4.36
CONSULTING AGREEMENT
This Consulting Agreement is effective as of the 1st day of
November, 2003 by and between BioGentech, Corp., a Nevada corporation (the
"Company") with its principal place of business located at 0000 XxXxxx Xxx,
Xxxxx 000, Xxxxxx, XX 00000 and XX Xxxxxx, (the "Consultant"), located at 0000
Xxxxxxxx Xxxx. Xxxxx 000, Xxxxxx XX 00000.
RECITALS: The Company desires to avail itself of the
Consultant's knowledge and expertise with respect to the business, products and
operations of the Company and has requested that the Consultant make such
knowledge and expertise available to the Company. The Consultant and the Company
agree that it is in their respective best interests to enter into this Agreement
whereby, for the consideration specified herein, the Consultant shall provide
the Consulting Services (as hereinafter defined) to the Company.
NOW THEREFORE, in consideration of the foregoing recitals and
the covenants and obligations set forth below and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties agree as follows:
SECTION 1. DEFINITIONS.
"Cause" means failure to follow written directives of the
management, conducted by the Consultant in connection with this Agreement or the
Consulting Services that amounts to fraud, dishonesty, gross negligence or
willful misconduct in the performance of its duties and responsibilities under
this Agreement or material breach of any obligation owed by the Consultant to
the Company.
"Common Stock" means the common stock, $0.001 par value, of
the Company currently publicly traded on the OTC market as BGTH.OB.
"Consulting Services" means the consulting services to be
performed hereunder by the Consultant for and on the Company's behalf. The
Consultant shall provide investor relations services, strategic direction to the
Company, strategic alliances, business development and such other matters that
relate thereto as the Company may reasonably request of the Consultant by way of
written instruction or verbal communication.
SECTION 2. TERM. This Agreement shall commence on November 1, 2003 and shall
continue for a period of 6 months concluding on April 30, 2004, unless
sooner terminated as provided herein.
SECTION 3. CONSULTING SERVICES. Simultaneously with the execution of this
Agreement Consultant shall execute the Company's standard Invention
Assignment and Confidentiality Agreement. The Consultant shall commit
the resources necessary to timely and satisfactorily perform the
Consulting Services, and shall perform the Consulting Services in a
professional and workmanlike manner and in accordance with all
applicable laws, regulations and ordinances. The Consultant
acknowledges that Consultant has no authority to act for or bind the
Company or any of its affiliates without their respective prior
written consent.
SECTION 4. COMPENSATION. Consultant shall be compensated by the Company
pursuant to the following formula:
(a) Signing Bonus. Consultant shall receive 1,625 (one thousand six hundred
twenty five) shares of BGTH free trading Common Stock and $500.00,
receipt of which is hereby acknowledged upon the execution of this
Consulting Agreement.
(b) Monthly Retainer. Consultant shall receive $4,000 (four thousand
dollars) per month payable within ten business days after the most
recent period.
(c) Common Stock Retainer. Consultant shall receive $4,000 (four thousand
dollars) worth of free trading BGTH Common Stock per month. The price
per share shall be determined using the 20 day trailing average of the
closing price of BGTH.OB. As an example, if the 20 day trailing average
of the closing price of BGTH.OB is $4.00 (the approximate price of the
Common Stock at execution) then Consultant shall receive 1,000 shares
of Common Stock.
(d) Expenses. The Consultant shall be reimbursed by the Company for
reasonable out-of-pocket expenses incurred in the performance of the
Consulting Services.
(e) Liability, Taxes & Social Security. The Company will not be liable for
any debts, accounts, obligations or other liabilities of the
Consultant, including without limitation, the Consultant's obligation
to withhold social security and income taxes.
SECTION 5. TERMINATION.
(a) Termination for Cause. The Company may terminate this Agreement for
Cause immediately upon written notice to the Consultant.
(b) Other Termination. The Company may terminate this Agreement without
Cause upon 30 days prior written notice to the Consultant. The
Consultant may terminate this agreement upon 30 days prior written
notice to the Company. This Agreement shall terminate automatically
upon the death or disability of Consultant.
SECTION 6. MISCELLANEOUS.
(a) Severability. The parties agree that each of the provisions included in
this Agreement is separate, distinct and severable from the other
provisions of this Agreement, and that the invalidity or
unenforceability of any provision shall not affect the validity or
enforceability of any other provision of this Agreement. Further, if
any provision of this Agreement is ruled invalid or unenforceable by a
court of competent jurisdiction because of a conflict between the
provision and any applicable law or public policy, the provision shall
be redrawn to make the provision consistent with and valid and
enforceable under the law or public policy.
(b) No Assignment. This Agreement and the rights and obligations of the
parties stated in this Agreement may not be assigned without the prior
written approval of the other party. The rights and obligations of the
parties will inure to the benefit of and will be binding on the
parties' lawful successors and assigns.
(c) Strict Performance; Waiver. The failure of either party to insist on
strict performance by the other party of any provision of this
Agreement or to exercise any right under this Agreement shall not be
construed as a waiver or relinquishment of such party's right to assert
or rely on any such provision or right in that or any other instance;
rather, same shall be and remain in full force and effect. A waiver by
either party of any breach of this Agreement by the other party shall
not be effective unless in writing, and no waiver shall operate or be
construed as a waiver of the same or another breach on a subsequent
occasion.
(d) Amendments. This Agreement embodies the entire agreement of the parties
on the subject matter stated in the Agreement. No amendment or
modification of this Agreement shall be valid or binding unless made in
writing and signed by both parties. All prior understandings and
agreements relating to the subject matter of this Agreement are hereby
expressly terminated.
(e) Notices. Any notice required or permitted to be given hereunder must be
given in writing and personally delivered or mailed to the other party
by certified mail, return receipt requested, by personal delivery or by
facsimile if the receiving party acknowledges in writing the receipt of
such fax transmission. Notices shall be given at the addresses set
forth on the signature page to this Agreement.
(f) Independent Contractors. The parties are independent contractors, and
nothing in this Agreement shall be construed to constitute either party
as a partner, joint venturer, employee, employer or agent of the other.
(g) Choice of Law; Forum. This Agreement shall be governed by and construed
in accordance with the laws of the State of California. The parties
consent to the personal jurisdiction and venue of the federal and state
courts having jurisdiction with respect to Irvine, California with
respect to all matters and disputes which may arise out of or result
from this Agreement.
(h) IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first written above.
BIOGENTECH, CORP.
/s/ Xxxxxxx Xxxxxxxx
---------------------------
Xxxxxxx Xxxxxxxx, President
0000 X'Xxxx Xxx, Xxxxx 000
Xxxxxx, XX 00000
CONSULTANT
XX Xxxxxx
--------------------------
XX Xxxxxx
0000 Xxxxxxxx Xxxx. 0000
Xxxxxxx Xxxxx XX 00000
