Consulting and Advisory Agreement
THIS CONSULTING AND ADVISORY AGREEMENT is dated this
13th day of September, 1999, between INFECTECH, INC.
("Company"), and Bridgeport Group, LLC, a limited liability
company organized and existing under the laws of the State of
Arkansas, with an office located in 0000 Xxxxxxxx Xxxxx,
Xxxxxxxxxx, X.X. 00000 (''Consultant'').
In consideration of the mutual agreements contained in
this document, the parties, intending to be legally bound,
agree as follows:
RECITALS:
A. Consultant is a public relations and business
advisory company which specializes in the
public relations and financial consulting
industry; and
B. Company is a publicly traded corporation which is
engaged in approaching the public and private
markets for equity investment to expand its
development and operating capabilities; and
C. Company also desires to publicize itself in order
to make its name and business better known in
the industry, and among its shareholders,
investors and the public and private equity
markets;
D. Company desires to enter into this Agreement with
Consultant to provide public relations and
financial consulting services on a non-
exclusive basis and to recognize the efforts
and assistance rendered by Consultant since
July 1999; and
E. Consultant is willing to accept Company as a
client upon the terms and conditions set forth
hereunder.
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, it is agreed:
1. Recitals Incorporated. The Recitals set forth in
Paragraphs A through E above are incorporated herein by
reference as though fully set forth herein.
2. Company's Disclosure. Company shall furnish from
time to time an Information Package to Consultant including
disclosure and filing materials, financial statements, business
plans, promotional materials, annual reports and press releases
("Information Package"). Consultant may rely on, and assume
the accuracy of each Information Package provided by Company as
well as all public filings made by Company.
The Company agrees to notify Consultant immediately of
any changes in the status or nature of its business, the
possibility of any litigation, regulatory action or any other
developments that may require further disclosure in the
offering documents or render any Information Package to be
materially false or misleading.
3. Services to be Provided by Consultant. Consultant
has provided since July 1, 1999, and agrees during the term of
this Agreement to provide various public relations and
financial consulting services in an effort to expose the
Company to the brokerage community, the general public, and the
public and private equity markets. Such services may include
organizing or assisting road shows and speaking engagements,
press and news releases, broker packages, mail outs and broker
and market maker follow-up.
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(a) Consultant will assist the Company and Xxxxxxx &
Company, its investment banking consultant, or other
investment consulting firm in the coordination of a
private and/or public offering of its securities
utilizing equity, warrant or debt instruments.
(b) Consultant will aid the investment consulting
firm for the Company in the identification of
potential investors for any proposed private or public
offering. Consultant makes no guarantees as to the
success or failure of his efforts in this matter.
(c) Consultant will aid the investment consulting
firm for the Company in the obtainment of investment
opportunities, grant providers and equity candidates,
as well as other possible business combinations or
financial transactions which infuse capital, revenues
or assets into the Company. Consultant agrees to co-
ordinate such activities through the investment
consulting firm for the Company or Company unless
otherwise agreed in writing.
(d) Consultant shall assist the investment consulting
firm in arranging the preparation of such packaging
and promotional materials as Consultant and the
Company shall deem necessary. The Company, its
investment consulting firm and counsel shall approve
all materials prior to completion.
(e) Consultant agrees to assist the investment
consulting firm for the Company in establishing
relationships between the Company and licensed
securities broker/dealers for the purpose of
completing the initial capitalization as a public
company.
(f) Consultant shall make itself available to render
advice to the Company concerning shareholders
relations, market strategy, broker relations and
additional capitalization.
(g) Company will utilize Consultant's interest and
expertise in this regard, and Consultant will accept
such assignments for the period of One (1) year from
the date hereof (the ''Consulting Term'') to undertake
such duties and to perform such services as reasonably
may be assigned to it by the Board of Directors of
Company or by its officers.
(h) Consultant shall be an independent contractor and
not an employee, joint venturer, partner or other
business relationship of Company and will determine
his own methods of operation in accomplishing such
tasks as may be assigned. Consultant will not be
entitled to receive any compensation or benefits other
than those expressly provided in this Agreement.
