CONSULTING AGREEMENT
1. PARTIES.
1.1. This Consulting Agreement (this "Agreement") is made and entered into
effective as of November 16, 2001, by and between Humatech, Inc., an Illinois
corporation, (the "Company"), whose address is 0000 Xxx Xxxx, Xxxxx 000,
Xxxxxxx, Xxxxx 00000 and Xxxx Xxxxxxxxxxx, a natural person, (the "Consultant"),
whose address is 0000 Xxxxx Xxxx Xxxx., Xxxxx 000, Xxxxx, Xxxxxxx 00000.
2. RECITALS.
2.1. This Agreement is made with reference to the following facts and
circumstances.
(a) The Company wishes to engage the services of the Consultant to
advise and consult with the Company on certain business and financial matters as
set forth in this Agreement.
(b) The Consultant is willing to accept such engagement, on the terms
set forth in this Agreement.
2.2. In consideration of the premises, and for other good and valuable
consideration, the receipt of which is hereby acknowledged, the Company and the
Consultant agree as follows.
3. ENGAGEMENT.
3.1. The Company hereby engages the services of the Consultant, as an
independent contractor, for a period of one year beginning on the date hereof,
and ending one year from and after the date hereof (the "Term"), and the
Consultant hereby accepts such engagement, for the purposes set forth in section
3.2. below.
3.2. The scope of the services to be rendered by the Consultant to the
Company are and are limited to the following:
(a) The Consultant shall, from time to time as the Company may
request, advise and consult with the Company's board of directors and executive
officers regarding (i) the Company's merger and acquisition strategies,
including the evaluation of targets and the structuring of transactions; and
(ii) the Company's business development activities, including major geographic
and service expansion plans.
(b) The Consultant shall devote such time to this engagement as is
reasonably necessary, but the Consultant need not devote his full time or
attention to the engagement. The Company recognizes that the Consultant has
numerous clients and engagements, and that this engagement is not exclusive.
(c) The services need not be rendered at the Company's offices and
may be rendered by telephonic communication; provided, however, that upon the
Company's request and reasonable notice, the Consultant will attend meetings of
the Company's board of directors and executive officers for the purpose of
advising and consulting with them with respect to matters within the scope of
this engagement.
(d) Anything in this Agreement to the contrary notwithstanding, the
services rendered by the Consultant under this Agreement shall not include any
services in connection with the offer or sale of securities and will not
directly or indirectly promote or maintain a market for the Company's
securities.
4. THE CONSULTANT'S FEES AND EXPENSES.
4.1. The Company shall pay the Consultant as a fee for his services under
this Agreement (the "Consulting Fee") 1,000,000 warrants, each to purchase one
share (the "Shares") of the Company's common stock ("Common Stock") at a price
of $1.00 per share.
4.2. Promptly upon the execution of this Agreement, the Company shall
cause the warrants to be issued to the Consultant in a transaction that is
registered under the Securities Act of 1933, as amended, pursuant to an
effective registration statement on form S-8, filed with the Securities and
Exchange Commission. The certificates representing the Shares shall not contain
any restrictive legends. In connection with the issuance of the warrants and the
Shares to the Consultant, the Consultant hereby represents and warrants to the
Company that the Consultant is an "accredited investor" as defined by paragraph
(a) of SEC Rule 501.
4.3. The Company shall issue instructions to its transfer agent to issue
the certificates representing the Shares free and clear of any legend,
restriction or stop order, and deliver the shares, so registered, to Consultant.
The Company warrants that the Shares shall be freely transferable on the books
and records of the Company. Nothing in this Section 4.3 shall affect in any way
the Consultant's obligations and agreement to comply with all applicable
securities laws upon resale of the Shares.
4.4. The warrants delivered to the Consultant for his services under this
Agreement shall include the Consultant's costs and expenses incurred in the
performance of this Agreement, including travel, lodging, meals and legal fees.
