CONSULTING AGREEMENT
AGREEMENT, made this day 18th of October, 2004 by and between DERMISONICS,
INC., Four Tower Bridge, 000 Xxx Xxxxxx Xxxxx, Xxxx Xxxxxxxxxxxx, Xxxxxxxxxxxx
00000-0000 (hereinafter the "Company"), and DD INVESTMENT, Xxxxxxxxxxxxxx
Xxxxxxx 00, 00000 Xxxxxxxxx xx Xxxx, Xxxxxxx (hereinafter the "Consultant").
WHEREAS, the Company desires to retain the Consultant to render consulting
services in connection with financial and investor public relations and the
other matters described herein in Germany and the Consultant desires to provide
such services as set forth herein.
NOW, THEREFORE, in consideration of the premises and mutual covenants and
agreements set forth herein and for other good and valuable consideration, the
receipt and adequacy of which are hereby acknowledged, the parties, intending to
be legally bound, agree as follows:
A. CONSULTATION
1. Consultant. The Company hereby retains the Consultant to render to
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the Company the consulting services as described in Section B hereof, and the
Consultant hereby accepts such assignment upon the terms and conditions
hereinafter set forth.
2. Independent Relationship. The Consultant shall provide the
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consulting services required to be rendered by it hereunder solely as an
independent contractor and nothing contained herein shall be construed as giving
rise to an employment or agency relationship, joint venture, partnership or
other form of business relationship.
3. No Authority to Obligate the Company. Without the consent of the
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Board of Directors or appropriate officer of the Company, the Consultant shall
have no authority to take, nor shall it take, any action committing or
obligating the Company in any manner, and it shall not represent itself to
others as having such authority.
4. Term. The term of the Consultant's consultation to the Company
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hereunder shall commence as of the date hereof and shall extend for a term of
one year.
B. OBLIGATIONS OF THE CONSULTANT
1. Consulting Services. During the term of this Agreement, Consultant
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will render advice and assistance to the Company on public and investor
relations related matters and in connection therewith the Consultant shall
perform and render the
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consulting services enumerated in Schedule A hereto.
ALL DOCUMENTATION CONCERNING THE COMPANY PREPARED BY THE CONSULTANT IN
CONNECTION WITH HIS DUTIES AND OBLIGATIONS HEREUNDER, INCLUDING, BUT NOT LIMITED
TO, DUE DILIGENCE REPORTS, CORPORATE PROFILE, FACT SHEETS, AND NEWSLETTERS,
SHALL BE PREPARED BY THE CONSULTANT FROM MATERIALS SUPPLIED TO IT BY THE COMPANY
AND SHALL BE APPROVED BY THE COMPANY IN WRITING PRIOR TO DISSEMINATION BY THE
CONSULTANT.
2. Time of Essence. The parties agree that time is of the essence and
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the Consultant shall take all steps reasonably required to expedite the listing
of the Company's common stock, par value $0.01 per share ("Common Stock") on the
Frankfurt and Berlin Stock Exchanges.
3. Nonexclusive Engagement; Extent of Services.
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a. The parties agree that the consultation contemplated by this
Agreement is a nonexclusive engagement and that the Consultant now renders and
may continue to render consulting services to other companies which may or may
not conduct activities similar to those of the Company.
b. The Consultant will devote such time and effort to the affairs
of the Company as the Consultant deems reasonable and adequate to render the
consulting services contemplated by this Agreement. The Consultant's work will
not include any services that constitute the rendering of any legal opinions or
performance of work that is in the ordinary purview of certified public
accountants.
4. Confidentiality. The Consultant will not, either during his
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engagement by the Company pursuant to this Agreement or at any other time
thereafter, disclose, use or make known for its or another's benefit, any
confidential information, knowledge, or data of the Company or any of its
affiliates in any way acquired or used by the Consultant during his engagement
by the Company. Confidential information, knowledge or data of the Company and
its affiliates shall not include any information which is or becomes generally
available to the public other than as a result of a disclosure by the Consultant
or his representatives.
C. OBLIGATIONS OF THE COMPANY
1. Compensation.
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a. Cash Retainer. For the period of one year beginning on the date
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hereof, the Company will pay a monthly cash retainer of EUR 3,000.00 to the
Consultant payable on the 1st day of each month commencing on November 1, 2004.
b. Issuance of Stock. Subject to the provisions of Section
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D.2(iv) hereof, the Company shall issue to the Consultant or his designees an
aggregate of 400,000 fully paid and non-assessable shares (the "Shares") of
Common Stock pursuant to the provisions of Section 4(2) of the Securities Act of
1933, as amended (the "Securities Act").
2. Reimbursement of Expenses. Consultant shall not be entitled to
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reimbursement for any costs or expenses incurred on or for the behalf of the
Company in connection with the performance of his duties hereunder.
