CONSULTANT AGREEMENT
Exhibit
10.4
THIS
CONSULTANT AGREEMENT
(this
“Agreement”), entered into this 20th
day of
December, 2006, sets forth the arrangement between, Dynahealth, Ltd.
“CONSULTANT”
a New
York State corporation, with its principal place of business at 00 Xxxx
00xx
Xxxxxx,,Xxxxx 00X, Xxx Xxxx,XX 00000 and Red Reef Laboratories International,
Inc. “COMPANY”,
a
Florida
corporation,
with its
primary place of business located at 000 Xxxxxxx Xxxxx, Xxxxx 000, Xxxxxxxxx
Xxxxx, Xxxxxxx 00000,
(hereinafter
referred to as “COMPANY”), with respect to compensation to which CONSULTANT will
become entitled under the terms and conditions set forth in this
Agreement.
1. Purpose.CONSULTANT
will undertake to contact and present information regarding COMPANY to persons
or entities (each, along with its clients and investor or affiliate network,
a
“Funding Source”), where the Funding Sources may provide, each in its own
discretion, funding, loans, and/or financing to COMPANY or who may purchase
securities (either COMPANY securities or securities of other companies owned
by
COMPANY) from the COMPANY.
2. Indemnity
of CONSULTANT by COMPANY. The
COMPANY will provide the CONSULTANT with accurate and correct information.
The
COMPANY will indemnify and hold harmless the CONSULTANT for any and all
liability, which arises out of acts and/or omissions of the COMPANY in its
provisions to supply the CONSULTANT with accurate information.
3. Non-Circumvention. Neither
COMPANY nor any representative of COMPANY shall contact a Funding Source
submitted by the CONSULTANT without the prior written approval of CONSULTANT
for
the duration of this Agreement, or for a period of one year following the
termination of this Agreement. Potential funding sources will be submitted
in
writing by either e-mail or fax to the COMPANY for an approval signature by
an
authorized principal of the COMPANY. Furthermore, COMPANY hereby irrevocably
agrees not to circumvent, avoid, bypass, or obviate, directly or indirectly,
the
intent of this Agreement, or to avoid payment of fees in any transaction with
any Funding Source mutually approved by the COMPANY and the CONSULTANT. In
the
event the COMPANY, successor companies, LLCs, or corporations, current
affiliates, future affiliates, principals, its agents, professionals, assignees
and/or employees, or others affiliated with the firm or principals of the firm,
circumvents or breaches this agreement, either directly or indirectly, then
the
CONSULTANT shall be entitled to the maximum fees or commissions from the COMPANY
that the CONSULTANT would have realized and received, absent the Circumvention
or breach of the agreement.
4. CONSULTANT’s
Compensation.
If,
during the term of this Agreement or within one year following termination
of
this Agreement, funding, loans, and/or financing is provided by a mutually
approved Funding Source to the COMPANY, CONSULTANT will be compensated as
provided below.
| (a) |
Extension
of One Year Period.
In those instances where, upon the first annual anniversary of the
termination of this Agreement, the Funding Source and COMPANY are
still in
active negotiation for the Funding Source to provide funding, loans,
and/or financing to COMPANY, the one year period shall be extended
to the
later of: (i) an additional one year and (ii) the date at which the
parties terminate active negotiation.
|
| (b) |
Calculation
of Compensation.
The
compensation payable to CONSULTANT for a successfully consummated
funding,
loans, and/or financing transaction with a Funding Source shall be
as
follows (as used in this Agreement, the term “Total Funding” shall mean
the total amount of any purchase price, funding, loans and/or financing
provided to COMPANY by the Funding Source, including, but not limited
to,
funds actually delivered, credit available for use by COMPANY and
commitments to provide funds or credit in one or more installments
in the
future, regardless of whether such installments are contingent upon
the
satisfaction of conditions imposed upon COMPANY by the Funding
Source):
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1
| (c) |
Cash.
