Exhibit 10.18
STRATEGIC ALLIANCE AGREEMENT
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This Strategic Alliance Agreement is made and entered into this 1st day of
November,2004 by and between G. Gekko Enterprises ("GEKKO"), and GeneThera, Inc.
(GTHA), 0000 Xxxxxxxxxx Xxxxxx, Xxxxx Xxxxx, XX 00000.
WITNESSETH:
WHEREAS, GTHA desires to engage GEKKO to provide the services as set forth
in this Agreement, and
WHEREAS, GEKKO is agreeable to provide these services.
NOW THEREFORE, in consideration of the mutual promise made in this
Agreement, and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
I. ENGAGEMENT
GTHA hereby retains GEKKO to provide those services as defined herein and GEKKO
hereby agrees to the appointment on the terms and conditions hereinafter set
forth and agrees to use commercially reasonable efforts in providing said
services.
II. INDEPENDENT CONTRACTOR
GEKKO shall be, and in all respects be deemed to be, an independent contractor
in the performance of its duties hereunder.
A. GTHA shall be solely responsible for making all payments to and on
behalf of its employees and GEKKO shall in no event be liable for
any debts or other liabilities of.
B. GEKKO shall not have or be deemed to have, fiduciary obligations or
duties to, and shall be able to pursue, conduct and carry on for its
own account (or for the account of others) such activities,
ventures, businesses and other pursuits as GEKKO in its sole,
absolute and unfettered discretion, may elect.
C. Notwithstanding the above, no activity, venture, business or other
pursuit of GEKKO, during the term of this Agreement shall conflict
with GEKKO's obligations under this Agreement.
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III. SERVICES
GEKKO agrees to provide the following services, hereinafter collectively
referred to as "Services":
SEE STRATEGIC ALLIANCE SUMMARY (EXHIBIT A) ATTACHED AND MADE A PART HEREOF.
A. GEKKO shall devote such time and efforts, as it deems commercially
reasonable, under the circumstances to the affairs of, as is
reasonable and adequate to render the Services contemplated by this
Agreement.
B. GEKKO cannot guarantee results on behalf of, but shall pursue all
reasonable avenues available through its network of contacts. The
acceptance and consumption of any transaction is subject to
acceptance of the terms and conditions by in its sole discretion.
C. In conjunction with the Services, GEKKO agrees to:
1. Make itself available at the offices of or at another mutually
agreed upon place, during normal business hours, for
reasonable periods of time, subject to reasonable advance
notice and mutually convenient scheduling.
2. Make itself available for telephone conferences with the
principal officer(s) of during normal business hours.
IV. EXPENSES
It is expressly agreed and understood that each party shall be responsible for
its own normal and reasonable out-of-pocket expenses.
V. COMPENSATION
A. In consideration for the services, agrees that GEKKO shall be
entitled to compensation as follows:
SEE STRATEGIC ALLIANCE CONFIDENTIAL TERM SHEET (EXHIBIT A) ATTACHED AND MADE A
PART HEREOF.
VI. TERM AND TERMINATION
The term of the Agreement will be for 12 months unless terminated sooner. This
Agreement may be renewed upon mutual, written agreement of the parties. Either
party may terminate this agreement at any time with 90 days written notice.
VII. LEGAL COMPLIANCE
GTHA agrees that it will put in place, if it has not already done so, policies
and procedures relating to and addressing, with the commercially reasonable
intent to ensure compliance with, applicable securities laws, rules and
regulations, including, but not limited to:
A. The use, release or other publication of forward-looking statements.
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B. Disclosure requirements regarding the required disclosure of the
nature and terms of GEKKO's relationship with, including, but not
limited to press releases, publications on its web site, letters to
investors and telephone or other personal communication with
potential or current investors.
C. No press releases or any other forms of communication to third
parties, which mention both GEKKO ENTERPRISES and GTHA, shall be
released without the prior written consent and approval of both
GEKKO and GTHA.
D. EXECUTION. The execution, delivery and performance of this
Agreement, in the time and manner herein specified will not conflict
with, result in a breach of, or constitute a default under any
existing agreement, indenture, or other instrument to which either
GTHA or GEKKO is a party or by which either entity may be bound or
affected.
E. TIMELY APPRISALS. GTHA shall use its commercially reasonable efforts
to keep GEKKO up to date and apprised of all business, market and
legal developments related to and its relationship to GEKKO.
F. CORPORATE AUTHORITY. Both GTHA and GEKKO have full legal authority
to enter into this Agreement and perform the same in the time and
manner contemplated.
G. The individuals whose signatures appear below are authorized to sign
this Agreement on behalf of their respective corporations.
H. GTHA will cooperate with GEKKO and will promptly provide GEKKO with
all pertinent materials and requested information in order for GEKKO
to perform its Services pursuant to this Agreement.
I. When delivered, the shares of GTHA Common Stock shall be duly and
validly issued, fully paid and non-assessable.
