EXHIBIT 6.5
Retractable Technologies, Inc.
and
Xxxxxxx X. Xxxxxxx dba/MediTrade International
CONSULTING AGREEMENT
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This Consulting Agreement (hereinafter referred to as "Agreement") is
made and entered into by and between Retractable Technologies, Inc. (hereinafter
called the "Corporation") and Xxxxxxx X. Xxxxxxx dba/MediTrade International
(hereinafter called "Consultant"). The Corporation and Consultant are
hereinafter collectively called the "Parties". Consultant hereby agrees to
provide Consulting Services for the Corporation. The Corporation hereby agrees
to compensate Consultant.
1. Consulting Services. Consultant shall during the term of
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this Agreement advise the Corporation with respect to selection and
implementation of an international distribution network, potential strategic
partners for future licensing for VanishPoint(R) technology worldwide and
strategic partnering with international health agencies including, but not
limited to the World Health Organization, Pan American Health Organization,
World Bank, and Doctors Without Borders. Consultant shall be an independent
contractor and not an employee of the Corporation. Under no circumstances shall
Consultant or its representatives, agents, or employees be deemed agents of the
Corporation for any purpose. Consultant shall not enter into any contract or
make any representation or commitment in the name of or on behalf of the
Corporation. Consultant shall not assign responsibilities under this contract to
any other party.
The Consultant will from time to time specify by written
indication those companies or entities which fall within the scope of the
potential agencies and companies to be contacted. In addition, Consultant will
also maintain written documentation and records of activities undertaken on
behalf of the Corporation. Consultant will provide the Corporation with written
reports of such activities. The Corporation's prior written consent will be
evidenced by designating potential contacts on Appendix "A" to this Agreement
with the company's name, the date and Corporation's signature thereon. The
Consultant agrees that if it commences negotiations with a company or companies
without the Corporation's written consent, Consultant will automatically forfeit
all rights to commissions under this Agreement with respect to the company or
companies in question.
In the event the Corporation has reason to remove a company or
entity from the Consultant, the Consultant will be notified in writing to that
effect and if negotiations are already underway between the Consultant and said
company or entity, and the Consultant so requests, the Consultant will be given
a reasonable time to bring the negotiations to fruition before the company or
entity is removed from the scope of the network under this Agreement.
2. Term. The term of this Agreement shall begin on the date
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of execution of this Agreement and shall end no later than May 31, 2001.
Consultant shall have no obligations to render consulting services beyond the
term of this Agreement.
3. Termination, Renewal. Either party may terminate this
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Agreement for any cause whatsoever upon 90 days' written notice.
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Either party may refuse to renew this Agreement for any cause
whatsoever. Failure of the parties to agree on potential contacts, pricing or
other performance standards for a subsequent term shall constitute good cause
for refusal to renew this Agreement. This Agreement may be reinstated following
termination or notice thereof, and may be renewed or extended beyond the date
set for its automatic termination, only by an explicit statement to that effect
which sets forth the reinstated, renewed or extended date of termination and is
signed by both parties. Should a court of competent jurisdiction nevertheless
find a reinstatement or renewal of this Agreement or otherwise find a continuing
relationship as corporation and consultant in the absence of such a writing, the
period of such reinstatement, renewal or relationship (and of any renewals
thereof) shall be limited in duration to thirty (30) days.
Neither termination of this Agreement in the manner set forth
in this Agreement nor failure to renew this Agreement shall entitle the other
party to receive damages, indemnification or compensation by reason of such
termination or nonrenewal.
4. Payment. In consideration of the consulting services to be
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performed by Consultant, the Corporation shall pay to Consultant a consulting
fee in the amount of $200,000.00 to be paid in 12 equal installments of
$16,666.00 to commence on June 1, 2000. Additionally, in the event that
Consultant incurs business expenses on behalf of, and with the approval of the
Corporation, Consultant shall submit an expense report with corresponding
receipts attached for reimbursement. The expenses incurred by Consultant on
behalf of the Corporation shall not exceed $5,000.00 per month.
