CONSULTING AGREEMENT
This Consulting Agreement (the “Agreement”)
is made as of this 23rd day
of April 2010, between Shrink Nanotechnologies, Inc., a Delaware corporation
(the "Company"),
and Xxxxx Xxxxxxxx (the "Consultant")
and shall be effective upon execution by the Company and the Consultant (the
"Effective
Date"). The Company and the Consultant are collectively
referred to herein as the “Parties.”
The Consultant has a long history of
experiences and successes in a business area which shall broadly be referred to
as the diagnostics, life sciences and biotech fields, and these fields are of
particular interest to the Company. The Company wishes to retain the
Consultant in a consulting capacity and as a member of one or more panels (a
“Panel”)
of the chair of the Company's Product Development and Commercialization
Committee (Life Sciences) or such other committee having similar duties of the
Company (the “PDC”),
and as a member of the board of directors or co-manager of the Company’s wholly
owned subsidiary to be formed, Shrink Chips, LLC (“Shrink
Chips”), and the Consultant desires to perform such consulting services
and serve on the board of Shrink Chips. Accordingly, the Parties agree as
follows:
1. Services. The
Consultant will advise the Company's management, employees and agents, at
reasonable times, in matters related to the relevant field of interest (“Field of
Interest”), as requested by the Company and set forth in Exhibit A attached
hereto. Consultant will provide consulting services, which shall
amount to not less than two days per month, as reasonably requested by the
Company and as the Consultant’s schedule
permits. Consultation may be sought by the Company over
the telephone, in person, at the Company's offices or another reasonable
location or through written correspondence, and will involve reviewing
activities and developments in the Field of Interest. Additionally,
Consultant may be requested to attend, to the extent Consultant’s schedule
permits, one or more in person meetings with other members of a Panel or the PDC
or attend investor, trade or science symposiums or shows from time to time upon
reasonable notice being given to the Consultant, in keeping with the terms of
this Agreement.
1.1 Strategic
Parties. As a part of this Agreement, Consultant is to assist
the Company in developing new relevant business relationships with strategic
parties in the United States and around the world. For the purposes
Section 3.3 of
this Agreement, any such party shall be referred to as a “Strategic
Party” and such a Strategic Party shall retain such a definition under
Section 3.3 of
this Agreement until the earlier date of either (i) two years subsequent to the
Term, or (ii) immediately following the date which Consultant is not serving as
a member of the Company’s Board of Directors.
1.1.1 Consultant
shall provide Company with reasonable notice (“SP
Notice”) of a referral to a potential Strategic Party. For
five (5) business days following a SP Notice, Company shall have the right to
disclose to Consultant any prior business contacts or relationships with a
potential Strategic Party (a “Notice of
Prior Contacts”). In the event Company fails to provide a
Notice of Prior Contacts, such a potential Strategic Party shall become a
Strategic Party under Section 3.3 of this Agreement.
2. Term and
Termination. The term of this Agreement will begin on the
Effective Date of this Agreement and will end on the first year anniversary
(based on a 360 day year containing four (4) ninety (90) day quarterly periods)
of this Agreement or upon earlier termination as provided below (the "Term"); provided, however, that the
Term may be renewed, by mutual consent of the Parties, for successive one-year
periods. This Agreement may be terminated at any time upon sixty (60) days
written notice by either party. The Consultant agrees, following the
termination of this Agreement or upon earlier request by the Company, to
promptly return all drawings, tracings, and all visual or written materials in
the Consultant’s possession that were supplied by the Company in conjunction
with the Consultant’s consulting services under this Agreement, or generated by
the Consultant in the performance of consulting services under this
Agreement.
3. Compensation. Consultant
shall receive option based compensation upon entering into this Agreement and
cash compensation as follows:
3.1 Hourly Compensation;
Commencing Six Month Anniversary of Term. Consultant shall be
compensated an hourly fee of $250.00 for all work requested to be performed by
the Company, whether such work is performed by or for the Company or its
subsidiary after the six month anniversary of date of entry into this
Agreement. The Parties agree that work assignments, if and as they
come along, will be made by the Company on an as needed basis and shall be
within budgets agreed to in advance so as to avoid payment dispute.
