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EXHIBIT 10.45
CAPITAL ACCESS BUREAU, INC.
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT made this 27th day of May, 1997, by and between;
CAPITAL ACCESS BUREAU, INC.
000 Xxxxxxxxx Xxxxx / Xxxxx 0000
Xxxxxxxxx Xxxxxxx, Xx 00000
Telephone: (407) 865 - 9857
a Florida Corporation (hereinafter referred to as "CABI"), and;
National Diagnostics, Inc.
000 Xxxx Xxxxxxx Xxxx.
Xxxxxxx, Xxxxxxx 00000
(813) 661 - 9501
(hereinafter referred to as "COMPANY"), collectively CABI and COMPANY
hereinafter referred to as "the parties".
WITNESSETH:
WHEREAS, CABI is an investor relations, direct marketing,
publishing, public relations, funding arrangement and advertising firm with
expertise in the dissemination of information about private and publicly
traded companies; and is in the business of providing investor relations
services, public relations services, publishing, arranging funding,
financing of private placements, advertising services, fulfillment
services, marketing of business formats, promotion of investment
opportunities and other related programs, services and products that are
designed to develop a constituency for COMPANY throughout the investment
and financial community; and
WHEREAS, COMPANY is publicly held with its common stock
trading on one or more stock exchanges and/or over-the-counter; or COMPANY
desires to become a publicly held company with its common stock trading on
one or more stock exchanges and/or over-the-counter; or COMPANY is a
privately held company in search of financing, funding, public relations
or other services which CABI provides, and
WHEREAS, COMPANY desires to publicize itself with the
intention of making its name and business better known to shareholders,
investors, brokerage houses, analysts, institutions, potential investors,
investment bankers and various media; and
WHEREAS, CABI is willing to accept COMPANY as a client.
WHEREAS, COMPANY requires a service or services offerred by
CABI and desires to employ and/or retain CABI to provide such services as
an independent contractor, and CABI is agreeable to such a relationship
and/or arrangement, and the parties desire a written document formalizing
and defining their relationship and evidencing the terms of their
agreement;
THEREFORE, in consideration of the mutual covenants contained
herein and other good and valuable consideration, it is agreed as follows:
DEFINITIONS AND INTERPRETATIONS
1. CAPTIONS AND SECTION NUMBERS
The headings and section references in this Consulting Agreement are for
convenience of reference only and do not form a part of this Consulting
Agreement and are not intended to interpret, define or limit the scope,
extent or intent of this Consulting Agreement or any provisions thereof.
COMPANY Initial /s/CLA CABI Initial /s/DSR
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2. EXTENDED MEANINGS
The words "hereof", "herein", "hereunder", "hereto" and similar
expressions used in any clause, paragraph or section of this Consulting
Agreement and any Addendums and/or Exhibits attached to this Consulting
Agreement will relate to the whole of this Consulting Agreement including
any attached Addendums and/or Exhibits and not to that clause, paragraph
or section only, unless otherwise expressly provided.
3. SECTION REFERENCES AND SCHEDULES
Any reference to a particular "article", "section", "paragraph" or other
subdivision of this Consulting Agreement and any reference to a schedule,
exhibit or addendum by name, number and/or letter will mean the
appropriate schedule, exhibit or addendum attached to this Consulting
Agreement and by such reference is incorporated into and made part of this
Consulting Agreement.
AGREEMENT
4. AUTHORITY AND DESCRIPTION OF SERVICES
During the term of this Consulting Agreement CABI shall furnish various
professional services and advice as specifically requested by an
authorized representative of COMPANY. Said professional services and
advice shall relate to those services, items and/or subjects described in
Addendum "A", which is attached hereto and made a part hereof by this
reference, and/or as follows:
a. CABI shall act, generally, as corporate investor relations counsel,
essentially acting (1) as liaison between COMPANY and its shareholders;
(2) as advisor to COMPANY with respect to existing and potential market
makers, broker-dealers, underwriters, and investors as well as being the
liaison between COMPANY and such persons; and (3) as advisor to COMPANY
with respect to communications and information, which may include but is
not necessarily limited to, preparation of advertorials, writing of a
corporate profile, preparation of a research report, planning, developing,
designing, organizing, writing and distributing such communications and
information.
b. CABI shall assist in establishing, and advise COMPANY with respect
to: interviews of COMPANY officers by the financial media; interviews of
COMPANY officers by analysts, market makers, broker-dealers, and other
members of the financial community.