J. GEKKO represents to GTHA that a) it has the experience and ability
as may be necessary to perform all the required, b) all Services
will be performed in a professional manner, and c) all individuals
it provides to perform the Services will be appropriately qualified
and subject to appropriate agreements concerning the protection of
trade secrets and confidential information of which such persons may
have access to over the term of this Agreement.
K. Until termination of the engagement, GTHA will notify GEKKO promptly
of the occurrence of any event, which might materially affect the
condition (financial or otherwise), or prospects of.
VIII. CONFIDENTIAL DATA
A. GEKKO shall not divulge to others, any trade secret or confidential
information, knowledge, or data concerning or pertaining to the
business and affairs of GTHA, obtained by GEKKO as a result of its
engagement hereunder, unless authorized, in writing by GTHA. GEKKO
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represents and warrants that it has established appropriate internal
procedures for protecting the trade secrets and confidential
information of, GTHA including, without limitation, restrictions on
disclosure of such information to employees and other persons who
may be engaged in such information to employees and other persons
who may be engaged in rendering services to any person, firm or
entity which may be a competitor of.
B. GTHA shall not divulge to others, any trade secret or confidential
information, knowledge, or data concerning or pertaining to the
business and affairs of GEKKO obtained as a result of its engagement
hereunder, unless authorized, in writing, by GEKKO.
C. GEKKO shall not be required in the performance of its duties to
divulge to GTHA, or any officer, director, agent or employee of
GTHA, any secret or confidential information, knowledge, or data
concerning any other person, firm or entity (including, but not
limited to, any such person, firm or entity which may be a
competitor or potential competitor of) which GEKKO may have or be
able to obtain other than as a result of the relationship
established by this Agreement.
IX. OTHER MATERIAL TERMS AND CONDITIONS
A. INDEMNITY.
1. GEKKO shall indemnify, defend and hold harmless GTHA from and
against any and all losses incurred by GTHA which arise out of
or result from misrepresentation, breach of warranty or breach
or non- fulfillment of any covenant contained herein or
Schedules annexed hereto or in any other documents or
instruments furnished by GEKKO pursuant hereto or in
connection with this Agree
2. GTHA shall indemnify, defend and hold harmless GEKKO from and
against any and all losses incurred by GEKKO which arise out
of or result from misrepresentation, breach of warranty or
breach or non-fulfillment of any covenant contained herein or
Schedules annexed hereto or in any other documents or
instruments furnished by GTHA pursuant hereto or in connection
with this Agreement.
B. PROVISIONS. Neither termination nor completion of the assignment
shall affect the provisions of this Agreement, and the
Indemnification Provisions that are incorporated herein, which shall
remain operative and in full force and effect.
C. ADDITIONAL INSTRUMENTS. Each of the parties shall from time to time,
at the request of others, execute, acknowledge and deliver to the
other party any and all further instruments that may be reasonably
required to give full effect and force to the provisions of this
Agreement.
D. ENTIRE AGREEMENT. Each of the parties hereby covenants that this
Agreement, is intended to and does contain and embody herein all of
the understandings and agreements, both written or oral, of the
parties hereby with respect to the subject matter of this Agreement,
and that there exists no oral agreement or understanding expressed
or implied liability, whereby the absolute, final and unconditional
character and nature of this Agreement shall be in any way
invalidated, empowered or affected. There are no representations,
warranties or covenants other than those set forth herein.
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E. ASSIGNMENTS. The benefits of the Agreement shall inure to the
respective successors and assignees of the parties and assigns and
representatives, and the obligations and liabilities assumed in this
Agreement by the parties hereto shall be binding upon their
respective successors and assigns; provided that the rights and
obligations of GEKKO under this Agreement may not be assigned or
delegated without the prior written consent of GTHA and any such
purported assignment shall be null and void. Notwithstanding the
foregoing, GEKKO may assign this Agreement or any portion of its
Compensation as outlined herein to its subsidiaries in its sole
discretion.
F. ORIGINALS. This Agreement may be executed in any number of
counterparts, each of which so executed shall be deemed an original
and constitute one and the same agreement.
G. ADDRESSES OF PARTIES. Each party shall at all times keep the other
informed of its principal place of business if different from that
stated herein, and shall promptly notify the other of any change,
giving the address of the new place of business or residence.
H. NOTICES. All notices that are required to be or may be sent pursuant
to the provision of this Agreement shall be sent by certified mail,
return receipt requested, or by overnight package delivery service
to each of the parties at the addresses appearing herein, and shall
count from the date of mailing or the validated air xxxx.
I. MODIFICATION AND WAVIER. A modification or waiver of any of the
provisions of this Agreement shall be effective only if made in
writing and executed with the same formality as this Agreement. The
failure of any party to insist upon strict performance of any of the
provisions of this Agreement shall not be construed as a waiver of
any subsequent default of the same or similar nature or of any other
nature.
