CONSULTING AGREEMENT
AGREEMENT, made this day 18th of October, 2004 by and between Dermisonics,
Inc., having its principal place of business at Four Tower Bridge, 000 Xxx
Xxxxxx Xxxxx, Xxxx Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000-0000 (hereinafter the
"Company") and Ananda Capital Partners, Inc. a Florida corporation having an
address at 0000 Xxxxxx Xxxx, Xxxx Xxxxx XX 00000 (hereinafter the "Consultant").
WHEREAS, the Company desires to retain the Consultant for consulting
services in connection with financial and investor public relations and related
matters in the United States and the Consultant desires to provide such services
as set forth herein.
NOW, THEREFORE, in consideration of the premises and mutual covenants and
agreements set forth herein and for other good and valuable consideration, the
receipt and adequacy of which are hereby acknowledged, the parties, intending to
be legally bound, agree as follows:
A. CONSULTATION
1. Consultant. The Company hereby retains the Consultant to render to
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the Company the consulting services as described in Section B hereof, and the
Consultant hereby accepts such assignment upon the terms and conditions
hereinafter set forth.
2. Independent Relationship. The Consultant shall provide the
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consulting services required to be rendered by it hereunder solely as an
independent contractor and nothing contained herein shall be construed as giving
rise to an employment or agency relationship, joint venture, partnership or
other form of business relationship.
3. No Authority to Obligate the Company. Without the consent of the
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board of directors or appropriate officer of the Company, the Consultant shall
have no authority to take, nor shall it take, any action committing or
obligating the Company in any manner, and it shall not represent itself to
others as having such authority.
4. Term. The term of the Consultant's consultation to the Company
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hereunder shall commence as of the date hereof and shall extend for a term of
one year.
B. OBLIGATIONS OF THE CONSULTANT
1. Consulting Services. During the term of this Agreement, Consultant
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will render advice and assistance to the Company on business related matters and
in connection therewith the Consultant shall:
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a. Establish a financial public relations methodology designed to
increase awareness of the Company within the investment community.
b. Assist the Company in the accurate communication and
dissemination of its business plan as well as other relevant information
provided by the company to the financial marketplace.
c. Expose the Company to a broad network of active retail brokers,
financial analysts, institutional fund managers, private investors and active
financial newsletter writers.
d. Assist the Company in obtaining financial institution coverage.
e. Assist the Company in preparing the Company's due diligence
reports, corporate profile and fact sheets for the investment community.
f. Assist the Company in preparing investment conferences with
financial institutions or individual investors.
g. Conduct telemarketing campaigns to the investment community and
brokerage community and conduct teleconferences, Company executive(s), brokers,
financial analysts, fund managers and other interested participants.
h. Assist the Company in the preparation of all press releases and
coordinate the release thereof by way of a Company paid account with PR NewsWire
or BusinessWire.
i. Create, build and continually enhance an email database of all
brokers, investors, analysts and media contacts who have expressed an interest
in receiving on-going information on the Company.
j. E-mail press releases, corporate announcements, broker updates
and Company news developments to the Consultant's e-mail database of brokers,
institutional fund managers, financial analysts and industry professionals.
k. Serve as the Company's external publicist and endeavor to
obtain media coverage relating to the Company in both trade and industry press,
on local and national radio and/or TV programming, in subscription-based
financial newsletters, and on the worldwide web.
l. Introduce the Company to various fund managers and
institutional investors.
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ALL OF THE FOREGOING CONSULTANT PREPARED DOCUMENTATION CONCERNING THE COMPANY,
INCLUDING, BUT NOT LIMITED TO, DUE DILIGENCE REPORTS, CORPORATE PROFILE, FACT
SHEETS, AND QUARTERLY NEWSLETTERS, SHALL BE PREPARED BY THE CONSULTANT FROM
MATERIALS SUPPLIED TO IT BY THE COMPANY AND SHALL BE APPROVED BY THE COMPANY IN
WRITING PRIOR TO DISSEMINATION BY THE CONSULTANT.
