Exhibit 10.52
CAPITAL CONSULTING AGREEMENT
This Capital Consulting Agreement ("Agreement") is made this 26th day of
February 2001, between Entrepreneur Advisors, Inc., an Illinois corporation with
its principal office located at 00 X. Xxxxxxxxxx Xxxxxx Xxxx Xxxxx, XX
00000-0000 ("EAI") and Biomed Research Technologies, Inc., a Florida Corporation
with its principal office located at 0000 Xxxx Xxxxx Xx, Xxxxxxx, XX 00000.
("BIOMED").
WITNESSETH
WHEREAS, EAI is in the business of assisting clients in raising capital
including assisting in the structure of the organization, preparation of
business plan, preparation of financial offering package, providing marketing
assistance and assisting in financial presentations.
WHEREAS, BIOMED desires to engage EAI to render, and EAI desires to render to
BIOMED certain financing and marketing services as set forth herein.
NOW, THEREFORE, in consideration of premises and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties agree as follows:
1. SERVICES OF CONSULTANT
EAI agrees to provide marketing services, assistance and
recommendations surrounding various objectives. Services include, but
are not limited to, the following:
(a) EAI shall assist BIOMED in structuring the financing
transaction, their company and equity holdings before and
after the implementation of any proposed transactions
discussed in the PPM(s).
(b) EAI shall assist in the preparation of a private placement
memorandum ("PPM") in order to solicit accredited investors
participation in an equity offering by BIOMED. Preparation of
the PPM shall utilize BIOMED information to complete the
financial, marketing and business information required for the
PPM. EAI shall be allowed to consult with outside securities
attorneys during the preparation of these documents.
(c) EAI will assist in the marketing to qualified "Accredited"
investors interested in providing investment capital to
BIOMED. Assistance shall include participation and
presentations at meetings with "Accredited" Investors in order
to explain the company proposals and objectives. The
"Accredited" Investors shall be contacted by BIOMED personnel
and their contacts or though EAI personnel and their contacts.
"Accredited" Investors shall be defined in accordance with the
rules set forth by the Securities and Exchange Commission
("SEC").
(d) EAI shall be allowed to introduce BIOMED to "Accredited"
Investors not solicited directly by BIOMED personnel or their
contacts. Any proposed meetings with "Accredited" Investors
set up by EAI must receive approval from BIOMED prior to
finalizing any appointment.
(e) To the extent required by BIOMED, EAI shall utilize its
InvestorProtector(TM) Program ("IPP") in order to provide
"Accredited" Investors with guaranteed returns of their
invested principal. EAI, or its designee, shall be the sole
agent responsible for establishing any trusts and acquiring
any guarantee products required by the IPP program.
Entrepreneur Advisors, Inc.
Capital Consulting Agreement
Page 2
(f) EAI will structure buy-sell arrangements for the protection of
the current key shareholders. In addition, to provide
additional protection for the investors and to the extent
required by BIOMED, EAI shall structure a keyman insurance
program on the key officers.
2. RESPONSIBILITIES OF BIOMED
In connection with the retention of EAI, BIOMED agrees to the
following:
(a) BIOMED shall provide information needed to make proper
presentations to qualified investors. Information may include
marketing materials including brochures and other sales
materials. Other information needed may include business
structure, financial statements, budgets, information on
products or services, markets or management information,
competition, future expectations and other pertinent
reasonable information requested by EAI.
(b) BIOMED shall designate an individual representative to
coordinate all information requested by EAI. The
representative should be an executive who is knowledgeable
about the business history as well as the future expectations.
The representative shall be responsible for timely responses
to all information requests in order to minimize the time
required to obtain funding.
(c) BIOMED shall include Xxxxxxxx X. Xxxxxxx and Xxxxx X. Xxxxx as
directors of the corporation or entity discussed in the PPM.
BIOMED shall be responsible for providing all directors and
officers with insurance protection for any errors, omissions
and any other professional liability associated with the
duties of directors and /or officers.