(i) Nothing herein shall be interpreted or construed
to prohibit Company from utilizing the services of
others for the same or similar services, including
other consultants, nor from soliciting or obtaining
equity investments in the Company on a commissioned or
non-commissioned basis or otherwise. The services of
others, including other consultants, shall not be of
no consequence to nor need be considered by Company
when evaluating the performance or compensation of
Consultant under this Agreement.
4. Time of Performance. Services to be performed
under this Agreement shall commence upon execution of this
Agreement and shall continue until October 1, 2000, unless
terminated hereunder or unless extended for an additional one
year period by the mutual written agreement of both parties.
This Agreement, and the compensation provided herein, shall be
retroactive to July 1, 1999.
5. Compensation and Expenses. In consideration of
the services to be performed by Consultant, Company agrees to
pay compensation to Consultant in the amount set forth below:
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(a) In connection with Consultant providing its public
relations and financial consulting services,
Consultant shall receive Eight Hundred Thirty-Three
(833) shares of stock of the Company per month to be
paid to Consultant on a monthly basis or if not paid,
to be accrued and payable, retroactive from July 1,
1999 and continue during the term of this Agreement.
This Agreement expires on October 1, 2000, unless
terminated earlier as provided herein.
(b) The Company, in addition to the fee described
above shall also reimburse Consultant extraordinary
expenses necessary for the performance of duties
hereunder. These expenses typically include expenses
for travel, hotel accommodations, meals and
miscellaneous costs and expenses actually incurred by
Consultant in performing overnight travel for the
services described above. All such expenses, if any,
shall be subject to pre-approval by the Company.
(c) The Company may, in its sole and absolute
discretion, consider the contributions of Consultant
to the Company and through its compensation committee
or other appropriate forum, and award Consultant a
monetary or non-monetary bonus or other consideration
which it determines to be appropriate.
6. Representations.
A. The Company represents warrants and covenants the
following:
(a) The Company will cooperate fully with
Consultant in performing the work the Company
is required to perform in supplying
information to Consultant so that Consultant
may perform its services under this Agreement.
(b) The Company agrees to refrain from
engaging in any activity scheme or plan to
circumscribe, prevent or refuse to pay the
compensation discussed above in Paragraph 5.
In addition, Company agrees not to circumvent
this Agreement either directly or indirectly
nor will it interfere with, impair, delay or
cause Consultant to perform work not described
in this Agreement.
(c) The Company and each of its subsidiaries
is a corporation duly organized and existing
under the laws of its state or incorporation
and is in good standing with the jurisdiction
of its incorporation in each state where it is
required to be qualified to do business.
(d) The Company will disclose to Consultant
all material facts and circumstances which may
affect the decisions or course of conduct of
Consultant and the Company will be ultimately
responsible for the veracity of all
disseminated information.
B. Consultant represents, warrants and covenants the
following:
(a) Consultant will devote its energies and
resources toward the obtaining of investment
through a public or private offering or
otherwise as contemplated in this Agreement
and co-ordinate its efforts with the Company
and/or its investment banking firm, Xxxxxxx &
Company.
(b) Consultant will disclose to Company
and/or its investment banking firm all
material facts and circumstances which may
affect its ability to perform its undertaking
herein.
(c) Consultant will cooperate in a prompt and
professional manner with the Company, its
investment banking firm, and their attorneys,
accountants and agents in the performance of
the under-taking under this Agreement.
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7. Confidentiality. Consultant agrees that all
information received from the Company and its investment
banking firm shall be treated as confidential information and
Consultant shall not disclose, share or otherwise disseminate
or permit to be disseminated such information with any other
person or entity, except the S.E.C., and/or attorneys,
accountants and the investment banking firm for the Company,
without the prior express written consent of the Company.
