CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (the "Agreement"), dated as of November 16,
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 Xxxxx Xxxxx, 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 related to the HUMT overseas joint venture
project including, but not limited to banking, general office
functions, secretarial services, human resource services 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 overseas.
c. Networking. The Consultant may provide certain professional
networking opportunities for HUMT overseas. Such opportunities may
include introductions to, and the formulation and maintenance of
relationships with, key business contacts overseas.
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 and its overseas joint venture project.
(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 him 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 warrants to acquire 500,000 shares of HUMT's
common stock at an exercise price of $1.50 per share. All shares issued upon
exercise of the warrants are considered fully earned and non-assessable as of
the date hereof, resulting in Consultant's ownership of the foregoing warrants
vesting on the Effective Date. The shares underlying the exercise of the
warrants 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 his
duties under this Agreement.
(8) Confidentiality. The Consultant acknowledges that as a result of the
performance of his 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: Xxxxx Xxxxx
(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 Texas 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 HUMT.
However, all parties to this Agreement have been or have had the
opportunity to be represented by legalcounsel, 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.
(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: _____________________________ By: ___________________________
Xxxxx Xxxxxxxx Xxxxx Xxxxx
President
Humatech, Inc.
0000 Xxxx Xxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