(d) BIOMED shall provide EAI with a listing of all vendors,
clients, consultants and independent contractors who have
transacted business with BIOMED, or it's predecessor or
affiliated entitiy(ies) in the past two years. BIOMED
authorizes EAI to use this information in developing and
implementing a marking strategy for raising capital.
(e) BIOMED shall be primarily responsible for arranging meetings
with "Accredited" Investors. BIOMED shall allow EAI to set up
meetings with "Accredited" Investors but shall retain
authority to approve meeting prior to setting appointment.
(f) BIOMED shall have the authority to accept or reject any
proposed meetings with "Accredited" Investors proposed by EAI
or EAI personnel.
(g) BIOMED provides EAI with the full authority to implement the
InvestorProtector(TM) Program ("IPP") required to guarantee
the investors principal investment. The IPP arrangement is
subject to BIOMED's approval. BIOMED appoints EAI, or its
designee, as the sole agent responsible for establishing any
trusts and acquiring any guarantee products required by the
IPP program.
(h) BIOMED understands that a final review of the PPM will be
conducted by a qualified independent attorney prior to meeting
with accredited investors. EAI shall be responsible for
retaining counsel for this engagement. BIOMED may use the EAI
attorney or provide their own securities attorney for this
final review. BIOMED acknowledges that an independent attorney
not familiar with the process may cause delays in the
implementation of the offering.
Entrepreneur Advisors, Inc.
Capital Consulting Agreement
Page 3
3. RESPONSIBILITIES OF EAI
All information furnished by BIOMED to EAI in connection with the
relationship, which is the subject of this letter, is acknowledged to
be confidential and to be used exclusively by EAI to perform their
services pursuant to this Agreement.
4. BASIS OF PROVIDING ADVICE
BIOMED acknowledges that EAI obtains information from a wide variety of
publicly available sources and that EAI has no sources, and does not
claim to have sources, of inside or private information. The
recommendations and documentation developed by EAI may be based upon
advice provided by independent professionals such as attorneys or
accountants and neither EAI nor its financial advisors can guarantee
the results of any recommendations. BIOMED at all times may elect
unilaterally to follow or ignore completely or in part, any information
or counsel given by EAI under this Agreement. Since the services
performed under this Agreement are advisory in nature, BIOMED expressly
agrees that EAI shall not be held liable relating to the performance of
services hereunder, as long as EAI provides these services in good
faith. The parties agree that this provision is not a waiver of
BIOMED's rights in the event EAI has breached any fiduciary
responsibility to BIOMED.
5. LEGAL SERVICES
It is understood and agreed that EAI will not provide any legal advice
nor prepare any final legal documents. EAI will provide IPP documents
that have been reviewed by their attorney.
6. FEES TO EAI
In consideration for EAI providing special services in accordance with
this Agreement, BIOMED will pay to EAI, initial fees, fees based on the
amount of funds actually received and reimbursement of all reasonable
approved out-of-pocket expenses incurred as a result of this
engagement. The amounts of such fees and timing of payment shall be as
follows:
(a) Initial fee: An initial fee of Twelve Thousand Five Hundred
($12,500.00) Dollars shall be paid to EAI. The initial fee
shall be reduced by payments previously made to Investor Life
Services, Inc. ("ILS") or its affiliates in connection with
the Capital Made Easy Platinum Program Fee or in connection
with the InvestorProtector(TM) License Fee. All initial fees
or balance thereof shall be paid upon the signing of this
agreement. This initial fee shall be nonrefundable under any
circumstances.
(b) Upon receipt of funds, a percentage of all collected funds
shall be immediately due and payable to EAI as follows:
(1) Where EAI introduces BIOMED to the source of funds and
such source commits funds to BIOMED, EAI shall receive
15% of all gross funds received; and,
(2) Where EAI introduces BIOMED to the source of funds and
such source commits funds to BIOMED on or before 45
days after the date of this agreement, then EAI shall
receive a bonus of 10% of all gross funds received.
This bonus payment is in addition to any fees due
under Section 6(b)(1) above; and,
(3) Where EAI does not provide the introduction for the
source of funds but participates in the sale or
presentation process, EAI shall receive 5% of all
Entrepreneur Advisors, Inc.
