EXHIBIT 4.5
CONSULTING AGREEMENT ("AGREEMENT")
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AGREEMENT entered into as of October 30, 1997, between Kinexsys and Bentley
Pharmaceuticals (hereinafter, the "Company").
1. Consulting Duties
Implement an investor interest program that contacts & informs current
Bentley shareholder's of works underway at the company. Establish a
comprehensive and reliable database of all investors. Finalize warrant
conversion. Provide introductions to Kinexsys' network of brokers,
institutional money managers and high net-worth individuals. Assist
with the content, format, and timeliness of press releases.
2.0 Compensation and Benefits
2.1 Pursuant to Paragraph 1.1 of this Agreement, Bentley agrees to pay
Kinexsys a fee of four thousand seven hundred fifty dollars ($4750. US)
per month for a period of one year, with a review at six months and
option to extend for a second six months, with the first and sixth
month payments of nine thousand five hundred dollars ($9500. US) due
and payable on the date this agreement is executed by Bentley and the
remainder due in four equal monthly installments of four thousand seven
hundred and fifty dollars ($4750. US) due and payable on the monthly
anniversary of the execution of this agreement. If at the end of the
initial six months Bentley uses its option and renews this contract,
Kinexsys will receive ($4750.)
monthly for the remaining six months.
Further, Bently agrees to award Kinexsys 100,000 (one hundred
thousand) freely transferable incentive warrants written at
the signing of this agreement and struck as follows:
Thirty thousand (30,000) warrants struck at Bentley's bid
price at the opening of trading on the day of the signing of
this agreement, and exercisable after the common stock share
price trades at or above four dollars ($4. US) per share for
twenty trading days. These warrants, if unexercised, will
expire nine (9) months from the date of the signing of this
agreement.
Thirty thousand (30,000) warrants with a strike price of four
dollars ($4. US) per share and exercisable after the common
stock share price trades at five dollars and fifty cents
($5.50 US) per share for twenty trading days. These warrants,
if unexercised, will expire fifteen (15) months from the date
of the signing of this agreement.
Forty thousand (40,000) warrants with a strike price of four
dollars ($4. US) per share, and exercisable at seven dollars
and fifty cents ($7.50 US) per share. These warrants if
unexercised will expire twenty-four (24) months from the date
of the signing of this agreement.
x. Xxxxxxx Pharmaceuticals agrees to award the one hundred
thousand (100,000) warrants previously disclosed in section
2.1 at the above agreed upon prices notwithstanding any other
section, clause or paragraph hereunder written. In addition,
the warrants discussed in section 2.1 will remain the property
of Kinexsys notwithstanding any subsequent term of engagement
by Bentley Pharmaceuticals or the termination of Kinexsys for
any reason or cause whatsoever.
2.2 Bentley shall also reimburse Kinexsys for all reasonable pre-approved
out-of-pocket expenses which shall be incurred by Kinexsys in
connection with the performance of all duties and
responsibilities hereunder including travel, lodging, meals,
entertainment, materials expenses, telephone and other communication
costs, etc. to be paid within seven days of receipt by Bentley of
invoices for such expenses.
2.3 Nothing contained herein shall prevent Bentley from modifying or
terminating any Company plan, policy, benefit or program.
2.4 Kinexsys hereby agrees to forthwith disclose any conflicts of interest
which to the best of its knowledge currently exist or which arise
during the term of this Agreement.
3.0 Termination of Consulting Agreement
3.1 If during the period of this Agreement, Kinexsys shall become unable to
provide the agreed upon duties and services for a period of more than
two (2) months, all obligations of Bentley shall terminate.
3.2 Bentley may at any time, by written notice to Kinexsys, terminate the
consulting services herein described for "Cause" as of the date of such
notice. For purposes of this Agreement, "Cause" shall be defined as the
following:
the commission by Kinexsys, in connection with the performance
of their duties or obligations hereunder, of any act or acts
of gross negligence or willful misconduct.
In the event of such termination for "Cause" pursuant to this section
3.2, Bentley shall be liable and shall pay to Kinexsys only that part
of the compensation which has been fully earned and unpaid as of the
date of Kinexsys' receipt of such written notice. Bentley shall not be
liable for and shall not pay Kinexsys any compensation after the date
of such written notice. The date of Kinexsys' receipt of such written
notice shall be deemed to be a date not later than three (3) calendar
days after its date of mailing or upon its date of receipt by Kinexsys,
whichever date is sooner.
