Business Development Agreement
THIS BUSINESS DEVELOPMENT AGREEMENT ("Agreement"), dated August 19th 2003,
is between Xxxxxx X. Xxxx and Xxxxxxx Xxxxxxxx (collectively referred to as
"Consultant ") and HIV-Vac, Inc. ( "Company ").
A. Consultant is an international business development advisor; and
B. Company is a publicly traded U.S. corporation; and
C. Consultant and Company desire to enter into an agreement whereby
Consultant will assist Company in establishing business relationships in Europe
and the Middle East and each party will provide the other services as described
in this Agreement.
THEREFORE, in consideration of the premises, the promises hereafter set
forth, and other good and valuable consideration, the parties hereby agree as
follows:
1. Description of Consultant's Services. Consultant, in the capacity of
an independent contractor and not as an employee of Company, agrees to provide
the following services to Company:
a. Identify and approach potential joint-venture partners and other
valueable interested contacts for Company's technology in Europe
and the Middle East.
b. Elaboration of joint venture strategies, focusing on Europe and
the Middle East; confidential approach of suitable acquisition
candidates.
c. Analysis and evaluation of the target companies; supporting the
implementation of Due Diligence studies; assisting in
negotiations and contractual matters.
d. Be available to and agree to perform or arrange newspaper,
television and radio interviews plus live seminars, as agreed
with Company, in order to advertise and promote the Companies
technology.
e. Be available to conduct and arrange for Company live phone-in
interviews, upon reasonable notice, when not conducting live
seminars, in order to advertise and promote the Companies
technology.
f. Attend conventions, trade shows and promotions which are mutually
agreed upon in advance by the parties, in order to advertise and
promote the Company's technology.
2. Description of Company Services. Company agrees to diligently use the
skills and efforts of its organization to perform its duties under this
Agreement in a good, workmanlike and productive manner and to apply prudent and
reasonable business practices. Company, with the aid of Consultant, will prepare
electronic and printed marketing materials and will arrange to attend important
meetings the Consultant will organize.
3. Term. The term of this Agreement ("Term") shall commence on the date
hereof and continue for a period of twelve (12) months.
4. Independent Contractor Agreement. Consultant agrees to be an
independent contractor and not an employee under this Agreement.
Confidential Page 1 11/11/2003
5. Company Evaluation and Control. Company and Consultant agree that
Company has the right to evaluate in advance the effectiveness of possible
joint-ventures and any other potential transactions and determine whether there
is any potential risk of penalties imposed by the Federal Trade Commission (FTC)
or any other authority or government department, and, if there is, decide
whether to continue or modify the potential joint-venture plan or transaction
strategy.
6. Trademarks and Patents. Consultant acknowledges that Company has or
might have trademark and patent registrations pending. Consultant agrees not to
misappropriate these trademarks or patents, and not to use these trademarks or
patents without prior approval of Company.
7. Compensation to Consultant. For performance of the services described
in this Agreement, Company agrees to compensate Consultant as follows:
Company will pay Consultant a non-refundable fee of $30,000. in cash or
alternatively, at the Company's discretion, in lieu of cash, will pay the
Consultants 300,000 shares of Company's common stock as a non-refundable
engagement fee, payable by delivery of certificate of 300,000 shares of
Company's common stock (150,000 shares payable to Xxxxxxx Xxxxxxxx and 150,000
shares payable to Xxxxxx X. Xxxx), such stock to be duly authorized, validly
issued and outstanding, fully paid and non-assessable and will not be subject to
any liens or encumbrances. The stock will be registered under a Form S-8
Registration. Payment will be due within 7 days of the date hereof. Consultant
will provide the Company and its counsel with a representation letter certifying
that its services provided under this Agreement are such that the shares to be
issued under this Section 7 will be eligible for registration on Form S-8 and
such other assurances as the Company's counsel may reasonably request for the
preparation and filing of the Form S-8.
