ASTRALIS LTD
CONSULTANT AGREEMENT BETWEEN
ASTRALIS, LTD AND Gar-1 Business Advisory Services -
MADE AS OF Friday, October 6, 2006
Agreement made as of the 6th day of October 2006 by and between ASTRALIS
LTD having its principal address at 00 Xxxxxxx Xxx. Xxxxxxxxx, X.X., 00000 and
Gar-1 Business Advisory Services (CONSULTANT), having its principal address at 0
Xxxxxx Xxx, Xxxxxxxx, XX 00000.
ASTRALIS LTD and CONSULTANT desire to enter into an agreement whereby the
CONSULTANT will perform certain professional services as an independent
contractor.
In consideration of the mutual promises in this agreement, the CONSULTANT
agrees to perform the professional services set forth in paragraph 1 with the
standard of professional care and skill customarily provided in the performance
of such services, and ASTRALIS LTD agrees to pay the CONSULTANT such amounts as
are specified herein, all upon the following conditions:
1. You are hereby retained by ASTRALIS LTD as a CONSULTANT who is an
independent contractor and shall perform the services set forth on
Schedule I attached hereto. CONSULTANT is being retained on a
non-exclusive basis.
2. CONSULTANT shall be paid for the services actually performed in the manner
and amounts set forth on Schedule I. ASTRALIS LTD shall not be liable for
any other costs or expenses of any nature in connection with CONSULTANT's
work with the exception of personal automobile utilization, wire line and
wireless telephone service used by the consultant to perform the duties
set forth in schedule 1. Personal automobile usage will be reimbursed at
the current rate specified in the IRS code. Telecommunications costs will
be reimbursed at cost. The parties also agree that CONSULTANT may request
ASTRALIS LTD permission to incur other additional expenses in connection
with the services set forth in paragraph 1 above. Upon prior written
approval of said expenses by the project director set forth in paragraph 5
below, ASTRALIS LTD shall, upon submission of supporting documentation,
reimburse CONSULTANT for said expenses. Any additional services beyond
those set forth in paragraph 1 above shall be performed by the CONSULTANT
only after an agreement in writing between CONSULTANT and ASTRALIS LTD.
3. Payment for compensation earned in accordance with Schedule I and
reimbursable out-of-pocket expenses in accordance with paragraph 2 above
will be made by ASTRALIS LTD to the CONSULTANT coincident with the
completion of the sale transaction(s) on the day the transaction(s)
closes.
4. This Agreement shall commence as of the date first written above and
continue six [6] months until April 6, 2007, unless terminated earlier by
either party in accordance with this Agreement.
5. ASTRALIS LTD designates Xxxxxx Xxxxxxx, Director and Chairman of the Audit
Committee as project director to whom CONSULTANT shall from time to time
provide written and verbal reports setting forth the progress of
CONSULTANT's work.
6. CONSULTANT is not, and shall not be considered, an employee of ASTRALIS
LTD. CONSULTANT acknowledges full responsibility for compliance with all
Federal, State, and City tax regulations regarding taxes that may accrue
on the fee paid as a result of services rendered ASTRALIS LTD. Further,
ASTRALIS LTD will not provide workers compensation or any other benefits
whatsoever to CONSULTANT except for compensation identified in paragraph 2
above.
7. ASTRALIS LTD agrees to hold CONSULTANT and/or its, family, sources of
funding and its operation staff harmless, and to defend and indemnify them
against all claims, actions, liability, damage, loss and expenses,
including but not limited to, by reason of injury, illness or death to any
person or damaged property arising or alleged to have arisen out of
CONSULTANT's activities in connection with this Agreement, save for any
claims, actions, liability, damage, loss and expenses arising as a result
of CONSULTANT's willful negligence in performing the duties hereunder.
ASTRALIS LTD will assure that CONSULTANT is an insured party of the
current Directors & Officers Liability Insurance policy and that ASTRALIS
LTD will assume any deductible costs that may be incurred by CONSULTANT as
a result of a future claim or legal action resulting from, the performance
of his duties as interim CFO.
