THE INVESTOR RELATIONS GROUP INC.
LETTER OF AGREEMENT
Date: February 6, 2006
Section 1. Services to be Rendered. The purpose of this letter is to set forth
the terms and conditions on which The Investor Relations Group, Inc. (IRG)
agrees to provide Advanced BioPhotonics Inc.(the "Company") investor relations
and public relations services (the "Agreement"). IRG and the Company may be
referred to herein individually as the "party" and collectively as the
"parties." These services may include, but are not limited to: overall
management of the corporate communications program; designing a corporate fact
sheet that can readily be mass produced for distribution to brokers, analysts,
and other industry personnel; securing one-on-one and group appointments with
industry professionals for presentations by, for, and about Company management;
targeted mailings; assistance with compiling promotional materials; writing and
editing news releases and other corporate materials; advice on packaging the
Company story; and daily update reports (collectively, the "Services").
Section 2. Fees. The Company shall pay to IRG for the Services hereunder
including investor relations services fee of $10,000 per month. Additionally,
for this Agreement, the Company agrees to deliver to IRG 325,000 restricted
shares, issued in the name of The Investor Relations Group, Inc. These shares
shall be restricted for a period of two years from the date of the execution of
the Agreement. Fees are payable on the 1 st day of each month during the term of
this Agreement (as hereinafter defined). Unless other arrangements have been
made and agreed upon in writing, lack of payment for services rendered by the
10th of the month will be considered default of this Agreement, and IRG shall be
entitled to cease all services on behalf of the Company until such time as
payment in full of amounts due is made. IRG's exclusive remedy for any such
default shall be an action to recover fees accrued to IRG before ceasing
services on behalf of the Company.
Section 3. Expenses. In addition to all other fees payable to IRG hereunder, the
Company hereby agrees to reimburse IRG for all reasonable out-of-pocket expenses
incurred in connection with the performance of services hereunder. These
out-of-pocket expenses shall include, but are not limited to: telephone,
photocopying, postage, messenger service, clipping service, maintaining mailing
lists, information retrieval service, wire services, monitoring advisory
service, all production costs for press releases including paper, envelopes,
folding, insertion and delivery to the post office, all reasonable travel
expenses, and all reasonable meeting expenses including rental of audio/visual
equipment. No individual expenses over $250 will be expended without first
notifying the Company. The Company agrees to remit upon the signing of this
agreement a check for $5,000 to be placed on deposit with IRG and credited to
the Company against expenses incurred, on a permanent basis, throughout the
program. From time to time, the Company will replenish the expense account as
necessary to maintain a balance of $1,000. The balance of said deposit is fully
refundable should the program terminate. A running invoice will be maintained of
all expenses incurred and will be submitted to the Company each month.
Section 4. Indemnification. The Company and IRG agree to defend, indemnify and
hold each other, their affiliates, stockholders, directors officers, agents,
employees, successors and assigns (each an "Indemnified Person") harmless from
and against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses and disbursements of any kind
whatsoever (including, without limitation, reasonable attorneys' fees) arising
solely from the Company's or IRG's breach of their obligations, warranties and
representations under this Agreement. It is recognized and agreed by IRG and the
Company that neither party shall have any liability hereunder to any Indemnified
Person arising from the other party's intentional negligence or willful
misconduct. It is further agreed that the foregoing indemnity shall be in
addition to any rights that either party may have at common law or otherwise,
including, but not limited to, any right to contribution.
Section 5. Term of Agreement and Guarantee of Satisfaction. (a) This Agreement
shall commence on February 13, 2006 (the "Effective Date") and shall continue in
full force and effect on a month-to-month basis, unless terminated earlier
pursuant to this Section; (b) either party may terminate this Agreement at any
time, with or without cause, and ABP shall have no further obligation to IRG,
except to make any payments which may have theretofore become due.
Section 6. Solicitation of Employees. For a period commencing two years after
the termination of this Agreement, neither party shall, directly or indirectly
influence or attempt to influence any employee of the other party to leave its
employ;. Each party acknowledges that the restrictions in this section are
reasonable and necessary for the protection of the other party's business.
Section 7. Severability. In case any provision of this letter agreement shall be
unenforceable or found to be invalid or illegal, in whole or in part, such
provision shall be deemed to apply only to the maximum extent permitted by law
and notwithstanding the invalidity of such other provision the remaining
provisions shall remain in full force and effect.
Section 8. Consent to Jurisdiction. This Agreement shall be governed and
construed in accordance with the laws of the State of New York, and the parties
hereby consent to the exclusive jurisdiction of the State and Federal Courts,
located within the State of New York to resolve any disputes arising under this
Agreement.
Section 9. Other Services. If the Company desires additional services not
included in this agreement, any such additional services shall be covered by a
separate agreement between the parties hereto.
