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EXHIBIT 10.087
FINANCIAL ADVISORY AND CONSULTING AGREEMENT
This agreement ("Agreement") is made and entered into this 1st day of
August 1999, between BioShield Technologies, Inc., a Georgia corporation ("the
Company") and White Capital Group, Ltd. (the "Consultant").
In consideration of and for the mutual promises and covenants contained
herein, and for other good and valuable consideration, the receipt of which is
hereby acknowledged, the parties hereto agree as follows:
1. Purpose. The Company hereby retains the Consultant on a non-exclusive
basis during the term specified to render consulting advice to the Company as
the Company may reasonably request relating to financial and similar matters,
upon the terms and conditions as set forth herein.
2. Term and Compensation. This Agreement shall be effective commencing on
the date first written above (the "Engagement Period"). The Company agrees to
award to Consultant as compensation, a warrant to purchase up to 110,000 shares
in the aggregate of common stock of the Company (the "Warrant"). The Warrant
issued shall be exercisable for a period of five years at an exercise price as
follows: 30,000 shares @ $15/share, 30,000 shares @ $20/share, and 50,000
shares @ $25/share subject to proportional adjustment in the event of a stock
split and shall be paid in equal monthly installments of 13,750 warrants over
an 8 month period at the end of each month. Such warrants shall be granted
piggyback registration rights, excluding acquisitions, mergers and alliances.
3. Duties of Consultant. During the term of this Agreement, the Consultant
will provide the Company with such regular and customary non-exclusive
consulting advice as is reasonable requested by the Company, provided that the
Consultant shall not be required to undertake duties not reasonable within the
scope of the consulting advisory services contemplated by this Agreement. In
performance of these duties, the Consultant shall provide the Company with the
benefits of its best judgment and efforts. It is understood and acknowledged by
the parties that the value of the Consultant's advice is not measurable in any
quantitative manner, and that the Consultant shall not be obligated to spend
any specific amount of time doing so. The Consultant's duties may at the
direction of the Company include, but not necessarily be limited to on a
non-exclusive basis:
A. Providing sponsorship and exposure in connection with the dissemination
of corporate information regarding the Company to the investment community at
large.
B. Assisting in the Company's financial public relations, including
discussions between the Company and the financial community.
C. Advice regarding the financial structure of the Company and its
divisions or subsidiaries or any programs and projects, as such issues relate
to the public market for the Company's equity securities.
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D. Rendering advice with respect to any acquisition program of the
Company, as such program relates to the public market for the Company's equity
securities.
E. Rendering advice regarding the public market for the Company's
securities and the timing and structure of any future public offering of the
Company's equity securities.
It is expressly understood that no actual or express authority on behalf
of the Company is granted by the Company hereunder to Consultant.
4. Relationships with others. The Company acknowledges that the
Consultant or its affiliates is in the business of providing, among other
things, financial service and consulting advice (of all types contemplated by
this Agreement) to others. Nothing herein contained shall be construed to limit
or restrict the Consultant in conducting such business with respect to others,
or in rendering such advise to others. In connection with the rendering of
services hereunder, Consultant has been or will be furnished with confidential
information concerning the Company including, but not limited to, financial
statements and information, cost and expense date, production data, trade
secrets, marketing and customer data, and such other information not generally
obtained from public or published information or trade sources. Such
information shall be deemed "Confidential Material" and, except as specifically
provided herein, shall not be disclosed by Consultant or its employees or
agents without prior written consent of the Company. In the event Consultant
is required by applicable law or legal process to disclose any of the
Confidential Material, it is agreed that Consultant will deliver to the Company
immediate notice of such requirement prior to disclosure of same to permit the
Company to seek an appropriate protective order and/or waive compliance of this
provision. If, in the absence of a protective order or receipt of written
waiver, Consultant is nonetheless, in the reasonable written opinion of
Consultant's counsel, compelled to disclose any Confidential Material,
Consultant may do so without liability hereunder provided that notice of such
prospective disclosure is delivered to the Company at least five (5) days prior
to actual disclosure. Following the termination of this Agreement, Consultant
shall deliver to the Company all Confidential Material. Neither party hereto
will issue any public announcement concerning this Agreement without the
approval of the other party, provided however that nothing shall prevent the
Company from fulfilling its obligations to disclose the contents of this
Agreement with the U.S. Securities & Exchange Commission (the "SEC").
5. Consultant's Liability. The Consultant agrees to defend, indemnify,
and hold the Company, its officers, directors, employees, advisors, attorneys
and agents harmless from and shall indemnify the foregoing persons and entities
against any and all costs, expenses and liability (including reasonable
attorney's fees paid in connection with the investigations and/or the defense
of the such entities and persons) which may in any way result from a breach of
any representation, warranty or covenant made by Consultant or from any
services rendered by the Consultant pursuant to or in any connection with this
Agreement.
