CONSULTING AGREEMENT
THIS AGREEMENT (the "Agreement") is made this 10th day of June, 1999,
but shall be effective as of the effective date of the Initial Public Offering
of Bio-Aqua Systems, Inc.'s securities pursuant to a Registration Statement
filed with the Securities and Exchange Commission on Form SB-2 (the "Effective
Date") by and between BIO-AQUA SYSTEMS, INC. a Florida corporation (the
"Company") and XXXXX XXXXX, an individual residing in Boca Raton, Florida (the
"Consultant").
RECITALS
The Consultant provides professional business, corporate finance, and
financial public relations, consulting and advisory services designed to inform
interested parties as to the business products, management, marketing and
financial potential of the Company;
The Company desires to engage the Consultant to perform certain
services on behalf of the Company and the Consultant desires to perform such
services, as described more fully in this Agreement.
NOW, THEREFORE, in consideration of the premises, the terms, covenants
and conditions herein and other valuable consideration, the receipt, adequacy
and sufficiency of which the parties hereto acknowledge, the parties hereto
agree as follows:
1. APPOINTMENT. The Company hereby appoints and retains the Consultant
on the terms and conditions of this Agreement. The Consultant accepts such
appointment and agrees to perform the services upon the terms and conditions of
this Agreement.
2. TERM. Except as otherwise terminated pursuant to Section 8 of this
Agreement, the term of this Agreement shall begin on the date hereof and
continue for a period of ten (10) years thereafter. This Agreement may be
extended for additional twelve (12) month periods upon the mutual consent of the
parties.
3. CONSULTING SERVICES.
(a) Consultant shall provide a general presence of the Company
in the United States;
(b) Consultant shall provide interfacing on behalf of the
Company with the brokerage community and individual investors;
(c) Consultant shall coordinate release of financial
information and other information by means of press releases and other media
concerning the Company;
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(d) Consultant shall coordinate the preparation and filing of
Form 10Q-SB, Form 10K-SB and related filings with the Securities and Exchange
Commission;
(e) Consultant shall provide consulting services regarding
future mergers and acquisitions and additional financings on behalf of the
Company; and
(f) Consultant shall provide such additional services as may
be mutually agreeable between the Company and the Consultant.
4. DUTIES OF THE COMPANY.
(a) The Company shall supply the Consultant, on a regular and
timely basis, with all approved data and information about the Company, its
management, its products and its operations, and the Company shall be
responsible for advising the Consultant of any facts which would affect the
accuracy of any prior data and information previously supplied to the Consultant
so that the Consultant may take corrective action.
(b) The Company shall promptly supply the Consultant with:
full and complete copies of all filings with all federal and state securities
agencies; full and complete copies of all shareholder reports and
communications, whether or not prepared with the Consultant's assistance; all
data and information supplied to any analyst, broker-dealer, market maker or
other member of the financial community; and all product/services brochures,
sales materials, etc.
(c) The Company shall promptly notify the Consultant of the
filing of any registration statement or private placement memorandum for the
sale of securities and of any other event which imposes any restrictions on
publicity.
(d) The Company shall contemporaneously notify the Consultant
if any information or data being supplied to the Consultant has not been
generally released or promulgated.
5. REPRESENTATION AND INDEMNIFICATION.
(a) The Company shall be deemed to make a continuing
representation of the accuracy of any and all material facts, material
information and data which it supplies to the Consultant and the Company
acknowledges its awareness that the Consultant will rely on such continuing
representation in disseminating such information and otherwise performing its
public relations functions.
(b) The Consultant, in the absence of notice in writing from
the Company, will rely on the continuing accuracy of material, information and
data supplied by the Company.
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(c) The Company hereby agrees to indemnify the Consultant
against, and to hold the Consultant harmless from, any claims, demands, suits,
loss, damages, etc. arising out of the Consultant's reliance upon the accuracy
and continuing accuracy of such facts, material, information and data, unless
the Consultant has been negligent in fulfilling his duties and obligations
hereunder.
(d) The Company hereby agrees to indemnify the Consultant
against, and to hold the Consultant harmless from, any claims, demands, suits,
loss, damages, etc. arising out of the Consultant's reliance on the general
availability of information supplied to the consultant and the Consultant's
ability to promulgate such information, unless the Consultant has been negligent
in fulfilling his duties and obligations hereunder.
(e) The Company hereby authorizes the Consultant to issue, in
the Consultant's sole discretion, corrective, amendatory, supplemental or
explanatory press releases, shareholder communications and reports, or data
supplied to analysts, broker-dealers, market makers or other members of the
financial community.
(f) The Company shall endeavor to appoint and nominate the
Consultant to be a member of the Company's Board of Directors during the Term.
