Exhibit 10.3 Agreement with Research Capital, LLC
CONSULTING AGREEMENT
GenoMed, Inc., a Florida company ("Company"), whose address is 0000 Xxxx
Xxxxxx, Xxxxx 000, Xxxxxxxx, Xxxxxxx 00000, and Research Capital, LLC, a Florida
limited liability company ("Consultant"), whose address is 0000 Xxxx Xxxxxx,
Xxxxx 000, Xxxxxxxx, Xxxxxxx 00000, hereby agree as follows:
1. Services. During the term of this Agreement, Consultant agrees to perform the
following services ("Services") and provide the following working capital to
Company:
a. Establish a financial public relations campaign (the "Campaign") for
Company. The Campaign shall include advertising of Company through
financial magazines, internet websites, and other medias that Consultant
may deem appropriate.
b. Provide guidance to Company specific to key business alliances, and
assist Company in negotiating agreements with suppliers and service
providers.
c. Provide Working Capital to Company based on the following schedule:
Month Payment
November, 2001 $155,000.00
December, 2001 $155,000.00
January, 2002 $205,000.00
February, 2002 $ 55,000.00
March, 2002 $ 55,000.00
April, 2002 $100,000.00
May, 2002 $ 25,000.00
June, 2002 $ 50,000.00
July, 2002 $ 50,000.00
August, 2002 $ 50,000.00
September, 2002 $ 50,000.00
October, 2002 $ 50,000.00
25,000 has been provided to Company by Consultant. Consultant shall deduct
$5,000 from the first five payments listed above to account for the $25,000 that
has already been provided. Each scheduled payment listed above shall be made to
Company on the fifteenth (15th) day of the specified month. Should the fifteenth
(15th) day of the month fall on a weekend or legal holiday, payment will be made
the following business day subsequent to the weekend or holiday.
d. Consultant shall assist in raising an additional $5,000,000 through a
Private Placement Offering. Consultant shall assist Company in completing
the necessary documents to initiate said Private Placement Offering.
Company and Consultant anticipate initiating the Private Placement Offering
within one hundred twenty (120) days from the date of this Consulting
Agreement. Should a satisfactory market for the Company's securities not
develop within this timeframe, the Private Placement may be delayed, at the
sole discretion of Consultant, until a reasonable market for a Private
Placement Offering develops. Consultant guarantees that it will provide
$1,000,000 of the Private Placement funds.
Consultant shall devote an adequate amount of time as may be necessary to
perform the Services. Consultant shall provide a performance schedule, as and
when requested by Company, detailing the anticipated timing and manner of
performance of the Services. All Services shall be performed with the highest
standard of care and professionalism.
2. Representations. Consultant represents and warrants that Consultant has
special skills and/or resources qualifying Consultant as an expert in performing
the Services and holds, or will obtain at Consultant's expense, all consents,
licenses, permits, registrations and authorities necessary to perform the
Services. Consultant further represents and warrants that the execution of this
Agreement and the performance of Consultant's obligations hereunder shall not
violate the terms of any other agreement or any rule, law or order by which
Consultant is bound.
3. Consultant's Performance. Consultant shall perform the Services in accordance
with the following standards:
(a) Consultant shall perform the Services as expeditiously as is consistent
with the skill and care required herein.
(b) The standard of care for all Services performed or furnished by
Consultant under this Agreement will be the highest standard of care, skill
and professionalism used by members of Consultant's profession practicing
under similar conditions at the same time and in the same locality.
(c) Consultant shall review all information provided by Company respecting
the Services, and if the information is inadequate and/or if the Consultant
needs any additional information to perform Consultant's Services, the
Consultant shall promptly notify Company in writing specifying the
additional information required.
4. Term. Unless earlier terminated, the term of this Agreement shall be one (1)
year ("Term"). This Agreement shall automatically renew for additional twelve
(12) month term if not cancelled by either party upon expiration of the term
5. Authorities. Consultant acknowledges that in the course of performing the
Services, Consultant may be required to interact with or otherwise deal with
governmental subdivisions, agencies, authorities or officials (collectively"
Authorities"). Consultant agrees that any dealings with Authorities shall
conform with the standards and policies of Company in effect from time to time.
6. Consideration. In consideration for Consultant's full and timely performance
of the Services, Company shall pay Consultant at a rate of twenty thousand
dollars ($20,000) per month in 144 Restricted Company stock ("Consideration").