8. CONSULTANT may terminate this Agreement early without cause by giving the
other party ten (10) calendar days' written notice of its election to
terminate. Either party may terminate this Agreement early with cause upon
ten (10) calendar days' written notice.
9. CONSULTANT represents that as of the date of this Agreement he has no
existing arrangements or agreements that could conflict with his
responsibilities under this Agreement.
10. CONSULTANT shall personally perform the services covered by this
Agreement. CONSULTANT shall not assign any interest in this Agreement be
assigned without prior written approval of ASTRALIS LTD.
11a. CONSULTANT recognizes that all records, information and materials
(including but not limited to patentable subject matter and potential
trade secrets and know-how) that are received by CONSULTANT from ASTRALIS
LTD before or during the term of this Agreement and all copies made by
CONSULTANT of these records, information and materials are and shall
remain the property of ASTRALIS LTD, shall be held in strict confidence by
CONSULTANT during the term of this Agreement and for five (5) years
thereafter, shall be used by CONSULTANT solely for the purpose of
performing his obligations hereunder, and shall be returned at the
termination of this agreement or earlier at the specific request of
ASTRALIS LTD. CONSULTANT shall disclose promptly to ASTRALIS LTD all
inventions, discoveries, formulas, processes, computer programs,
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algorithms, designs, trade secrets, works of authorship related to or
directly relevant to ASTRALIS LTD Intellectual Property or research
results, whether or not fixed in a tangible medium of expression and other
information and know-how (collectively hereinafter "TECHNOLOGY") made,
discovered or developed by CONSULTANT either alone or in conjunction with
any other person or entity during the term of this Agreement. CONSULTANT
agrees that all TECHNOLOGY made, discovered, developed, authored, prepared
or conceived by CONSULTANT during the term of this Agreement in connection
with the furtherance of this Agreement whether alone or in combination
with another, whether or not on ASTRALIS LTD premises, shall belong
exclusively to ASTRALIS LTD. CONSULTANT acknowledges that no rights
whatsoever in the TECHNOLOGY are retained by CONSULTANT including the
right to prepare derivative works and that work of authorship shall be
deemed a work made for hire.
11b. CONSULTANT agrees to and hereby does assign all right, title and interest
in and to any TECHNOLOGY to ASTRALIS LTD. ASTRALIS LTD shall have the
right to apply for, prosecute, obtain, retain and transfer any and all
copyrights, trademarks, registrations, patents or any such similar right
or property interest arising from or in connection with the TECHNOLOGY.
CONSULTANT agrees to cooperate with and provide all reasonable assistance
to ASTRALIS LTD, its designees, assignees or licensees in connection with
the foregoing.
12. This Agreement constitutes the entire understanding between ASTRALIS LTD
and CONSULTANT. Both parties represent that they have the capacity to
enter into this Agreement and perform the obligations hereunder. This
Agreement or any amendment shall not be binding unless executed in writing
by ASTRALIS LTD and CONSULTANT.
13. This Agreement shall be construed in accordance with the laws of the State
of New Jersey, without regard to its conflict of laws provisions.
14. CONSULTANT has no actual authority, nor shall the CONSULTANT give the
impression of having apparent authority, to bind ASTRALIS LTD with regard
to any third parties.
15. If any provision of this Agreement shall be determined to be void,
invalid, unenforceable or illegal for any reason, it shall be ineffective
only to the extent of such prohibition and the validity and enforceability
of all the remaining provisions shall not be affected thereby. The failure
of either party to exercise any of its rights under this Agreement for a
breach thereof shall not be deemed to be a waiver of such rights, nor
shall the same be deemed to be a waiver of any subsequent breach, either
of the same provision or otherwise.
16. This agreement may be executed in one or more counterparts or duplicate
originals, all of which shall be considered one and the same agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day set
forth above.
