to every other party for any damages suffered by any party
by
reason of any such breach of the terms and conditions hereof. The
Holder agrees that in the event of a breach of any of the terms and conditions
of this Agreement, that in addition to all other remedies that may be available
in law or in equity to the non-defaulting party, a preliminary and permanent
injunction and an order of a court requiring such defaulting Holder to cease
and
desist from violating the terms and conditions of this Agreement and
specifically requiring such Holder to perform his obligations hereunder is
fair
and reasonable by reason of the inability of the parties to this Agreement
to
presently determine the type, extent or amount of damages that the Company
or
the non-defaulting Holder may suffer as a result of any breach or continuation
thereof. In the event
of default hereunder, the non-defaulting parties shall be entitled to recover
reasonable attorney's fees incurred in the enforcement of this
Agreement.
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6. This
Agreement sets forth the
entire understanding of the parties hereto with respect to the subject matter
hereof, and may not be amended unless both parties agree in writing.
7. The
provisions hereof shall inure to the benefit of, and be binding upon, the
successors, assigns, heirs, executors, and administrators of the parties
hereto.
8. This
Agreement shall be governed
by and construed in accordance with the laws of the State of Texas applicable
to
contracts entered into and to be performed wholly within said State; and the
Company and the Holder agree that any action based upon this Agreement may
be
brought in the United States and state courts of Xxxxxx County, Texas only,
and
each submits himself/itself to the jurisdiction of such courts for all purposes
hereunder.
IN
WITNESS
WHEREOF, the undersigned
have duly executed and delivered this Agreement as of November 15, 2007.
COMPANY:
By:
/s/
J. Xxxxxxx
Xxxxx
Name:
J. Xxxxxxx
Xxxxx
Title:
Chief Executive
Officer
HOLDER:
Xxxxxx
Xxxxxx, PhD
/s/
Xxxxxx Xxxxxx
Number
of Edgeline Shares Subject
to
this Agreement: 300,000
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EXHIBIT
B
LOCK-UP/LEAK-OUT
AGREEMENT
THIS
LOCK-UP/LEAK-OUT
AGREEMENT(the “Agreement”) is made and
entered into as of the date set forth on the signature page below, between
Edgeline
Holdings, Inc., a Nevada
corporation (the “Company”), and Xxxxxx Xxxxxx, PhD (“Holder”).
WHEREAS,
the Holder has agreed to serve as a
consultant and/or an employee of Intertech Corporation (“Intertech Bio”)
pursuant to the terms and conditions set forth in the consulting agreement
entered into by and between Holder and Intertech Bio (“Consulting
Agreement”);
WHEREAS,
the Holder has received shares of the
Company’s common stock, in the amount set forth on the signature page below
(“Edgeline Shares”), pursuant to the Consulting Agreement; and
WHEREAS,
as consideration for entering into the
Consulting Agreement, the Holder has agreed to enter into this Agreement and
to
restrict the sale, assignment, transfer, conveyance, or hypothecation of the
Edgeline Shares, all on the terms set forth below.
NOW,
THEREFORE, in consideration of
the
foregoing premises and the mutual covenants contained herein, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
9. The
Holder agrees that, for a period of 18 months commencing on the date of the
Consulting Agreement, he will not sell, pledge, hypothecate, transfer, assign
or
in any other manner dispose of the
Edgeline Shares. Thereafter, Holder may sell, pledge, hypothecate,
transfer, assign or otherwise dispose of up to a maximum number of
5,000
shares of Edgeline Shares per day up to a maximum of 3% of Holders’ Edgeline
Shares per 30-day period; provided that, during the first 36 month period of
the
leak-out, such sale, pledge, hypothecation, transfer, assignment or
disposition does not exceed 7% of
Holders’ Edgeline Shares per 90-day period.
10. The
Holder agrees that it will not
engage in any short selling of Edgeline Shares during the term of this
Agreement.
11. Except
as otherwise provided in
this Agreement or any other agreements between the parties, the Holder shall
be
entitled to their respective beneficial rights of ownership of Edgeline Shares,
including the right to vote the Edgeline Shares for any and all purposes.
12. The
restrictions on the Edgeline
Shares covered by this Agreement shall be appropriately adjusted should the
Company undergo a forward split or a reverse split or otherwise reclassify
its
shares of Edgeline Shares.
13. The
resale restrictions on the Edgeline
Shares set forth in this Agreement shall be in addition to all other
restrictions on transfer imposed by applicable United Statesand
state securities laws, rules and
regulations.
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14. If
Holder
who fails to fully adhere to the terms and conditions of this Agreement, he
shall be liable to the Company for any damages suffered by reason of any such
breach of the terms and conditions hereof. The Holder agrees that in
the event of a breach of any of the terms and conditions of this Agreement
by
the Holder, in addition to all other remedies that may be available in law
or in
equity to the Company, a preliminary and permanent injunction and an order
of a
court requiring the Holder to cease and desist from violating the terms and
conditions of this Agreement and specifically requiring the Holder to perform
his/her/its obligations hereunder is fair and reasonable by reason of the
inability of the parties to this Agreement to presently determine the type,
extent or amount of damages that the Company may suffer as a result of any
breach or continuation thereof. In the event of default hereunder,
the
Company shall be entitled to recover reasonable attorney's fees incurred in
the
enforcement of this Agreement.
15. This
Agreement sets forth the
entire understanding of the parties hereto with respect to the subject matter
hereof.
16. The
provisions hereof shall inure to the benefit of, and be binding upon, the
successors, assigns, heirs, executors, and administrators of the parties
hereto.
17. This
Agreement shall be governed
by and construed in accordance with the laws of the State of Texas applicable
to
contracts entered into and to be performed wholly within said State; and the
Company and the Holder agree that any action based upon this Agreement may
be
brought in the United States and state courts of Xxxxxx County, Texas only,
and
each submits himself/herself/itself to the jurisdiction of such courts for
all
purposes hereunder.
IN
WITNESS
WHEREOF, the undersigned
have duly executed and delivered this Agreement as of November 15, 2007.
COMPANY:
By:
/s/
J. Xxxxxxx
Xxxxx
Name:
J. Xxxxxxx
Xxxxx
Title:
Chief Executive
Officer
HOLDER:
Xxxxxx
Xxxxxx, PhD
/s/
Xxxxxx Xxxxxx
Number
of Shares Subject
to
this Agreement: 300,000
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