EXHIBIT 10.35
CONSULTING AGREEMENT
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CONSULTING AGREEMENT dated as of the 7th day of February, 2000 by and
between Advanced Viral Research Corp., a Delaware corporation, with offices
located at 200 Corporate Boulevard South, Suite 4, Yonkers, New York 10701 (the
"Company") and Harbor View Group, Inc., a New York corporation, with offices
located at One Old Country Road, Carle Place, New York 11514 (the "Consultant").
PREAMBLE:
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A. Heretofore, Consultant has provided valuable services to the Company
in connection with the Company's search for a chief financial officer ("CFO")
and provided assistance to the Company in connection with its ultimate
engagement of Alan Gallantar as CFO.
B. Consultant has considerable experience in corporate structuring,
financial transactions, financial public relations, corporate governance and
shareholder relations, which such experience it is willing to make available to
the Company.
C. The Company desires to retain Consultant to provide the services
referred to in Paragraph B above, to provide additional advisory services as
requested, and to compensate Consultant for its prior contribution to the
Company as described in Paragraph A above.
NOW, THEREFORE, in consideration of the promises and commitments set
forth herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto, intending
legally to be bound, hereby agree as follows:
1. Term of Agreement. This Agreement shall commence as of the date hereof and
shall continue until December 31, 2000, unless sooner terminated in accordance
with the provisions of this Agreement.
2. Responsibilities of Consultant. Subject to the terms and conditions
hereinafter set forth, the Company hereby retains Consultant and Consultant
hereby agrees, to use its expertise to render assistance to the Company in
connection with the matters referred to in Preamble paragraphs A and B hereof.
Consultant shall devote such time as it deems necessary and required to carry
out its duties in assisting the Company hereunder. Consultant shall not have
authority to execute any agreements or make any commitments on behalf of the
Company, but Consultant may advise others that it is engaged as a consultant for
the Company. Consultant shall not be an employee or agent of the Company; all
services will be rendered as an independent contractor. Consultant shall act in
good faith to carry forward the reputation of the Company and shall take no
action which would jeopardize the Company from doing business anywhere in the
world.
3. Compensation. As full compensation for its services hereunder Consultant
shall receive the following compensation: (a) a warrant to purchase 1,750,000
shares of the Company's Common Stock, par value $.00001 per share, at an
exercise price of $.21 per share, and (b) a warrant to purchase 1,750,000 shares
of the Company's Common Stock, par value $.00001 per share, at an exercise price
of $.26 per share. The warrants shall be exercisable in whole or in part at any
time and from time to time prior to 5:00 p.m. Eastern Standard Time on February
28, 2005, and shall otherwise contain substantially the same terms and
conditions as are set forth in the exhibit attached hereto as Exhibit A. Except
as otherwise agreed to in writing, the Company shall not be responsible to
reimburse Consultant for any out-of-pocket expenses incurred by Consultant in
connection with the performance of its duties hereunder.
It is specifically understood that Consultant shall have the right to
engage experienced people or entities in the financial community to assist it in
the performance of its duties hereunder provided that such persons or entities
enjoy favorable reputations in the financial and business community and are
otherwise acceptable to the Company. Any compensation earned by such persons or
entities shall be the responsibility of Consultant, who shall have the right to
assign part of its warrant interest herein thereto, subject to all of the terms
and conditions of this Agreement.
The warrants granted hereunder shall otherwise be non-transferable
provided, however, that Consultant shall have the right to transfer all or any
part of the warrants to any principal of Consultant, to the spouse or child of
any principal of Consultant or to any trust for the benefit of any of the
aforesaid persons if the provisions of such trust are permissive thereof. Any
such transfer shall be subject to the provisions of this Agreement and have the
terms of the warrants.
Consultant represents that it is an Accredited Investor as that term is
defined in Rule 501 of Regulation D under the Securities Act of 1933.
4. Transaction.
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4.1 The Company shall have the absolute right, in the exercise of its
sole discretion, to accept or reject any proposal for investment brought to it
by Consultant. If, and at such time as, the Company shall enter into and
consummate a transaction with one or more private investors (other than those
security holders of the Company as of the date hereof), the Company will pay
Consultant a fee which shall be negotiated in good faith based upon the size and
terms of the investment secured by Consultant.
4.2 If, during the term of this Agreement, Consultant introduces a
prospective investor to the Company and the Company consummates a transaction
with such investor during the term of this Agreement or within one year
thereafter, Consultant shall be entitled to compensation as referred to in this
Paragraph 4.