5. CONFIDENTIAL INFORMATION.
5.1. The parties hereto recognize that a major need of the Company is to
preserve its specialized knowledge, trade secrets, and confidential information.
The strength and good will of the Company is derived from the specialized
knowledge, trade secrets, and confidential information generated from experience
with the activities undertaken by the Company and its subsidiaries. The
disclosure of this information and knowledge to competitors would be beneficial
to them and detrimental to the Company, as would the disclosure of information
about the marketing practices, pricing practices, costs, profit margins, design
specifications, analytical techniques, and similar items of the Company and its
subsidiaries. By reason of his being a Consultant to the Company, Consultant has
or will have access to, and will obtain, specialized knowledge, trade secrets
and confidential information about the Company's operations and the operations
of its subsidiaries, which operations extend through the United States.
Therefore, Consultant recognizes that the Company is relying on these agreements
in entering into this Agreement:
5.2 During and after the Term Consultant will not use, disclose to
others, or publish any inventions or any confidential business information about
the affairs of the Company, including but not limited to confidential
information concerning the Company's products, methods, engineering designs and
standards, analytical techniques, technical information, customer information,
employee information, and other confidential information acquired by him in the
course of his past or future services for the Company. Consultant agrees to hold
as the Company's property all memoranda, books, papers, letters, formulas and
other data, and all copies thereof and therefrom, in any way relating to the
Company's business and affairs, whether made by him or otherwise coming into his
possession, and on termination of his employment, or on demand of the Company,
at any time, to deliver the same to the Company within twenty four hours of such
termination or demand.
5.3 During the Term Consultant will not induce any employee of the Company
to leave the Company's employ or hire any such employee (unless the Board of
Directors of the Company shall have authorized such employment and the Company
shall have consented thereto in writing).
6. ARBITRATION OF DISPUTES, LITIGATION EXPENSES.
6.1. Any controversy or claim arising out of or relating to any acts or
omissions of either party hereto or any of the Company's officers, directors,
agents, affiliates, associates, employees or controlling persons shall be
settled by arbitration under the Federal Arbitration Act in accordance with the
commercial arbitration rules of the American Arbitration Association ("AAA") and
judgment upon the award rendered by the arbitrators may be entered in any court
having jurisdiction thereof. In such arbitration proceedings, the parties shall
be entitled to any and all remedies that would be available in the absence of
this Section and the arbitrators, in rendering their decision, shall follow the
substantive laws that would otherwise be applicable. The parties acknowledge
that the subject matter of this Agreement is of unique value to Consultant and
agree that Consultant shall have the right to specific enforcement of this
Agreement. The arbitration of any dispute pursuant to this Section shall be
held in Houston, Texas. Notwithstanding the foregoing in order to preserve the
status quo pending the resolution by arbitration of a claim seeking relief of an
injunctive or equitable nature, any party, upon submitting a matter to
arbitration as required by this Section, may simultaneously or thereafter seek a
temporary restraining order or preliminary injunction from a court of competent
jurisdiction pending the outcome of the arbitration.
6.2. In the event of any litigation or other proceeding between the
Company and the Consultant with respect to the subject matter of this Agreement
and the enforcement of the rights hereunder, the losing party shall reimburse
the prevailing party for all of his/its reasonable costs and expenses, as well
as any forum fees, relating to such litigation or other proceeding, including,
without limitation, his/its reasonable attorneys' fees and expenses, provided
that such litigation or proceeding results in a
(a) final settlement requiring payment to the prevailing party; or
(b) final judgment.
7. MISCELLANEOUS.
7.1. Relationship. The relationship between the Company and the
Consultant created by this Agreement is that of independent contractors.