8. Notices. Any notice from either party in the
other shall be deemed received on the date such notice is
personally delivered. Any notice sent by fax transmission
shall be deemed received by the other party on the next
business day after it has been transmitted. Any notice sent by
mail by either party to the other shall be deemed received on
the third business day after it has been deposited at a United
States Post Office. For purposes of delivering or sending
notice to the parties to this Agreement such notices shall be
delivered or sent as follows:
If notice is delivered to Consultant to:
Bridgeport Group, LLC
Attn: Xxxxxxx X. Xxxxxxx, Manager
0000 Xxxxxxxx Xxxxx
Xxxxxxxxxx, X.X. 00000
If notice is delivered to the Company to:
Infectech, Inc.
ATTN: Xxxxxxxx X. Xxxxxx, President & CEO
c/o 00 Xxxxxxxxx Xxxxxx, Xxxxx 0
Xxxxxx, XX 00000
With a copy to its attorney:
Xxxxxxx X. Xxxxx, III, Esquire
0000 Xxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx Place, X.X. Xxx 0000
Xxxxxxxxx, XX 00000
9. Validity. If for any reason any provision of this
Agreement will be determined to be invalid or unenforceable,
the validity and effect of the other provisions will not be
affected.
10. Waiver of Breach. The waiver by Company or by
Consultant of a breach of any provision of this Agreement by
the other party will not operate, or be construed, as a waiver
of any other breach of such other party, or a subsequent breach
of the same provision nor shall the same be in any way
construed or interpreted to be a modification or amendment of
this Agreement.
11. Termination Circumstances. This Agreement will
terminate immediately upon the dissolution or change of control
of Consultant during the Consulting Term. Further, Company
shall have the right to terminate this Agreement, without
cause, by providing thirty (30) days prior written notice to
Consultant. Consultant shall have the right to terminate this
Agreement upon written notice to Company. Should Consultant or
Company elect to terminate this Agreement then such termination
shall terminate the obligations of Company and Consultant
hereunder and any right of Consultant to any sums payable
hereunder after the effective date of the termination.
12. Assignment. This Agreement will inure to the
benefit of, and be binding upon, Company, its successors and
assigns. This Agreement will be binding on Consultant, its
successors and assigns, however, this Agreement will not be
assignable by Consultant nor shall the obligations of
Consultant be delegated, without express written consent of the
Company.
13. Entire Agreement. This Agreement represents the
entire understanding of the parties and there are no other
outstanding agreements or, provisions, except as set forth
herein. This Agreement may not be amended except by a writing
signed by the parties hereto.
14. Applicable Law. The parties agree that this
Agreement will be construed and enforced pursuant to the laws
of the Commonwealth of Pennsylvania, and venue and jurisdiction
will lie within said Commonwealth, subject to the arbitration
provisions set forth herein, notwithstanding the principles of
conflicts of laws.
15. Construction. This Agreement shall be construed
as if both parties participated equally in its negotiation and
drafting. This Agreement shall not be construed against one
party over another party due to the identity of the draftsman.
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16. No Representation, Warranty or Guarantee of
Success. Consultant provides no representation, warranty or
guarantee of success in the capitalization of the Company.
17. Arbitration. The parties hereby agree that any
dispute, claim or controversy arising out of the construction,
interpretation or application of this Agreement and its
provisions shall be decided by mandatory arbitration conducted
under the Rules of the American Arbitration Association to be
decided in Pittsburgh, Pennsylvania. Enforcement and
collection of any award made hereunder, however, shall be
available to the prevailing party in any court of competent
jurisdiction.
IN WITNESS WHEREOF, the parties hereto, intending to
be legally bound in accord with the provisions of the Uniform
Written Obligations Act (33 P.S. sec 1, et seq) have set their
hands as of the day and year first above written.
WITNESS/ATTEST: CONSULTANT:
Bridgeport Group, LLC
/s/ Xxxxxxx Xxxxxxx By: /s/ X. Xxxxxxx
Print Name/Title: Xxxxxxx X. Xxxxxxx, Manager
Xxxxxxx Xxxxxxx
WITNESS/ATTEST: COMPANY: Infectech, Inc.
/s/ Xxxxxxx X. Xxxxx, III By: /s/ Xxxxxxxx X. Xxxxxx, M.D.
Print Name/Title
Xxxxxxx X. Xxxxx, III Xxxxxxxx X. Xxxxxx, M.D.,
Title: President & CEO