CONSULTANT
will earn a cash fee(see attached addendum) of the cash portion of
any
funding received from this transaction at the time of Closing or
any
installment or future funding, loans and or financing received by
the
COMPANY.
|
| (d) |
Form
of Compensation.
CONSULTANT’s compensation shall be paid to CONSULTANT in United States
funds, according to CONSULTANT’s preference, either in the form of a
certified or cashier’s check, or wire transfer from escrow
immediately.
|
| (e) |
Timing
of Payment of Compensation.
CONSULTANT’s compensation under this Agreement shall be payable on the
date that funds are delivered or financing is made available to COMPANY.
COMPANY agrees that CONSULTANT’s compensation is to be paid directly to
CONSULTANT by COMPANY at the time funds are dispersed at CONSULTANT’s
designated bank or receiver. CONSULTANT will provide directly to
borrower
its designated funds receiver information. If funds are drawn down
or made
available for use by COMPANY in installments, CONSULTANT’s compensation
under this Agreement shall also be payable in installments in the
corresponding percentage of the Total Funding that is drawn by or
made
available to COMPANY for use in each installment of the Total Funding.
CONSULTANT is only eligible for payment on portions of the funding
that
are paid to or available to the COMPANY and it is the COMPANY’s discretion
whether or not to use the funds.
|
| (f) |
Reimbursement
of Expenses.
COMPANY agrees to promptly reimburse CONSULTANT for all COMPANY
pre-approved costs and “out of pocket”
expenses.
|
| (g) |
Guarantee
of Payment. It
is understood and agreed that the individual signing this Agreement
on
behalf has the authority to direct COMPANY’s compliance or non-compliance
with this Agreement.
|
5. Consummation
Required.
In
no
event will COMPANY have any liability for compensation to CONSULTANT pursuant
to
this Agreement, unless the funding and/or financing transaction with a Funding
Source is actually consummated prior to or on the second annual anniversary
of
the termination of this Agreement.
6. Agreement
Not Exclusive.
Nothing
in this Agreement shall be deemed to prevent COMPANY from authorizing other
parties to locate sources of funding and/or financing for it, and COMPANY may
negotiate for and carry out fundings and/or financings independently of any
Funding Sources contacted by CONSULTANT, either with or without the assistance
of other intermediaries. Nothing in this Agreement shall be deemed to prevent
CONSULTANT from seeking funding and/or financing on behalf of other parties,
but
funding sources or others of the CONSULTANT may not be contacted for the COMPANY
for funding by other CONSULTANTS, or others or the COMPANY.
7. Independent
Contractor Relationship.
This
Agreement is intended to create an independent contractor relationship between
CONSULTANT and COMPANY, which is described in Section 3508 of the Internal
Revenue Service Code, and shall be interpreted to effectuate such intent between
the parties.
|
(a)
|
No
Taxes Withheld from Compensation. COMPANY
will not withhold any taxes from any compensation paid to CONSULTANT
according to this Agreement. It is acknowledged and agreed by the
parties
that COMPANY has not, is not, and shall not be obligated to make,
and that
it is the sole responsibility of CONSULTANT to make, in connection
with
compensation paid to CONSULTANT according to this Agreement, all
periodic
filings and payments required to be made in connection with any
withholding taxes, FICA taxes, Federal unemployment taxes, and any
other
federal, state or local taxes, payments or filings required to be
paid,
made or maintained.
|
|
(b)
|
CONSULTANT
Controls Time and Effort.
