Exhibit 10.45
CONSULTANT AGREEMENT
This Agreement is made and entered into as of the 11th day of November, 2003,
between Molecular Diagnostics Corporation and CEOcast, Inc. (the "Consultant")
In consideration of and for the mutual promises and covenants contained
herein, and for other good and valuable consideration, the receipt of which is
hereby acknowledged, the parties agree as follows:
1. Purpose. The Company hereby employs the Consultant during the Term (as
defined below) to render Investor Relations services to the Company, upon
the terms and conditions as set forth herein.
2. Term. This Agreement shall be effective for a nine-month period (the
"Term") commencing on the date hereof.
3. Duties of Consultant. During the term of this Agreement, the Consultant
shall provide to the Company those services outlined in Exhibit A.
Notwithstanding the foregoing, it is understood and acknowledged by the
parties that the Consultant: (a) shall perform its analysis and reach its
conclusions about the Company independently, and that the Company shall
have no involvement therein; and (b) shall not render advice and/or
services to the Company in any manner, directly or indirectly, that is in
connection with the offer or sale of securities in a capital raising
transaction or that could result in market making.
4. Expenses. The Company, upon receipt of appropriate supporting
documentation, shall reimburse the Consultant for any and all reasonable
out-of-pocket expenses incurred by it in connection with services
requested by the Company, including, but not limited to, all charges for
travel, printing costs and other expenses spent on the Company's behalf.
The Company shall immediately pay such expenses upon the presentation of
invoices. Consultant shall not incur more than $500 in expenses without
the express consent of the Company.
5. Compensation. For services to be rendered by the Consultant hereunder, the
Consultant shall receive from the Company upon the signing of the
Agreement: 550,000 shares of the Company's fully paid non-assessable
common stock (One certificate for 400,000 and the other for 150,000). In
the seventh month (May 2004) the Company will issue an additional 250,000
shares of fully paid non-assessable common stock. In addition the Company
will pay the Consultant $30,000 in 3 consecutive $10,000 increments
beginning on May 1, 2004. The Company shall also pay Consultant expenses
as outlined in Section 4 upon presentation of invoices. Company agrees to
register Consultant's shares of common stock, at Company's expense, in the
next registration statement of its common stock.
5. Further Agreements. Because of the nature of the services being provided
by Consultant hereunder, Consultant acknowledges that if it may receive
access to Confidential Information (as defined in Section 6 hereof ) and
that, as a consultant to the Company, it will attempt to provide advice
that serves the best interest of the Company. Because of the uniqueness of
this relationship, the Consultant covenants and agrees that, with respect
to the Common Stock that it receives. Consultant shall, at all times that
it is the beneficial owner of such shares, vote such shares on all matters
coming before it as a stockholder of the Company in the same manner as the
majority of the Board of Directors of the Company shall recommend.
6. Confidentiality. Consultant acknowledges that as a consequence of its
relationship with the Company, it may be given access to confidential
information which may include the following types of information;
financial statements and related financial information with respect to the
Company and its subsidiaries (the "Confidential Financial Information"),
trade secrets, products, product development, product packaging, future
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marketing materials, business plans, certain methods of operations,
procedures, improvements, systems, customer lists, supplier lists and
specifications, and other private and confidential materials concerning
the Company's business (collectively, "Confidential Information").
Consultant covenants and agrees to hold such Confidential
Information strictly confidential and shall only use such information
solely to perform its duties under this Agreement, and Consultant shall
refrain from allowing such information to be used in any way for its own
private or commercial purposes. Consultant shall also refrain from
disclosing any such Confidential Information to any third parties.
Consultant further agrees that upon termination or expiration of this
Agreement, it will return all Confidential Information and copies thereof
to the Company and will destroy all notes, reports and other material
prepared by or for it containing Confidential Information. Consultant
understands and agrees that the Company might be irreparably harmed by
violation of this Agreement and that monetary damages may be inadequate to
compensate the Company. Accordingly, the Consultant agrees that, in
addition to any other remedies available to it at law or in equity, the
Company shall be entitled to injunctive relief to enforce the terms of
this Agreement.