2. Nonexclusive Engagement; Extent of Services.
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a. The parties agree that the consultation contemplated by this
Agreement is a nonexclusive engagement and that the Consultant now renders and
may continue to render consulting services to other companies which may or may
not conduct activities similar to those of the Company.
b. The Consultant will devote such time and effort to the affairs
of the Company as the Consultant deems reasonable and adequate to render the
consulting services contemplated by this Agreement. The Consultant's work will
not include any services that constitute the rendering of any legal opinions or
performance of work that is in the ordinary purview of certified public
accountants.
3. Confidentiality. The Consultant will not, either during its
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engagement by the Company pursuant to this Agreement or at any other time
thereafter, disclose, use or make known for its or another's benefit, any
confidential information, knowledge, or data of the Company or any of its
affiliates in any way acquired or used by the Consultant during its engagement
by the Company. Confidential information, knowledge or data of the Company and
its affiliates shall not include any information which is or becomes generally
available to the public other than as a result of a disclosure by the Consultant
or its representatives.
C. OBLIGATIONS OF THE COMPANY.
1. Compensation.
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Subject to the provisions of Section b, below, in consideration of the
services to be rendered by the Consultant hereunder, the Company shall issue to
the Consultant or his designees an aggregate of 100,000 fully paid and
non-assessable shares (the "Shares") of the common stock of the Company, par
value $0.01 per share.
b. In connection with, and in consideration of, the issuance of
the Shares to the Consultant, the Consultant hereby agrees with and represents
and warrants to the Company as follows:
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i. The Consultant is acquiring the Shares for the
undersigned's own account, for investment purposes only and not with a view
toward their resale or distribution.
ii. The Consultant understands that the Shares are not freely
transferable and will not be freely transferable for an extended period of time
and that, as a consequence thereof, the undersigned may have extremely limited
opportunities to dispose of the Shares. The Consultant understands that Rule
144 of the Securities Act of 1933, as amended (the "Act") permits the transfer
of "restricted securities" of the type herein involved under certain conditions,
but the Company may not in the future meet the conditions to the application of
Rule 144, including, inter alia, the condition that current detailed information
concerning the Company be publicly available.
iii. The Consultant will not transfer any of the Shares
either (a) in the absence of an effective registration under the Act and state
securities laws ("Laws"), or (b) without obtaining an opinion of an counsel
reasonably acceptable to the Company, which opinion shall be addressed, and
satisfactory in form and substance, to the Company and its counsel, stating that
the transaction is exempt from the registration requirements of the Act and
Laws.
iv. Until freely transferable, the Company may refuse to
authorize any transfer by the Consultant of any of the Shares if the proposed
transferee does not make written representations and agreements to the Company
and the undersigned in form and substance similar to those contained herein, or
if any circumstances are present which reasonably indicate that such
transferee's representations are not accurate.
v. A stop transfer order will be entered on the Company's
records respecting the Shares and a restrictive legend will be affixed to the
certificate evidencing the Shares substantially in the following form:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE
SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES
ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION
NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT
AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS.
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In addition, the Company shall be entitled to imprint the certificate evidencing
the Shares with any State legend, if required.
vi. The Consultant agrees to save, hold harmless, defend and
indemnify the Company from any claims, liabilities, or nonperformance by the
undersigned of any representation, warranty or agreement contained in this
letter.
vii. The Consultant and the Company have simultaneously
entered into the Registration Rights Agreement dated October 18, 2004, a copy of
which is attached hereto as Exhibit "A."
2. Reimbursement of Expenses.
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a. Out-of-Pocket Expenses. The Company shall reimburse the
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Consultant for actual out-of-pocket expenses including, but not limited to,
facsimile, postage, printing, photocopying, and entertainment, incurred by the
Consultant without the prior consent of the Company and in connection with the
performance by the Consultant of its duties hereunder in amounts up to three
hundred dollars ($300) per month. The prior consent of the Company shall be
required for reimbursement of expenses in excess of three hundred dollars ($300)
per month.
b. Travel and Related Expenses. The Company shall reimburse the
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Consultant for the costs of all travel and related expenses incurred by the
Consultant in connection with the performance of its services hereunder,
provided that all such costs and expenses have been authorized, in advance, by
the Company.
c. General. Expenses shall be due and payable when billed and
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after they have been incurred.
