CONSULTING AGREEMENT
THIS AGREEMENT, made as of this 15th day of November 2006, by and between
Bioforce Nanosciences Holdings, Inc. (the "Company"), a Nevada corporation with
its principal offices at 0000 Xxxxxx Xxxxx Xxxxx, Xxxxx 000, Xxxx, XX 00000, and
Gulfstream Capital Group, LLC ("GCG"), a Florida limited liability company,
having offices at 000 XX Xxxxxxx Xxxxx Xxxx, Xxxxx 000, Xxxx Xxxxx, Xxxxxxx
00000.
WHEREAS, the Company desires to secure the services of GCG as a consultant
and GCG desires to provide such services to the Company;
NOW, THEREFORE, in consideration of the mutual promises contained herein,
the parties hereto agree as follows:
1. Engagement of Consultant. The Company hereby engages GCG to perform,
and GCG hereby agrees that it will render, the financial and business consulting
services described in paragraph 3 below during the Term of this Agreement, as
described below. If the Company should merge into or be acquired by any other
corporation, this Agreement shall be assumed by such successor corporation and
the term "The Company" when used herein includes any such successor corporation,
and its successors.
2. Term of Agreement. This Agreement shall be effective as of October 1,
2006 (the "Effective Date"), and shall continue until November 30, 2006
("Term"). The phrase "Term of Agreement" or "Term" as used herein refers to the
period commencing on the Effective Date and ending on the effective date of
termination. Notwithstanding anything contained herein to the contrary, sections
2, 4, 5, 6, 7, 8, 9, 10, 11, 12 and 13 shall survive the termination of this
Agreement for a period of two (2) years from the termination date of this
Agreement. This agreement may be terminated by either party at any time upon
fifteen days prior written notice.
3. Services of Consultant. During the term of this Agreement, GCG will
provide the following services (the "Services") pursuant to the directions
received from the Company's senior management: GCG will assist the Company's
senior management or its designees in developing corporate financing plans to
satisfy the capital requirements contemplated by its business plan by:
o Reviewing and providing comments to the Company's communications
with potential investors (for example, the Business Plan, including
its Executive Summary and Use of Proceeds sections);
o Reviewing and providing an assessment of various financial
strategies and products the Company might consider as funding
sources (for example, debt instruments, equity finding, PIPEs); and
o Reviewing and providing an assessment of various potential sources
and proposals of finding strategies, products and proposals,
including the valuations upon which they are based (for example,
iCap, SW Texas Capital, Xxxxx Xxxxxxxxx).
4. Expenses. GCG shall be reimbursed for all reasonable travel and
travel-related out-of-pocket expenses incurred in the performance of the
Services, upon presentation of monthly statements, provided that the Company has
requested or approved such travel. All expenditures over $250 must receive prior
approval by the Company.
5. Compensation. In consideration of the Services to be rendered and
performed by GCG during the Term of this Agreement, the Company will pay to GCG
$7,500 per month commencing on the Effective Date. GCG shall submit an invoice
for its services at the end of each month. The invoice shall include detail of
services provided. The Company shall pay undisputed amounts within ten (10) days
after receipt of the invoice.
6. GCG Covenants. GCG covenants as follows.
(a) GCG will use its best efforts to perform the Services for the
Company consistent with and specifically recognizing GCG's commitments and
obligations to other businesses for which it performs similar services.
(b) Although certain directors, officers and/or employees of GCG are
shareholders of the Company, GCG agrees to perform the Services with the best
short- and long-term interests of the Company as its primary consideration.
(c) GCG agrees to limit its work on behalf of the Company to the
Services and not to disclose any information concerning the Company that is not
publicly available in the Company's filings with the SEC.
(d) GCG agrees to perform the Services and to conduct itself in
matters associated with the Company in compliance with all applicable federal,
state and local laws, rules and regulations.
7. Confidentiality of Information. GCG agrees that neither it nor its
employees or agents will, during the Term of this Agreement, or at any time
thereafter, disclose or divulge or use, directly or indirectly, for its own
benefit or the benefit of any other party, any confidential information, data,
trade secrets, etc., including without limitation material, nonpublic
information, relating to the Company or the business of the Company learned in
connection with its work for the Company. GCG agrees that it shall not (i) hire
or solicit for hire, for its own benefit or the benefit of any other party, any
of the Company's employees, independent contractors or consultants or (ii)
solicit any of the Company's customers or co-venturers on behalf of itself or
any other party that is a direct or indirect competitor of the Company. The
provisions of this paragraph shall survive the termination of the Agreement, and
shall continue until such information, data, trade secrets, etc., becomes public
knowledge through no fault of GCG or any of its employees or agents. In the
event of any breach or threatened breach of GCG's Agreements in this Section,
GCG agrees that the Company shall be entitled seek a
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temporary restraining order and/or injunction without notice to GCG and without
the necessity for posting of a bond.