It
is agreed that COMPANY is interested only in the ultimate results
of
CONSULTANT’s activities pursuant to this Agreement, and that CONSULTANT
shall have exclusive control over the time and effort invested by
CONSULTANT pursuant to this Agreement, and the manner and means of
CONSULTANT’s performance under this Agreement.
|
|
(c)
|
Independence
from COMPANY. The
parties further agree that CONSULTANT shall have no control or supervision
over COMPANY’s employees, officers, directors, representatives or
affiliates. CONSULTANT will not represent that it is an employee
of
COMPANY. CONSULTANT shall at all times represent himself and be construed
as independent of COMPANY. CONSULTANT shall not, under any circumstances,
be deemed to be a servant or employee of COMPANY for any purpose,
including for Federal tax purposes. CONSULTANT’s relationship to COMPANY
is that of an independent contractor, and nothing in this Agreement
shall
constitute this Agreement as a joint venture or partnership between
CONSULTANT and COMPANY. CONSULTANT shall have no authority to bind
COMPANY
or any of its employees, officers, directors, representatives or
affiliates by any promise or representation, oral or otherwise, unless
specifically authorized in a writing bearing an authorized signature
of an
COMPANY officer, director or representative. All discussions and
negotiations with any Funding Source, submitted to COMPANY by the
CONSULTANT for funding, loans, and/or financing shall be conducted
by
COMPANY.
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2
8. Confidential
Information. CONSULTANT
acknowledges that, pursuant to this Agreement, it may be given access to or
may
become acquainted with certain information, trade secrets or both, of COMPANY,
including but not limited to, confidential information and trade secrets
regarding computer programs, designs, skills, patents, pending patents,
copyrights, procedures, methods, documentation, plans, drawings, schematics,
facilities, customers, policies, marketing, pricing, customer lists and other
information and know-how, and the COMPANY Business Plan and related materials,
all relating to or useful to COMPANY (collectively, the “Confidential
Information") and the exclusive property of COMPANY.
9. Nondisclosure
of Confidential Information.
During
the term of this Agreement and for a period of one year thereafter, CONSULTANT
shall only disclose the Confidential Information in connection with its
performance pursuant to this Agreement, subject to the terms and conditions
of
this Agreement, and otherwise, CONSULTANT shall not in any manner, either
directly or indirectly, divulge, disclose or communicate to any person or
entity, any of the Confidential Information.
10. Exceptions
to Nondisclosure.
Notwithstanding anything to the contrary contained in this Agreement, CONSULTANT
shall not be prohibited from disclosing to third parties, or using without
the
prior written consent of COMPANY, information that (a) was, on the date of
this
Agreement, generally known to the public, (b) is as of the date of this
Agreement known to CONSULTANT, as evidenced by written records in the possession
of CONSULTANT, (c) is subsequently disclosed to CONSULTANT by a third party
who
is in lawful possession of such information and is not under an obligation
of
confidence, (d) is disclosed by COMPANY to third parties generally without
restriction on use and disclosure, or (e) is required to be disclosed by law
or
a final order of a court or other governmental agency or authority of competent
jurisdiction, provided, however, reasonable notice prior to any disclosure
as
required by applicable law or court process shall be given to COMPANY which
would allow COMPANY sufficient time to attempt to obtain injunctive relief
in
respect to such disclosure.
11. Termination
of this Agreement and Return of Property.
Either
CONSULTANT or COMPANY may terminate this Agreement upon ninety (90) days’ prior
written notice to the other, and, subject to the terms and conditions of this
Agreement.
All
Confidential Information of COMPANY, along with all documents relating to
COMPANY’s transactions, including the COMPANY Business Plan and related
materials, and any and all manifestations and copies thereof are the property
of
COMPANY (collectively, the "Property"). Upon the request of COMPANY and/or
termination of this Agreement by either party, CONSULTANT shall, if requested,
at COMPANY’s expense, deliver and have signed for all Property to COMPANY within
ten (10) business days.
12. Notice.
Any
notice required under this Agreement shall be deemed duly delivered (and shall
be deemed to have been duly received if so given), if personally delivered
and
signed, sent by a reputable courier service and signed, or mailed by registered
or certified mail, postage prepaid, return receipt requested, addressed to
the
parties as follows:
If
to
CONSULTANT: If
to
COMPANY:
Dynahealth,
Ltd. Red
Reef
Laboratories International, Inc.
