CONSULTING AGREEMENT
Exhibit
9.4
This
Consulting Agreement (the “Agreement”) is entered into as of April 17, 2008, by
and between GenMed Holding Corp., a Nevada corporation (the “Company”), and
Total Look BV (“Consultant”).
WHEREAS,
the Company desires to enter into strategic relationships, and/or enter into
distribution relationships, and to secure valuable sales agreements to assist
the Company in its sales of its generic pharmaceutical products (the “Company
Objectives”);
WHEREAS,
the Company recognizes that the Consultant can contribute to finding, analyzing,
structuring and negotiating sales and marketing agreements, alliances and other
desirable projects, including the Company Objectives, which contribution is
of
great value to the Company and its shareholders;
WHEREAS,
the Company believes it to be important both to the future prosperity of the
Company Objectives and to the Company’s general interest to retain Consultant,
on a non-exclusive basis, and have Consultant available to the Company for
consulting services in the manner and subject to the terms, covenants, and
conditions set forth herein;
WHEREAS,
in order to accomplish the foregoing, the Company and Consultant desire to
enter
into this Agreement, effective as of April 17, 2008, to provide certain
assurances as set forth herein.
NOW
THEREFORE, in view of the foregoing and in consideration of the premises and
mutual representations, warranties, covenants and promises contained herein
and
other good and valuable consideration, the receipt and sufficiency of which
are
hereby acknowledged, the parties hereto, intending to be legally bound hereby,
agree as follows:
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1.
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Retention.
The Company hereby retains the Consultant during the Consulting Period
(as
defined in Section 2 below), and Consultant hereby agrees to be so
retained by the Company, all subject to the terms and provisions
of this
Agreement.
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2.
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Consulting
Period.
The Consulting Period shall commence on April 17, 2008 and terminate
no
earlier than April 17, 2011. After April 17, 2011, either party may
terminate this agreement upon at least 90 days prior written
notice.
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3.
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Duties
of Consultant.
During the Consulting Period, the Consultant shall use its reasonable
and
best efforts to perform those actions and responsibilities necessary
to
assist the Company with achieving the Company Objectives, as instructed
by
the Company from time to time, including (i) identifying, analyzing,
structuring and/or negotiating sales, marketing, distribution and
other
agreements relating to the sale of the Company’s products, (ii) assist the
Company in its sales and marketing strategies, (iii) assist the Company
in
the implementation of its business plan and marketing plans, (iv)
assist
the Company in the negotiation, documentation and closing of strategic
alliances, and agreements for the sale of the Company’s products, in each
case as requested by the Company (the “Services”). If the Company, in its
sole and absolute discretion, determines to undertake one or more
transactions described above, the Company shall use its best efforts
to
provide all necessary support required in order to properly service
such
customers. Consultant shall render such Services diligently and to
the
best of its ability. The Company may engage such other consultants,
investment bankers or other advisers with respect to the activities
set
forth in the immediately preceding sentence as the Company shall
deem
appropriate in its sole and absolute discretion, and Consultant shall
not
be entitled to any fees or commissions arising out of the activities
of
such other consultants, investment bankers or other
advisors.
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1
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4.
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Other
Activities of Consultant.
The Company recognizes that Consultant shall perform and be compensated
for only those services that are reasonably required to accomplish
the
goals and objectives set forth herein, and that Consultant shall
provide
services to other businesses and entities other than the Company.
Consultant shall be free to directly or indirectly own, manage, operate,
join, purchase, organize or take preparatory steps for the organization
of, build, control, finance, acquire, lease or invest or participate
in
the ownership, management, operation, control or financing of, or
be
connected as an officer, director, employee, partner, principal,
manager,
agent, representative, associate, consultant, investor, advisor or
otherwise with (collectively, be “Affiliated” with), any business or
enterprise, or permit its name or any part thereof to be used in
connection with any business or enterprise, engaged in any businesses,
provided however, that Consultant shall not become Affiliated with
any
business that competes with the Company, or otherwise engages in
the
pharmaceutical industry, during the term of this agreement and for
one
year following its termination. Consultant shall not be deemed to
be a
fiduciary of the Company, or to have any fiduciary duties whatsoever
to
the Company. The Consultant may provide consulting services to, or
be
affiliated with, or participate with, any third party who does business
with, or invests in or lends to the Company, and there shall be no
fiduciary obligation on the part of the
Consultant.
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5.
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Compensation.