3.3 Either party may terminate the agreement (i.e., quit) only upon thirty
(30) days prior written notice to the other party. If Kinexsys gives
such notice, Bentley, may, in its discretion, waive such notice period
and the Agreement shall be terminated as of the date of this notice. If
Bentley gives such notice Kinexsys, may, in its discretion, waive such
notice period and the Agreement shall be terminated as of the date of
this notice. Upon termination of this Agreement by Kinexsys pursuant to
this Section 3.3, thereafter Bentley shall only be obligated to pay any
previously unpaid and incurred expenses.
4.0 Protection of Confidential Information, Non Competition
4.1 The parties acknowledge that the business of Bentley and its affiliates
is by its nature a world-wide business and that the products and
services of Bentley and its affiliates may be used or made anywhere in
the world. In addition, the business, products, and services of Bentley
and its affiliates do not require them to maintain a physical location
close to their customers and participants. In addition, Kinexsys agrees
to the following restrictive covenants:
4.1.1 Kinexsys will not, during the period of their engagement hereunder or
at any time thereafter, divulge, use, furnish, disclose or make
available to anyone other than Bentley or its affiliates, or its
directors or officers as appropriate, any Confidential Information,
except as may be necessary in the ordinary course of performing their
duties as an engaged consultant of Bentley or any affiliate of Bentley.
4.1.2 For purposed of this Agreement, "Confidential Information" shall mean
any and all information, data and knowledge that (i) has been created,
discovered, developed, or otherwise become known
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to Bentley or any affiliate of Bentley (including, without limitation,
information, data, and knowledge created, discovered, developed or made
known by Kinexsys during the period of or arising out of their
engagement by Bentley) or in which property rights have been assigned
or otherwise conveyed to Bentley or any affiliate, which information,
data, or knowledge has commercial value in the business in which
Bentley or any affiliate of Bentley is engaged, except such
information, data, or knowledge, as is or becomes known to the public
without violation of the terms of this Agreement, or (ii) arises out of
or relates to the legal or business affairs of Bentley, or any
affiliate thereof (including without limitation, any information which
Bentley considers to be privileged.) By way of illustration, but not
limitation, Confidential Information includes trade secrets, processes,
formulas, know-how, improvements, discoveries, developements, designs,
inventions, techniques, marketing plans, strategies, investment plans,
forecasts, new products, unpublished financial statements or parts
thereof, budgets, projections, licenses, prices, costs, and any
information relating to the legal or business affairs of Bentley or any
affiliate thereof.
4.1.3 Notwithstanding any provision of this Section 4.1 to the contrary,
Kinexsys shall be entitled to retain any financial statements, budgets,
projections, tax statements, organizational documents of Bentley or any
affiliate thereof which may have been delivered to Kinexsys in their
capacity as a member or shareholder of Bentley or any affiliate of
Bentley, and Kinexsys shall have the right to disclose such financial
statements, budgets, projection, tax statements and organizational
documents to Kinexsys' accountants, attorneys, and advisors and in
connection with the provision by any such party of personal financial
or legal advise or services to Kinexsys.
4.2 If Kinexsys commits a breach of any of the provisions of Section 4.1,
Bentley shall have the right and remedy to have the provisions of the
Agreement specifically enforced by way of preliminary and/or permanent
injunction by any court having jurisdiction, its being acknowledged and
agreed by Kinexsys and Bentley that any such breach will cause
irreparable injury to Bentley and that money damages will not provide
an adequate remedy to Bentley. Such right and remedy shall be in
addition to, and not in lieu of, any other rights and remedies
available to Bentley under law or in equity.
4.3 If any of the covenants or provisions contained in Section 4.1 or 4.2,
or any part thereof, is hereafter construed to be invalid or
unenforceable in any respect, the same shall not affect the remainder
of the covenant, covenants or provisions which shall be given the
maximum effect possible without regard to the invalid portions and the
remainder shall then be fully enforceable.
4.4 If any of the covenants contained in Section 4.1 or 4.2 or any part
thereof, is held to be unenforceable because of the duration of such
provision or the geographical or product/business area covered thereby,
the parties agree that such provisions shall be reformed and construed
to reduce the duration and/or area of such provision to the extent
necessary for enforceability and, in its reduced form, said provision
shall then be fully enforceable.