ASTRALIS LTD
By: /s/ Xxxxxx X. Xxxxxxx By: /s/ Xxxxxxx X. Xxxxxx
--------------------- ---------------------
Xxxxxx X. Xxxxxxx Xxxxxxx X. Xxxxxx
Chairman of the Audit Committee of For Gar-1 Business Advisory Services
the Board of Directors of Astralis, Ltd. EIN: 00-0000000
October 6, 2006 October 6, 2006
Date Date
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SCHEDULE I
CONSULTANT AGREEMENT BETWEEN
ASTRALIS, LTD AND Gar-1 Business Advisory Services - MADE AS OF Wednesday,
October 6, 2006
Compensation:
Upon request by ASTRALIS LTD project director or his designee, CONSULTANT shall
provide consulting services to ASTRALIS LTD. As compensation for services
performed CONSULTANT shall receive an amount or amounts equal to:
(i) 10% of: any new funds invested in or paid to the COMPANY;
(ii) 10% of the total proceed received by the Company for the sale
of its assets or any other sale of the COMPANY (inclusive of
any indebtedness or other obligations assumed by any
acquirer);
(iii) 10% of the value received by the Stockholders of the Company
or of the cash invested in connection with the sale of the
corporate shell or any part of the COMPANY.
(for the avoidance of doubt, no amounts arising out of i, ii or iii
above shall be double counted).
The CONSULTANT will not be paid in connection with the cancellation of any
outstanding debt including notes payable or any interest or penalty payments
(associated with that debt) cancelled or for any other non-cash settlement of
any other claims against the COMPANY with the exception of settlement of trade
receivables.
Additionally, and notwithstanding any other limits or provisions provided for
herein, the CONSULTANT will be paid an amount equal to 10% of the amount of any
trade receivable reduction (not to exceed $50,000 in the aggregate), if any,
agreed upon by creditors through the efforts of CONSULTANT. CONSULTANT will be
paid by the purchaser immediately upon closing of any sale(s) or investment
transactions or agreement to reduce trade receivables.
The total amount paid to the CONSULTANT for services rendered under this
agreement will be based on the terms described in the previous paragraph, but
limited to the greater of $50,000 per transaction ((i), (ii) or (iii) above) or
$1,000 per day for services rendered beginning August 24. If the daily rate
applies, the CONSULTANT will be paid not more than $20,000 per month.
If this contract is terminated by the COMPANY prior to raising any new financing
or the sale of the COMPANY or its assets or its corporate shell or any part of
the COMPANY; and the COMPANY completes a transaction that results in the COMPANY
raising any new financing; or the sale of the COMPANY or its assets or its
corporate shell or any part of the COMPANY, the CONSULTANT shall receive $1,000
per day, not more than $20,000 per month for work performed between August 24
and the date of termination of the agreement. CONSULTANT will be paid upon the
closing of any sale(s) or investment transactions.
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Services:
a) Prepare and market ASTRALIS LTD for sale or additional investment.
ASTRALIS LTD may be sold in whole or parts (that is, the assets and
corporate shell may be sold separately) or a part of the COMPANY may be
sold to a new investor or new financing may be secured by the COMPANY.
b) Minimize through negotiation, where possible, the accounts payable and
other liabilities of ASTRALIS LTD.
ASTRALIS LTD agrees to cooperate with Consultant in the performance of the
foregoing services: Consultant shall keep in frequent contact with ASTRALIS LTD
project director or his designee, and shall file periodic written reports at
ASTRALIS LTD request. Consultant has a fiduciary duty to ASTRALIS LTD, and does
not now, and will not in the future represent, or accept compensation from, or
enter into conflicting arrangements with any other person relating to the agreed
Services without ASTRALIS LTD prior written consent.
ASTRALIS, LTD
By: /s/ Xxxxxx X. Xxxxxxx By: /s/ Xxxxxxx X. Xxxxxx
------------------------- -------------------------
Xxxxxx X. Xxxxxxx Xxxxxxx X. Xxxxxx
Chairman of the Audit Committee of For Gar-1 Business Advisory Services
the Board of Directors of Astralis, Ltd. - Consultant
October 6, 2006 October 6, 2006
Date Date
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