Notwithstanding the foregoing, nothing herein shall be construed as
prohibiting Consultant from disclosing any Confidential Information (a)
which at the time of disclosure. Consultant can demonstrate either was in
the public domain and generally available to the public or thereafter
becomes a part of the public domain and is generally available to the
public by publication or otherwise through no act of the Consultant; (b)
which Consultant can establish was independently developed by a third
party who developed it without the use of the Confidential Information and
who did not acquire it directly or indirectly from Consultant under an
obligation of confidence; (c) which Consultant can show was received by it
after the termination of this Agreement from a third party who did not
acquire it directly or indirectly from the Company under an obligation of
confidence; or (d) to the extent that the Consultant can reasonably
demonstrate such disclosure is required by law or in any legal proceeding,
governmental investigation, or other similar proceeding.
Severability. If any provision of this Agreement shall be held or made
invalid by a statute, rule, regulation, decision of a tribunal or
otherwise, the remainder of this Agreement shall not be affected thereby
and, to this extent, the provisions of this Agreement shall be deemed to
be severable.
7. Governing Law; Venue; Jurisdiction. This Agreement shall be construed and
enforced in accordance with and governed by the laws of the State of New
York, without reference to principles of conflicts or choice of law
thereof. Each of the parties consents to the jurisdiction of the U.S.
District Court in the Southern District of New York in connection with any
dispute arising under this Agreement and hereby waives, to the maximum
extent permitted by law, any objection, including any objection based on
forum non conveniens. to the bringing of any such proceeding in such
jurisdictions. Each party hereby agrees that if another party to this
Agreement obtains a judgment against it in such a proceeding, the party
which obtained such judgment may enforce same by summary judgment in the
courts of any country having jurisdiction over the party against whom such
judgment was obtained, and each party hereby waives any defenses available
to it under local law and agrees to the enforcement of such a judgment.
Each party to this Agreement irrevocably consents to the service of
process in any such proceeding by the mailing of copies thereof by
registered or certified mail, postage prepaid, to such party at it address
set forth herein. Nothing herein shall affect the right of any party to
serve process in any other manner permitted by law. Each party waives its
right to a trial by jury.
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8. Miscellaneous.
(a) Any notice or other communication between parties hereto shall be
sufficiently given if sent by certified or registered mail, postage
prepaid, if to the Company, addressed to it at (Provide Address, or to the
"Consultant" addressed to it at CEOcast, Inc., 00 Xxxx Xxxxxx, 00xx Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attention: Administrator, facsimile number:
(000) 000-0000, or to such address as may hereafter be designated in
writing by one party to the other. Any notice or other communication
hereunder shall be deemed given three days after deposit in the mail if
mailed by certified mail, return receipt requested, or on the day after
deposit with an overnight courier service for next day delivery, or on the
date delivered by hand or by facsimile with accurate confirmation
generated by the transmitting facsimile machine, at the address or number
designated above (if delivered on a business day during normal business
hours where such notice is to be received), or the first business day
following such delivery (if delivered other than on a business day during
normal business hours where such notice is to be received).
(b) This Agreement embodies the entire Agreement and understanding between the
Company and the Consultant and supersedes any and all negotiations, prior
discussions and preliminary and prior arrangements and understandings
related to the central subject matter hereof.
(c) This Agreement has been duly authorized, executed and delivered by and on
behalf of the Company and the Consultant.
(d) This Agreement and all rights, liabilities and obligations hereunder shall
be binding upon and inure to the benefit of each party's successors but
may not be assigned without the prior written approval of the other party.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date hereof.
Molecular Diagnostics, Inc.
By:________________________
CEOcast, Inc.
By:________________________
1.Monthly interview on xxxxxxx.xxx that will be distributed to over 325,000
opt-in healthcare investors registered on our Internet site.
2. Company featured on the Home Page of our Internet site for one week each
quarter.
3. The writing and distribution of press releases to over 325,000 opt-in
healthcare investors.
4. Company covered in our weekly newsletter, which is distributed to over 1.6
million investors and 244 brokerage firms.
5. Calls to 100 brokers on each news release. These brokers can buy small-cap
securities in particular.
6. Strategic advice and other customary IR services.