The amount of stock to be paid to Consultant in a given month shall be
calculated based upon a fifty percent discount to the average bid price of the
Company's stock during the month for which services were performed. The
consideration shall be paid by Company to Consultant on the fifteenth (15th) day
of each month immediately following the month for which service were performed
by Consultant.
For example: Avg. Monthly Bid Price: $ 0.50
50% discount for 144 Restricted Stock: $ 0.25
Monthly Consideration paid to consultant: $20,000.00
Number of shares owed to Consultant (20,000-7-.125): 80,000 shares
7. Expenses. Consultant shall be responsible for all expenses incurred
performing the Services, subject to the following terms and conditions:
(a) Any expenses incurred by Consultant on behalf of Company that exceed
one thousand dollars ($1,000) during any given month shall be reimbursed by
Company to Consultant provided that Consultant has obtained approval from
the proper officer of Company prior to incurring said expense.
(b) Requests for reimbursement shall be made on forms prescribed by Company
as soon as practicable after the relevant expenses are incurred;
(c) All expenses shall be fully documented; and
(d) Receipts are required for all expenses exceeding twenty dollars
($20.00).
8. Independent Contractor. Consultant and Company, expressly intending that no
employment, partnership, or joint venture relationship is created by this
Agreement, hereby agree as follows:
(a) Consultant shall act at all times as an independent contractor
hereunder.
(b) Neither Consultant nor anyone employed by or acting for or on behalf of
Consultant shall ever be or be construed as an employee of Company and
Company shall not be liable for employment or withholding taxes respecting
Consultant or any employee of Consultant.
(c) Consultant shall determine when, where and how Consultant shall perform
the Services.
(d) Consultant shall take all steps to ensure that Consultant and
Consultant's employees are treated as independent contractors of Company.
(e) Company shall have the right to conduct inspections and reviews of, and
determine satisfactory performance of, the Services.
(f) Consultant shall provide Consultant's own materials, tools and
equipment in performing the Services.
(g) Consultant shall, at Consultant's expense, maintain workers
compensation insurance for Consultant and for all others employed by or
acting for or on behalf of Consultant to the extent and in the amounts
required by law.
(h) Consultant shall be free to contract with, and provide Consultant's
services to, parties other than Company during the term of this Agreement,
subject to the confidentiality restrictions delineated herein.
(i) Consultant shall not make any commitment or incur any charge or expense
in the name of Company without the prior written approval of Company.
(j) Consultant expressly acknowledges and agrees that except to the extent
expressly provided in paragraphs 6 and 7 above, neither Consultant nor
anyone employed by or acting for or on behalf of Consultant shall receive
or be entitled to any consideration, compensation or benefits of any kind
from Company, including without limitation, pension, profit sharing or
similar plans or benefits, or accident, health, medical, life or disability
insurance benefits or coverages.
(k) To the extent permitted by law, Consultant waives any and all rights to
any consideration, compensation or benefits, except as expressly provided
for herein.
9. Indemnity. Consultant shall indemnify and hold harmless Company and its
officers, directors, agents and employees, from and against any and all claims,
demands, causes of action, losses, damages, costs and expenses (including
reasonable attorney fees) arising out of or relating to Consultant's performance
of the Services or any claim for withholding or other taxes that might arise or
be imposed due to this Agreement or the performance of the Services, unless such
claim, demand, cause of action, loss, damage, cost and expense is caused in
whole or in part by the negligent acts or failures to act of Company, its
officers, directors, agents and employees, in which case Company shall indemnify
and hold Consultant harmless from any and all claims, demands, causes of action,
losses, damages, costs and expenses (including reasonable attorney fees) to the
extent and in the same proportion as said loss or damage was caused by Company's
(or its officers, directors, agents and employees') negligent acts or failures
to act.
10. Confidentiality. Except as maybe required by applicable law(s) or as the
parties may from time to time consent in writing, the parties shall not, at any
time, disclose any confidential information, or any part thereof, to any person,
firm, corporation, association, or other entity for any reason or purpose
whatsoever. Except as otherwise required herein the parties shall immediately
return to each other all of their confidential information and shall not retain
any copies thereof and shall continue to refrain from any use whatsoever of any
confidential information. In the event either party takes any action or fails to
take any action in contravention of this Section, that party shall indemnify and
hold harmless the other party from any damage or claim that may arise as a
result of such action or inaction. In addition, that party shall be entitled to
collect from the other party all costs incurred in obtaining such
indemnification, including all attorneys' and court fees. The parties shall take
any and all legal actions necessary to minimize any damages resulting from such
disclosure, to retrieve such disclosed confidential information, and to return
same to the other party upon their direction. Each party shall be responsible
for any action or inaction in contravention of this Section by their personal
representatives, successors and assigns.
