Exhibit 10.4
AGREEMENT
THIS AGREEMENT is made and entered into effective as of this
30th day of April, 1999, by and between FIRST SCIENTIFIC, INC.,
("FSI"), a Delaware corporation, and XXXXXX XXXXXXXX, a resident of
the state of California ("Xxxxxxxx").
W I T N E S S E T H:
WHEREAS, FSI is a successor in interest to the business of
Linco Industries, Inc., which is a party to that certain agreement
dated the 20th day of January, 1998 with Xxxxxxxx, the subject
matter of which is the efforts by Xxxxxxxx to locate customers and
business opportunities for Linco Industries, Inc. (the "Prior
Agreement"); and
WHEREAS, Linco Industries, Inc. was a private corporation,
whereas FSI is a public corporation: and it is therefore desirable
to terminate said Prior Agreement in order to enhance the market
value of FSI shares; and
WHEREAS, FSI and Xxxxxxxx mutually desire to terminate the
Prior Agreement and to redefine their relationship as hereinafter
set forth;
NOW, THEREFORE, in consideration of the premises and for other
good and valuable consideration, receipt and sufficiency whereof are
hereby mutually acknowledged by the parties, FSI and Xxxxxxxx hereby
agree as follows:
1. TERMINATION OF PRIOR AGREEMENT. The Prior Agreement is
hereby terminated.
2. ISSUANCE OF SHARES. FSI shall issue to Xxxxxxxx a stock
certificate representing 10,000 shares of FSI common stock. Said
certificate shall bear the same restrictive legend as all recently
issued shares of FSI; i.e., that the resale of such shares shall not
be permitted unless said shares are either registered or sold in
compliance with Rule 144 promulgated by the Securities and Exchange
Commission or pursuant to some other exemption.
3. NON-EXCLUSIVE DISTRIBUTORSHIP. FSI hereby appoints
Xxxxxxxx as a non-exclusive distributor with respect to the
distribution and sales of FSI products in the states of California,
Nevada, Utah, Washington, Oregon and Hawaii (at standard distributor
prices). This relationship shall be based on standard practices in
the industry. For three years from the date of this Agreement, FSI
shall grant to Xxxxxxxx a discount equal to one-half of one percent
(.005) of the net sales proceeds received by FSI during a three (3)
year period beginning with the date the initial purchase order is
received from each respective customer.
4. FEE FOR NEW REFERRALS. With respect to sales from
specific products or projects referred after January 1, 1999 by
Xxxxxxxx to FSI, and accepted by FSI, FSI shall pay to Xxxxxxxx an
amount equal to one-half of one percent (.005%) of net sales
proceeds received by FSI during a one (1) year period beginning with
the respective date of acceptance by FSI of the initial purchase
order for each such product.
5. SOLICITATION OF NEW CUSTOMERS. The parties agree that
Xxxxxxxx shall be free to solicit whatever potential new customer he
desires in order to attempt to develop business for FSI, provided
that Xxxxxxxx is not at the time aware that FSI is actively working
with or otherwise pursuing such company in an active dialogue. From
time to time, FSI will provide Xxxxxxxx with a list of its current
customers or prospects with whom it is engaged in active dialogue.
In the event of any dispute as to who first engaged the customer in
an active dialogue, correspondence will be examined to establish the
priority.
6. WRITTEN ACCPETANCE REQUIRED. Before a referral shall be
deemed accepted, FSI must provide Xxxxxxxx with a written acceptance
of a proposed product or project.
7. NON-DISCLOSURE.
X. Xxxxxxxx agrees to protect the proprietary rights of FSI
to any proprietary information obtained during the course of this
Agreement and afterward in perpetuity, and he agrees to take every
reasonable precaution to safeguard and treat such information as
confidential and to take appropriate action by instruction,
agreement or notice to his affiliates, agents and employees of the
confidential and proprietary nature of such information.
B. All information, whether written, verbal, transmitted by
any physical medium or delivered by electronic means from FSI to
Xxxxxxxx, pursuant to this Agreement, shall be and remain the
property of FSI, and all such written, verbal, physical medium
transmission and/or physical recording of information delivered
electronically, and/or any copies thereof, shall be promptly
returned to FSI or destroyed, at FSI's option, upon its demand.