D. REPRESENTATIONS, WARRANTIES AND COVENANTS
1. Representations and Warranties of the Company. The Company hereby
represents and warrants to the undersigned as follows:
(i) Corporate Organization; Etc. The Company is a
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corporation duly organized, validly existing and in good standing under the laws
of the State of Nevada and has full corporate power and authority to carry on
its business as it is now being conducted and to own the properties and assets
it now owns.
(ii) Authorization; Enforcement. The Company has the
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requisite corporate power and authority to enter into and to consummate the
transactions contemplated by this Agreement and otherwise to carry out its
obligations hereunder. The execution and delivery of this Agreement by the
Company and the consummation by it of the transactions contemplated hereby have
been duly authorized by all necessary action on the part of the Company. This
Agreement when duly executed and delivered by the Company in accordance with the
terms hereof shall constitute the legal, valid and binding obligation of the
Company enforceable against the Company in accordance with its terms, except as
such enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium, liquidation or similar laws relating to, or
affecting generally the enforcement of, creditors' rights and remedies or by
other equitable principles of general application.
(iii) No Violation. Neither the execution and delivery of
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this Agreement nor the consummation of the transactions contemplated hereby will
violate any provision of the Articles of Incorporation or By-Laws of the Company
as currently in effect.
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(iv) Valid Issuance of the Shares. The Shares being issued
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hereunder are validly issued and outstanding, fully paid and non-assessable, and
will not be subject to any pre-emptive or similar rights.
2. Representations, Warranties and Covenants of the Consultant. The
Consultant hereby represents, warrants and covenants to the Company as follows:
(i) Authorization; Enforcement. The Consultant has the
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requisite power and authority to enter into and to consummate the transactions
contemplated by this Agreement and otherwise to carry out his obligations
hereunder. The execution and delivery of this Agreement by the Consultant and
the consummation by him of the transactions contemplated hereby have been duly
authorized by all necessary action on the part of the Consultant. This
Agreement when duly executed and delivered by the Consultant in accordance with
the terms hereof shall constitute the legal, valid and binding obligation of the
Consultant enforceable against it in accordance with its terms, except as such
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium, liquidation or similar laws relating to, or
affecting generally the enforcement of, creditors' rights and remedies or by
other equitable principles of general application.
(ii) Transfer Restrictions. The undersigned acknowledges and
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understands that the Shares constitute "restricted securities" under the
Securities Act and have not been registered under the Securities Act in reliance
upon a specific exemption therefrom. In this connection, the undersigned
understands that subject to the restrictions on transfer and other
specifications set forth below.
(A) The Consultant is acquiring the Shares for his own
account, for investment purposes only and not with a view toward their resale or
distribution.
(B) The Consultant acknowledges and agrees that (i) the
Shares may be disposed of only pursuant to an effective registration statement
under the Securities Act or pursuant to an available exemption from or in a
transaction not subject to the registration requirements thereof and (ii) in
connection with any transfer of any Shares other than pursuant to an effective
registration statement, the Company may require the transferor thereof to
provide to the Company with an opinion of counsel selected by the transferor,
the form and substance of which opinion shall be reasonably satisfactory to the
Company, to the effect that such transfer does not require registration under
the Securities Act.
(C) The Consultant agrees to the imprinting, so long as
is required by this Section D.2(ii), of a legend on the certificates evidencing
the Shares in
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substantially the following form:
THESE SECURITIES HAVE NOT BEEN REGISTERED WITH THE SECURITIES AND
EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN
RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND, ACCORDINGLY, MAY NOT
BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE
EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE
STATE SECURITIES LAWS AS EVIDENCED BY A LEGAL OPINION OF COUNSEL TO
THE TRANSFEROR TO SUCH EFFECT, THE SUBSTANCE OF WHICH SHALL BE
REASONABLY ACCEPTABLE TO THE COMPANY.
(D) The Consultant acknowledges and agrees with the
Company that the Company shall not be obligated to recognize or register any
transfer of Shares made by the undersigned in a transaction that does not comply
with the provisions of this Agreement and the undersigned hereby agrees to
indemnify and hold the Company, its officers, director, agents, affiliates and
each other person, if any, who controls the Company, within the meaning of
Section 15 of the Securities Act, and any other registered owner of the
securities of the Company, harmless from and against any and all damages,
losses, liabilities, costs and expenses (including all costs incurred in
prosecuting such rights and reasonable attorneys' fee), which it or they may
incur in investigating, preparing, or defending against any litigation commenced
or threatened, or any claim whatsoever, arising out of or based upon any
transfer of the Shares made by the undersigned that does not conform to the
requirements of this Agreement.