00
Xxxx
00xx
Xxxxxx,
Xxxxx00X 000 Xxxxxxx Xxxxx, Xxxxx 000
Xxx
Xxxx,
XX 00000 Xxxxxxxxx Xxxxx, Xxxxxxx 00000
or
to
such other address as any party may have furnished to the other in writing
in
accordance with this Section.
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13. Governing
Law.
The
Parties agree that any disputes or controversies arising from the interpretation
or performance of this agreement which cannot be resolved by the parties may
be
submitted to arbitration. In the event a matter is submitted to arbitration,
the
Parties agree to use Arbitrators who have been qualified by the American
Arbitration Association and governed by the laws of the State of New York.
The
fees will be equally divided between the parties. This
Agreement has been made in the State of New York and shall be construed and
governed in accordance with the laws thereof without giving effect to principles
governing conflicts of law.
14. Severability.
If
the
law does not allow a provision of this Agreement to be enforced, such
unenforceable provision shall be amended to become enforceable and reflect
the
intent of the parties, and the rest of the provisions of this Agreement shall
remain in effect.
15. Waiver.
The
failure of any party, in any instance, to insist upon strict enforcement of
the
provisions of this Agreement shall not be construed to be a waiver or
relinquishment of enforcement in the future, and the terms of this Agreement
shall continue to remain in full force and effect.
16. Assignability. This
Agreement shall not be assignable by either party.
17. Amendment. This
Agreement may only be amended or modified in a writing signed by both of the
parties and referring to this Agreement.
18. Attorneys’
Fees.
COMPANY
agrees that in the event CONSULTANT’s fees are not paid promptly, CONSULTANT’s
fees and costs (including the cost of CONSULTANT’s time at his then standard
rate of billing) shall be recoverable by CONSULTANT in connection with the
negotiation, settlement, mediation, arbitration or an action to enforce payment
of fees pursuant to this Agreement, whether or not an actual cause of action
is
filed.
19. Entire
Agreement.
This
Agreement constitutes the entire agreement and final understanding of the
parties with respect to the subject matter of this Agreement and supersedes
and
terminates all prior and/or contemporaneous understandings and/or discussions
between the parties, whether written or verbal, express or implied, relating
in
any way to the subject matter of this Agreement.
20. Execution
in Counterparts.
This
Agreement may be executed in one or more counterparts, each of which shall
be
deemed an original, but all of which taken together shall constitute one in
the
same instrument. Confirmation of execution by electronic transmission of a
facsimile signature shall be binding on the confirming party.
21. Term
of Agreement.
The
Terms of this Agreement shall be for a period of three years ( 3) from the
date
of execution of this agreement.
SIGNING
THIS AGREEMENT INDICATES ACCEPTANCE OF THE TERMS OF THIS AGREEMENT..
CONSULTANT:
Dynahealth, Ltd. COMPANY: Red Reef Laboratories International, Inc.
By:
/s/ Xxxxxx Xxx
Xxxxxx By:
/s/ Xxxxx Xxxxxxx
Name:
Xxxxxx Xxx Xxxxxx Name: Xxxxx
Xxxxxxx
Title:
President Title:
Executive Vice President & Secretary
Date:
Date:
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ADDENDUM
NUMBER 1 TO CONSULTING AGREEMENT BETWEEN DYNAHEALTH,LTD,(CONSULTANT) AND RED
REEF LABORATORIES INTERNATIONAL, INC.,(COMPANY) DATED DECEMBER 20, 2006.
FUNDING
COMPENSATION FOR DYNAHEALTH,LTD.(CONSULTANT) FROM RED REEF LABORATORIES
INTERNATIONAL, INC. (COMPANY).
1.
0--------------------------$3,999,999.00 10 % (ten percent)
2.
$4,000,000.00----------$5,999,999.00 7% (seven percent)
3.
$6,000,000.00----------$9,999,999.00 5% (five percent)
4.
$10,000,000.00--------and above 3% (three percent)
FUNDING
SOURCES TO BE CONTACTED FOR RED REEF LABORATORIES INTERNATIONAL,
INC.:
.
________________
Initials
of Company
signatory
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