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EXHIBIT 4
CONSULTING AGREEMENT
Consulting Agreement, dated June 10, 1999 ("Agreement"), between ADVANCED
PLANT PHARMACEUTICALS, INC., a Delaware corporation ("APPI"), with offices at 00
Xxxxxx Xxxx, Xxx Xxxx, Xxx Xxxx 00000, and X. X. Xxxxxxxxx ("Consultant"), who
resides at _______________________.
W I T N E S S E T H
WHEREAS, Consultant is in the business of providing consulting services
to companies engaged in the pharmaceutical industry and has been so engaged for
in excess of two years;
WHEREAS, APPI is engaged in the business of developing, manufacturing and
distributing plant based pharmaceutical products; and
WHEREAS, APPI seeks to secure the services of Consultant as a consultant
to advise it in the acquisition of new pharmaceutical products and in the areas
of developing, manufacturing and marketing pharmaceutical products and to render
general business advice in connection with the pharmaceutical industry as APPI
expands and develops additional consumer products.
NOW, THEREFORE, in consideration of the mutual covenants set forth
herein, the pates agree as follows:
1. APPI hereby engages Consultant as a consultant, on a non-exclusive
basis, and Consultant hereby agrees to provide consulting services to APPI in
connection with APPI's business, including, but not limited to, business
development, acquisitions, corporate finance, product development, manufacturing
and analysis and marketing. Consultant shall devote such time and methods of
business as it determines in its sole discretion to carry out the engagements
undertaken by it for APPI. Notwithstanding the above, Consultant shall not have
the authority to commit or bind APPI, including, but not limited to, entering
into any agreements or contracts, without the prior written approval of APPI.
2. This Agreement shall replace that certain Consulting Agreement
dated September 5, 1996, by and between APPI and the Consultant (the "1996
Agreement"), which 1996 Agreement shall no longer be in effect as of the date
hereof. APPI will continue to retain the consulting services of the Consultant
for a period commencing on June 10, 1999 and ending on June 10, 2002. This
Agreement and the obligations to pay the compensation set forth in Paragraphs
3(a) and (b) hereof may be sooner terminated as follows: (a) upon twenty (20)
days written notice by APPI to Consultant (the giving of which is authorized by
APPI's Board of Directors) as a result of the breach by Consultant of any
material provision of this Agreement and the failure of Consultant to cure such
breach within such twenty (20) day period (the notice, however, must specify the
alleged breach with particularity), (b) on written notice by APPI (the giving of
which is authorized by APPI's Board of Directors) to Consultant effective
immediately because of the misappropriation or
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embezzlement by Consultant of APPI's funds (the notice, however, must specify
the alleged misappropriation or embezzlement with particularity), or (c) upon
notice to Consultant, in which notice the last date of Consultants services is
specified. Notwithstanding the foregoing, in the event APPI terminates
Consultant's services pursuant to clause (c) of the preceding sentence, APPI
shall pay Consultant the equivalent of the lesser of nine months fees under
paragraph 3(a) below or the fees remaining due to the end of the term of this
Agreement from the date of termination.
3. In consideration for past and future services rendered and to be
rendered by Consultant to APPI, APPI agrees to compensate Consultant as follows:
(a) APPI will pay Consultant the sum of $9,000 per month during
the term of this Agreement as consideration for Consultant's services. This
consideration will be payable on the first day of each month, in advance.
(b) As additional consideration for the services of Consultant
under this Agreement, Consultant will be granted, under separate agreement, an
option to purchase 750,000 shares of common stock of APPI ("Option Shares"),
exercisable at $.02 (two cents) per share, such right to vest as of the date
hereof in accordance with a separate stock option agreement in the form as
attached hereto. The option granted shall provide for adjustment to maintain the
proportionate interest in APPI and the aggregate option price, in the event of
stock splits, stock dividends or combination of shares.
(c) APPI agrees to reimburse Consultant for its direct expenses
incurred in the providing of services under this Agreement to APPI, upon the
presentation to APPI of reasonably itemized accounts.
4. (a) If APPI proposes to file a registration statement under the
Securities Act of 1933, as amended ("Act"), with respect to an offering for any
class of its securities (other than a registration statement on Form S-4 or
successor forms thereto or filed in connection with an exchange offer or
business combination or an offering of securities solely to the Company's
existing stockholders) prior to June 10, 2002, then APPI shall in each case give
written notice of such proposed filing to Consultant at least thirty days before
the anticipated filing date, and such notice shall offer Consultant the
opportunity to register such number of Option Shares as Consultant may request.