11. Non-Solicitation. At all times during the term of this Agreement, and for a
period of three (3) years following any termination or expiration hereof,
Consultant agrees that Consultant shall not, directly or indirectly, for
Consultant or on behalf of any person or entity, solicit or contact any
employees or customers of Company for the purpose of inducing them to terminate
their employment or contractual agreements with Company or to become employees,
independent contractors or customers of Consultant or such other person or
entity.
12. Conceptions. Consultant acknowledges that Company is engaged in a continuous
program of research, development and marketing in connection with its business
and that, in the performance of the Services, Consultant may participate in and
support such activities. To the extent that Consultant participates in or
supports such activities on behalf of Company, Consultant hereby agrees to
promptly disclose exclusively to Company all improvements, original works of
authorship, process, computer programs, ideas, discoveries, techniques, data
bases and trade secrets ("Conceptions"), whether or not patentable or
copyrightable, that are made, conceived, first reduced to practice or created by
Consultant, either alone or jointly with others. Consultant further agrees that
all Conceptions that (a) are developed using equipment, supplies, facilities or
trade secrets of Company, or (b) result from or are any way connected with the
Services performed by Consultant, or (c) relate to the business or the actual or
anticipated research or development of Company, including any "moral" rights
under any copyright or other similar law, shall be the sole and exclusive
property of, and are hereby automatically assigned to Company. Consultant agrees
to assist Company in obtaining and enforcing all rights and other legal
protections for proprietary information and the Conceptions and to execute any
and all documents that Company may reasonably request in connection therewith.
Consultant's agreement set forth in the preceding sentence shall continue
throughout the period of five (5) years following the termination or expiration
of this Agreement; however, Company agrees to pay Consultant reasonable
consideration for time actually spent and sufficiently documented by Consultant
for such assistance during such five (5) year period.
13. Termination. This Agreement may be terminated prior to the expiration of the
twelve (12) month Term upon giving the other party written notice of intent to
cancel at least ninety (90) days prior to the expiration of the initial term or
any renewal term. In the event of such termination, Consultant shall be entitled
to and Company shall pay Consultant the balance of the Consideration for of the
remainder of the Term.
14. Assignment. Neither this Agreement nor any rights or obligations created
hereby may be assigned by Consultant or Company without prior written consent of
the other party and any attempt to do so shall be void.
15. Notices. All notices required or permitted under this Agreement shall be in
writing and shall be delivered personally and receipted for, sent by overnight
commercial air courier (such as Federal Express), to the parties at their
addresses set forth above or to such other address as a party shall have
notified the other party. Any such notice shall be deemed effective and
delivered upon the earliest to occur of actual delivery, if delivered
personally, one (1) business day after shipment by commercial air courier, or
three (3) business days after mailing.
16. Affiliates. All representations, covenants and agreements of Consultant set
forth in this Agreement made to or for the benefit or protection of Company
shall also benefit and protect, with equal force and effect, all affiliates of
Company.
17. Authority. Consultant shall have no authority to legally bind Company or its
affiliates to any liability or obligation whatsoever. Consultant shall advise
all persons and entities with whom he communicates on behalf of Company that
Consultant is only and merely a consultant and has no authority to bind Company
or its affiliates.
18. Entire Agreement. The foregoing constitutes the entire agreement between the
parties relating to the subject matter hereof, and supersedes all prior
understandings, agreements and documentation relating to the subject matter
hereof. This Agreement may be amended only by an instrument executed by Company
and Consultant.
19. Severability. If any provision of this Agreement is held to be unenforceable
for any reason, it shall be modified rather than voided, if possible, in order
to achieve the intent of the parties to the extent possible. In any event, all
other provisions of this Agreement shall be deemed valid and enforceable to the
fullest extent possible.
20. Governing Law. This Agreement and the rights and obligations of the parties
hereto shall be governed by, and construed and enforced in accordance with, the
laws of the State of Florida.
DATED: November 8, 2001.
GenoMed, Inc Research Capital, LLC ("Consultant")
By:/s/ Xxxxx X. Xxxxxxx By:/s/ Xxxx Xxxxx, III
Title: Chairman Title: CEO