6. Expenses. The Company, upon receipt of appropriate supporting
documentation, shall reimburse the Consultant for any and all reasonable and
actual out-of-pocket expenses
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incurred in connection with services provided to the Company, subject in each
case to prior written approval of the Company.
7. Limitation Upon the Use of Advice and Services.
(a) No person or entity, other than the Company or any of its
subsidiaries or directors or officers of each of the foregoing, shall be
entitled to make use of or rely upon the advice of the Consultant to be given
hereunder.
(b) It is clearly understood that the Consultant, for services rendered
under this Agreement, makes no commitment whatsoever as to recommend or advise
its clients to purchase the securities of the Company. Research reports or
corporate finance reports that may be prepared by the Consultant will, when and
if prepared, be done solely on the merits or judgment of analysts of the
Consultant or any senior finance personnel of the Consultant.
(c) Use of the Consultant's name in annual reports or any other report of
the Company or releases by the Company must have the prior approval of the
Consultant unless the Company is required by law to include Consultant's name
in such annual reports, other report or release of the Company, in which event
Consultant will be furnished with copies of such annual reports or other
reports or releases using Consultant's name in advance of publication by the
Company.
8. Severability. Every provision of this Agreement is intended to be
severable. If any term or provision hereof is deemed unlawful or invalid for
any reason whatsoever, such unlawfulness or invalidity shall not affect the
validity of this Agreement. At the sole discretion of the Company, this
agreement may be terminated with a thirty (30) day notice.
9. Miscellaneous.
(a) Any notice or other communication between parties hereto shall be
sufficiently given if sent by certified or registered mail, postage prepaid, or
faxed and confirmed if to the Company, addressed to it at BioShield
Technologies, Inc., Attention: Xxxxxxx X. Xxxxx, 0000 Xxxxxxxxx Xxxxxxx,
Xxxxxxxx, Xxxxxxx 00000 or if to the Consultant, addressed to it at White
Capital Group, Ltd., 000-00 00xx Xxxxxx, Xxxxxx Xxxx, Xxx Xxxx 00000, Attention:
Xxx. Xxxxx Xxxxxx. Such notice or other communication shall be deemed to be
given on the date of receipt.
(b) If the Consultant shall cease to do business, the provisions hereof
relating to duties of the Consultant and all compensation to be paid by the
Company as it applies to the Consultant shall thereupon terminate and cease to
be in effect.
(c) This Agreement embodies the entire agreement and understanding between
the Company and the Consultant and supersedes any and all negotiations, prior
discussions and preliminary and prior agreements and understandings related to
the central subject matter hereof.
(d) This Agreement has been duly authorized, executed and delivered by
and on behalf of the Company and the Consultant.
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(e) The validity, interpretation, and construction of this
Agreement will be governed by the laws of the State of Georgia applicable to
contract entered into and performed entirely with said state without regard to
the principles of conflict of laws. Any dispute or controversy between the
parties arising in connection with this Agreement or the subject matter
contemplated by this Agreement shall be resolved by arbitration before a
three-member panel of the American Arbitration Association in accordance with
the commercial arbitration rules of said forum and the Federal Arbitration Act.
9 U.S.C. I et seq., with the resulting award being final and conclusive. Said
arbitrators shall be empowered to award all forms of relief and damages claimed,
including but not limited to, attorney's fees, expenses of litigation and
arbitration, exemplary damages, and prejudgment interest. The parties further
agree that any arbitration action between them shall be heard in Atlanta,
Georgia. Notwithstanding anything contained herein to the contrary, nothing
contained herein shall prevent either party from initiating a civil action for
temporary or permanent injunctive and other equitable relief against the other
for breach of this Agreement. The parties expressly consent to the jurisdiction
and venue of the Superior Court of Xxxxxx County, Georgia and the United States
District Court for the Northern District of Georgia, Atlanta Division for the
adjudication of any civil action asserted pursuant to this Paragraph.
(f) There is no relationship or partnership, agency, employment,
franchise, or joint venture between the parties. Neither party has the authority
to bind the other or incur any obligation on its behalf.
(g) This Agreement and the rights hereunder may not be assigned by
either party (except by operation of law or merger) and shall be binding upon
and inure to the benefit of the parties and their respective successors, assigns
and legal representatives.
(h) Consultant is not a party to any proceeding or action which
would prevent it from performing services pursuant to this Agreement.
(i) Sections 4 and 5 shall survive the expiration or termination of
this Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date hereof.
BIOSHIELD TECHNOLOGIES, INC.
By: Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
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Title: CEO
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WHITE CAPITAL GROUP, LTD.
000-00 00xx Xxx., Xxxxxx Xxxx, Xxx Xxxx 00000
By: Xxxxx Xxxxxx
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Name: Xxxxx Xxxxxx
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Title: President
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