In consideration for Consultant entering into this Agreement and
the
Services provided hereunder, the Company shall compensate Consultant
as
follows:
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a.
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Retainer.
The Company shall pay to Consultant the sum of Forty Thousand Dollars
($40,000) upon execution of this Agreement. The Company shall pay
to
Consultant a monthly retainer in the amount of Twenty Thousand Dollars
($20,000) per month, due and payable on the first day of each month
commencing May 1, 2008.
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b.
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Percentage
of Sales:
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| i. |
Up
to 2.1 Million Euros.
The Company shall pay to Consultant an amount equal to Two and One-Half
Percent (2.5%) of the total revenues actually received by the Company,
until such time as the Consultant has received a total of Three Million
Dollars ($3,000,000) in compensation under this Paragraph 5(b)(i).
Such
fee shall be paid in cash, as and when revenues are received by the
Company, for all sales of the Company’s products and any other revenues,
regardless of the source of such revenues and regardless of whether
or not
Consultant identified, introduced or otherwise assisted the Company
in
obtaining or earning such revenues.
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| ii. |
Excess.
Once the Consultant has received total compensation of Three Million
Dollars ($3,000,000) under Paragraph 5(b)(i) above, the Company shall
pay
to Consultant an amount equal to One Percent (1%) of the gross revenues
actually received by the Company after such time. Such fee shall
be paid
in cash, as and when revenues are received by the Company, for all
sales
of the Company’s products or any other
source.
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| iii. |
Survival.
The compensation set forth in this Section 5(b) shall survive the
termination of this Agreement for a period of seven years from the
date of
such termination.
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| c. |
Expenses.
The Company shall pay all reasonable expenses incurred during the
Consulting Period by the Consultant for business purposes related
to or in
furtherance of the goals and objectives of the Company and/or the
provision of the Services (collectively, “Company Purposes”), including,
without limitation, expenses incurred with respect to the Consultant’s
travel (including first class travel for flights of greater than
two hour
duration), meals, entertainment, lodging and other customary and
reasonable expenses for Company Purposes. The Company shall pay such
expenses directly, or, upon submission of bills, receipts and/or
vouchers
by the Consultant, by direct reimbursement to the Consultant.
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| 6. |
Termination.
Subject to the cure provisions contained herein, the Company may
terminate
the Consulting Period upon written notice for Cause at any time.
Cause
shall mean that during the Consulting Period, the Consultant engaged
in
gross and willful misconduct that is materially and significantly
injurious to the Company, and, after written notice of such conduct,
Consultant has failed to cure such gross and willful misconduct within
30
days.
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| 7. |
Notice.
Any notice required, permitted or desired to be given pursuant to
any of
the provisions of this Agreement shall be deemed to have been sufficiently
given or served for all purposes if delivered in person or sent by
certified mail, return receipt requested, postage and fees prepaid,
or by
national overnight delivery prepaid service to the parties at their
addresses set forth below. Any party hereto may at any time and from
time
to time hereafter change the address to which notice shall be sent
hereunder by notice to the other party given under this paragraph.
The
addresses of the parties shall be such addresses as may be given
by either
party from time to time, and the address of the Company shall be
such
address as appears on the most recent report or filing filed by the
Company with the Securities and Exchange Commission as of the date
of such
notice.
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| 8. |
Waiver.
No course of dealing nor any delay on the part of either party in
exercising any rights hereunder will operate as a waiver of any rights
of
such party. No waiver of any default or breach of this Agreement
or
application of any term, covenant or provision hereof shall be deemed
a
continuing waiver or a waiver of any other breach or default or the
waiver
of any other application of any term, covenant or
provision.
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| 9. |
Definition
of “Reasonable and Best Efforts.”
Reasonable and best efforts shall not include the payment of any
non-reimbursable out-of-pocket costs or other payments by Consultant.
Consultant shall not guarantee, make any representation concerning
(which
representation would survive the closing of any escrow or other
transaction) or warrant (i) the condition, performance, value, or
suitability of any of the Company’s products; (ii) the validity or
authorization of any of the Company’s products; (iii) the market value of
any of the Company’s products; (iv) the ability to sell or resell any of
the Company’s products; (vi) that Consultant will find or present any
transactions to the Company; or (vii) the covenants, representations
or
warranties of any party to any agreement with the
Company.
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| 10. |
Successors;
Binding Agreements.