J. INJUNCTIVE RELIEF. Solely by virtue of their respective execution of
this Agreement and in consideration for the mutual covenants of each
other, GTHA and GEKKO hereby agree, consent and acknowledge that, in
the event of a breach of any material term of this Agreement, the
non-breaching party will be without adequate remedy-at-law and shall
therefore, be entitled to immediately redress any material breach of
this Agreement by temporary or permanent injunctive or mandatory
relief obtained in an action or proceeding instituted in any court
of competent jurisdiction without the necessity of proving damages
and without prejudice to any other remedies which the non-breaching
party may have at law or in equity.
K. ATTORNEY'S FEES. If any arbitration, litigation, action, suit, or
other proceeding is instituted to remedy, prevent or obtain relief
from a breach of this Agreement, in relation to a breach of this
Agreement or pertaining to a declaration of rights under this
Agreement, the prevailing party will recover all such party's
attorneys' fees incurred in each and every such action, suit or
other proceeding, including any and all appeals or petitions there
from. As used in this Agreement, attorneys' fees will be deemed to
be the full and actual cost of any legal services actually performed
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in connection with the matters involved, including those related to
any appeal to the enforcement of any judgment calculated on the
basis of the usual fee charged by attorneys performing such
services.
APPROVED AND AGREED:
G. GEKKO ENTERPRISES GENETHERA, INC
By: /s/ Xxxx Xxxxxx By: /s/ Xxxxxxx Xxxxxx
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Xxxx Xxxxxx Xx. Xxxx Xxxxxx
CEO Chairman of the Board, President, CEO
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Exhibit A
GeneThera / G. Gekko Enterprises
TERM SHEET
IMMEDIATE LAUNCH OF GENETHERA, INC.'S TECHNOLOGIES IN
NORTH AMERICA AND UK
GeneThera, Inc. (GTHA) has conceived and developed effective diagnostics for
Bovine Spongiform Encephalopathy (BSE) and for Chronic Wasting Disease (CWD) and
wishes to exploit these inventions in the North American and UK markets.
GEKKO Corporation (GEKKO) will assist GeneThera in exploiting diagnostic and
therapeutic technologies, patent(s) and trademark(s), relating to the
diagnostics and therapeutics, by seeking suitable agreements with potential
distributors and/or licensees. In particular, GEKKO will use its commercially
reasonable efforts to select potentially suitable and credible organizations
primarily in North America and the UK, approach them, introduce GeneThera and
assist GeneThera in securing one or more distribution and/or licence agreements.
Phase I
The first phase will be to identify and target suitable distributors and/or
licensees and establish a dialogue with them.
Phase II
The second phase will be to negotiate and conclude suitable agreements with the
approval of GeneThera to bring to GeneThera prospective distributors and
licensees for distribution of the BSE diagnostic to the North American and UK
markets.
TERMS
GEKKO will inform GeneThera of all activities and progress, and GeneThera will
inform GEKKO promptly if GeneThera starts any substantive negotiations without
GEKKO's assistance with any parties with whom GeneThera does not wish GEKKO to
be involved.
GeneThera reserves the right not to negotiate with parties introduced by GEKKO.
GEKKO has no authority to enter into any transaction on behalf of GeneThera
without written permission of GeneThera and this agreement does not constitute a
partnership between GeneThera and GEKKO.
GeneThera shall not seek to negotiate with parties introduced by GEKKO for a
period of two years after GEKKO has first introduced GeneThera to GEKKO's
contact. If GeneThera has a pre-existing relationship with GEKKO's contact
(prior to GEKKO's introduction to GeneThera), this section of this agreement
does not apply.
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GEKKO will supply information about opportunities to GeneThera in good faith but
without liability for the accuracy of any information as supplied. GEKKO does
not purport to offer financial advice of any kind. GeneThera will be responsible
for exercising due diligence in the evaluation of any opportunity prior to
entering into any agreements and undertakes to secure professional advice with
respect to financial and legal matters.
The term of this agreement, renewable upon mutual agreement, is for one year
only and may be cancelled with 60 days notice by either party (except for
GeneThera's liability to pay GEKKO's bonus on any agreement for which GEKKO or
one of its Associates had provided an introduction, or on which GEKKO had
provided assistance, which would not be subject to such notice).
COMPENSATION
In consideration for providing these Services, GeneThera shall pay GEKKO 325,000
unregistered shares of GTHA common stock upon the execution of this Strategic
Alliance Agreement.
It is expressly agreed and understood that GEKKO and GeneThera will be
responsible for their own normal and reasonable out-of-pocket expenses for the
fulfillment of this contract.
APPLICABLE LAW
This agreement is subject to the laws of the State of Colorado. It supersedes
all previous oral or written agreements between the parties, in respect to its
subject matter
GeneThera, Inc.
EKKO Corporation Xxxxxxx Xxxxxx, Ph.D.
CEO
EO
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Date:______________________________ Date:______________________________
By:____________________________
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