8. Reliance of Information Furnished: Indemnification by The Company. As a
consultant for the Company, GCG must at all times rely upon information supplied
to GCG by the Company's authorized officers, directors, agents and employees as
to accuracy and completeness in performing the Services. Therefore, the Company
agrees to indemnify, hold harmless and defend GCG its directors, officers,
employees and agents from and against any and all claims, actions, proceeds,
losses, liabilities, costs and expenses (including, without limitation,
reasonable attorney's fees) (together "Liabilities") to the extent Liabilities
arising out of GCG's performance of the Services are incurred by any of them
solely in connection with or as a result of any material inaccuracy,
incompleteness or omission of information given to GCG in writing by such
authorized personnel of the Company, unless GCG knew or should have known of the
inaccuracy, incompleteness or omission., or GCG was negligent or engaged in
willful misconduct in its use or disclosure of the information.
9. Indemnification by GCG. GCG agrees to indemnify and hold harmless and
defend the Company, it directors, officers, employees and agents from and
against any and all Liabilities incurred by any of them in connection with or as
a result of any negligence or willful misconduct on the part of GCG or any
breach of this Agreement including, without limitation, any information or
statement given or made by GCG to a third party which information or statement
has not been authorized by the Company or is not contained in information or
documents provided to GCG by the Company where GCG has the right to rely on the
information or documents.
10. Notices. All notices, requests, payments or other communication
hereunder shall be in writing and shall be deemed to have been given when
delivered personally or three days after being sent by registered or certified
mail, postage prepaid, or one (I) business day after being sent by a nationally
recognized overnight courier, to the following address or addresses or such
other address or addresses as the parties may designate in writing in accordance
with this paragraph:
If to the Company: BioForce Nanosciences, Inc.
0000 Xxxxxx Xxxxx Xxxxx, Xxxxx 000
Xxxx, XX 00000
Xxx: Xxxx Xxxxxxxxx, CEO
If to GCG: Gulfstream Capital Group, LLC.
000 XX Xxxxxxx Xxxxx Xxxx.
Xxxx Xxxxx, XX 00000
Attn: Xxxxxx Xxxx, President
11. Miscellaneous Provisions.
(a) This Agreement represents the entire subject matter hereof, and
supersedes all other negotiations, understandings and representation (if any)
made by and between such parties. All of the terms and provisions of this
Agreement, whether so expressed or not, shall be
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binding upon, inure to the benefit of, and be enforceable by the parties and
their respective administrators, personnel and other legal representatives,
heirs, successors and permitted assigns. No waiver, amendment or other
modification of this Agreement shall be effective unless in writing and signed
by each party to be bound hereby. This Agreement may not be assigned without the
consent of the parties hereto.
(b) If any part of this Agreement or any other Agreement entered
into pursuant hereto is contrary to, prohibited by or deemed invalid under
applicable law or regulation, such provision shall be inapplicable and deemed
omitted to the extent so contrary, prohibited or invalid, but the remainder
hereof shall not be invalidated thereby and shall be given full force and effect
so far as possible.
(c) IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INCIDENTAL,
CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES ARISING OUT OF OR IN CONNECTION WITH
THE AGREEMENT OR ITS TERMINATION OR BREACH, WHETHER IN TORT OR CONTRACT, OR
WHETHER A PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.
(d) This Agreement does not create a relationship of
employer/employee, agent, partnership, joint venture or other like relationship
between the parties. GCG is an independent contractor of the Company, and shall
not represent itself as or create the impress that it is anything else.
12. Applicable law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Florida unless the claim or suit is
brought in connection with another matter, in which event the law applicable to
the other matter shall apply.
13. Arbitration. Any and all disputes arising out of or in connection with
this Agreement shall be finally settled by arbitration in accordance with the
rules of the American Arbitration Association. The arbitration will be held in
Palm Beach County, Florida on consecutive business days. The award rendered
shall be final and binding upon the parties. Judgment on any award may be
entered in any court having jurisdiction over the parties or their assets. The
prevailing party will be entitled to reimbursement of legal fees and expenses
from the non-prevailing party. Notwithstanding the foregoing, if the dispute is
brought in connection with another matter, then the dispute shall be resolved in
the same manner as the other matter.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
day first written above.
Gulfstream Capital Group, LLC Bioforce Nanosciences Holdings, Inc.
By: /s/ Xxxxxx Xxxx By: /s/ Xxxx Xxxxxxxxx
---------------------------------- --------------------------------
President Name: Xxxx Xxxxxxxxx
Title: CEO
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