Prior to the effectiveness of any succession (whether direct or indirect,
by purchase, merger, consolidation or otherwise) to all or substantially
all of the business and/or assets of the Company, or the sale of
all or a
controlling interest in the capital stock of the Company, the Company
will
require the successor to expressly assume and agree to perform this
Agreement in the same manner and to the same extent that the Company
would
be required to perform it if no such succession had occurred. As
used in
this Agreement, “Company” shall mean the Company as defined above and any
successor to its business and/or
assets.
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| 11. |
Survival
of Terms.
Notwithstanding the termination of this Agreement for whatever reason,
the
provisions hereof shall survive such termination, unless the context
requires otherwise.
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| 12. |
Counterparts.
This Agreement may be executed in two or more counterparts, each
of which
shall be deemed to be an original, but all of which together shall
constitute one and the same instrument. Any signature by facsimile
shall
be valid and binding as if an original signature were
delivered.
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| 13. |
Captions.
The caption headings in this Agreement are for convenience of reference
only and are not intended and shall not be construed as having any
substantive effect.
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| 14. |
Governing
Law.
This Agreement shall be governed, interpreted and construed in accordance
with the laws of the state of California applicable to agreements
entered
into and to be performed entirely therein.
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| 15. |
Arbitration.
Any controversy, claim, or counterclaim arising from this agreement
shall
be submitted to and decided by final and binding arbitration by a
single
arbitrator administered in Santa Monica, California by the American
Arbitration Association under its commercial rules.
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| a. |
Within
15 days after the commencement of any arbitration, the parties to
the
dispute shall each select names from a list of retired judges of
the
California Superior Court, or any higher California court, provided
by the
American Arbitration Association, and list such proposed arbitrators
in
order of preference, and submit such list to the American Arbitration
Association, which shall then appoint one arbitrator based on such
submissions. The arbitrator shall have the discretion to order a
prehearing exchange of information by the parties, including without
limitation, production of requested documents, exchange of summaries
of
testimony of proposed witnesses, and examination by deposition of
the
parties.
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| b. |
The
arbitration shall generally be administered in accordance with the
American Arbitration Association=s
Commercial Arbitration Rules. The provisions of Sections 1282.6,
1283, and
1283.05 of the California Code of Civil Procedure apply to the
arbitration. The arbitrator shall have the authority to award any
remedy
or relief that a court of the State of California could order or
grant,
including, without limitation, specific performance of any obligation
created under this Agreement, the issuance of an injunction, or the
imposition of sanctions for abuse or frustration of the arbitration
process. The arbitrator, however, will have no authority to award
punitive
damages, and each party hereby irrevocably waives any right to recover
such damages with respect to any issue resolved by arbitration, and
the
arbitrator may not, in any event, either make any ruling, finding
or award
that does not conform to the terms and conditions of this Agreement,
or
alter, amend, modify or change any of the terms of this Agreement.
The
arbitrator=s
decision shall be rendered within 30 days after the conclusion of
the
arbitration hearing, and the arbitrator shall make findings of fact
and
shall set forth the reasons and legal bases for the decision. Such
arbitrator=s
decision shall be final and binding on the parties and a judgment
upon the
decision rendered may be entered in any court having jurisdiction
thereof.
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| c. |
THE
PARTIES HEREBY WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY PROCEEDING
ARISING
OUT OF OR RELATING TO THIS AGREEMENT OR ANY OF THE CONTEMPLATED
TRANSACTIONS, WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER
SOUNDING IN CONTRACT, TORT OR OTHERWISE. THE PARTIES AGREE THAT ANY
OF
THEM MAY FILE A COPY OF THIS PARAGRAPH WITH ANY COURT AS WRITTEN
EVIDENCE
OF THE KNOWING, VOLUNTARY AND BARGAINED-FOR AGREEMENT AMONG THE PARTIES
IRREVOCABLY TO WAIVE TRIAL BY JURY AND THAT ANY PROCEEDING WHATSOEVER
BETWEEN THEM RELATING TO THIS AGREEMENT OR ANY OF THE CONTEMPLATED
TRANSACTIONS SHALL INSTEAD BE RESOLVED BY BINDING ARBITRATION AS
PROVIDED
HEREIN.
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| 16. |
Attorneys’
Fees, Costs and Expenses.
All parties shall bear their own expenses and attorney’s fees in the
preparation, negotiation and execution of this
Agreement.
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| 17. |
Entire
Agreement/Modifications.