(E) The Company and the Consultant have concurrently
entered into a Registration Rights Agreement, a copy of which is attached hereto
as Exhibit "A," covering the Shares.
E. MISCELLANEOUS
1. Entire Agreement. This Agreement contains the entire agreement
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between the parties with respect to the engagement of Consultant by the Company
as a consultant and supersedes and replaces any and all prior understandings,
agreements or correspondence between the parties relating to the subject matter
hereof.
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2. Modification and Waiver. No supplement, modification or amendment
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of this Agreement shall be binding unless executed in writing by both the
parties hereto. No waiver of any other provisions hereof (whether or not
similar) shall be binding unless executed in writing by both the parties hereto
nor shall such waiver constitute a continuing waiver.
3. Governing Law. This Agreement has been made in and shall be
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interpreted according to the laws of the State of Nevada without any reference
to the conflicts of laws rules thereof. The parties hereto submit to the
jurisdiction of the courts of Xxxxx County in the State of Nevada for the
purpose of any actions or proceedings that may be required to enforce any of the
provisions of this agreement.
4. Successors and Assigns. This Agreement shall inure to the benefit
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of and be binding upon the Company and its successors and assigns and upon the
Consultant and the Consultant's successors and assigns.
5. Severability. If any provision or provisions of this Agreement
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shall be held to be invalid, illegal or unenforceable for any reason whatsoever:
a. the validity, legality and enforceability of the remaining
provisions of this Agreement (including, without limitation, each portion of any
Section of this Agreement containing any such provision held to be invalid,
illegal or unenforceable) shall not in any way be affected or impaired thereby;
and
b. to the fullest extent possible, the provisions of this
Agreement (including, without limitation, each portion of any Section of this
agreement containing any such provision held to be invalid, illegal or
unenforceable) shall be construed so as to give effect to the intent manifested
by the provision held invalid, illegal or unenforceable.
6. Further Assurances. From and after the execution and delivery of
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this Agreement, upon request of either party, the other shall do, execute,
acknowledge and deliver all such further acts, assurances and other instruments
and papers as may be required to carry out the transactions contemplated by this
agreement.
7. Headings. The headings of the paragraphs of this agreement are
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inserted for convenience only and shall not be deemed to constitute part of this
agreement or to affect the construction hereof.
8. Notices. Any and all notices or other communications or deliveries
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required or permitted to be provided hereunder shall be in writing and shall be
deemed given and effective on the earliest of (a) the date of transmission, if
such notice or communication is delivered via facsimile at the facsimile number
specified in this Section prior to 6:30 p.m.
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(New York City time) on a Business Day (as defined below), (b) the next Business
Day after the date of transmission, if such notice or communication is delivered
via facsimile at the facsimile number specified in this Section on a day that is
not a Business Day or later than 6:30 p.m. (New York City time) on any Business
Day, (c) the Business Day following the date of mailing, if sent by U.S.
nationally recognized overnight courier service, or (d) upon actual receipt by
the party to whom such notice is required to be given. Any notice to be given
hereunder shall be given in writing. For purposes of this Agreement, the term
"Business Day" shall mean any day except Saturday, Sunday and any day which
shall be a federal legal holiday or a day on which banking institutions in the
State of Nevada are authorized or required by law or other governmental action
to close. All notices under this Agreement shall be either hand delivered
receipt acknowledged, or sent by registered or certified mail, return receipt
requested as follows:
(a) If to the Company, to: Second Stage Ventures, Inc.
0 Xxxx Xxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxxxx 00000
Attn.: Xxxxx X. Xxxxxxx
Facsimile: (000) 000-0000
with a copy to: Ruffa & Ruffa, P.C.
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn.: Xxxxxxx X. Xxxxx, Esq.
Facsimile: (000) 000-0000
(b) If to the Consultant, to: DD Investment
Xxxxxxxxxxxxxx Xxx. 00
00000 Xxxxxxxxx xx Xxxx
Xxxxxxx
Facsimile: 49 69 6062 9641
or such other address as may be designated in writing hereafter, in the same
manner, by such party.
9. Execution. This Agreement may be executed in two or more
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counterparts, all of which when taken together shall be considered one and the
same agreement and shall become effective when counterparts have been signed by
each party and delivered to the other party, it being understood that both
parties need not sign the same counterpart. In the event that any signature is
delivered by facsimile transmission, such signature shall create a valid and
binding obligation of the party executing (or on whose behalf such signature is
executed) the same with the same force and effect as if such facsimile signature
page were an original thereof.
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IN WITNESS WHEREOF, the parties have executed this Consulting Agreement as
of the day and year first written above.
DERMISONICS, INC. DD INVESTMENT
By: By:
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Xxxxx X. Xxxxxxx, Xxxxxxxxx Xxxxxxxxxx,
Chairman President
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