c. CABI shall seek to make COMPANY, its management, its products, and
its financial situation and prospects, known to the financial media,
financial publications, broker-dealers, mutual funds, institutional
investors, market makers, analysts, investment advisors, and other members
of the financial community as well as the public generally.
d. CABI, in providing the foregoing services, shall be responsible for
all costs of providing the services, including, but not limited to,
out-of-pocket expenses for postage, delivery service (e.g., Federal
Express), telephone charges, compensation to third party vendors,
copywriters, xxxxx xxxxxxx, art and graphic personnel, subcontractors,
printing, etc.
e. CABI's compensation under this Consulting Agreement shall be deemed
to include the above mentioned costs and expenses, unless otherwise
expressly provided herein.
5. TERM OF AGREEMENT
This agreement shall become effective upon execution hereof and shall
continue thereafter and remain in effect for a period of 12 Months and/or
in the case of specific services as described in Addendum "A" attached
hereto, until such time as such matters are finalized to the satisfaction
of both COMPANY and CABI. It is expressly acknowledged and agreed by and
between the parties hereto that CABI shall not be obligated to provide any
services and/or perform any work related to this Consulting Agreement
until such time any agreed and/or specified retainer (deposit, initial
fee, down-payment) in U.S. funds, and/or other specified and/or agreed
valuable consideration, has been received by CABI.
6. DUTIES OF COMPANY
COMPANY shall promptly supply CABI: with full and complete copies of all
filings with all federal and state securities agencies; with full and
complete copies of all shareholder reports and communications whether or
not prepared with the assistance of CABI; with all data and information
supplied to any analyst, broker-dealer, market maker, or other member of
the financial community; and with all product/services brochures, sales
materials, etc.
Company Initial /s/CLA CABI Initial /s/DSR
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7. REPRESENTATION AND INDEMNIFICATION
a. COMPANY hereby agrees to hold harmless and indemnify CABI against
any claims, demands, suits, loss, damages, etc., arising out of CABI's
reliance upon the instant accuracy and continuing accuracy of such facts,
materials, information, and data, unless CABI has been negligent in
performing its duties and obligations hereunder.
b. COMPANY shall cooperate fully and timely with CABI to enable CABI
to perform its duties and obligations under this Consulting Agreement.
c. The execution and performance of this Consulting Agreement by
COMPANY has been duly authorized by the Board of Directors of COMPANY in
accordance with applicable law, and, to the extent required, by the
requisite number of shareholders of COMPANY.
d. The performance by COMPANY of this agreement will not violate any
applicable court decree or order, law or regulation, nor will it violate
any provision of the organizational documents and/or bylaws of COMPANY or
any contractual obligation by which COMPANY may be bound.
e. COMPANY shall promptly deliver to CABI a complete due diligence
package to include latest 10K, latest 10Q, last 6 months of press releases
and all other relevant materials, including but not limited to corporate
reports, brochures, etc.
f. COMPANY shall promptly deliver to CABI a list of names and
addresses of all shareholders of COMPANY of which it is aware. This
shareholder list shall be upgraded at CABI's request. COMPANY agrees to
furnish to CABI a copy of all DTC sheets on a weekly basis.
g. COMPANY shall promptly deliver to CABI a list of all brokers and
market makers of COMPANY's securities, known to COMPANY, which have been
following COMPANY.
h. CABI's activities pursuant to this Consulting Agreement or as
contemplated by this Consulting Agreement do not constitute and shall not
constitute acting as a securities broker or dealer under federal or state
securities laws; any contact between CABI and a potential investor in
COMPANY shall be such that CABI would be acting merely as a promoter,
finder or consultant with respect to such prospective investor obligations
under this agreement.
8. COMPENSATION
a. Compensation and/or fees payable to CABI for all general investor
relations services, public relations services and all other services
hereunder, including but not limited to funding, financing, promotional,
acquisition and merger services, shall be paid by COMPANY to CABI by the
means and in the manner or manners as described in "Addendum A", a copy of
which is attached hereto and incorporated herein by this reference.
b. All moneys payable hereunder shall be in U.S. funds and drawn on
U.S. banks. The parties acknowledge that in negotiating this compensation
and/or fee(s) they recognized that the services will probably not be
performed in equal monthly segments, but may be substantial during the
earlier portion of the term and less thereafter as relationships and
communication lines are established, or visa-versa. Thus, part of the
compensation for earlier services will be deferred and therefore any
lessening of services shall not constitute a breach or termination hereof
and the level compensation or fee shall continue.
c. For all special services, not within the scope of this Consulting
Agreement, COMPANY shall pay to CABI such compensation and/or fee(s) as,
and when, the parties shall determine in advance of performance of said
special services, provided COMPANY has agreed to said special services.
