EXHIBIT 10.5
Revised 1/23/02
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (the "Agreement") is made and entered into effective
the 23rd day of January, 2002 by and between Capital Research Group, Inc (the
"Consultant"), whose principal place of business is 0000 Xxxx Xxxxxx, Xxxxx 000,
Xxxxxx, XX 0000.0 and Neurotech Development Corporation (the "Client"), whose
principal place of business is 00 Xxxxx Xxxxx Xxxx, Xxxx Xxxx, XX 00000,
WHEREAS, Consultant is in the business of providing services for management
consulting, business advisory, shareholder information and public relations; and
WHEREAS, the Client deems it to be in its best interest to retain Consultant to
render to the Client such services as may be needed; and
WHEREAS, Consultant is ready, willing and able to render such consulting and
advisory services to Client,
NOW THEREFORF, in consideration of the mutual promises and covenants act forth
in this Agreement, the receipt and sufficiency of which are hereby acknowledged,
the parties hereto agree as follows,
1. Consulting Services. The client hereby retains the Consultant as an
independent consultant to the Client and the Consultant hereby accepts and
agrees to such retention. The services provided by the Consultant are:
disseminate a two page "highlighter" by means of "Targeted" E-Mail and operate
an intense marketing campaign to new investors; design., develop and market a
website for your company if none is available, (Web costs such as hosting fees
after completion of contract not included).
It is acknowledged and agreed by the Client that Consultant carries no
professional licenses, and is not rendering legal advice or performing
accounting services, nor acting as an investment advisor or brokerage/dealer
within the meaning of the applicable state and federal securities laws, The
services of Consultant shall not be Exclusive nor shall Consultant 'be required
to render any specific number of hours or assign specific personnel to the
Client or its projects.
2. Independent Contractor. Consultant agrees to perform its consulting
duties hereto as an independent contractor, Nothing contained herein shall be
considered to as creating an employer-employee relationship between the parties
to this Agreement. The Client shall not make social security, worker's
compensation or unemployment insurance payments on behalf of Consultant. The
parties hereto acknowledge and agree that Consultant cannot guarantee the
results or effectiveness of any of the services rendered or to be rendered by
Consultant. 'Rather, Consultant shall conduct its operations and provide its
services in a professional manner and in accordance with good industry practice.
Consultant will use its best efforts and does not promise results.
3. Time, Place and Manner of Performance. The Consultant shall be
available for advice and counsel to the officers and directors of the Client as
such reasonable and convenient times and places as may be mutually agreed upon,
Except as aforesaid, the time, Place and manner of performance of the services
hereunder, including the amount of time to be allocated by the Consultant to any
specific service, shall be determined at the sole discretion of the Consultant.
4. Term of Agreement, The term of this Agreement shall be one (1) month,
commencing on the date of this Agreement, subject to prior termination as
hereinafter provided.
5. Compensation. In providing the foregoing services, Consultant shall be
responsible for all costs incurred except the Client will be responsible for
mailing out due diligence requests. Client shall pay Consultant for its services
hereunder as follows: to arrange for one or more third parties to transfer
200,000 shares of Client's free trading common stock to Consultant upon signing
of this agreement. The fees may also be paid in cash by the 'Client referring to
the price of the offer or ask the day payment is due. For purposes of this
paragraph, the dollar value of any shares given for compensation shall be the
closing price of the Client's common stock as traded In the over-the-counter
market and quoted on the OTC Bulletin Board on the trading day immediately
preceding the compensation due date, Any shares shall be unrestricted as to
transferability and the Certificates shall not bear any legends or restrictions.
The client warrants, represents and agrees that the shares were not issued under
SEC Form S-9, that the third party is not an affiliate of the Client, i,e, one
who, through stock ownership, a position as director, officer or employee or by
other means, has the power to control, directly or indirectly, the management of
the Client and, if the third party's stock was issued in a private placement,
that the requirements for the exemption for private placement stock were
complied with and the third party has held the stock for the prescribed period
necessary to permit the shares to be sold without registration.
6. Late Payment. In the event of late payment of any compensation due
under this Agreement, and in addition to the rights granted the Consultant under
paragraph 7 "Termination7l of this Agreement, Consultant may immediately remove
Client's company from thesubway,com website until any arrears in compensation
are brought current.
7. Client's Representations. The Client represents that it is in
compliance with all applicable Securities and Exchange Commission reporting and
accounting requirements and all applicable requirements of the NASD or any stock
exchange, The Client further represents that it has not been and is not the
subject of any enforcement proceeding or injunction by the Securities and
Exchange Commission or any state securities agency.
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8. Termination.
(a) Consultant's relationship with the Client hereunder may be terminated
for any reason whatsoever, at any time, by either party, upon 3 days
written prior notice.
(b) This Agreement shall automatically terminate upon the dissolution,
bankruptcy or insolvency of the Client or Consultant,
This Agreement may be terminated by either party upon giving written
notice to the other party if the other party is in default hereunder
and such default is not cured within fifteen ( 15) days of receipt of
written notice of such default.
(d) Consultant and Client shall have the right and discretion to terminate
this Agreement should the other party in performing their duties
hereunder, violate any law, ordinance, permit or regulation of any
governmental entity, except for violations which either singularly or
in the aggregate do not have or will not have a material adverse effect
on the operations of the Client.