3.2 Option Based
Compensation. The Consultant shall, upon commencement of the
Term, receive a stock option grant, granting Consultant the right to acquire
250,000 shares of the Company’s common stock, par value $.001 per share (the
“Option
Shares”), at an exercise price equal to the most recent closing bid price
of the Company’s common stock prior to the date of signing hereof, which option
will vest only upon the Company’s achieving of revenues from sales of its Shrink
Chips related products (or licensing revenues), of $500,000 per annum, as
reported on the first annual report indicating such results. The
foregoing options will be exercisable through three years after the date of this
Agreement, and the number of Option Shares underlying the option and the
exercise price shall be adjustable in the event of forward or reverse stock
splits, combinations, recapitalizations or similar corporate
actions.
3.2.1 Consultant
understands that any restricted shares, and any securities issued in respect
thereof, shall bear the following legend:
“THE
SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AND HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A
VIEW TO, OR IN CONNECTION WITH, THE SALE OR DISTRIBUTION THEREOF. THESE
SECURITIES MAY NOT BE OFFERED, SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF UNLESS
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND ANY APPLICABLE
STATE SECURITIES LAWS OR AN EXEMPTION FROM SUCH REGISTRATION IS
AVAILABLE.
3.3 Additional Success
Fees. The below success fees shall be paid within ninety days
subsequent to the end of the Company’s fiscal year end (December 31) from cash
received by the Company from either: (i) sublicensing agreements the Company
enters into with Strategic Parties or (ii) the sale of goods or services to a
Strategic Party. Cash received by the Company related to this Section
3.3 shall be referred to as “Strategic
Party Cash.” Consultant shall be paid the greater dollar value
in Success Fees as follows:
3.3.1 Net
of all royalties and dividends payments, five percent (5%) of sublicensing
Strategic Party Cash received by the Company from a Strategic Party;
or
3.3.2 Net
of costs of goods or services and a pro-rata allocation of sales, general and
administrative costs, three percent (3%) of the earnings received by the Company
from the sale of goods and services to or through a Strategic
Party.
3.3.3 Consultant
shall work in good faith with the Company and its board members, so as to avoid
introducing Strategic Parties for whom other Consultants may have already been
in contact. In the event that Consultant introduces a Strategic Party
in conjunction with the efforts of one or more other consultants or persons
receiving a fee from the Company for such services, then the foregoing fees
shall be split among the Consultant and such other third parties in any way they
desire, provided, however, that under no circumstances shall the Company be
required to pay multiple fees to Consultants and other consultants or agents
(i.e. fees multiple consultants in conjunction with the introduction of a single
Strategic Party).
3.4.
The maximum amount of payments which may become due to Consultant under Section
3.3.1 and 3.3.2 and 3.3.3 shall be three million dollars
($3,000,000).
3.5 The
Company shall reimburse the Consultant for all pre-approved and reasonable
expenses incurred in the performance of this Agreement, including, e.g., travel,
lodging, meals and other approved expenses.
4. Certain Other
Contracts. Company is aware that Consultant is involved in
several professional engagements with various commercial
entities. The Consultant will not disclose to the Company any
information that the Consultant is obligated to keep secret pursuant to an
existing confidentiality agreement with a third party, and nothing in this
Agreement will impose any obligation on the Consultant to the
contrary. The consulting work performed hereunder will not be
conducted on time that is required to be devoted to any other third party. The
Consultant shall not use the funding, resources and facilities of the any other
third party to perform consulting work hereunder and shall not perform the
consulting work hereunder in any manner that would give any third party rights
to the product of such work. The Consultant has disclosed and, during
the Term, will disclose to the President of the Company any conflicts between
this Agreement and any other relevant agreements binding the
Consultant.
5. Direction of Projects and
Inventions to the Company. Subject to the Consultant's obligations under
any confidentiality or other written obligations to third parties (including
academic institutions which Consultant is employed by), during the Term of this
Agreement, the Consultant will use his best efforts to disclose to the President
of the Company, on a confidential basis, technology and product opportunities
which come to the attention of the Consultant in the Field of Interest, and any
invention, improvement, discovery, process, formula or method or other
intellectual property relating to or useful in, the Field of Interest
(collectively "New
Discoveries"), whether or not patentable or copyrightable, and whether or
not discovered or developed by Consultant.