9. BILLING AND PAYMENT
Monthly fees or payments shall be due and payable without billing. Billing
and payments for special services shall be as agreed on a case by case
basis. COMPANY acknowledges and agrees that deposits, initial payments,
down payments, partial payments, payments for special services, monthly
fees or monthly payments shall be by wire to CABI's bank account upon
execution of any agreement or agreements, or; upon payment due date in the
case of monthly fees or monthly payments, or; in the case of special
services by the first day of the preceding month that work is scheduled to
be performed, unless expressly provided otherwise in writing, and that if
such funds are not received by CABI by said date COMPANY shall pay to CABI
an additional operations charge equal to 1% for each fifteen (15) day
period said funds are not received.
10. AMENDMENTS
This agreement may be modified or amended, provided such modifications or
amendments are mutually agreed upon by and between the parties hereto and
that said modifications or amendments are made in writing and signed by
both parties.
COMPANY Initial /s/CLA CABI Initial /s/DSR
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11. SEVERABILITY
If any provision of this agreement shall be held to be contrary to law,
invalid or unenforceable for any reason, the remaining provisions shall
continue to be valid and enforceable. If a court finds that any provision
of this agreement is contrary to law, invalid or unenforceable, and that
by limiting such provision it would become valid and enforceable, then
such provision shall be deemed to be written, construed, and enforced as
so limited.
12. TERMINATION OF AGREEMENT
This Consulting Agreement may not be terminated by either party prior to
the expiration of the term provided in Paragraph 5 above except as
follows:
a. Upon the bankruptcy or liquidation of the other party; whether
voluntary or involuntary;
b. Upon the other party taking the benefit of any insolvency law;
and/or
c. Upon the other party having or applying for a receiver appointed
for either party.
d. As provided for in Paragraph 16 below.
a. Upon sale or change of ownership of COMPANY.
a. After six (6) months COMPANY may opt to terminate contract by
serving CABI with a thirty (30) day notice of intent to terminate.
b. Upon termination all unexercised options will be null and void.
13. ATTORNEY FEES
In the event either party is in default of the terms or conditions of this
Consulting Agreement and legal action is initiated or suit be entered as a
result of such default, the prevailing party shall be entitled to recover
all costs incurred as a result of such default including all costs,
reasonable attorney fees, expenses and court costs through trial, appeal
and to final disposition.
14. NON-WAIVER
The failure of either party, at any time, to require any such performance
by any other party shall not be constructed as a waiver of such right to
require such performance, and shall in no way affect such party's right to
require such performance and shall in no way affect such party's right
subsequently to require full performance hereunder.
15. DISCLAIMER BY CABI
CABI shall be the preparer of certain promotional materials, and; CABI
makes no representation to COMPANY or others that; (a) its efforts or
services will result in any enhancement to COMPANY (b) the price of
COMPANY'S publicly traded securities will increase (c) any person will
purchase COMPANY's securities, or (d) any investor will lend money to
and/or or invest in or with COMPANY.
16. EARLY TERMINATION
In the event COMPANY fails or refuses to cooperate with CABI, or fails or
refuses to make timely payment of the compensation set forth above and/or
in Addendum "A", CABI shall have the right to terminate any further
performance under this agreement. In such event, and upon notification
thereof, all compensation shall become immediately due and payable and/or
deliverable, and CABI shall be entitled to receive and retain the same as
liquidated damages and not as a penalty, in lieu of all other remedies the
parties hereby acknowledge and agree that it would be too difficult
currently to determine the exact extent of CABI's damages, but that the
receipt and retention of such compensation is a reasonable present
estimate of such damage.
17. LIMITATION OF CABI LIABILITY
In the event CABI fails to perform its work or services hereunder, its
entire liability to COMPANY shall not exceed the lessor of; (a) the amount
of cash compensation CABI has received from COMPANY under Paragraph 13
above (b) the amount of cash compensation CABI has received from COMPANY
under Addendum "A", or (c) the actual damage to COMPANY as result of such
non-performance. In no event shall CABI be liable to COMPANY for any
indirect, special or consequential damages, nor for any claim against
COMPANY by any person or entity arising from or in any way related to this
agreement.