Capital Consulting Agreement
Page 4
gross funds received regardless of whether or not the
IPP Program is utilized. Where EAI does not
participate in the sale or presentation process to a
specific investor, EAI shall not receive any
percentage of gross funds received from the specific
investor.
(4) For purposes of this section, gross funds received
includes all funds contributed by a specific investor
or lender reduced only for amounts contributed to the
applicable Irrevocable InvestorProtector(TM) Trust
(if any). No other adjustments or reductions will be
made in determining gross funds received.
(5) EAI will be deemed to participate in the sale or
presentation process where
i. At the request of BIOMED, its affiliates,
shareholders, officers, directors, controlling
persons, employees, attorneys, authorized
independent contractors and/or agents, EAI
communicates with a specific investor
regarding BIOMED or a potential structure of a
transaction involving BIOMED, or
ii. EAI has communication with a specific investor
or has contact through presentations or other
meetings with a specific investor.
iii. For purposes of Section 6, communication shall
include any meetings or correspondence,
written or verbal, conducted in person, by
phone, by fax, by electronic means or by any
other means of communication recognized by
normal business practices. Length and/or time
of communication is irrelevant for purposes of
Section 6.
(6) BIOMED agrees to pay any outside sales fees including
brokers for all transactions under this agreement.
(c) BIOMED shall reimburse all reasonable out of pocket expenses
incurred on behalf of EAI in connection with this project.
Expenses shall include all travel and administrative expenses
incurred during the engagement, outside legal expenses,
security filing fees, trust fees, escrow fees and any other
fees associated with the closing of the IPP program or
offering program. BIOMED approval shall be requested for
non-travel related expenditures that are expected to exceed
$1,000. EAI will send requests for expense approvals to
BIOMED's office via fax, e-mail or written correspondence.
Approval will be deemed accepted if no response is received
from BIOMED within 72 hours of the request. All expense
reimbursements shall be paid by BIOMED to EAI within ten (10)
business days of billing for reimbursement. EAI will issue
xxxxxxxx for reimbursed expenses on a monthly basis.
(d) Equity Participation. BIOMED agrees to provide EAI with a 5%
equity interest in every PPM or transaction (determined at the
end of such transaction) provided under this agreement upon
successful completion of the respective PPM or transaction.
Successful completion of the PPM or transaction is defined as
obtaining 90% or more of the requested funding in the PPM or
transaction. EAI reserves the right to assign any portion of
the equity interests earned under this agreement.
(e) Where the InvestorProtector(TM) Program is used in any PPM or
funding program as provided within this agreement, BIOMED
agrees to enter into a license agreement for each separate PPM
or funding program. Fees for the IPP shall be set forth in the
Entrepreneur Advisors, Inc.
Capital Consulting Agreement
Page 5
respective license agreement. Such IPP fees shall be in
addition to any other fees set forth under this agreement.
(f) EAI agrees to absorb the percentage fees based on funding
payable to CEA Team, Inc. This agreement applies only to the
percentage of funds fees as agreed to by BIOMED under any
prior agreement with the CEA Team, Inc, as an entity or
individually with Xxxx Xxxxxx, Xxxxx Xxxxxxx or Xxxxx Xxxx.
7. TERMINATION
7.1 EAI or BIOMED may terminate this Agreement upon thirty (30)
calendar days written notice to the other party pursuant to
the notice provisions set forth in Section 9.2. EAI may
terminate this Agreement immediately if BIOMED, its officers
or representatives act or request action in a fraudulent,
illegal or immoral manner. BIOMED may terminate this Agreement
immediately if EAI, its officers or representatives act or
request action in a fraudulent, illegal or immoral manner.
7.2 In the event of termination, by either party, for any reason
whatsoever, BIOMED shall reimburse EAI all those reasonable
expenses incurred prior to the date of termination that have
yet to be reimbursed. EAI shall submit all final expense
reimbursement invoices to BIOMED within ten (10) business days
after the date of termination. BIOMED agrees that within ten
(10) business days after receipt of such final expense
reimbursement invoice, it will remit payment to EAI.