Upon the written request of Consultant made within twenty days of receipt of
such notice, APPI shall include the shares of Common Stock as Consultant
determines in such registration statement. Notwithstanding the foregoing, if the
managing underwriter or underwriters of an offering of securities to be made by
APPI for its account objects to the inclusion of the Common Stock to be offered
by Consultant in the registration statement for the securities it or they are
underwriting, and such managing underwriter delivers or underwriters deliver a
written opinion to Consultant that the total number of shares which it, APPI and
any other persons or entities intend to include in such offering may adversely
affect the success or offering price of the offering by APPI, then the number of
shares of Common Stock to be offered for the account of Consultant shall be
reduced to the extent necessary to reduce the total amount of securities to be
included in the offering to the amount recommended by the managing underwriter
or underwriters (or, if applicable, excluding the shares of Common Stock
entirely); provided that if shares of Common Stock are being offered for the
account of other persons or entities as well as
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APPI, the reduction shall be prorated with the other persons or entities, and
shall not represent a greater fraction of the number of shares of Common Stock
intended to be offered by Consultant than the fraction of similar reductions
imposed on such other persons or entities, other than APPI, over the amount of
securities they intend to offer. In the event that the registration proposed by
APPI is an underwritten primary offering of its securities and Consultant does
not sell its Common Stock to the underwriter of the securities offered by APPI,
Consultant shall, to the extent permitted by applicable law or regulation,
refrain from selling any of its Common Stock during the period of distribution
of the securities being offered by APPI through the underwriter in the primary
offering and the period in which the underwriter participates in the aftermarket
and for such additional period requested by the underwriter, provided, however,
that Consultant shall, in any event, be entitled to sell its Common Stock in
connection with such registration commencing the 90th day after the effective
date of the registration statement. Notwithstanding the provisions of this
Paragraph 4(a), APPI shall at all times have the absolute right to elect not to
file any proposed registration statement or to withdraw the same after filing
but prior to the effective date thereof.
(b) In connection with the registration of the Common Stock
pursuant to this Paragraph 4, APPI shall use all reasonable efforts to register
and qualify the Common Stock under such securities or Blue Sky laws of
jurisdictions within the United States as Consultant shall reasonably request
and do any and all other acts and things as may be reasonably necessary or
advisable to enable Consultant to consummate the disposition of the securities
held by Consultant; provided that APPI shall not be required to consent to
general service of process, to qualify to do business or subject itself to tax
liability in any jurisdiction in which it has not already qualified to do
business or is already subject to tax liability, as of the effective date of
such registration statement.
(c) All expenses in connection with registrations in which the
Common Stock of Consultant shall be included pursuant to this Paragraph 4 shall
be borne by APPI, except for underwriting discounts and commissions, applicable
transfer taxes and expenses of counsel to Consultant, all of which will be borne
by Consultant.
(d) Notwithstanding anything to the contrary contained herein,
the foregoing "piggyback" registration rights shall be exercisable only at such
time when Consultant cannot publicly sell any of the Option Shares under an
exemption from the registration requirements of the Act and the Blue Sky laws of
the states of the United States.
5. This Agreement is not assignable by Consultant without the written
consent of APPI, which consent may be unreasonably withheld at the discretion of
APPI.
6. (a) Except as required in its duties pursuant to this Agreement,
Consultant will not, directly or indirectly, publicly or privately use,
disseminate or disclose any Confidential Information (as defined in Paragraph 7
of this Agreement) belonging to APPI. Consultant and APPI will mutually agree to
enter into additional confidentiality agreements, as may be reasonably requested
by counsel to APPI.
(b) During the term of this Agreement, Consultant will be
supplied with copies of all documents, records, and notebooks containing
Confidential Information about APPI subject
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to entering into the confidentiality agreement referenced in Paragraph 6(a)
above. Upon the termination of its services to APPI, all documents, records,
notebooks, and similar repositories containing Confidential Information,
including copies thereof, in the Consultants possession, whether prepared by it
or others, will be returned or surrendered to APPI; provided, however, if
Consultant has personal documents or other business records provided by APPI
which do not represent information about APPI, Consultant will not be required
to return or surrender documents, records, notebooks and repositories of such
information to APPI.
(c) Consultant will not assert any rights under any
discoveries, concepts, ideas, know-how or improvements thereof which constitutes
Confidential Information as having been made or acquired by it prior to the term
of this Agreement.
