trilogy capital partners, inc.
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Consulting Agreement
Advanced BioPhotonics, Inc.
July 14, 2005
The following sets forth the agreement for the engagement of Trilogy Capital
Partners, Inc. ("Trilogy") by Advanced BioPhotonics Inc. ("ABPH" or the
"Company"):
Term and Termination Trilogy's engagement commenced at the date of this
Agreement and terminates August 30, 2005.
Services Trilogy will consult with the Company to structure
and design a strategic business marketing plan,
including estimation of costs for implementation of
such plan, and deliver such plan to the Company.
All ABPH designated confidential materials, together
with any documents prepared by Trilogy under this
Agreement, including without limitation, any plans,
reports or derivative analysis, whether confidential
or not, in Trilogy's custody are the property of
ABPH and shall be promptly delivered to it upon
completion of Trilogy's services under the Agreement
or upon the earlier request of ABPH, provided that
Trilogy may retain one copy of any such materials
that it reasonably believes it may need to support
its work product and advice to the Company.
Fees In consideration for the services Trilogy will
provide pursuant to this Agreement, Company will pay
Trilogy $18,750, with payment due upon execution of
this Agreement. Wiring information is set forth
below.
Indemnification The Company agrees to provide the indemnification
set forth in "Exhibit A" attached hereto.
Corporate Obligations The obligations of Trilogy are solely corporate
obligations, and no officer, director, employee,
agent, shareholder or controlling person of Trilogy
shall be subject to any personal liability
whatsoever to any person, nor will any such claim be
asserted by or on behalf of any other party to this
Agreement.
Additional Services If Trilogy is called upon to render services
directly or indirectly relating to the subject
matter of this Agreement, beyond the services
contemplated above (including, but not limited to,
production of documents, answering interrogatories,
giving depositions, giving expert or other
testimony, whether by agreement, subpoena or
otherwise), the Company shall pay to Trilogy a
reasonable hourly rates for the persons involved for
the time expended in rendering such services,
including, but not limited to, time for meetings,
conferences, preparation and travel, and all related
costs and expenses and the reasonable legal fees and
expenses of Trilogy's counsel.
Independent Contractor Trilogy and ABPH intend that an independent
contractor relationship be created by this
Agreement, and nothing herein shall be construed as
creating an employer/employee relationship,
partnership, joint venture, or other business group
or concerted action.
Entire Agreement; The Confidentiality, Non-Disclosure and
Amendment Non-Circumvention Agreement between the parties
dated June 22, 2005, (a copy of which is attached
hereto as Exhibit B) (the "NDA") shall be deemed to
be, and hereby is, incorporated by reference into
and made a part of this Agreement.
This Agreement, together with those other documents
attached hereto or incorporated herein by reference,
constitutes the entire and final agreement and
understanding of the parties with respect to the
subject matter of this Agreement. Any and all prior
agreements, representations, statements,
negotiations, understandings or undertakings,
whether written or oral, with respect to the subject
matter of this Agreement, are hereby superseded and
replaced by this Agreement. This Agreement may not
be modified or amended except by a written
instrument duly executed by an authorized
representative of each party to this Agreement.
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Conflicting Terms In the event of any conflict or inconsistency
between any terms and conditions of this Agreement
and any terms and conditions specified in the NDA,
the terms and conditions of this Agreement shall
prevail and govern
Survival of Certain The Sections entitled "Indemnification" (including
Provisions "Exhibit A"), "Corporate Obligations" and
"Additional Services" shall survive any termination
of this Agreement and Trilogy's engagement pursuant
to this Agreement. In addition, such termination
shall not terminate Trilogy's right to compensation
accrued through the date of termination and for
reimbursement of expenses
Services/Costs The compensation paid to Trilogy under this
Agreement will cover all costs for Trilogy
personnel. Travel and entertainment costs for
Trilogy personnel, in addition to certain
third-party costs, will be borne by the Company.
Trilogy will provide reasonable documentation to
support reimbursement claims. Trilogy will not incur
any particular reimbursable cost of $500 or more
without the written approval from the Company.
Attorneys' Fees If any action or proceeding is brought to enforce or
interpret any provision of this Agreement, the
prevailing party shall be entitled to recover as an
element of its costs, and not its damages,
reasonable attorneys' fees to be fixed by the court.
Assignment Neither party may assign its rights or delegate its
obligations hereunder without the express written
consent of the other party, provided that such
consent shall not be unreasonably withheld.
Governing Law California, without giving effect to the principles
of conflicts of law thereof.
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[SIGNATURES ON THE FOLLOWING PAGE]
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Agreed and Accepted:
Advanced BioPhotonics Inc. Trilogy Capital Partners, Inc.
By /s/ ▇▇▇▇▇ ▇'▇▇▇▇▇▇ By /s/ ▇▇▇▇ ▇▇▇▇▇
----------------------------- ---------------------------
▇▇▇▇▇ ▇'▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
President and CEO President
Wiring:
Trilogy Capital Partners, Inc.
Signature Bank New York
Private Client Group
New York, NY 10016
Account: 1500565515
ABA: ▇▇▇▇▇▇▇▇▇
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EXHIBIT A
Indemnification Provisions
Advanced BioPhotonics Inc. (the "Company") unconditionally, absolutely and
irrevocably agrees to and shall indemnify and hold harmless Trilogy Capital
Partners, Inc. ("Trilogy") and its past, present and future directors, officers,
affiliates, counsel, shareholders, employees, agents, representatives,
contractors, successors and assigns (Trilogy and such persons are collectively
referred to as the "Indemnified Persons") from and against any and all losses,
claims, costs, expenses, liabilities and damages (or actions in respect thereof)
arising out of or related to this Agreement, and any actions taken or omitted to
be taken by an Indemnified Person in connection with this Agreement
("Indemnified Claim"). Without limiting the generality of the foregoing, such
indemnification shall cover losses, claims, costs, expenses, liabilities and
damages imposed on or incurred by the Indemnified Persons, directly or
indirectly, relating to, resulting from, or arising out of any misstatement of
fact or omission of fact, or any inaccuracy in any information provided or
approved by the Company in connection with the engagement. In addition, the
Company agrees to reimburse the Indemnified Persons for legal or other expenses
reasonably incurred by them in respect of each Indemnified Claim at the time
such expenses are incurred. Notwithstanding the foregoing, the Company shall not
be obligated under the foregoing for any loss, claim, liability or damage that
is finally determined by a court with proper jurisdiction to have resulted
primarily from the willful misconduct or bad faith of the Indemnified Person.