This Agreement, along with the attached Indemnification Agreement,
which
is incorporated herein by this reference, constitutes the entire
agreement
between the parties and supersedes all prior understandings and
agreements, whether oral or written, regarding Consultant’s retention by
the Company; provided, however, that all fees previously earned and/or
paid to Consultant under prior agreements shall be deemed earned,
and
shall be in addition to any fees payable hereunder. This Agreement
shall
not be altered or modified except in writing, duly executed by the
parties
hereto.
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| 18. |
Warranty.
The Company and Consultant each hereby warrant and agree that each
is free
to enter into this Agreement, that the parties signing below are
duly
authorized and directed to execute this agreement, and that this
Agreement
is a valid, binding and enforceable against the parties
hereto.
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| 19. |
Severability.
If any term, covenant or provision, or any part thereof, is found
by any
court of competent jurisdiction to be invalid, illegal or unenforceable
in
any respect, the same shall not affect the remainder of such term,
covenant or provision, any other terms, covenants or provisions or
any
subsequent application of such term, covenant or provision which
shall be
given the maximum effect possible without regard to the invalid,
illegal
or unenforceable term, covenant or provision, or portion thereof.
In lieu
of any such invalid, illegal or unenforceable provision, the parties
hereto intend that there shall be added as part of this Agreement
a term,
covenant or provision as similar in terms to such invalid, illegal
or
unenforceable term, covenant of provision, or part thereof, as may
be
possible and be valid, legal and
enforceable.
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IN
WITNESS HEREOF, the parties hereto have duly executed and delivered this
Agreement as of the day and year first above written.
| GenMed Holding Corp. | TOTAL LOOK BV | ||
| a Nevada Corporation | |||
| By: /s/ Xxx Piceni | /s/ G.M.W. Xxxxx | ||
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Name:
Xxx Piceni
Title:
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G.M.W. XXXXX |
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INDEMNIFICATION
AGREEMENT
This
Indemnification Agreement is a part of and is incorporated into that Consulting
Agreement between the parties hereto (together, the “Agreement”) by and between
GenMed Holding Corp., a Nevada corporation (the “Company”), and Total Look BV
(“Total Look”).
The
Company agrees to indemnify and hold harmless Total Look BV, its affiliates,
directors, officers, agents and employees, including, without limitation, any
person or entity that provides consulting or other services to the Company
(Total Look BV and each such entity or person, is referred to herein as an
“Indemnified Person”) from and against any losses, claims, damages, judgments,
assessments, costs and other liabilities (collectively, “Liabilities”), and will
reimburse each Indemnified Person for all fees and expenses (including the
reasonable fees and expenses of counsel) (collectively, “Expenses”) as they are
incurred in investigating, preparing, pursuing or defending any claim, action,
proceeding or investigation, whether or not in connection with pending or
threatened litigation and whether or not any Indemnified Person is a party
(collectively, “Actions”), (i) caused by, or arising out of or in connection
with, any untrue statement or alleged untrue statement of a material fact
contained in the any written document furnished to Total Look BV or its
representatives or affiliates, or any filing with the Securities and Exchange
Commission (including any amendments thereof and supplements thereto) or any
omission or alleged omission to state therein a material fact necessary to
make
the statements therein, in light of the circumstances under which they were
made, not misleading or (ii) otherwise arising out of, related to or in
connection with advice or services rendered or to be rendered by an Indemnified
Person pursuant to the Agreement or otherwise, any transaction entered into
by
the Company and any Indemnified Person’s actions or inactions in connection with
any such advice, services or transactions; provided that, in the case of clause
(ii) only, the Company will not be responsible for any Liabilities or Expenses
of any Indemnified Person that are determined by a judgment of a court of
competent jurisdiction which is no longer subject to appeal or further review
to
have resulted solely from an Indemnified Person’s gross negligence or willful
misconduct in connection with any of the advice, actions, inactions or other
services referred to in the Agreement. The Company also agrees to reimburse
such
Indemnified Person for all Expenses as they are incurred in connection with
enforcing such Indemnified Person’s indemnification rights under this
Agreement.
