CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (the "Agreement"), dated as of October 12,
2001(the "Effective Date"), is entered into by and between Humatech, Inc., 0000
Xxxx Xxxx, Xxxxx 000, Xxxxxxx, Xxxxx 00000, an Illinois corporation ("HUMT"),
and Xxxxxx X. Xxxxxx, 0000 Xxxxxx Xxx #X Xxxxxxxxx, XX 00000, an individual (the
"Consultant").
W I T N E S S E T H:
WHEREAS, HUMT desires to have the Consultant perform certain services and
to be assured of the Consultant's services on the terms and conditions
hereinafter set forth; and
WHEREAS, the Consultant desires to perform certain services for HUMT and is
willing to accept such retention by HUMT on those terms and conditions
hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual promises, covenants and
agreements contained herein, and for other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, HUMT and the Consultant
agree as follows:
(1) Services. The services ("Services") may include, but are not limited
to, the following:
a. Administration. The Consultant will provide HUMT with
administrative services, including, but not limited to, securities
documentation, general business consulting and additional services as
mutually agreed upon between the parties hereto.
b. Marketing. The Consultant may assist HUMT in the marketing and
advertising of HUMT and its products.
c. Networking. The Consultant may provide certain professional
networking opportunities for HUMT. Such opportunities may include
introductions to, and the formulation and maintenance of
relationships with, key business contacts in the United States and
Europe.
d. Miscellaneous. In addition to the services set forth above in
this Section 1, the Consultant may provide additional guidance
reasonably related to the administrative and corporate development
of HUMT.
(2) Retention. HUMT hereby retains the Consultant to provide the Services
and the Consultant accepts such retention, upon the terms and subject to the
conditions set forth in this Agreement.
(3) Term. The term of this Agreement shall be for a period of one (1) year
from the Effective Date (the "Term").
(4) Duties. During the Term of this Agreement, the Consultant shall perform
such duties as may be assigned to her from time to time by the President and
Chief Executive Officer and/or Board of Directors of HUMT. Notwithstanding
anything herein to the contrary, at all times the relationship of the Consultant
to HUMT shall be that of independent contractors. Consultant shall allocate time
and Consultant's Personnel as it deems necessary to provide the Services. The
particular amount of time may vary from day to day or week to week. Except as
otherwise agreed, Consultant's monthly statement identifying, in general, tasks
performed for HUMT shall be conclusive evidence that the Services have been
performed. Additionally, in the absence of willful misfeasance, bad faith,
negligence or reckless disregard for the obligations or duties hereunder by
Consultant, neither Consultant nor Consultant's Personnel shall be rendering the
Services, including but not limited to losses that may be sustained in any
corporate act in any subsequent business opportunity undertaken by HUMT as a
result of advice provided by Consultant or Consultants' Personnel.
(5) Consideration. HUMT agrees to pay Consultant a fee for the Services by
way of the delivery by HUMT of 500,000 shares of HUMT's common stock as an
initial fee, these shares shall be delivered within seven (7) days after the
execution hereof. All shares transferred are considered fully earned and
non-assessable as of the date hereof, resulting in Consultant's ownership of the
foregoing shares vesting on the Effective Date. The shares will be registered
with the United States Securities and Exchange Commission on Form S-8.
(6) Expenses. During the Term of this Agreement, and upon submission of
proper invoices, receipts, the Consultant shall be reimbursed by HUMT for all
reasonable business expenses actually and necessarily incurred by the Consultant
on behalf of HUMT in connection with the performance of the Services under this
Agreement.
(7) Representations. The Consultant represents and warrants that he is not
a party to, or bound by, any agreements or commitments, or subject to any
restrictions, including but not limited to agreements related to previous
employment or retention containing confidentiality or non-compete covenants,
which may have a possibility of adversely affecting the performance of her
duties under this Agreement.
(8) Confidentiality. The Consultant acknowledges that as a result of the
performance of her duties under this Agreement, he has and will continue to have
knowledge of, and HUMT to, proprietary and confidential information of HUMT,
including, without limitation, inventions, trade secrets, technical information,
know-how, plans, specifications, methods of operations, financial and marketing
information and the identity of customers and suppliers (collectively, the
"Confidential Information"). Accordingly, the Consultant shall not, at any time,
either during or subsequent to the term of this Agreement, use, reveal, report,
publish, transfer or otherwise disclose any of the Confidential Information to
third parties without the prior written consent of HUMT, except for such
information which is or becomes part of general public knowledge from authorized
sources or information that they are required to disclose by a governmental
agency or law.
(9) Limitation of Liability. IN NO EVENT SHALL CONSULTANT BE LIABLE TO HUMT
UNDER THIS AGREEMENT OR OTHERWISE FOR CONSEQUENTIAL, EXEMPLARY, INCIDENTAL,
PUNITIVE, OR SPECIAL DAMAGES, INCLUDING LOST PROFITS, EVEN IF HUMT HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY EVENT, THE LIABILITY OF
CONSULTANT TO HUMT FOR ANY REASON AND UPON ANY CAUSE OF ACTION WHATSOEVER SHALL
BE LIMITED TO THE COMPENSATION THEN PREVIOUSLY PAID TO CONSULTANT BY HUMT OR THE
CORRECTION OF ANY ALLEGED DEFAULT UNDER THIS AGREEMENT AT THE SOLE DISCRETION OF
HUMT.