7. As used in this Agreement, "Confidential Information" means
information disclosed to Consultant or known by Consultant as a consequence of
or through its relationship with APPI, not generally known in the industry in
which APPI is or may become engaged during the term of this Agreement, about
APPI's business activities, finances, products and services, including, but not
limited to, information relating to product formulations, manufacturing
processes, accounting, marketing, finances, research, investor relations, and
business development
8. If any provision of this Agreement or the application thereof to
any person or circumstance shall be invalid or unenforceable to any extent, the
remainder of this Agreement and the application of such provisions to other
persons or circumstances shall not be affected thereby and shall be enforced to
the fullest extent permitted by law.
9. Except as otherwise specifically provided for hereunder, no party
shall be deemed to have waived any of its rights hereunder or under any other
agreement, instrument or other paper signed by any of them with respect to the
subject matter hereof unless such waiver is in writing and signed by the party
waiving said right. Except as otherwise specifically provided hereunder, no
delay or omission by any party in exercising any right with respect to the
subject matter hereof shall operate as a waiver of such right or of any such
other right. A waiver on any one occasion with respect to the subject matter
hereof shall not be construed as a bar to, or waiver of, any right or remedy on
any future occasion.
10. All rights and remedies with respect to the subject matter hereof,
whether evidenced hereby or by any other agreement, instrument, or paper,, will
be cumulative, and may be exercised separately or concurrently.
11. Notwithstanding Paragraph 10, the parties have not made any
representation, warranty, or covenant with respect to the subject matter hereof,
which is not set forth herein, and this Agreement constitutes the entire
agreement between them with respect to the subject matter hereof. All
understandings and agreements heretofore had between the parties with respect to
the subject matter hereof are merged with this Agreement, which alone fully and
completely expresses their agreement.
12. This Agreement may not be changed, modified, extended, terminated,
or discharged orally, but only by an agreement in writing, signed by all of the
parties to this Agreement.
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13. The parties agree to try any and all such other and further
instruments and documents, and to take any and all such further actions
reasonably required to effectuate this Agreement and the intents and purposes
hereof.
14. All notices or other communications required or permitted
hereunder shall be in writing and shall be mailed by First Class, Registered or
Certified Mail, Returned Receipt Requested, postage prepaid, as follows:
To the Company: Advanced Plant Pharmaceuticals, Inc.
00 Xxxxxx Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxxxxx
To Consultant: X.X. Xxxxxxxxx
Copy to: Feder, Kaszovitz, Isaacson, Weber, Xxxxx & Bass LLP
Xxxx X. Xxxxxxx, Esq.
000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Or, in each case, to such other address as shall have last been furnished by
like notice. If mailing by Registered or Certified Mail is impossible due to an
absence of postal service, notice shall be in writing and personally delivered
to the aforesaid address. Each notice or communication shall be deemed to have
been given as of the date so mailed or delivered as the case may be.
15. This Agreement shall be construed and enforced in accordance with
the internal laws of the State of New York, without giving effect to conflicts
of law.
IN WITNESS WHEREOF, this Agreement is executed effective as of the day
month and year set forth above.
ADVANCED PLANT PHARMACEUTICALS, INC.
By: /s/ Xxxxx Xxxxxxxxx
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Xxxxx Xxxxxxxxx, President
CONSULTANT:
By: /s/ X.X. Xxxxxxxxx
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X. X. Xxxxxxxxx
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ADVANCED PLANT PHARMACEUTICALS, INC.
00 XXXX 00XX XXXXXX
XXX XXXX, XXX XXXX 00000
(000) 000-0000
September 19, 2000
X.X. Xxxxxxxxx
00 Xxxxx Xxxxxxxxx
Xxx Xxx, Xxxxxx
Dear X.X.:
This letter shall serve to memorialize our discussions, whereby it
was agreed that the undersigned shall issue to you 5 million shares of the
undersigned's Common Stock, par value $0.0007 per share. Such issuance is being
made to you in lieu of payment of $250,000 owed for services rendered by you
pursuant to the terms of that certain June 10, 1999 Consulting Agreement by and
between you and the undersigned (the "Consulting Agreement").
The Consulting Agreement shall not be otherwise effected and the
rights and obligations of you and the undersigned thereunder shall continue in
full force and effect, including, without limitation, the obligation of the
undersigned to pay you any other amounts owed for prior services rendered, which
shall continue to be an obligation of the undersigned.
Please acknowledge your acceptance of the foregoing by signing in the
space below provided.
Very truly yours,
/s/ Xxxxx Xxxxxxxxx
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Xxxxx Xxxxxxxxx
President
Accepted and agreed to this
19th day of September, 2000
/s/ X.X. Xxxxxxxxx
---------------------------------
X.X. Xxxxxxxxx
