CONSULTING AGREEMENT
CONSULTING AGREEMENT dated as of November 7, 2005, by and between
bioMETRX, Inc. ("Parent"), a Delaware corporation, SmartTOUCH Medical, Inc., a
Delaware corporation ("Subsidiary"), both with offices at 000 Xxxxx Xxxxxxx
Xxxx, Xxxxx 000, Xxxxxxx, Xxx Xxxx 00000 and Xxxxx Xxxxx-Xxxxxxx ("Consultant")
with a mailing address of ______________________________________________.
W I T N E S S E T H:
WHEREAS, Subsidiary is a wholly owned subsidiary of Parent.
WHEREAS, Subsidiary and Parent on the one hand and Consultant wish to
enter into an agreement wherein Subsidiary desires to retain Consultant and
Consultant desires to act as a Consultant to Subsidiary, subject to and upon the
terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
and agreements set forth herein, the parties hereto agree as follows:
1. Consultancy. Subsidiary hereby retains Consultant and Consultant hereby
agrees to act as a Consultant to Subsidiary. Consultant shall perform such
services for Subsidiary as agreed with the Board of Directors of Parent and
Subsidiary from time to time (the "Consulting Services") including, but not
limited to, the services specified in Appendix A to this agreement. The
Consultant shall exercise its own reasonable judgment and employ such means
as it, in good faith, determines are reasonable in performing the Consulting
Services, and Subsidiary and Parent will not exercise any control over the
methods or means employed by the Consultant in performing the Consulting
Services. The Consulting Services shall be performed at such times and at
such locations as Consultant shall determine.
2. Independent Contract or Status. It is understood and agreed that in the
performance of the Consulting Services by the Consultant hereunder, it is
acting as an independent contractor and not in any way as an employee or
agent of Subsidiary or Parent. The Consultant will determine the hours of
work necessary to complete its services to the Subsidiary and is not required
to work any specified number of hours in any week. Any time off, including
weekends and vacation, will be solely and entirely at the discretion of the
Consultant. The Consultant may be required upon request of the Board to
submit to Subsidiary written or oral reports regarding its activities.
Consultant is not an employee of the Parent or Subsidiary for purposes of
worker's compensation, unemployment insurance, medical; disability and group
life insurance and the Consultant is not eligible to participate in any
welfare, pension, profit sharing or fringe benefit plan or arrangement of
Parent or Subsidiary.
3. Consulting Fees. During the Term, as full compensation for the Consulting
Services, Subsidiary and Parent shall pay to the Consultant a consulting fee
as described in Appendix A to this document. In addition to the Base Fee, the
Consultant shall be paid such additional compensation as shall be determined
from time to time by the Board of Directors of Parent and approved by the
Board of Directors of Parent as provided for in Appendix A. It is understood
that Parent will not withhold any income taxes, unemployment taxes or other
taxes and that the Consultant is solely responsible for paying and reporting
all taxes, including income taxes and estimates thereof for itself and all
employees, agents or contractors. Parent will report to the appropriate tax
authorities the amounts paid to the Consultant and, even though the
Consultant is an independent contractor, if Parent is required by law, or is
advised by its accountants or attorneys that it is required by law to deduct
for withholding, or other taxes, it shall be free to do so, which taxes if
not previously deducted shall be reclaimable from the Consultant.
4. Expenses. In addition to the consulting fees provided for in Section 3 above,
Subsidiary shall reimburse the Consultant for reasonable costs and expenses
incurred by the Consultant in performing the Consulting Services, subject to
review by the Board of Directors of Subsidiary and Parent or a senior officer
of Parent designated by the Board of Directors of Parent.
5. Use of Parent's or Subsidiary's Facilities. The Consultant is not required to
use the office facilities of Parent or Subsidiary in performing the
Consulting Services hereunder.
6. Term. The term of this Agreement shall commence as of ____________, 2005 and
shall continue for a period of two (2) years (the "Term").
7. Termination.
7.1 The Parent/Subsidiary or Consultant may terminate this Agreement in
the event the other party fails to perform in accordance with the
provisions of this Agreement.
7.2 The Parent/Subsidiary may terminate this Agreement, at any time,
upon thirty (30) days written notice, to Consultant for any reason
whatsoever.
7.3 Upon termination Consultant shall cease all provision of services
and no invoice shall be made for services performed after notice of
suspension or termination. Upon termination, during the first year,
for any reason the Consultant, shall only receive such compensation
that has been paid and or issued to Consultant as of the date of
termination.
7.4 Termination of this Agreement or a portion of any services hereunder
except for breach of this agreement by Consultant shall not
prejudice or affect the rights or remedies of either
Parent/Subsidiary or Consultant against the other in respect of any
breach of the Agreement which occurred before the effective date of
termination and shall not prejudice the rights and remedies of
Consultant in respect of any sum or sums of money owed or owing from
Parent/Subsidiary.