4.6 The parties hereto intend to and hereby confer jurisdiction to enforce
the covenants contained in Sections 4.1 or 4.2 upon the courts of the
State of California (and the federal courts resident in such State).
5.0 Notices
All notices or their communications given pursuant hereto by one party
to another shall be in writing and deemed given when (a) delivered by
hand, (b) sent by fax/telecopier (with receipt confirmed) provided that
a copy is mailed the same day by registered or certified mail, postage
prepaid, return receipt requested, or (c) when recieved by the
addressee, if sent by Express Mail, Federal Express, or other express
delivery service (receipt requested), in each case to the appropriate
addresses, and fax/telecopier numbers for Bentley and Kinexsys set
forth below (or to such address and/or fax/telecopier numbers as either
party may designate by notice to the other from time to time.
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If to Bentley, to it at:
Bentley Pharmaceuticals
0000 Xxxx Xxxxxxx Xxxx.
Xxxxx, XX 00000
Attention: Xxxxx X. Xxxxxx
If to Kinexsys, to them at:
Kinexsys
Xxx 0000
Xxxxxxx Xxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxxxx
Or, delivered by hand.
5. General
5.1 This Agreement shall be governed by and construed and enforced in
accordance with the laws of the State of California. Except as
otherwise expressly provided in this Agreement, if under such law, any
portion of this Agreement is at any time deemed to be in conflict with
any applicable statute, rule, regulation, ordinance, or principle of
law, such portion shall be deemed to be modified or altered to the
extent necessary to conform thereto, or, if that is not possible, to be
omitted from this Agreement; and the invalidity of any such portion
shall not affect the force, effect and validity of the remaining
portion hereof.
5.2 The article headings contained herein are for reference purposes only
and shall not in any way affect the meaning or interpretation of this
Agreement.
5.3 This Agreement sets forth the entire agreement and understanding of the
parties relating to the subject matter hereof, and supersedes all prior
agreements, arrangements and understandings, written or oral, relating
to the subject matter hereof.
5.4 This Agreement may not be amended, modified, superseded, or waived,
except by a written instrument executed by both parties, hereto, or in
the case of a waiver, by the party waiving compliance. The failure of
either party at any time or times to require performance of any
provision hereof shall in no manner affect the right at a later time to
enforce the same. No waiver by either party of the breach of any term
or covenant contained in this Agreement whether by conduct or
otherwise, in any one or more instances, shall be deemed to be, or
construed as, a further or continuing waiver of any such breach, or a
waiver of the breach of any other term or covenant contained in this
Agreement.
5.5 In the event that any action, suit or other proceeding in law or in
equity is brought to enforce any provision of this Agreement, and such
action, suit or proceeding results in a monetary judgment or the
granting of any injunctive relief, the court costs and reasonable
attorneys fees of the prevailing party shall, on demand of the
prevailing party, be paid by the other party.
6.0 Indemnification
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Bentley Pharmaceuticals, agrees to indemnify Kinexsys, Xxxxxxx X.
Xxxxxxxx and other Indemnified Persons, following the execution of this
Agreement, as set forth in Attachment A, which is incorporated and made
part of this Agreement.
7.0 Severability
If any provision of this Agreement is hereafter construed to be invalid
or unenforceable in any respect, the same shall not affect the
remaining provisions of this Agreement, without regard to the invalid
portion, and any such invalid provisions shall be reformed and
construed to the extent necessary to permit their enforceability so as
to reflect the intent of the partes hereto.
8.0 Representation
Bentley and Kinexsys represent and warrant that each is fully
authorized and empowered to enter into this Agreement and that the
performance of each of their respective obligation under this Agreement
will not violate any agreement between each of them and any other
person, firm, or organization.
9.0 Survivorship
The respective rights and obligations of the parties hereunder shall
survive any termination of Kinexsys' employment or this Agreement to
the extent necessary to the intended preservation of such rights and
obligations.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
Bentley Pharmaceuticals Kinexsys
By: /s/ Xxxxx Xxxxxx By: /s/ Xxxxxxx Xxxxxxxx
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Xxxxx Xxxxxx, CEO Xxxxxxx Xxxxxxxx, Principal
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