EXHIBIT 10.2
CONSULTING AGREEMENT
This consulting agreement (the "Agreement"), made effective as of JULY 21,
2005 will confirm the understanding between In Veritas Medical Diagnostics. and
its affiliates and/or subsidiaries (collectively, the "Company") and CLX &
Associates, Inc. and its affiliates and/or subsidiaries (collectively, the
"Consultant"), pursuant to which the Company has retained Consultant in
connection with (i) short and long term strategic planning; (ii) short term
crisis management; (iii) short and long term marketing; (iv) meeting
with/selecting qualified companies for joint business ventures; (v) contracting
and interviewing qualified accounting firms and legal counsel; (vi) recruitment
selection of key executives and staff; (vii) internet and website design; and
(viii) recommending and identifying of board members, with all such services
(the "Services") on the terms and subject to the condition set forth herein.
1. Retention. The Company hereby retains Consultant to provide the
Services. Consultant shall devote time and effort, as Consultant deems necessary
to provide the Services.
2. Further Agreements. This Agreement does not constitute any agreement
express or implied, on the part of Consultant or the Company or any commitment
by Consultant, or by the Company to engage Consultant to underwrite, purchase,
place, or cause the placement of any securities or indebtedness or to advise the
Company or negotiate on behalf of the Company in connection with any sale of any
securities or its business or assets or in connection with any merger,
consolidation or similar transaction.
3. Compensation. Company will pay Consultant for the Services a total of
$250,000 in cash or 650,000 shares of free trading securities and 100,000 shares
of restricted 144 stock following the filing of a registration statement on Form
S-8. If Company elects to pay some or all of the Consultant's compensation in
securities, then Company shall cause to be delivered to Consultant unrestricted
securities.
4. Termination. The term of this Agreement shall be 6 months.
5. Indemnity. The Company agrees to indemnify the Indemnified Persons (as
defined in Schedule as set forth in Schedule A hereto, which Schedule A is
incorporated herein and made a part hereof.
6. Representations and Warranties of the Company. In addition to any
representations and warranties for which provision is made in any other
agreement between the Company and Consultant, the Company represents and
warrants to Consultant that:
(a) At the commencement of the Services and at the time of the
provision of the Services during the term of this Agreement, the Company
will furnish Consultant and its agents and counsel with all information
concerning the Company that Consultant and its agents reasonably deem
appropriate and agrees to provide Consultant and its agents with reasonable
access to the Company's officers, directors, accountants, counsel,
consultants and other appropriate agents and representatives. The Company
acknowledges the Consultant and its agents may rely upon the completeness
and accuracy of information and data furnished to any of them by or on
behalf of the Company and that the Company will use its best efforts to
ensure that such information will not contain any untrue statement of a
material fact or omit to state a material fact necessary to make the
statements made therein, in light of the circumstances under which they
were made, not misleading.
(b) All payments of compensation to Consultant shall not cause the
Company to violate any law or regulation applicable to the Company and that
in the event payment is in the form of securities or instruments
convertible to securities, each registration statement, preliminary and
final prospectus required to be filed or previously filed with the
Securities and Exchange Commission (the "Commission") pursuant to the
Securities Act of 1933, as amended, and each document required to be filed
or previously filed with the Commission pursuant to the provisions of the
Securities Exchange Act of 1934, as amended, pertaining to any such
securities or instruments convertible into securities and each appendix,
attachment, amendment, or supplement to any of the foregoing and all
related documents, including but not limited to each related letter of
transmittal will not, and no other report, filing, document, release or
communication mailed, delivered, published, or filed by or on behalf of the
Company will, contain any untrue statement of a material fact or omit to
state a material fact necessary to make the statements made therein, in
light of the circumstances under which they were made, not misleading.
(c) All securities transferred to Consultant as payment in full or in
part for Consultant's services shall be bona fide free-trading,
unrestricted securities. Therefore, under no circumstances will the Company
or an affiliate, an underwriter or control person of the Company deliver or
cause to be delivered to Consultant restricted securities of the Company as
payment for the Services whether or not the certificates of such securities
bear a restrictive legend.
(d) If the Company shall cause to be transferred to Consultant
restricted securities obtained from a non-affiliate of the Company, then
the Company shall cause the transfer agent to remove any restrictive legend
from those certificates and to issue a new certificate in the name of
Consultant or his assigns.