(10) Miscellaneous.
(a) Entire Agreement. This Agreement sets forth the entire understanding of
the parties and merges and supersedes any prior or contemporaneous agreements
between the parties pertaining to the subject matter hereof.
(b) Waivers and Modification. No modification of this Agreement or waiver
of any term or condition herein shall be effective unless it refers to this
Agreement, explicitly states that it intends to modify this Agreement or to
waive a term or condition herein, is in writing, and is signed by both parties
hereto. Terms contrary or in addition to the terms of this Agreement in any
document or correspondence shall have no effect whatsoever unless said document
or correspondence meets the aforesaid conditions. Any waiver of any term or
condition of this Agreement, or of the breach of any covenant, representation,
or warranty contained herein, in any one instance, shall not operate or be
deemed to be or construed as a further or continuing waiver of such term,
condition, or breach of covenant, representation, or warranty, nor shall any
failure to exercise, or delay in exercising, any right, remedy, or power under
this Agreement operate as a waiver thereof, nor shall any single or partial
exercise of any right, remedy, or power under this Agreement preclude any other
or further exercise thereof, or the exercise of any other right, remedy, or
power provided herein or by law or in equity.
(c) Successors and Assigns. Neither party shall have the right to assign
this Agreement, or any rights or obligations hereunder, without the consent of
the other party; provided, however, that upon the sale of all or substantially
all of the assets, business and goodwill of HUMT to another company, or upon the
merger or consolidation of HUMT with another company, this Agreement shall inure
to the benefit of, and be binding upon, HUMT purchasing such assets, business
and goodwill, or surviving such merger or consolidation, as the case may be, in
the same manner and to the same extent as though such other company were HUMT.
Subject to the foregoing, this Agreement shall inure to the benefit of, and be
binding upon, the parties hereto and their legal representatives, heirs,
successors and permitted assigns.
(d) Severability. If any provision of this Agreement is held to be invalid
or unenforceable by a court of competent jurisdiction, such invalidity or
unenforceability shall not affect the validity and enforceability of the other
provisions of this Agreement and the provision held to be invalid or
unenforceable shall be enforced as nearly as possible according to its original
terms and intent to eliminate such invalidity or unenforceability.
(e) Continuing Obligations. Rights and obligations theretofore accruing but
not satisfied as of the termination of this Agreement shall remain in full force
and effect until satisfied in accordance with this Agreement.
(f) Force Majeure. The Consultant shall not be in default to HUMT under
this Agreement for any delay or failure to perform due to causes beyond
Consultant's reasonable control.
(g) Headings. The headings contained in this Agreement are for reference
purposes only and shall not in any way affect the meaning or interpretation of
this Agreement.
(h) Communications. All notices, requests, demands and other communications
under this Agreement shall be in writing and shall be deemed to have been given
at the time personally delivered or when mailed in any United States post office
enclosed in a registered or certified postage prepaid envelope and addressed to
the addresses set forth below, or to such other address as any party may specify
by notice to the other party; provided, however, that any notice of change of
address shall be effective only upon receipt.
To HUMT: Humatech, Inc.
0000 Xxxx Xxxx, Xxxxx 000 Xxxxxxx,
Xxxxx 00000
Telephone: 000.000.0000
Telecopier: 281.825.2530
To the Consultant: Xxxxxx X. Xxxxxx
0000 Xxxxxx Xxx #X
Xxxxxxxxx, XX 00000
Telephone: 000.000.0000
Telecopier: 909.471.0829
(i) Arbitration. Any controversy or claim arising out of or relating to
this Agreement, or the breach thereof, shall be settled by arbitration
administered by the American Arbitration Association ("AAA") in accordance with
its Commercial Rules (including its Emergency Interim Relief Procedures] and its
supplementary procedures for Securities Arbitration, and judgment on the award
rendered by the arbitrators may be entered in any court having jurisdiction
thereof. The matter shall be heard in Florida by a panel of three (3) AAA
arbitrators, one picked by the Investor, one picked by the Seller, and the third
agreed to by the two selected arbitrators. The Seller and the Investor, for
themselves and their respective successors in interest, hereby irrevocably
consent to such jurisdiction, venue and binding arbitration, and hereby
irrevocably waive any claim of forum non-conveniens or right to change such
venue or to litigate the underlying dispute in court.
(j) Governing Law. This Agreement is made and executed and shall be
governed by the laws of the State of Texas, without regard to the conflicts of
law principles thereof.
(k) No Third-Party Beneficiaries. Each of the provisions of this
Agreement is for the sole and exclusive benefit of the parties hereto and shall
not be deemed to be for the benefit of any other person or entity.