6. Inventions Discovered by the
Consultant While Performing Services Hereunder. The Consultant will
promptly and fully disclose to the President of the Company any invention,
improvement, discovery, process, formula, technique, method, trade secret, or
other intellectual property, whether or not patentable, whether or not
copyrightable (collectively, "Invention")
made, conceived, developed, or first reduced to practice by the Consultant,
either alone or jointly with others, while performing services hereunder,
whether for the Company or any subsidiary or affiliate of the Company. The
Consultant hereby assigns to the Company all of his right, title and interest in
and to any such Inventions. The Consultant will execute any documents necessary
to perfect the assignment of such Inventions to the Company and to enable the
Company to apply for, obtain, and enforce patents or copyrights in any and all
countries on such Inventions. The Consultant hereby irrevocably designates the
Secretary of the Company as his agent and attorney-in-fact to execute and file
any such document and to do all lawful acts necessary to apply for and obtain
patents and copyrights, and to enforce the Company's or any subsidiary’s or
affiliates’ rights under this paragraph. This Section 6 will survive the
termination of this Agreement.
7. Confidentiality.
7.1 The
Consultant acknowledges that, during the course of performing his services
hereunder, the Company (which, for purposes of this Section 7 shall be deemed to
be defined as the Company and any subsidiary of the Company) will be disclosing
information to the Consultant, and the Consultant will be developing information
related to the Field of Interest, Inventions, projects, products, potential
customers, personnel, business plans, and finances, as well as other
commercially valuable information (collectively "Confidential
Information"). The Consultant acknowledges that the Company's business is
extremely competitive; dependent in part upon the maintenance of secrecy, and
that any disclosure of the Confidential Information would result in serious harm
to the Company. The Consultant agrees that the Confidential
Information will be used by the Consultant only in connection with consulting
activities hereunder, and will not be used in any way that is detrimental to the
Company. The Consultant agrees not to disclose, directly or
indirectly, the Confidential Information to any third person or entity, other
than representatives or agents of the Company. The Consultant will treat all
such information as confidential and proprietary property of the
Company. The term "Confidential
Information" does not include information that (i) is or becomes
generally available to the public other than by disclosure in violation of this
Agreement, (ii) was within the relevant party's possession prior to being
furnished to such party, (iii) becomes available to the relevant party on a
non-confidential basis, or (iv) was independently developed by the relevant
party without reference to the information provided by the
Company. The Consultant may disclose any Confidential Information
that is required to be disclosed by law, government regulation or court order.
If disclosure is required, the Consultant will give the Company advance notice
so that the Company may seek a protective order or take other action reasonable
in light of the circumstances. Upon termination of this Agreement,
the Consultant will promptly return to the Company all materials containing
Confidential Information as well as data, records, reports and other property,
furnished by the Company to the Consultant or produced by the Consultant in
connection with services rendered hereunder, together with all copies of any of
the foregoing. Notwithstanding such return, the Consultant shall continue to be
bound by the terms of the confidentiality provisions contained in this Section 7
after the termination of this Agreement.
7.2 If
the Consultant has a conflict of interest, or potential conflict of interest,
with respect to any matter presented at a meeting of the PDC, he shall excuse
himself from the discussion of such matter and at the time of the execution of
this Agreement, Consultant shall disclose and describe all potential conflicts
of interest that may arise from the execution of this Agreement with respect to
prior engagements Consultant is a party to.
8. [Reserved.]
9. Use of Name. It is
understood that the name of the Consultant will appear in disclosure documents
required by securities laws, and in other regulatory, administrative filings and
public relations materials in the ordinary course of the Company's business. The
above-described uses will be deemed to be acceptable uses.
10. No Conflict: Valid and
Binding. The Consultant represents that neither the execution of this
Agreement nor the performance of the Consultant's obligations under this
Agreement will result in a violation or breach of any other agreement by which
the Consultant is bound. The Company represents that this Agreement has been
duly authorized and executed and is a valid and legally binding obligation of
the Company, subject to no conflicting agreements.
11. Notices. Any notice
provided under this Agreement shall be in writing and shall be deemed to have
been effectively given (i) upon receipt when delivered personally, (ii) one day
after sending when sent by private express mail service (such as Federal
Express), or (iii) 5 days after sending when sent by regular mail to the
following address:
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In the case of the Company:
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In the case of the
Consultant:
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Attention:
Xxxxx Xxxxxxxx
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0000
Xxxxx xxx Xxxxx, Xxxxx 000
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____________________
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Xxxxxxxx,
Xxxxxxxxxx 00000
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_____,
California 94506
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or to
other such address as may have been designated by the Company or the Consultant
by notice to the other given as provided herein.