Upon
receipt by an Indemnified Person of actual notice of an Action against such
Indemnified Person or otherwise with respect to which indemnity may be sought
under this Agreement, such indemnified Person shall promptly notify the Company
in writing; provided that failure so to notify the Company shall not relieve
the
Company from any liability which the Company or any other person may have on
account of this indemnity or otherwise, except and only to the extent the
Company shall have been materially prejudiced by such failure. The Company
shall
not be liable for any settlement of any Action effected without its written
consent (which shall not be unreasonably withheld). In addition, the Company
and
its shareholders will not, without prior written consent of Total Look BV,
settle, compromise or consent to the entry of any judgment in or otherwise
seek
to terminate any pending or threatened Action in respect of which
indemnification or contribution may be sought hereunder (whether or not any
Indemnified Person is a party thereto) unless such settlement, compromise,
consent or termination includes an unconditional release of such Indemnified
Person from all liabilities arising out of such Action.
In
the
event that the foregoing indemnity is not available to an Indemnified Person
in
accordance with this Agreement pursuant to the requirements of applicable law,
the Company shall contribute to the Liabilities and Expenses paid or payable
by
such Indemnified Person in such proportion as is appropriate to reflect (i)
the
relative benefits to the Company and its shareholders, on the one hand, and
to
the Indemnified Persons, on the other hand, of the matters contemplated by
this
Agreement, or (ii) if the allocation provided by the immediately preceding
clause is not permitted by the applicable law, not only such relative benefits
but also the relative fault of the Company and/or its shareholders, on the
one
hand, and the Indemnified Persons, on the other hand, in connection with the
matters as to which such Liabilities or Expenses relate, as well as any other
relevant equitable considerations, provided that, subject to the third paragraph
of this Indemnification Agreement, in no event shall the Company contribute
less
than the amount necessary to ensure that all Indemnified Persons, in the
aggregate, are not liable for any Liabilities and Expenses in excess of the
amount of fees actually paid to or received by or contemplated to be paid to
or
received by Total Look BV pursuant to this Agreement. For purposes of this
paragraph, the relative benefits to the Company and its shareholders, on the
one
hand, and to Total Look BV, on the other hand, of the matters contemplated
by
the Agreement, shall be deemed to be in the same proportion as (a) the total
value paid to or received by or contemplated to be paid to or received by the
Company, in the transaction or transactions that are within the scope of the
Agreement, whether or not any such transaction is consummated, including any
increase in the value of securities held by the shareholders of the Company,
bears to (b) the fees paid to or received by or contemplated to be paid to
or
received by Total Look BV in the transaction or transactions that are within
the
scope of the Agreement, whether or not any such transaction is
consummated.
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The
Company also agrees that no Indemnified Person shall have any liability (whether
direct or indirect, in contract or tort or otherwise) to the Company or its
shareholders for or in connection with advice or services rendered or to be
rendered by any Indemnified Person pursuant to this Agreement, the transactions
contemplated hereby or any Indemnified Person’s actions or inactions in
connection with any such advice, services or transactions except for Liabilities
and Expenses of the Company that are determined by a judgment of a court of
competent jurisdiction which is no longer subject to appeal or further review
to
have resulted solely from such Indemnified Person’s gross negligence or willful
misconduct in connection with any such advice, actions, inactions or
services.
Any
party
that proposes to assert the right to be indemnified under this Indemnification
Agreement shall promptly, after receipt of notice of any applicable claim,
action, proceeding or litigation, notify the proposed indemnifying party of
the
commencement of such claim, action, proceeding or litigation. Indemnification
shall be limited for any party who shall fail to give notice as provided in
the
preceding sentence to the extent the indemnifying party was prejudiced by the
failure to give such notice. An indemnifying party shall be entitled to
participate in and to assume the defense of such claim, action, proceeding
or
litigation, with counsel reasonably satisfactory to such indemnified party,
and
after giving notice thereof, the indemnifying party shall not be liable to
such
indemnified party for any fees of other counsel or any other expenses with
respect to the defense of such matter after the date of such notice, unless
the
indemnified party shall have reasonably concluded that there may be a conflict
of interest between the indemnifying party and the indemnified party in the
conduct of the defense of such matter (in which case the indemnifying party
shall reimburse the indemnified party for the reasonable fees and expenses
of
one counsel).
The
reimbursement, indemnity and contribution obligations set forth herein shall
apply to any modification of this Agreement (unless and to the extent that
such
obligations are specifically modified thereby) and shall remain in full force
and effect regardless of any termination of, or the completion of any
Indemnified Person’s services under or in connection with, this
Agreement.
IN
WITNESS WHEREOF, this Indemnification Agreement is executed as of April 17,
2008.
Total
Look BV
/s/
G.M.W. Xxxxx
a
Nevada
Corporation
By:
/s/ Xxx Piceni
Name:
Title:
CEO
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