C. Notwithstanding the foregoing, Xxxxxxxx shall not be
liable for use or disclosure of any information obtained from FSI if
that information is:
1. In the public domain, other than as a wrongful
disclosure of information; or
2. Known to Xxxxxxxx at the time of disclosure to him
by FSI:
3. Independently developed by Xxxxxxxx, other than as
a result of a disclosure of information; or
4. Becomes known to Xxxxxxxx without similar
restrictions from a source other than FSI, other than as a
result of wrongful disclosure of information.
E. Except as specifically provided above, nothing contained
in this Agreement shall be construed as granting or conferring any
rights to Xxxxxxxx by license or otherwise, expressly, by
implication, or otherwise for any invention, discovery or
improvement made, strategy, study made, conceived or acquired by FSI
prior to or after the date of this Agreement.
X. Xxxxxxxx agrees that unauthorized disclosure of
proprietary information by him may cause irreparable harm and
significant commercial damage to FSI, which may be difficult to
ascertain. Therefore, Xxxxxxxx agrees that FSI shall have the right
to an immediate preliminary injunction enjoining any breach of this
Paragraph 7, and further agrees to indemnify FSI against any losses
sustained by it, including any costs and reasonable attorney's fees,
by reason of the breach of any portion of this Paragraph 7.
8. GOVERNING LAW. This Agreement shall be governed by the
laws of the State of Utah. In the event of any action arising under
this Agreement, each party hereto agrees to jurisdiction and venue
in the state and federal courts of the State of Utah.
9. ARBITRATION. Any controversy or claim arising out of or
relating to this Agreement, or the breach thereof, shall be settled
by arbitration in Salt Lake City, in accordance with the Commercial
Arbitration Rules of the American Arbitration Association. The
parties agree to meet within fifteen (15) days following a request
for arbitration from either party for the purpose of agreeing upon
arbitrator actions to compel arbitration or to enforce judgment.
Judgment upon any award rendered by the arbitrator(s) may be filed
in any court having jurisdiction thereof. In the event of any
dispute or litigation arising out of this Agreement, the prevailing
party shall be entitled to reasonable costs and attorney fees from
the prevailing party.
10. SEVERABILITY. The invalidity or unenforceability of any
provision hereof shall in no way affect the validity or
enforceability of any other provision.
11. ENTIRE AGREEMENT. This Agreement, is the entire, final
and integrated Agreement with respect to this agreement, and
supersedes any prior negotiations and agreements. This Agreement
may not be changed in any respect except by a written agreement
signed by both Xxxxxxxx and FSI.
12. FACSIMILE (FAX) DOCUMENTS. Facsimile transmission of any
signed original document and retransmission of any signed facsimile
transmission shall be the same as delivery of an original.
13. EXECUTION. This Agreement shall be deemed to be binding
and effective upon execution by the undersigned parties. The
parties agree to perform all acts and execute all documents
necessary or desirable to carry out this Agreement.
14. NOTIFICATION. Any notification required under this
Agreement shall be by prepaid certified U.S. mail, express courier,
or facsimile sent to the respect address or fax number as set forth
on Page 1. Notice shall be deemed complete within three (3)
business days following mailing, two (2) business days following
delivery to an express courier, and one (1) business day following
completed facsimile transmission, respectively.
15. CONTINUING EFFECT. This Agreement shall be binding upon
the respective parties and his/her/its successors, administrators,
trustees and/or assigns.
16. TIME OF ESSENCE. It is expressly agreed that time is of
the essence in this Agreement.
17. HEADINGS. The headings of the Sections of this Agreement
are inserted for convenience only, and shall not be deemed to be
part of this Agreement as to affect the construction thereof.
18. MISCELLANEOUS. No waiver by either party at any time of
any breach by the other party, or in compliance with any condition
or provision of the Agreement to be performed by such other party
shall be deemed a waiver of similar or dissimilar provisions or
conditions at the same or any prior or subsequent time. Whenever
the context of any provision shall require it, the singular number
shall be held to include the plural number, and vice versa, and the
use of any gender shall include any and all genders. Should any
provision of this Agreement require judicial interpretation, the
court interpreting or construing the same shall not apply a
presumption that the terms hereof shall be more strictly construed
against one party, by reason of the rule of construction that a
document is to be construed more strictly against the person who
herself, or through his agent, prepares the same, it being
acknowledged that the agents of both parties have participated in
the preparation hereof.
IN WITNESS WHEREOF, the parties have signed the foregoing
instrument as of the day and year first above written.
FIRST SCIENTIFIC, INC.
By: /s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx, President
/s/ Xxxxxx Xxxxxxxx
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Xxxxxx Xxxxxxxx