If BIOMED terminates this agreement with or without cause,
"unreimbursed expenses" shall include, but not limited to, all
EAI professional time incurred on this engagement prior to the
date of termination. Professional time shall be computed on
hourly rates ranging from $400 per hour to $75 per hour
depending on the personnel performing the engagement. For this
purpose, total billing for professional time will be limited
to $100,000 under this agreement. All prior payments including
the initial fee shall be offset against the total amounts
determined by EAI to be due upon termination.
7.3 In the event of a breach by either party, this Agreement shall
terminate automatically upon the occurrence of the breach.
7.4 For a period not to exceed three hundred and sixty (365) days
after the date of termination, BIOMED agrees to be bound to
the terms and conditions of Section 6 and agrees to compensate
EAI in accordance with such terms and conditions, if BIOMED
directly or indirectly, in partnership or association with any
other person or entity, or as an agent of such other person or
entity, solicits and obtains funds from an investor with whom
EAI has communicated prior to such termination.
8. INDEMNITY
8.1 BIOMED agrees to indemnify and hold EAI and its shareholders,
officers, directors, controlling persons, employees, attorneys
and agents harmless from any and all claims, losses or
expenses, including legal fees and costs, resulting from any
misrepresentation or breach of warranty, covenant or agreement
made by BIOMED herein. BIOMED shall indemnify EAI and hold it
harmless from all indemnified amounts incurred or suffered by
EAI arising out of any claim with respect to which BIOMED has
liability pursuant to this Section 8.1
Entrepreneur Advisors, Inc.
Capital Consulting Agreement
Page 6
8.2 EAI agrees to indemnify and hold BIOMED and its shareholders,
officers, directors, controlling persons, employees, attorneys
and agents harmless from any and all claims, losses or
expenses, including legal fees and costs, resulting from any
misrepresentation or breach of warranty, covenant or agreement
made by EAI herein. EAI shall indemnify BIOMED and hold it
harmless from all indemnified amounts incurred or suffered by
BIOMED arising out of any claim with respect to which EAI has
liability pursuant to this Section 8.2
8.3 In the event that a party (hereinafter the "Indemnified
Party") shall become aware of facts or events giving rise to
obligations of the other party (hereinafter the "Indemnifying
Party") to indemnify under this Section 8, the Indemnified
Party shall so notify the Indemnifying Party in writing,
setting forth specifically the obligations with respect to
which the claim is made, the facts giving rise to and the
alleged basis for such claim, and if known or reasonably
ascertainable, the amount of the liability asserted or that
may be asserted by reason thereof. Such notice shall be given
within fifteen (15) business days of the discovery of facts
that constitute the basis for the existence of a claim of
indemnity or within fifteen (15) business days of assertion of
a claim against the Indemnified Party which may rise to a
claim or indemnity, whichever shall occur first. In the event
of assertion of a claim which may give rise to a right of
indemnity, the Indemnifying Party shall have the right to
assume the entire control of the defense, compromise or
settlement thereof, subject to the right of the Indemnified
Party to participate at its expense and with counsel of its
own choice in such defense, compromise or settlement. In the
event that the Indemnified Party shall elect solely to defend
or compromise such claim, the Indemnifying Party shall be
discharged from liability in connection therewith.
9. GENERAL AND MISCELLANEOUS
9.1 Further Assurances. Each of the parties shall execute such
other documents and take such other action as may be necessary
or desirable to carry out the terms of this Agreement.
9.2 Notices. All notices provided for herein shall be in writing
and shall be deemed to have been given or made (i) when served
personally; or, (ii) five (5) days after being deposited in
the United States Mail, certified mail, return receipt
requested, postage prepaid; or, (iii) when actually delivered
by a recognized overnight, air freight delivery service after
deposit with such delivery service with an accurately
completed air xxxx, addressed,
If to BIOMED: Biomed Research Technologies, Inc.
0000 Xxxx Xxxxx Xx.
Xxxxxxx, XX 00000
Attn: Xxxxx Xxxxxx
If to EAI: Entrepreneur Advisors, Inc.