A licensing commission will be paid to the Consultant, as set
forth below, if and only if the Consultant successfully brings an approved third
party identified in Exhibit A to the negotiating table and assists in
negotiating terms and conditions suitable to the Corporation in the
implementation of one or more international licensing agreements resulting in an
agreement between the Corporation and the party which calls for a payment or a
stream of payments over time for the right to make, use or sell the technology.
In the event no agreement is reached between the parties, and irrespective of
the reason no agreement is reached, the Consultant shall not be entitled to a
licensing commission under this Agreement.
If a licensing agreement is consummated between the
Corporation and a third party identified as an approved contact the consultant
shall be entitled to receive a commission of five percent (5%) of any payments
identified as the licensing fee to be paid to the Corporation from the third
party whether paid in one payment or as a stream of payments identified as the
licensing fee received over time by the Corporation from the third party. The
licensing fee commissions payable to the Consultant shall be paid to the
Consultant promptly after each licensing fee payment is received by the
Corporation. In the event that the paying party or parties agree to render
direct payment to Consultant of the five percent (5%) licensing fee commission,
Corporation will consent to such payment.
If, within two (2) years after the expiration of this
Agreement, the Corporation enters into an agreement with an approved contact
party brought to the negotiating table by the Consultant during the term of this
Agreement, and where serious negotiations took place with said party in
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which Consultant aided and participated, then the Consultant shall be entitled
to a commission for a licensing fee resulting from that agreement.
5. Confidential Information of the Corporation. The Parties
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acknowledge and agree that during the term of this Agreement, each of them and
their affiliates may exchange Confidential Information, and the disclosure and
use of any such Confidential Information shall be governed by the provisions of
this Agreement. The term "Confidential Information" means any information which
is provided to Consultant by the Corporation or which is developed by Consultant
while performing Consulting Services for the Corporation, (including without
limitation any information which relates to consulting services to be performed
under this Agreement, any information which Consultant may acquire regarding the
Corporation's business, and any information relating to products, customers or
pricing) and which is not generally available to the public.
Each Party shall use the Confidential Information of the other
Party only for the purpose of the activities contemplated by this Agreement and
shall not disclose such Confidential Information to a Third Party and will keep
such Confidential Information confidential and will not use such Confidential
Information except in connection with performing Consulting Services for the
Corporation unless and until either (a) the Corporation consents to disclosure
or (b) such knowledge and information otherwise becomes generally available to
the public through no fault of Consultant. Confidential information of a
specific nature shall not be considered available to the public or in
Consultant's prior possession merely because information of a less specific
nature was available to the public or in Consultant's prior possession. The
Parties shall ensure that their Affiliates keep all Confidential Information
exchanged hereunder confidential in accordance with the provisions hereof as
though the Affiliates were parties hereto. This provision shall remain in effect
for a period of five (5) years after termination or expiration of this Agreement
for all Confidential Information except for trade secrets, which shall always be
treated as Confidential Information.
Upon termination of this Agreement, Consultant shall return to
the Corporation all product, all manuals, flyers, pictures and other printed
materials (including copies thereof), and all computer readable data and
software, and shall also erase all computer readable data and software from all
fixed and floppy drives retained by Consultant, regardless of whether such
printed materials or computer readable data were provided to Consultant by the
Corporation or were created or received by Consultant in the course of providing
Consulting Services to the Corporation.
6. Disclosure of Information to the Corporation. If Consultant
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discloses to the Corporation any idea, discovery, invention, copyrightable work,
or other information of Consultant, the Corporation will incur no liability to
Consultant by reason of using or distributing such information unless such use
or distribution infringes a valid patent, trademark or copyright. Consultant
represents that Consultant will not disclose to the Corporation nor use for the
benefit of the Corporation any confidential, trade secret or proprietary
information which belongs to any third party.