18. MISCELLANEOUS
a. Currency: In all instances, references to dollars shall be deemed
to be United States Dollars.
b. Stock: In all instances, references to stock shall be deemed to be
unrestricted and free trading.
COMPANY Initial /s/CLA CABI Initial /s/DSR
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19. NOTICES
All notices hereunder shall be in writing and addressed to the party at
the address first set forth above, or at such other address which notice
pursuant to this section may be given, and shall be given by either
personal delivery, regular mail, certified mail, express mail or other
courier services. Notices shall be deemed given upon the earlier of actual
receipt or three (3) business days after being mailed or delivered by
courier service to such address. Any notices to be given hereunder shall
be effective if executed by and sent by the attorneys for the parties
giving such notice, and in connection therewith the parties and their
respective counsel agree that in giving such notice such counsel may
communicate directly in writing with such parties to the extent necessary
to give such notice.
20. EXCLUSION WITH RESPECT TO PARTNERSHIP
The parties agree that, in no way, shall this Consulting Agreement be
construed as being an act of partnership between the parties hereto and
that no party hereto shall have, as a result of the execution of this
Consulting Agreement, any liability for the commitments of any other party
of any type, kind or sort.
21. TIME IS OF THE ESSENCE
Time is hereby expressly made of the essence of this Consulting Agreement
with respect to the performance by the parties of their respective
obligations hereunder.
22. ENUREMENT
This Consulting Agreement shall enure to the benefit of and be binding
upon the parties hereto and their respective heirs, executors,
administrators, personal representatives, successors, assigns and any
addenda's attached hereto.
23. ENTIRE AGREEMENT
This Consulting Agreement contains the entire agreement of the parties and
may be modified or amended only by agreement in writing, signed by the
party against whom enforcement of any waiver, change, amendment,
modification, extension or discharge is sought. It is declared by both
parties that there are no oral or other agreements or understanding
between them affecting this Consulting Agreement, or relating to the
business of CABI. This agreement supersedes all previous agreements
between CABI and COMPANY.
24. APPLICABLE LAW
This Agreement is executed pursuant to and shall be interpreted and
governed for all purposes by the laws of the State of Florida for which
the Courts in Orange County, Florida shall have jurisdiction. If any
provision of this Consulting Agreement is declared void, such provision
shall be deemed severed from this agreement, which shall otherwise remain
in full force and effect.
25. EXECUTION IN COUNTERPART; TELECOPY-FAX
This Consulting Agreement may be executed in counterparts, not
withstanding the date or dates upon which this Consulting Agreement is
executed and delivered by any of the parties, and shall be deemed to be an
original and all of which will constitute one and the same agreement,
effective as of the reference date first written above. The fully executed
telecopy (fax) version of this Consulting Agreement shall be construed by
all parties hereto as an original version of said Consulting Agreement.
IN WITNESS WHEREOF, the parties hereto have set their hands in
execution of this agreement.
For and in behalf of; COMPANY: For and in behalf of; CABI:
XXXXXX X. XXXXXXXX CAPITAL ACCESS BUREAU, INC.
XXXXX X. XXXXXX
By /s/Xxxxxx X. Xxxxxxx By /s/Xxxxx X. Xxxxxxxx
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XXXXXX X. XXXXXXXX, PRES. & COO XXXXX X. XXXXXXXX, PRESIDENT
By /s/Xxxxx X. Xxxxxx
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XXXXX X. XXXXXX, CEO
COMPANY Initial /s/CLA CABI Initial /s/DSR
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CONSULTING AGREEMENT
ADDENDUM "A"
Page 1 of 3 pages
COMPENSATION TO CABI
(A.) Valuable Compensation due CABI - Total U.S. Dollar value;
$ Three Hundred Fifty thousand Dollars ($350,000.), payable as follows:
(B.) $ ______ZERO____________________________ in U.S. Dollars; (and) (or)
(C.) Valuable Compensation due CABI as per following schedule:
1. 14,583. Shares due upon execution of Consulting Agreement.
2. 14,583. Shares due July 18,1997
3. 14,583. Shares due August 22,1997
4. 14,583. Shares due September 26,1997
5. 14,583. Shares due October 24,1997
6. 14,583. Shares due November 28,1997
7. 14,583. Shares due January 3,1998
8. 14,583. Shares due February 7,1998
9. 14,583. Shares due March 14,1998
10. $43,750. Payable quarterly in shares at current market value
with first quarterly payment due August 18,1997.