(e) This Agreement had been, and the Services contemplated hereby at
the time of the commencement and consummation thereof, shall be duly
authorized by the Company.
7. Certain Other Covenants of the Company. Other than to the Company's
representatives, the Company agrees that no advice or recommendations rendered
or summarized, excerpted from or otherwise referred to without Consultant's
prior written consent. In addition, other than to the Company's representatives,
Consultant may not be otherwise referred to by the Company without Consultant's
prior written consent or unless required by law.
8. Survival of Certain Provisions. The compensation provisions contained in
paragraph 3 above, the indemnity contained in paragraph 5 hereof and the
representations and warranties of the Company contained in paragraph 6 hereof
and this paragraph 8 shall remain operative and in full force and effect
regardless of (i) any investigation made by or on behalf of Consultant, or by or
on behalf of any Indemnified Person (as such is defined in Schedule A hereto),
and (ii) any termination or expiration of this Agreement, and shall be binding
upon, and shall inure to the benefit of, any successors, assigns, heirs and
personal representatives of the Company, Consultant, and any and all Indemnified
Persons.
9. Notices. Notice given pursuant to any of the provisions of this
Agreement shall be in writing and shall be mailed or delivered (i) to the
Company at: In Veritas Medical Diagnostics, Xxx Xxxxx Xxxxx, Xxxxxxxxx Xxxxxxxx
Xxxx Xxxxx, Xxxxxxxxx, Xxxxxxxx XX0 0XX and (ii) CLX & Associates, Inc., 0000
Xxxxx Xxx, Xxxxx, XX 00000.
10. Construction. This Agreement, including Schedule A hereto, incorporates
the entire understanding of the parties and supersedes all previous agreements
and shall be governed by, and constructed in accordance with, the laws of the
State of Florida as applied to contracts made and performed in such State. The
Company and Consultant each hereby irrevocably submits to the exclusive
jurisdiction of the Federal and Florida State courts located in Miami-Dade
County, Florida in connection with any suit, action, or proceeding related to
this Agreement or any of the matters contemplated hereby, irrevocably waives any
defense of lack of personal jurisdiction and irrevocably agrees that all claims
in respect of any such suit, action or proceeding may be heard and determined in
any such court. The Company and Consultant each irrevocably waives, to the
fullest extent it may effectively do so under applicable law, any objection
which it may now or hereafter have to the laying of venue of any such suit,
action or proceeding brought in any such court and any claim that any such suit,
action or proceeding brought in any such court had been brought in an
inconvenient forum. Each Indemnified Person (as defined in Schedule A to this
Agreement) is intended to be a third party beneficiary of the provisions of
paragraph 5 hereof and Schedule A. All obligations of the Company hereunder and
under Schedule A shall be joint and several obligations of the Company and its
affiliates and subsidiaries. In the event it is necessary for Consultant to file
an action in either equity and/or at law to enforce this agreement, Company
shall be responsible and obligated to pay Consultant all attorneys' fees and
costs, including appellate attorneys' fees and costs.
11. Severability. Any determination that any provision of this Agreement
(including any provision of Schedule A) may be, or is unenforceable shall not
affect the enforceability of the remainder of this Agreement (including Schedule
A).
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12. Headings. The paragraph headings in this Agreement have been inserted
as a matter of convenience of reference and are not part of this Agreement.
13. Counterparts. This Agreement may be executed in two or more
counterparts and by facsimile, each of which shall be deemed an original, but
all of which shall constitute one and the same instrument.
14. Third Party Beneficiaries. This Agreement has been and is made solely
for the benefit of the Company and Consultant (including other Indemnified
Persons for purposed of paragraph 5 hereof and Schedule A only) and Schedule A
hereof and their respective successors and assigns, and no other person shall
acquire or have any right under or by virtue of this Agreement.
15. Modification. This Agreement may not be modified or amended except in
writing, duly executed by the parties hereto.
If the foregoing terms correctly set forth our agreement, please confirm
this by signing and returning to Consultant a duplicate copy of this letter.
Thereupon, this letter, as signed in counterpart, shall constitute our agreement
on the subject matter herein.
CLX & ASSOCIATES, INC.
By: /s/ Xxxxxx Xxxxxxxxxx
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Xxxxxx Xxxxxxxxxx, President
Confirmed and agreed to as Of the date first above written:
IN VERITAS MEDICAL DIAGNOSTICS, INC.