00 X. Xxxxxxxxxx Xxxxxx
Xxxx Xxxxx, XX 00000-0000
Attn: Xxxxxxxx X. Xxxxxxx
Facsimile notices or notices via electronic mail are not
considered adequate notice.
Entrepreneur Advisors, Inc.
Capital Consulting Agreement
Page 7
9.3 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original and
all of which together shall constitute one and the same
instrument.
9.4 Benefits. This Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective legal
representatives, successors and assigns.
9.5 Governing Law. This Agreement shall be governed by, enforced
and interpreted under the laws of the State of Illinois. The
parties agree that the most appropriate venue for any dispute
involving this Agreement or its subject matter is the United
States District Court for the Northern District of Illinois -
Eastern Division, if jurisdiction of that court is lacking,
the Xxxx County Circuit Court, Xxxx County, Illinois; and they
waive any objection to either venue that could otherwise be
raised.
9.6 Entire Agreement, Amendment, Assignment. This Agreement
represents the entire agreement and understanding of the
parties hereto and all prior or concurrent agreements,
understandings, representations and warranties, whether
written or oral, in regard to the subject matter hereof are
merged herein. This Agreement may be amended only by a writing
signed by both of the parties hereto. No party may assign this
Agreement or any interest herein without the prior written
consent of the other party, which consent may be granted or
withheld in the absolute discretion of such other party.
Correspondence between the parties via fax, purporting to be
an amendment to this Agreement, shall be deemed "writing
signed by both parties hereto" if, the full name of sender (a
party to this Agreement) is affixed to the fax, and, the
receiver (the other party to this Agreement) acknowledges
receipt of the fax within 72 hours of receipt.
9.7 Expenses. Each of the parties shall pay all of their own costs
and expenses incurred or to be incurred by it in negotiation
and preparation of this Agreement.
9.8 Severability and Invalidity.
(a) If any term, restriction, covenant or promise contained
in this Agreement is invalid or unenforceable, then the
parties agree to be bound by such term, restriction,
covenant, or promise as modified to the extent
necessary to make it valid and enforceable.
(b) The invalidity or unenforceability of any provision of
this Agreement shall not affect the validity or
enforceability of any other provision.
9.9 Review By Counsel. The parties hereby acknowledge that counsel
for each party has reviewed this Agreement. Accordingly, the
normal rule of construction to the effect that any ambiguities
are to be construed against the drafting party shall not be
employed in the interpretation of this Agreement.
9.10 Attorney's Fees. If any legal action or other proceeding is
brought for the enforcement of this Agreement or because of an
alleged dispute, breach, default or misrepresentation in
connection with any of the provisions of this Agreement, the
successful or prevailing party shall be entitled to recover
reasonable attorney's fees and other costs incurred in such
action or proceeding, in addition to any other relief to which
it may be entitled.
Entrepreneur Advisors, Inc.
Capital Consulting Agreement
Page 8
9.11 No Waiver. The failure of any party to insist upon strict
compliance by the other party with any of the terms herein by
any of the parties hereto shall not be deemed to be a waiver
of any future breach. No remedy made available by any of the
provisions of this Agreement is intended to be exclusive of
any other remedy and each and every remedy shall be cumulative
and shall be in addition to every other remedy given hereunder
or now or hereafter existing at law or in equity.
9.12 Confidentiality. The terms of this Agreement shall be
confidential and shall not be disclosed to anyone other than
the parties, their attorneys and accountants.
9.13 Successors and Assigns. This Agreement shall be binding upon
and shall inure to the benefit of the parties and their
respective successors.
9.14 Headings. The headings herein are inserted for convenience of
reference only and shall be ignored in the construction or
interpretation hereof.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
BIOMED:
BIOMED RESEARCH TECHNLOGIES, INC.
By: /s/ Xxxxx Xxxxxx
-------------------------------
Xxxxx Xxxxxx
Executive Vice President
EAI:
ENTREPRENEUR ADVISORS, INC.
By: /s/ XXXXXXXX X. XXXXXXX
-------------------------------
Xxxxxxxx X. Xxxxxxx, COO