(D.) CABI agrees to accept compensation in the form of restricted and
unregistered shares of common stock of the Company. Such shares value is to be
determined by averaging the closing bid of the stock over the five (5) days
preceding the due dates in paragraph (A.). Company agrees to register shares to
meet requirements of this agreement.
(E.) COMPANY Stock Options which, if any, such Stock Options are described as
follows;
1) Incentive Stepped Options
stepped up in Six steps of seventy-five thousand 75,000 shares each
step; stepped up in Fifty (cent) increments per each step; and
beginning at $1.50 (dollars) 2) CABI AGREES TO EXECUTE ANY IN THE
MONEY OPTIONS QUARTERLY THROUGHOUT THE TERM OF THE AGREEMENT.
(F.) COMPANY acknowledges and agrees CABI shall not provide or continue to
provide services until all such compensation(s) or fee(s) are paid as agreed
herein. COMPANY acknowledges that it has verified with its corporate council,
accountants, corporate officers, board of directors, executive decision makers,
and appropriate stock exchanges that said compensation, fee or stock can, in
fact, be timely delivered to CABI as agreed.
For and in behalf of COMPANY: For and in behalf of CABI:
NATIONAL DIAGNOSTICS, INC. CAPITAL ACCESS BUREAU, INC.
BY /s/Xxxxxx X. Xxxxxxx BY /s/Xxxxx X. Xxxxxxxx
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XXXXXX X. XXXXXXXX, PRES. & COO XXXXX X. XXXXXXXX, PRESIDENT
BY /s/Xxxxx X. Xxxxxx
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XXXXX X. XXXXXX, CEO
COMPANY Initial /s/CLA CABI Initial /s/DSR
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CONSULTING AGREEMENT
ADDENDUM "A"
Page 2 of 3 pages
STOCK COMPENSATION AGREEMENT
(1.) It is mutually agreed by and between the parties hereto that in the
event CABI opts or agrees to accept COMPANY's stock, either now or in the
future, as full or partial payment for any part or portion of CABI's
compensation or fee under this Consulting Agreement, that the number of
such shares necessary for such compensation shall be determined pursuant
to a averaging formula or computation that is based upon the 5 day
previous average bid price as of the date of execution of this Consulting
Agreement or upon the 5 day previous average bid price as of the date of
actual transfer of said shares to CABI's account, or upon such other
subsequent written agreement for CABI to accept said stock as alternative
compensation.
(2.) COMPANY acknowledges and agrees CABI shall not provide or continue to
provide services until all such alternative compensation(s) and/or fees
are paid. COMPANY acknowledges that it has verified with its corporate
council, accountants, corporate officers, board of directors, executive
decision makers, and appropriate stock exchanges that said stock can, in
fact, be timely delivered to CABI as agreed.
For and in behalf of COMPANY: For and in behalf of CABI:
NATIONAL DIAGNOSTICS, INC. CAPITAL ACCESS BUREAU, INC.
/s/Xxxxxx X. Xxxxxxxx /s/Xxxxx X. Xxxxxxxx
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XXXXXX X. XXXXXXXX, PRES. & COO XXXXX X. XXXXXXXX, PRESIDENT
/s/Xxxxx X. Xxxxxx
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XXXXX X. XXXXXX, CEO
COMPANY Initial /s/CLA CABI Initial /s/DSR
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CONSULTING AGREEMENT
ADDENDUM "A"
Page 3 of 3 pages
GENERAL DESCRIPTION OF CABI SERVICES
(A.) Market Relations
(B.) Direct Marketing
(C.) Public Relations
(D.) Promotion
(E.) Funding
For and in behalf of COMPANY: For and in behalf of CABI:
NATIONAL DIAGNOSTICS, INC. CAPITAL ACCESS BUREAU, INC.
/s/Xxxxxx X. Xxxxxxxx /s/Xxxxx X. Xxxxxxxx
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XXXXXX X. XXXXXXXX, PRES. & COO XXXXX X. XXXXXXXX, PRESIDENT
/s/Xxxxx X. Xxxxxx
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XXXXX X. XXXXXX, CEO
DATE DATE 5/27/97
COMPANY Initial /s/CLA CABI Initial /s/DSR
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