5. Property Rights of Parties.
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5.1. Consultant shall not disclose any trade secrets of the Company,
directly or indirectly, nor use them in any way either during the term of this
Agreement or at any time thereafter except as required in the course of its
consulting. All files, records, documents, drawings, specifications, equipment
and similar items relating to the business of the Company, whether or not
prepared by Consultant, shall remain the exclusive property of the Company and
shall not be removed from the premises of the Company under any circumstances,
except in pursuit of the trade and business of the Company and as approved in
writing in advance by a senior officer of the Company.
5.2. On the termination of this Agreement or whenever requested by the
Company, Consultant shall immediately deliver to the Company all property in
Consultant's possession or under Consultant's control belonging to the Company,
including, but not limited to, all accounting records, computer terminals and
tapes, disks, or other data storage mechanisms, accounting machines, and all
office furniture and fixtures, supplies and other personal property in the
possession or under the control of Consultant, in good condition, ordinary wear
and tear excepted, and including, without limitation, all correspondence files,
research data, and patent information or data, of every sort.
5.3. Consultant does not claim any rights or interests in and to trade
secrets, formulas, devices, inventions, processes, patents, applications,
continuations, copyrights, trademarks, compilations of information, records,
specifications, rights, interests and data of any other sort, affecting or
pertaining directly or indirectly to the business of the Company as now
conducted, or to the patents, trade secrets, and other rights now owned by the
Company.
5.4. Consultant hereby irrevocably releases and forever discharges the
Company, its successors, assigns, representatives, directors, officers,
employees and agents from any and all causes of action, suits, claims, debts,
accounts, reckonings, claims for attorneys fees, interests, contracts, promises,
damages and demands of any nature arising out of any services performed by
Consultant to the Company prior to the date hereof, including, without
limitation, any fees for finding any person, firm or entity employed by the
Company or which has invested in or provided financing for the Company.
6. Entire Agreement. This Agreement constitutes the entire Agreement of the
parties hereto with respect to the subject matter hereof and no amendment or
modification hereof shall be valid or binding unless made in writing and signed
by the party against whom enforcement thereof is sought.
7. Notices. Any notice required, permitted or desired to be given pursuant to
any of the provisions of this Agreement shall be deemed to have been
sufficiently given or served for all purposes if delivered in person or sent by
telephone facsimile or sent by certified mail, return receipt requested, or sent
by responsible overnight delivery service, postage and fees prepaid, to the
parties hereto at their respective addresses set forth in the preamble to this
Agreement. Either
of the parties hereto may at any time and from time to time change the address
to which notice shall be sent hereunder by notice to the other party given under
this Section 7. The date of the giving of any notice sent by mail shall be three
business days following the date of the posting of the mail, the date delivered
in person, the next business day following delivery to an overnight delivery
service or the date sent by telephone facsimile, as applicable. All notices to
the Company, to be valid, shall simultaneously be delivered to Robert E.
Fischer, Wolf, Block, Schorr and Solis-Cohen, LLP, 250 Park Avenue, New York,
New York 10177.
8. No Assignment. This Agreement may not be assigned by Consultant. This
Agreement shall be binding upon Consultant and the Company and their respective
successors and assigns.
9. No Waiver. No course of dealing nor any delay on the part of the Company in
exercising any rights hereunder shall operate as a waiver of any such rights. No
waiver of any default or breach of this Agreement shall be deemed a continuing
waiver or a waiver of any other breach or default.
10. Governing Law. This Agreement shall be governed, interpreted and construed
in accordance with the substantive laws of the State of New York applicable to
Agreements entered into and to be performed entirely therein. Any suit, action
or proceeding with respect to this Agreement shall be brought exclusively in the
courts of the State of New York, County of New York or in the United States
District Court for the Southern District of New York.
11. Severability. If any clause, paragraph, section or part of this Agreement
shall be held or declared to be void, invalid or illegal, for any reason, by any
court of competent jurisdiction, such provision shall be ineffective but shall
not in any way invalidate or affect any other clause, paragraph, section or part
of this Agreement. The parties intend that all clauses, paragraphs, sections or
parts of this Agreement shall be enforceable to the fullest extent permitted by
law.
12. Counterparts. This Agreement may be executed in one or more counterparts,
each of which counterparts, when taken together, shall constitute but one and
the same agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
ADVANCED VIRAL RESEARCH CORP.
By: /s/ Shalom Z. Hirschman, M
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Name: Shalom Hirschman, M.D.
Title: President
HARBOR VIEW GROUP, INC.
By: /s/ Lawrence J. Pomeranz
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Name: Lawrence J. Pomeranz
Title: Chairman
Agreed to as to Paragraph 5
/s/ Lawrence J. Pomeranz
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Lawrence J. Pomerantz