(l) Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
(m) Contra Proferentem Waived. This Agreement was drafted by the
Consultant. However, all parties to this Agreement have been or have had the
opportunity to be represented by legal counsel, and hereby waive application of
the rule of contract construction which provides that terms shall be construed
against the drafting party.
(n) Independent Contractor. Consultant and Consultant's Personnel will act
as an independent contractor in the performance of its duties under this
Agreement. Accordingly, Consultant will be responsible for payment of all
federal, state, and local taxes on compensation paid under this Agreement,
including income and social security taxes, unemployment insurance, and any
other taxes due relative to Consultant's Personnel, and any and all business
license fees as may be required. This Agreement neither expressly nor impliedly
creates a relationship of principal and agent, or employee and employer, between
Consultant's Personnel and HUMT. Neither Consultant nor Consultant's Personnel
are authorized to enter into any agreements on behalf of HUMT. HUMT expressly
retains the right to approve, in its sole discretion, each business opportunity
introduced by Consultant, and to make all final decisions with respect to
effecting a transaction or any business opportunity.
(o) No Agency Express or Implied. This Agreement neither expressly nor
impliedly creates a relationship of principal and agent between HUMT and
Consultant, or employee and employer as between Consultant's Personnel and HUMT.
(p) Termination. HUMT and Consultant may terminate this Agreement prior to
the expiration of the Term upon thirty (30) days written notice with mutual
written consent. Failing to have mutual consent, without prejudice to any other
remedy to which the terminating party may be entitled, if any, either party may
terminate this Agreement with thirty (30) days written notice under the
following conditions:
(1) By HUMT.
(i) If during the Primary Term of this Agreement or any Extension
Period, Consultant is unable or fails to provide the Services as set
forth herein for thirty (30) consecutive business days because of
illness, accident, or other incapacity of Consultant's Personnel; or,
(ii) If Consultant willfully breaches or neglects the duties
required to be performed hereunder; or,
(iii) At Company's option without cause upon 30 days written
notice to Consultant; or
(2) By Consultant.
(i) If HUMT breaches this Agreement or fails to make any
payments or provide information required hereunder; or,
(ii) If HUMT ceases business or sells a controlling interest
to a third party, or agrees to a consolidation or merger of itself
with or into another corporation, or enters into such a transaction
outside of the scope of this Agreement, or sells substantially all of
its assets to another corporation, entity or individual outside of the
scope of this Agreement; or,
(iii) If HUMT subsequent to the execution hereof has a receiver
appointed for its business or assets, or otherwise becomes insolvent
or unable to timely satisfy its obligations in the ordinary course
of, including but not limited to the obligation to pay the
Consultancy Fee; or,
(iv) If HUMT subsequent to the execution hereof institutes,
makes a general assignment for the benefit of creditors, has
instituted against it any bankruptcy proceeding for reorganization
for rearrangement of its financial affairs, files a petition in a
court of bankruptcy, or is adjudicated a bankrupt; or,
(v) If any of the disclosures made herein or subsequent hereto by
HUMT to Consultant are determined to be materially false or
misleading.
In the event Consultant elects to terminate without cause or this
Agreement is terminated prior to the expiration of the Term by mutual
written agreement, or by HUMT for the reasons set forth in 1(i) and
(ii) above, HUMT shall only be responsible to pay Consultant for
un-reimbursed expenses, Consultancy Fee earned and accrued up to and
including approved upon the effective date of termination. If this
Agreement is terminated by HUMT for any other reason, or by Consultant
for reasons set forth in 2(i) through (v) above, Consultant shall be
entitled to any outstanding unpaid portion of approved reimbursable
expenses, and for the remainder of the un-expired portion of the
applicable term of the Agreement.
(q) Indemnification. Subject to the provisions herein, HUMT and Consultant
agree to indemnify, defend and hold each other harmless from and against all
demands, claims, actions, losses, damages, liabilities, costs and expenses,
including without limitation, interest, penalties and attorneys' fees and
expenses asserted against or imposed or incurred by either party by reason of or
resulting from any action or a breach of any representation, warranty, covenant,
condition, or agreement of the other party to this Agreement. HUMT acknowledges
and affirms that it will not request, require or otherwise induce Consultant to
become involved in any activities whatsoever that would result in Consultant
violating any provisions of the Securities Act of 1933, as amended, or the
Securities Exchange Act of 1934, as amended, including, but not limited to, the
provisions of Form S-8, Regulations S-K and S-B, and HUMT agrees to indemnify
and hold harmless Consultant from any violation thereof.
(r) Authority. By signing below, each person executing this Agreement on
behalf of a party hereby personally warrants that said person has the express
authority to so execute this Agreement and bind said party hereto.
IN WITNESS WHEREOF, each of the parties hereto has duly executed this
Agreement as of the date set forth above.
By: /s/ Xxxxx Xxxxxxxx By: /s/ Xxxxxx X. Xxxxxx
Xxxxx Xxxxxxxx Xxxxxx X. Xxxxxx
President 1000 Xxxxxx Way #C
Humatech, Inc. Xxxxxxxxx, XX 00000
0000 Xxxx Xxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