D. MISCELLANEOUS.
1. Entire Agreement. This Agreement contains the entire agreement
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between the parties with respect to the engagement of Consultant by the Company
as a consultant and supersedes and replaces any and all prior understandings,
agreements or correspondence between the parties relating to the subject matter
hereof.
2. Modification and Waiver. No supplement, modification or amendment
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of this Agreement shall be binding unless executed in writing by both the
parties hereto. No waiver of any other provisions hereof (whether or not
similar) shall be binding unless executed in writing by both the parties hereto
nor shall such waiver constitute a continuing waiver.
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3. Governing Law. This Agreement has been made in and shall be
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interpreted according to the laws of the State of Nevada without any reference
to the conflicts of laws rules thereof. The parties hereto submit to the
jurisdiction of the courts of Xxxxx County in the State of Nevada for the
purpose of any actions or proceedings that may be required to enforce any of the
provisions of this agreement.
4. Successors and Assigns. This Agreement shall inure to the benefit
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of and be binding upon the Company and its successors and assigns and upon the
Consultant and the Consultant's successors and assigns.
5. Severability. If any provision or provisions of this agreement
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shall be held to be invalid, illegal or unenforceable for any reason whatsoever:
a. the validity, legality and enforceability of the remaining
provisions of this Agreement (including, without limitation, each portion of any
Section of this Agreement containing any such provision held to be invalid,
illegal or unenforceable) shall not in any way be affected or impaired thereby;
and
b. to the fullest extent possible, the provisions of this
Agreement (including, without limitation, each portion of any Section of this
agreement containing any such provision held to be invalid, illegal or
unenforceable) shall be construed so as to give effect to the intent manifested
by the provision held invalid, illegal or unenforceable.
6. Further Assurances. From and after the execution and delivery of
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this Agreement, upon request of either party, the other shall do, execute,
acknowledge and deliver all such further acts, assurances and other instruments
and papers as may be required to carry out the transactions contemplated by this
agreement.
7. Headings. The headings of the paragraphs of this agreement are
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inserted for convenience only and shall not be deemed to constitute part of this
agreement or to affect the construction hereof.
8. Notices. Any notice to be given hereunder shall be given in
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writing. All notices under this Agreement shall be either hand delivered
receipt acknowledged, or sent by registered or certified mail, return receipt
requested as follows:
(a) If to the Company, to: Dermisonics, Inc.
0 Xxxx Xxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxxxx 00000
Attn.: Xxxxx X. Xxxxxxx
Facsimile No.: (000) 000-0000
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with a copy to: Ruffa & Ruffa, P.C.
000 Xxxx 00xx Xxxxxx,00xx Xxxxx
Xxx Xxxx, XX 00000
Attn.: Xxxxxxx X. Xxxxx, Esq.
Facsimile No.: (000) 000-0000
(b) If to the Consultant, to: Ananda Capital Partners, Inc.
0000 Xxxxxx Xxxx
Xxxx Xxxxx, XX 00000
Facsimile No.: (000) 000-0000
Attn: Xxxxx Xxxxxx
with a copy to: Blank Rome
0000 X Xxxxxxx Xxx
Xxxx Xxxxx XX 00000
Attn.: Xxxxx Xxxxxxx, Esq.
Facsimile No.: (000) 000-0000
All such notices shall be deemed given when delivered, if personally delivered
as aforesaid, or within five business days after mailing, as aforesaid.
9. Execution. This Agreement may be executed in two or more
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counterparts, all of which when taken together shall be considered one and the
same agreement and shall become effective when counterparts have been signed by
each party and delivered to the other party, it being understood that both
parties need not sign the same counterpart. In the event that any signature is
delivered by facsimile transmission, such signature shall create a valid and
binding obligation of the party executing (or on whose
behalf such signature is executed) the same with the same force and effect as if
such facsimile signature page were an original thereof.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
and year first written above.
DERMISONICS, INC. ANANDA CAPITAL PARTNERS, INC.
By:
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Xxxxx X. Xxxxxxx, Chairman Xxxxx Xxxxxx, President
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