6. COMPENSATION.
(a) As the sole compensation for the services to be performed
by the Consultant, the Consultant shall receive:
(i) an annual compensation of Thirty Thousand
($30,000) Dollars, payable semi-annually or as otherwise agreed upon;
(b) The Consultant shall not entitle to reimbursement by the
Company of all telephone, mail (including courier) and facsimile charges as the
Consultant may incur in performing service under this Agreement at the actual
cost to the Consultant.
7. RELATIONSHIP OF PARTIES. The Consultant is an independent
contractor, responsible for compensation of its agents, employees and
representatives, as well as all applicable withholding therefrom and taxes
thereon (including unemployment compensation) and all workers' compensation
insurance. This Agreement does not establish any partnership, joint venture, or
other business entity or association between the parties, and neither party is
intended to have any interest in the business or property of the other.
8. TERMINATION. This Agreement may not be terminated by either party
prior to the expiration of the term provided in Paragraph 2 above except as
follows:
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(a) Upon failure of the other party to cure a material default
under, or a breach of, this Agreement within thirty (30) days after written
notice is given as to such breach by the terminating party; provided, however,
that there shall be no termination if the defaulting party cures such default
within such 30 day period or if such breach or default did not cause a material
and continuing damage to the Company.
(b) Upon the bankruptcy or liquidation of the other party,
whether voluntary or involuntary;
(c) Upon the other party taking the benefit of any insolvency
law; and/or
(d) Upon the other party having or applying for a receiver
appointed for all or a substantial part of such party's assets or business.
9. NON-DISCLOSURE OF CONFIDENTIAL INFORMATION. The Consultant
acknowledges that is the policy of the Company to maintain as secret and
confidential all valuable information heretofore or hereafter acquired,
developed or used by the Company in relation to its business, operations,
employees and customers which may give the Company a competitive advantage in
its industry (all such information is hereinafter referred to as "Confidential
Information"). The parties recognize that, by reason of its duties, the
Consultant may acquire Confidential Information. The Consultant recognizes that
all such Confidential Information is the property of the Company. In
consideration of the Company entering into this Agreement, the Consultant agrees
that:
(a) it shall never, directly or indirectly, publicly
disseminate or otherwise disclose any Confidential Information obtained during
its engagement by the Company without the prior written consent of the Company,
unless and until such information is otherwise known to the public generally or
is not otherwise secret and confidential, it being understood that the
obligation created by this subparagraph shall survive the termination of this
Agreement; and
(b) during the term of its engagement by the Company, the
Consultant shall exercise all due and diligent precautions to protect the
integrity of any of the Company's documents embodying Confidential Information
(which shall be marked "Confidential" by the Company prior to delivery to the
Consultant and, if not so marked, shall not be deemed to embody Confidential
Information), and upon termination of its engagement, it shall return all such
documents (and copies thereof) in its possession or control.
10. DISCLAIMER BY CONSULTANT. The Consultant makes no representation
that (a) the price of the company's publicly-traded securities will increase,
(b) any person will purchase securities in the Company as a result of the
contract, or (c) any investor will lend money to or invest in or with the
Company.
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11. NON-ASSIGNABILITY. The rights, obligations and benefits established
by this Agreement shall not be assignable by either party hereto except with the
consent of the other. This Agreement shall, however, be binding upon and shall
inure to the benefit of the parties and their successors.
12. COMPLIANCE AND GOVERNING LAW. The Consultant, together with his
agents and associates, shall take all necessary, appropriate and reasonable
steps to provide the services in accordance with both the securities laws of the
United States and the several states, and pursuant to the rules and regulations
promulgated thereunder. The terms and provisions of this Agreement shall be
governed by and construed under the laws of the State of Florida.
13. NOTICE. Notice hereunder shall be in writing and shall be deemed to
have been given (a) at the time when deposited for mailing in a receptacle under
the control of the United States Postal Service, by registered or certified
mail, prepaid, return receipt requested, or (b) on the business day following
deposit with a reputable overnight courier for overnight delivery; each
addressed to the respective party at the address of such party first above
written or at such other address as such party may fix by notice given pursuant
to this paragraph.
14. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original but all of which shall
constitute but one agreement.
15. NO OTHER AGREEMENTS. This Agreement supersedes all prior
understandings, written or orally given and constitutes the entire Agreement
between the parties hereto with respect to the subject matter hereof. No waiver,
modification or termination of this Agreement shall be valid unless in writing
signed by each of the parties hereto.
IN WITNESS WHEREOF, the parties have hereunto set their hands and seals
the day and year first above written.
BIO-AQUA SYSTEMS, INC.
By:/s/Xxx Xxxxxx
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Xxx Xxxxxx, CEO
CONSULTANT
By:/s/Xxxxx Xxxxx
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Xxxxx Xxxxx