7. Relationships with Competitors. The term "Competitor" of
the Corporation means any company, enterprise or person (other than the
Corporation) that is engaged in the design, development, manufacture,
distribution or sale of automated retraction syringes, catheters or blood
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collection tube holders. Consultant represents that, prior to signing this
Agreement, Consultant has advised the Corporation in writing of any relationship
which Consultant may have (either currently or in the past) with any Competitor
of the Corporation. Consultant shall immediately advise the Corporation of any
such relationship that arises during the term of this Agreement. Consultant
agrees that, during the term of this Agreement and for a period of two (2) years
thereafter, Consultant will not perform any services for any competitor of the
Corporation or utilize any Confidential Information of the Corporation nor
perform any services for any Competitor of the Corporation.
8. Notice. All notices hereunder required or permitted to be delivered
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hereunder shall be deemed to be delivered personally, or by registered or
certified mail (postage prepaid), or by recognized private mail carrier or by
facsimile with a confirmation copy sent by registered or certified mail (postage
prepaid), to the following addresses of the respective parties, or at such other
addresses as they have theretofore specified by written notice delivered in
accordance herewith.
A. Notice to the Corporation shall be addressed and delivered as follows:
Retractable Technologies, Inc.
000 Xxxx Xxxx, Xxxx Xxxxxx Xxx 0
Xxxxxx Xxx, XX 00000-0000
(000) 000-0000
(000) 000-0000 Facsimile
B. Notice to the Consultant shall be addressed and delivered as follows:
Xxxxxxx X. Xxxxxxx dba/MediTrade International
c/o Xxxxxxx X. Xxxxxxx
432 Xxxxxxx
Xxxxxxxxxx, Xxxxx 00000
(000)000-0000
9. Public Announcements. Consultant and Corporation agree to mutually
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approve the text and any press release to be jointly issued announcing the
execution of this Agreement or the consummation of the transactions contemplated
hereby and to consult with each other prior to making any other public statement
concerning this Agreement and the transactions contemplated by this Agreement
which approval shall not be reasonably withheld. Following the approval of any
such release, the facts and matters contained in such release shall no longer be
deemed Confidential Information.
10. General. The terms and conditions contained in this Agreement
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constitute the entire agreement between the Parties and supersedes all prior
communications and/or agreements and understandings between the Parties
concerning the subject matter of this Agreement. There are no oral
understandings, statements, promises or inducements contrary to the terms of
this written Agreement. Consultant understands that no employee or
representative of the Corporation is authorized to modify this Agreement orally
or in any other manner except in writing. No course of dealing or usage of trade
shall be used to modify the terms and conditions hereof.
Subsequent Consulting Agreement Schedules may supplement this Agreement
regarding the specific Consultant Services to be performed and the compensation
therefor, but such
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Consulting Agreement Schedules are subject to and may not contradict this
Agreement and, in the event of any conflict, the terms of this Agreement shall
prevail.
11. Waiver - Modification of Agreement. No waiver or
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modification of any of the terms of this Agreement shall be valid unless in
writing and signed by authorized representatives of both parties. Failure by
either Party to enforce any rights under this Agreement shall not be construed
as a waiver of such rights nor shall a waiver by a Party in one or more
instances be construed as constituting a continuing waiver or as a waiver in
other instances.
12. Applicable Law. This Agreement shall be constructed,
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interpreted and governed by the laws of the State of Texas, except for choice of
law rules.
RETRACTABLE TECHNOLOGIES, INC. XXXXXXX X.XXXXXXX dba/MEDITRADE
INTERNATIONAL
By: /s/ Xxxxxx X. Xxxx By: /s/ Xxxxxxx X. Xxxxxxx
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Xxxxxx X. Xxxx Xxxxxxx X.Xxxxxxx
President and CEO President
Dated: 5/27/00 Dated: 5/27/00
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APPENDIX "A"
APPROVED CONTACTS
Company Name Date Consent
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Xxxxxxx Labortechnik- Austria 5/27/00 TJS
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B/Xxxxx Medical Inc.- Germany 5/27/00 TJS
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Aventis Pasteur- France 5/27/00 TJS
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Novartis AG- Switzerland 5/27/00 TJS
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Roche Holding, Ltd.- Switzerland 5/27/00 TJS
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