By: /s/ Xxxx Xxxxxx
---------------------------------------
Name: Xxxx Xxxxxx
Title: Chief Executive Officer
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SCHEDULE A
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INDEMNITY
This Schedule A is a part of and is incorporated into that certain
consulting agreement (the "Consulting Agreement" and together with this Schedule
A, the "Agreement"),In Veritas Medical Diagnostics. (collectively, the
"Company") and CLX & Associates, ("Consultant"). Capitalized terms used herein
without definition shall have the meanings ascribed to them in the Letter
Agreement.
The Company agrees to indemnify and hold harmless Consultant, his
affiliates and their respective directors, officers, agents, and employees
(Consultant and each such entity or person are an "Indemnified Person" from and
against any losses, claims, damages, judgments, assessments, costs, and other
liabilities (collectively "Liabilities"), and will reimburse each Indemnified
Person for all reasonable fees and reasonable expenses (including the reasonable
fees and reasonable expenses of counsel at trial and on appeal (collectively,
"Expenses") as they are incurred in investigating, preparing, pursuing, or
defending any claim, action, proceeding or investigation, whether or not in
connection with pending or threatened litigation and whether or not any
indemnified person is a party (collectively, "Actions"), (i) caused by, arising
out of or in connection with the Company's breach of this Agreement including,
but not limited to the breach of any representation, warranty or term contained
in the Consulting Agreement, or services rendered or to be rendered by any
Indemnified Person pursuant to the Consulting Agreement. The Company will not be
responsible for any Liabilities or Expenses of any Indemnified Person that are
determined by a judgment of a court of competent jurisdiction which is no longer
subject to appeal or further review to have resulted solely from the gross
negligence, bad faith or willful misconduct of an Indemnified Person in
connection with any of the Services referred to in the Consulting Agreement. The
Company also agrees to reimburse each Indemnified Person for all Expenses as
they are incurred in connection with enforcing such Indemnified Person's rights
under this Agreement (including, without limitation, its rights under this
Schedule A) and the Consulting Agreement.
Upon receipt by an Indemnified Person of actual notice of an Action against
such Indemnified Person with respect to which indemnity may be sought under this
Agreement, such Indemnified Person shall promptly notify the Company in writing;
provided that failure so to notify the Company shall not relieve the Company
from any liability which the Company may have on account of this indemnity or
otherwise, except to the extent the Company shall have been materially
prejudiced by such failure. The Company shall, if requested by Consultant or at
the Company's option, assume the defense of any such Action including the
employment of counsel selected by the Company that is reasonably satisfactory to
Consultant. Notwithstanding the Company's obligation to assume a defense of an
Indemnified Person, any Indemnified Person shall have the right to employ
separate counsel in any such Action and participate in the defense thereof, with
the fees and expenses of such counsel being at the expense of the Company. The
Company shall not be liable for any settlement of any Action effected without
its prior written consent (which shall not be unreasonably withheld). In
addition, the Company will not, without prior written consent of Consultant,
settle, compromise or consent to the entry of any judgment in or otherwise seek
to terminate any pending or threatened Action in respect of which
indemnification or contribution may be sought hereunder (whether or not any
Indemnified Person is party thereto) unless such settlement, compromise, consent
or termination includes an unconditional release of each Indemnified Person from
all Liabilities arising out of such Action.
The Company also agrees that no Indemnified Person shall have any liability
(whether direct or indirect, in contract or tort or otherwise) to the Company
for or in connection with: (i) Services rendered or to be rendered by the
Indemnified Person pursuant to this Agreement; (ii) the transactions
contemplated hereby, or (iii) or any Indemnified Person's actions or inactions
in connection with any such Services, except for Liabilities (and related
Expenses) of the Company that are determined by a court of competent
jurisdiction the determination of which is no longer subject to appeal or
further review to have resulted solely from the gross negligence, bad faith, or
willful misconduct of an Indemnified Person in connection with such Services.
The reimbursement and indemnity obligations of the Company set forth herein
shall apply to any modification of this Agreement and the Consulting Agreement
and shall remain in full force and effect regardless of any termination of, or
the completion of any Indemnified Person's Services under or in the connection
with, this Agreement and the Consulting Agreement.
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