Consultant understands and agrees that (i) Consultant will not be treated as an
employee of the Company for federal tax purposes; (ii) Company will not withhold
on behalf of Consultant pursuant to this Agreement any sums for income tax,
unemployment insurance, social security, or any other withholding pursuant to
any law or requirement of any governmental body relating to Consultant; (iii)
all of such payments, withholdings, and benefits, if any, are the sole
responsibility of Consultant; and (iv) Consultant will indemnify and hold
Company harmless from any and all loss or liability arising with respect to such
payments, withholdings, and benefits, if any. In the event the Internal Revenue
Service or any other governmental agency should question or challenge the
independent contractor status of Consultant, the parties agree that Consultant
and Company shall have the right to participate in any discussion or negotiation
occurring with such agency or agencies, irrespective of who initiates the
discussion or negotiations. The services to be rendered by the Consultant
pursuant to this Agreement do not include the services or activities of an
"investment adviser," as that term is defined by U.S. federal or state laws and,
in performing services under this Agreement, the Consultant shall not be deemed
to be an investment adviser under such laws.
7.2. Indemnity. The Company and the Consultant (the "Indemnifying Party")
hereby agree to defend, indemnify, and hold the other party (the "Indemnified
Party"), and their employees, agents, partners and affiliates harmless from and
against any and all claims, damages, judgments, penalties, costs, and expenses
(including attorney fees and court costs now or hereafter arising from the
enforcement of this clause) arising from the intentional or wrongful activities
of the Indemnifying Party or any of his employees, agents, partners or
affiliates under this Agreement. This indemnity shall survive termination of
this Agreement.
7.3. Notices. Any notice or other communication required or permitted to
be given shall be in writing and shall be mailed by certified mail, return
receipt requested (or by the most nearly comparable method if mailed from or to
a location outside of the United States), or delivered against receipt to the
party to whom it is to be given at the address of such party set forth in the
preamble to this Agreement (or to such other address as the party shall have
furnished in writing in accordance with the provisions of this Section). Any
notice given to any corporate party shall be addressed to the attention of the
Corporation Secretary. Any notice of other communication given by certified
mail (or by such comparable method) shall be deemed given at the time of
certification thereof (or comparable act), except for a notice changing a
party's address which will be deemed given at the time of receipt thereof.
7.4. Survival of Obligations. The obligations of the parties under Sections
6 and 7.2 of this Agreement shall survive the termination for any reason of this
Agreement (whether such termination is by the Company, by the Consultant, upon
the expiration of this Agreement or otherwise).
7.5. Severability. In case any one or more of the provisions or part of
the provision contained in this Agreement shall for any reason be held to be
invalid, illegal or unenforceable in any respect in any jurisdiction, such
invalidity, illegality or unenforceability shall be deemed not to affect any
other jurisdiction or any other provision or part of a provision of this
Agreement, but this Agreement shall be reformed and construed in such
jurisdiction as if such provision or part of a provision held to be invalid or
illegal or unenforceable had never been contained herein and such provision or
part reformed so that it would be valid, legal and enforceable in such
jurisdiction to the maximum extent possible.
7.6. Entire Agreement, Amendment. This Agreement and the related Warrant
contains the entire agreement between the Company and the Consultant with
respect to the subject matter thereof. Consultant acknowledges that he neither
holds any right, warrant or option to acquire securities of the company, nor has
the right to any such rights, warrants or options, except pursuant to this
Agreement. This Agreement may not be amended, waived, changed, modified or
discharged except by an instrument in writing executed by or on behalf of the
party against whom any amendment, waiver, change, modification or discharge is
sought.
7.7. Governing Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of Texas.
7.8 Counterparts. This Agreement may be executed in two or more
counterparts, each of which will be deemed an original and together will
constitute one and the same Agreement, with one counterpart being delivered to
each party hereto and the original being may a part of the corporate records.
IN WITNESS WHEREOF, the parties have executed this Agreement, effective as
of the date first above written.
The Consultant: The Company:
Humatech, Inc.
________________________________ By __________________________________
Xxxx Xxxxxxxxxxx Xxxxx X. Xxxxxxxx, President & CEO
Date signed _______________________ Date signed ______________________