8. Non-Circumvention and Remedy. Company and Consultant expressly agree
that this Agreement constitutes a binding contract. Company, intending to be
legally bound, hereby irrevocably agrees not to circumvent, avoid, bypass, or
obviate Consultant, directly or indirectly, to avoid payments or fees,
commissions, or any other form of compensations to Consultant in any transaction
with any corporation, partnership, or individual, revealed by either party to
the other, in connection with any projects, or currency exchanges, or any loans
or collaterals, or any findings or any other transactions involving products,
commodities, services, additions, renewals, extensions, rollovers, amendments,
new contracts, re-negotiations, parallel contracts or agreements or third party
assignments hereof. Therefore Company shall not contact individuals or entities
introduced by Consultant during the term of this Agreement without prior written
consent from Consultant. If any transaction of any kind is consummated within
twenty-four (24) months of the termination of this Agreement with an individual
or entity introduced directly or indirectly by Consultant to Company and/or
Company enters into an agreement to acquire or be acquired by an entity or
individual introduced directly or indirectly by Consultant to Company during the
term of this Agreement, then that transaction shall be deemed to have been
arranged by Consultant under this Agreement and Company shall remunerate
Consultant as specified above. If Company breaches any term of this Agreement or
violates any of his obligations under this Agreement, e.g. any compensation or
fee payments or the Non-Circumvention clause or the Confidentiality clause or
any other term, Consultant may seek all remedies and appropriate equitable
relief allowed by law, and Consultant shall be entitled to a legal monetary
penalty and equitable remedies equal to the maximum fees allowed by a competent
court, at law or in equity, including all legal and other expenses, and
Consultant may also, at its option, terminate or suspend all performances or
services remaining to be rendered by Consultant under this Agreement without
being obligated to pay back or reimburse any compensation or fee payments
previously received by Consultant under this Agreement.
Confidential Page 2 11/11/2003
10. Exclusivity and Confidentiality. The services of Consultant hereunder
shall not be exclusive, and Consultant and its agents may perform similar or
different services for other persons or entities whether or not they are
competitors of Company. Consultant shall be required to expend only such time as
is necessary to service Company in a commercially reasonable manner. Company and
Consultant acknowledge and agree that confidential and valuable information
proprietary to either one party and obtained during its business relationship
with either one party, shall not be, directly or indirectly, disclosed without
the prior express written consent of the other party, unless and until such
information is otherwise known to the public generally or is not otherwise
secret and confidential. All such confidential information provided to either
one party by the other shall be clearly and conspicuously marked with the word
"Confidential." Consultant may disclose Company's confidential information
pursuant to applicable laws or regulations, provided that Consultant may
disclose only information required for services and performances hereunder.
Furthermore Company acknowledges and agrees that the existence of this Agreement
or the Agreement itself, including single paragraphs, terms, provisions,
conditions and/or any other section of the Agreement, shall not be, directly or
indirectly, in total or in parts, disclosed to any third party without the prior
express written consent of Consultant.
11. Indemnification and Representation. Company agrees to save harmless,
indemnify and defend Consultant, its agents and employees from and against any
cost, loss, damage, liability, judgment and expense whatsoever, including
attorney's fees, suffered or incurred by it by reason of, or on account of, any
misrepresentation made to it or its status or activities as Consultant under
this Agreement. Company hereby represents and warrants to Consultant that it is
duly organized and in good standing under State Law and under Federal Law, is
current in its filings and disclosures with the appropriate regulatory bodies
and has all requisite power and authority to carry on business as now conducted
and as contemplated herein.
12. Miscellaneous. No waiver of any of the provisions of this Agreement
shall be deemed or shall constitute a waiver of any other provision and no
waiver shall constitute a continuing waiver. No waiver shall be binding unless
executed in writing by the party making the waiver. No supplement, modification,
or amendment of this Agreement shall be binding unless executed in writing by
all parties. This Agreement constitutes the entire agreement between the parties
and supersedes any prior agreements or negotiations. This Agreement may, if
required, be signed in counterparts, or by facsimile. Neither party assumes any
responsibilities or obligation whatsoever, other than the responsibilities and
obligations expressly set forth in this Agreement or a separate written
agreement between Company and Consultant. Neither party shall be liable under
the provisions of this Agreement for damages on account of accidents, fires,
acts of God, government actions, state of war, or any other causes beyond the
control of the party whether or not similar to those enumerated. In the event of
a conflict between this Agreement and any future agreements executed in
connection herewith, the provisions of this Agreement shall generally prevail.
It is acknowledged and agreed by Company and Consultant that should any
provision of this Agreement be declared or be determined to be illegal or
invalid by final determination of any court of competent jurisdiction, the
validity of the remaining parts, terms or provisions of this Agreement shall not
be affected thereby, and the illegal or invalid part, term or provision shall be
deemed not to be a part of this Agreement. This Agreement is subject to all
federal, state, and local government regulations, and shall be construed in
accordance with the laws of the United States.
Confidential Page 3 11/11/2003
IN WITNESS WHEREOF, the parties hereto have entered into this Agreement on
the date first written above.
Xxxxxx X. Xxxx
/s/ Xxxxxx X. Xxxx
---------------------------------
Xxxxxxx Xxxxxxxx
/s/ Xxxxxxx Xxxxxxxx
---------------------------------
HIV- Vac, Inc.
By: /s/ Xxxxx Xxxxxx
---------------------------------
Its: President
---------------------------------
Confidential Page 4 11/11/2003