12. Independent Contractor:
Withholding. The Consultant will at all time be an independent
contractor, and as such will not have authority to bind the Company. The Parties
acknowledge that this Agreement is not a contract within the meaning of Section
2750 of the California Labor Code, and the Consultant is not an employee of the
Company for any purpose under the California Labor Code. Consultant
will not act as an agent nor shall he be deemed to be an employee of the Company
for the purposes of any employee benefit program, unemployment benefits, or
otherwise. The Consultant recognizes that no amount will be withheld from his
compensation for payment of any federal, state, or local taxes and that the
Consultant has sole responsibility to pay such taxes, if any, and file such
returns as shall be required by applicable laws and regulations. Consultant
shall not enter into any agreements or incur any obligations on behalf of the
Company.
13. Assignment. Due to
the personal nature of the services to be rendered by the Consultant, the
Consultant may not assign this Agreement. The Company may assign all rights and
liabilities under this Agreement to a subsidiary or an affiliate or to a
successor to all or a substantial part of its business and assets without the
consent of the Consultant. Subject to the foregoing, this Agreement will inure
to the benefit of and be binding upon each of the heirs, assigns and successors
of the respective parties.
14. Severability. If any
provision of this Agreement shall be declared invalid, illegal or unenforceable,
such provision shall be severed and the remaining provisions shall continue in
full force and effect.
15. Remedies. The
Consultant acknowledges that the Company would have no adequate remedy at law to
enforce Sections 4, 5, 6 and 7 hereof. In the event of a violation by the
Consultant of such Sections, the Company shall have the right to obtain
injunctive or other similar relief, as well as any other relevant damages,
without the requirement of posting bond or other similar measures.
16. Governing Law; Entire
Agreement; Amendment. This Agreement shall be governed by the laws of the
State of California applicable to agreements made and to be performed within
such State, represents the entire understanding of the parties, supersedes all
prior agreements between the parties, and may only be amended in
writing.
IN
WITNESS WHEREOF, the parties have executed this Agreement as of the date first
written above.
Shrink
Nanotechnologies,
Inc. Consultant
____________________________ _____________________________
By: Xxxx
X.
Xxxx
By: Xxxxx Xxxxxxxx
Its:
CEO
an individual
Exhibit
A
Fields of
Interest
The
Consultant has reviewed information provided by the Company and other
information which may be publicly available on the world-wide-web, and is
familiar with the specific research efforts and business projects that the
Company is engaged in and is actively pursuing. Additionally,
Consultant has previously met with representatives of the Company on an informal
basis and has some basic understanding of the technology the Company has access
to and the projects that the Company is pursuing.
The
Company wishes to pursue the development of strategic relationships in order to
make its technologies commercially relevant and available in the US domestic and
international marketplaces. More specifically, the Company is
interested in developing strategic relationships in the solar, biotech and
biomedical businesses.
Description of
Services
Assist
management of the Company by:
1. Evaluate
merger and acquisition opportunities in the diagnostics field;
2. Assist
in shaping the general business direction of the Company;
3. Participate
in meetings with potential investors;
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4.
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Recruiting
of Business Advisory Board Members, PDC members, prospective Board members
to the Company Board of Directors and Consultants to the
Company;
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5. Recruiting
full-time management and personnel to the Company;
6. Reviewing
the feasibility of the business goals of the Company and developing strategies
for achievingthem;
7. Identifying
and developing relationships with potential strategic partners;
8. Identifying,
reviewing and advising the Company, in a form (oral, writing or other) that is
generallyacceptable by scientists
advising businesspersons in order to be reasonably commercially useful, as to
themost recent scientific
advances in the Field of Interest, as well as other scientific developments and
intellectual property in the Field of Interest; and
9. Providing
advice, support, theories, techniques and improvements in the Company's
commercial productdevelopment
activities.
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10.
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Manage
the overall development, commercialization and implementation of the
manufacturing process for the biotech research tools and diagnostic
technology, including, without limitation, the stem disk family of
products as further described in the Company’s Stem Disk power point
presentation.
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CV
See
Exhibit B
Prior Engagements and
Potential Conflicts of Interest*
* Only include engagements
which are either (i) within the past 3 years, and (ii) relevant engagements
prior to the past three years which may affect the Consultant’s performance
under this Agreement
Name of
Company Area
of Consultation
Exhibit
B
Curriculum
Vitae of Xxxxx Xxxxxxxx