Section 10. Independent Contractors. The relationship of the parties under this
Agreement shall be that of independent contractors, and nothing contained in
this Agreement and no action taken by either party to this Agreement shall be
deemed to constitute either party or any of such party's employees, as agents or
representatives of the other party or shall be deemed to create a partnership,
joint venture or association between the parties, or shall be deemed to confer
on either party any express or implied right, power or authority to enter into
any agreement or commitment, express or implied, or to incur any obligation or
liability on behalf of the other party.
Section 11. Waiver. No waiver, delay, forbearance or failure by either party of
its right, power or privilege to enforce any provision of this Agreement shall
constitute a waiver or estoppel of such party's right to enforce such provision
in the future.
Section 12 Entire Agreement. This Agreement, together with its attachments and
Appendices specifically referenced and attached hereto (which are hereby
incorporated herein by reference), sets forth the entire and final agreement and
understanding of the parties with respect to the subject matter of this
Agreement. Any and all prior agreements, understandings or undertakings, whether
written or oral, with respect to the subject matter of this Agreement, are
hereby superceded and replaced by this Agreement. This Agreement may not be
modified or amended except by a written agreement signed by both parties to this
Agreement.
Section 13. Headings. The captions and section headings in this Agreement are
for convenience only and shall not be considered a part of, or be deemed to
affect the construction or interpretation of, any provision of this Agreement.
Section 14. Counterparts. This Agreement may be executed in two (2) or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
Section 15. Representations and Warranties. Each party warrants and represents
to the other that it has the legal rights and power to extend the rights granted
to the other party in this Agreement, that it has the full right to enter into
this Agreement and to fully perform its obligations hereunder, and that it has
not made nor will it make any commitment to a third party in conflict with or in
derogation of such rights or this Agreement. IRG specifically represents that it
is properly qualified to render the Services which are the basis of this
Agreement and that the Company may rely on IRG's expertise in providing such
services. IRG warrants that it will not trade the Company's stock while in
possession of material non-public information, as that term is defined by the
SEC. Each party further represents to the other that it is not aware of any
legal obstacles, which could prevent either party from carrying out the
provisions of this Agreement.
Section 16. Assignment of Agreement. Neither party may transfer this Agreement
or any right or obligation under this Agreement, by assignment, merger or
consolidation without the prior written consent of the other party, however,
such consent shall not be unreasonably withheld. This Agreement shall be binding
upon and shall inure to the benefit of the subsidiaries, affiliates, legal
successors and assigns of the respective parties.
Section 17. Notice. All notices, instructions, requests, authorizations,
consents, demands and other communications hereunder shall be in writing and
shall be sent by courier, facsimile or registered airmail, postage prepaid,
addressed as follows:
To: Advanced BioPhotonics Inc.
000 Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxx, Xxx Xxxx 00000
Facsimile: 000-000-0000
Attention: Xxxxx X. Xxxxx, Esq.
And
To: The Investor Relations Group, Inc.
00 Xxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: 000-000-0000
Attention: Xx. Xxxx Xxxxxxx
Either party hereto may change its address by a notice given to the other party
hereto in the manner set forth above. Notice given by mail shall be considered
to have been given five (5) days after the mailing thereof, and notices given by
facsimile shall be considered to have been given when received.
Section 18. Attorneys' Fees. Each party shall bear all costs and expenses
incurred by it under or in connection with this Agreement, provided, however,
that the prevailing party in any litigation commenced to enforce or construe the
terms of this Agreement shall be entitled to collect from the other party the
costs of such litigation, including reasonable attorneys' fees.
Section 19. Confidential Information. The parties acknowledge that the parties
shall from time-to-time disclose confidential information to the other party and
the parties agree to abide by the Non-Disclosure Agreement attached hereto and
incorporated herein by reference (Appendix 1).
Section 20. No Implied Rights. Neither this Agreement nor the disclosure of
confidential information hereunder shall be construed as granting or conferring,
either expressly or impliedly, any rights, licenses or other relationships
between the parties.
Section 21. Survival. The provisions of Sections 4, 6 and 15 shall survive any
termination of this Agreement. In addition, the confidentiality obligations
contained in the attached Non-Disclosure Agreement (Appendix 1) shall survive
any termination of this Agreement and shall terminate upon the terms and
conditions contained therein.
Please evidence your acceptance of the provisions of this letter by
signing the copy of this letter enclosed herewith and returning it to The
Investor Relations Group Inc., 0x Xxxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, XX 00000,
Attention: Xxxx Xxxxxxx, Ph.D., Chairman & CEO.
Very truly yours,
/s/ Xxxx Xxxxxxx
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Xxxx Xxxxxxx
Founder and Chairman
Investor Relations Group, Inc.
ACCEPTED AND AGREED
AS OF THE DATE FIRST ABOVE WRITTEN:
/s/ Xxxxx X. X'Xxxxxx
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Xxxxx X. X'Xxxxxx
President & Chief Executive Officer
Advanced BioPhotonics Inc.