(e) In the event of any termination hereunder all shares or funds paid to
the Consultant through the date of termination shall be fully earned
and nonrefundable and the parties shall have no further
responsibilities to each other except that the Client shall be
responsible to make any and all payments if any, due to the Consultant
through the date of the termination and the Consultant shall be
responsible to comply with the provisions of section 10 hereof
9. Work Product. It is agreed that all information and materials produced
for the Client shall be the property of the Consultant, free and clear of all
claims thereto by the Client, and the Client shall retain no claim of authorship
therein,
10. Confidentiality. The Consultant recognizes and acknowledges that it has
and will have access to certain confidential information of the Client and its
affiliates that are valuable, special and unique assets and property of the
Client and such affiliates. The Consultant will not, during the term of this
Agreement, disclose, without the prior written consent or authorization of the
Client, any of such information to any person, for any reason or purpose
whatsoever, In this regard, the Client agrees that such authorization or consent
to disclose may be conditioned upon the disclosure being made pursuant to a
secrecy agreement, protective order, provision of statute, rule, regulation or
procedure tinder which the confidenti4lity of the information is maintained in
the hands of the person to whom the information is to be disclosed or in
compliance with the terms of a judicial order or administrative process.
H. Conflict of Interest, The Consultant shall be free to perform services
for other persons, The Consultant will notify the Client of its performance of
consultant's services for any other person, which could conflict with its
obligations under the Agreement. Upon receiving such notice, the Client may
terminate this Agreement or consent to the Consultant's outside consulting
activities, failure to terminate, this Agreement within seven (7) business days
of receipt of written notice of conflict shall constitute the Client's ongoing
consent to the Consultant's outside consulting services.
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12. Disclaimer of Responsibility for Act of the Client, In no event shall
Consultant be required by this Agreement to represent or make management
decisions for the Client. Consultant shall under no circumstances be liable for
any expense incurred or loss suffered by the Client as a consequence of such
decisions, made by the Client or any affiliates or subsidiaries of the Client.
13. Indemnification.
(a) The client shall protect, defend, indemnify and hold Consultant and its
assigns and attorneys, accountants, employees, officers and director harmless
from and against all losses, liabilities, damages, judgments, claims,
counterclaims, demands, actions, proceedings, costs and expenses (including
reasonable attorneys' fees) of every kind and character resulting from, relating
to or arising out of (a) the inaccuracy, non-fulfillment or breach of any
representation, warranty, covenant or agreement made by the Client herein, or
(b) negligent or willful misconduct, occurring during the term thereof with
respect to any of the decisions made by the Client (c) a violation of state or
federal securities laws.
(b) The Consultant shall protect, defend, indemnify and hold Client and its
assigns and attorneys, accountants, employees, officers and director harmless
from and against all losses, liabilities, damages, judgments, claims,
counterclaims, demands, actions, proceedings, costs and expenses (including
reasonable attorneys' fees) of every kind and character resulting from, relating
to or arising out of (a) the inaccuracy, non-fulfillment or breach of any
representation, warranty, covenant or agreement made by the Consultant herein,
or (b) negligent or willful misconduct, occurring during the term thereof with
respect to any of the decisions made by the Consultant (c) a violation of state
or federal securities laws.
14. Notices. Any notices required or permitted to be given under this
Agreement shall be sufficient if in writing and delivered or sent by registered
or certified mail, or by Federal Express or other recognized overnight courier
to the principal office of each party.
15. Waiver of Breach. Any waiver by either party or a breach of any
provision of this Agreement by the other party shall not operate or be construed
as a waiver of any subsequent breach by any party.
16. Assignment. This Agreement and the right and obligations of the
Consultant hereunder shall not be assignable without the written consent of the
Client.
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17. Applicable Law. It is the intention Of the parties hereto that this
Agreement and the performance hereunder and all suits and special proceedings
hereunder be construed in accordance with and under and pursuant to the laws of
the State of Florida and that in any action, special proceeding or other
proceedings that may be brought arising out of, in connection with or by reason
of this Agreement, the law of the State of Florida shall be applicable and shall
govern to the exclusion of the law of any other forum, without regard to the
jurisdiction on which any action or special proceeding may be instituted.
18. Severability. All agreements and covenants contained herein are
severable, and in the event any of them shall be held to be invalid by any
competent court, the Agreement shall be interpreted as if such invalid
agreements or covenants were not contained herein.
19. Entire Agreement. This Agreement constitutes and embodies the entire
understanding and agreement of the parties and supersedes and replaces all other
Or Prior understandings, agreements and negotiations between the parties.
20. Waiver and Modification. Any waiver, alteration, or modification of any
of the provisions of this Agreement shall be valid only if made in writing and
signed by the parties hereto. Each party hereto., may waive any of its rights
hereunder without affecting a waiver with respect to any subsequent occurrence&
or transactions hereof.
21. Binding Arbitration, Any controversy or claim arising out of or
relating to this Agreement, Or the breach thereof, shall be settled by
arbitration administered by the American Arbitration Association under its
Commercial Arbitration Rules, and judgment on the award tendered by the
arbitrator(s) may be entered in any court having jurisdiction thereof The
arbitration shall be conducted in Miami-Dade County, Florida.
22. Counterparts and Facsimile Signature. This Agreement may be executed
simultaneously in two or more counterparts, each of which shall be deemed an
original, but all of which taken together shall constitute one and the same
instrument. Execution and delivery of this Agreement by exchange of facsimile
copies bearing the facsimile signature of a party hereto shall constitute a
valid and binding execution and delivery of this Agreement by such party. Such
facsimile copies shall constitute enforceable original documents.
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IN WITNESS WHEREOF, the parties hereto have duly executed and delivered
this Agreement, effective as of the date set forth above.
CONSULTANT:
Capital Research Group, Inc.
By: /S/ Xxxxxxx X. Xxxxxxxxxx Date: January 23, 2002
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Xxxxxxx X. Xxxxxxxxxx, President/CEO
CLIENT:
Neurotech Development Corporation
By: /S/ Xxxxxxx Xxxx Date: January 23, 2002
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Xxxxxxx Xxxx, Chairman
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