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8. Disclaimers and Limitations of Liability. It is expressly understood and
agreed that Parent/Subsidiary shall NOT be responsible nor liable for any
loss, damage, penalty, or the like, financial or otherwise, caused by:
(i) failure by any Consultant, advisor, contractor, supplier, or any
other persons, individuals or firms NOT employed by
Parent/Subsidiary to discharge its contractual obligations; or
(ii) any delay, modification, or suspension of the time schedule for
performing the services hereunder whether agreed or not agreed with
Consultant, which is NOT the responsibility of Parent/Subsidiary,
its agents, or Consultants; or
(iii) any negligent work carried out by the Consultant or by any third
party other than Parent/Subsidiary, its agents, or sub-Consultants,
or employees; or
(iv) the failure of any person NOT employed or contracted with by
Parent/Subsidiary to discharge any legal duty or obligation
whatsoever.
9. Confidentiality. The Consultant hereby agrees that during and after the term
of this Agreement, neither it nor any others retained by the Consultant to
perform some or all of the services to be performed hereunder, will divulge
any confidential or proprietary information belonging to Parent/Subsidiary or
any company associated with Parent/Subsidiary or to any customer of
Parent/Subsidiary and neither the Consultant nor any other person retained by
the Consultant will make available to others any Parent/Subsidiary or account
list, price list, business plan, trade secret, document, file, paper or data
of any kind, in whatever form embodied, concerning the business or financial
affairs of Parent/Subsidiary, its associated companies, or its customers or
remove any of the foregoing from the premises of Parent/Subsidiary.
10. Assignment. Except as otherwise provided herein, the Consultant may not
assign this Agreement or delegate any of its obligations hereunder, without
the prior written consent of Subsidiary and Subsidiary may not assign this
Agreement, or delegate any of its obligations hereunder, without the prior
written consent of the Consultant. Any assignment or delegation in violation
of the provisions hereof shall be void and of no effect.
11. Entire Agreement; Modification; Binding Effect. This Agreement constitutes
the entire agreement between the Consultant and Parent/Subsidiary and
supersedes all prior understandings and agreements concerning the subject
matter hereof. This Agreement (including this provision against oral
modification) may not be changed or terminated, and no provision hereof may
be waived orally. No modification, waiver or termination hereof shall be
binding upon either party unless in writing and signed by or on behalf of the
party against which the modification, waiver or termination is asserted. This
Agreement shall be binding upon and shall enure to the benefit of the
Consultant and Parent/Subsidiary, their successors and permitted assigns.
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12. Notices. Any notice or other communication required or permitted hereunder
shall be sufficiently given if delivered personally, or, if sent by
registered or certified mail, postage pre-paid, return receipt requested,
addressed to the party intended to receive such notice at the address set
forth above, or such other address as such party may indicate in the manner
provided for notices herein. Any notice or communication shall be deemed to
have been given upon the date personally delivered or, if mailed, the earlier
of the date it is received and three (3) days after the date so mailed.
13. Governing Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York.
IN WITNESS WHEREOF, the parties have signed this Agreement as of the date
above written.
BIOMETRX, INC.
(Parent)
By: /s/ Xxxx Xxxxxx
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Name: Xxxx Xxxxxx
Position: C.E.O.
SMARTTOUCH MEDICAL, INC.
(Subsidiary)
By: /s/ Xxxx Xxxxxx
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Name: Xxxx Xxxxxx
Position: C.E.O.
CONSULTANT:
By: /s/ Xxxxx Xxxxx-Xxxxxxx
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Xxxxx Xxxxx-Xxxxxxx
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APPENDIX A
App. 1 : Consulting Fees: The Parent shall issue to Consultant upon the
execution of this Agreement Two Hundred and Fifty Thousand (250,000)
shares of the Parent's common stock. Upon the one (1) year
anniversary of this Consulting Agreement, the Parent shall issue to
Consultant and additional Two Hundred Fifty Thousand (250,000)
shares of its common stock.
App. 2 : In addition to the issuance of shares described above, the
Consultant shall be paid such additional compensation as shall be
determined from time to time by the Board of Directors of Parent.
App. 3 : The Consultant shall provide services to Subsidiary which shall
include, but not be restricted to, those functions commonly
associated with the role of President.
App. 4 : Stock Option: In the event the Parent spins off the subsidiary,
the Consultant shall have the right to acquire a 20% stake in
Subsidiary for an aggregate purchase price of $10,000.
App. 5 : Severance: In the event this Agreement is terminated at any time
prior to the first anniversary, the Consultant shall retain the
initial Two Hundred and Fifty Thousand (250,000) shares of the
Parent's common stock and not be entitled to any further
compensation. In the event his Agreement is terminated at any time
during the second year, the Consultant shall retain the second Two
Hundred and Fifty Thousand (250,000) shares and not be entitled to
any further compensation. In either event, if this Agreement is
terminated, the stock option described immediately above shall be
terminated and cancelled.
App 6 : Travel, Entertainment, and Living Expenses. Consultant is
authorized to incur reasonable travel and entertainment, expenses on
behalf of the Parent/Subsidiary. These expenses shall be reimbursed
by the Parent/Subsidiary within 30 days of submission of relevant
invoices.
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