EXHIBIT # 10.49
CONSULTING AGREEMENT
This Engagement Agreement ("Agreement") is entered into as of this___________,
2003 by and between DAN BURNS ("Mr. Burns") of ___________________, Eugene
Martineau ("Mr. Martineau) of _____________________and MOLECULAR DIAGNOSTICS,
INC. 414 N Orleans, Suite 800, Chicago, IL 60610 (the "MDI").
WHEREAS, MDI desires to contract with Mr. Burns and Mr. Martineau for the
purpose of assisting MDI in certain investor relations, and other financial
aspects of its business or as requested and agreed upon by the parties on a
case-by-case basis during the period of this Agreement; and,
WHEREAS, Mr. Burns and Mr. Martineau are willing and able to provide such
consulting services to MDI according to the terms and conditions set forth
herein,
NOW, THEREFORE, in consideration of the foregoing and the mutual promises and
covenants contained below, the parties agree as follows:
1 ENGAGEMENT FOR CONSULTING SERVICES - MDI hereby engages Mr. Burns and
Mr. Martineau, and Mr. Burns and Mr. Martineau agree to accept such
engagement, to consult with MDI with respect to its business and
interaction with existing and new investors ("Investor Relations").
Unless specifically referenced in writing by MDI, neither Mr. Burns
nor Mr. Martineau shall have authority to act on behalf of and bind,
represent, and engage MDI in any way. Unless specifically authorized
in writing by Mr. Burns or Mr. Martineau, MDI shall have no authority
to act on behalf of or bind Mr. Burns or Mr. Martineau in any way by
any promise, representation or agreement.
2 BEST EFFORTS - Mr. Burns and Mr. Martineau shall each use his best
efforts to perform the obligations under this engagement but makes no
commitment that any Transaction can or will be arranged with any
party. Neither Mr. Burns nor Mr. Martineau accepts any liability for
their inability to achieve the intended Responsibilities defined in
the attached Statement of Work & Fees.
3 COMPLIANCE - Both Mr. Burns and Mr. Martineau have the responsibility
for ensuring that any transactions or activities he/they undertake on
behalf of MDI as part of this Agreement comply with all federal, state
/ provincial, and Security and Exchange Commission regulations. Mr.
Burns and Mr. Martineau will rely on MDI for providing accurate and
reliable information to prospective parties pursuant to the
Responsibilities outlined in the Statement of Work and Fees that may
result from this Agreement.
4 FEES - MDI agrees to pay all fees defined in the attached exhibit,
Statement of Work and Fees.
5 TERM - The Term of this Agreement shall be 12 months from the date of
signing, and shall provide the parties automatic one-year (1 year)
extensions on the anniversary unless either party stipulates in
writing at least 30 days prior their desire to terminate the
relationship.
5.a Termination by MDI. MDI may terminate this Agreement with 30 days
notice for failure of Mr. Burns and/or Mr. Martineau to dedicate
effort consistent with the Statement of Work, including but not
limited to:
5.a.i.ii Providing timely and responsive consultation to MDI with
respect to IR and PR activities;
5.a.i.iii Delivering funding, contacts, and consultation with
respect to both MDI's Bridge and Equity funding efforts;
5.a.i.iv Providing timely and supportive consulting to the
Company's investor relations firm, for purposes of
enhancing the value of the Company;
5.a.i.v For behavior inconsistent with or in disregard of any
local, state, federal, or SEC regulations; or for
actions that might otherwise be construed as a breach of
fiduciary responsibility of an executive within a
publicly traded company.
5.b Termination by Mr. Burns and Mr. Martineau. Mr. Burns and Mr.
Martineau - collectively - may terminate this Agreement for specific,
un-resolved causes with 30 days notice.
Page 1 of 4
1 RELATIONSHIP OF PARTIES - It is understood by the parties that both Mr.
Burns and Mr. Martineau are independent contractors with respect to MDI,
and not employees nor officers of MDI. MDI will not provide fringe
benefits, including paid vacation, or any other employee benefit, for the
benefit of either Mr. Burns or Mr. Martineau unless otherwise specified
here-in. Mr. Burns and Mr. Martineau shall be responsible for all taxes and
withholding, Federal and State, resulting from this Consulting Agreement.
MDI agrees to provide Mr. Burns and Mr. Martineau the appropriate
documentation including, but not limited to 1099 reporting as necessary to
facilitate their timely reporting and payment of such taxes. Failure on the
part of MDI to comply with such reporting as mandated by law shall burden
MDI with any and all fee, penalties, and other charges associated with Mr.
Burns' or Mr. Martinau's delinquent reporting or payment.
2 INDEMNIFICATION - MDI agrees to indemnify and hold Mr. Burns and Mr.
Martineau harmless from all claims, losses, expenses, fees including
attorney fees, costs, and judgments that may be asserted against MDI that
result form the acts or omissions of MDI. Mr. Burns and Mr. Martineau agree
to indemnify and hold MDI harmless from all claims, losses, expenses, fees
including attorney fees, costs, and judgments that may be asserted against
MDI that result form the acts or omissions of Mr. Burns and Mr. Martineau.
3 ENTIRE AGREEMENT - This Agreement, including the exhibits shall constitute
the entire agreement of the parties and there are no other promises or
conditions in any other agreement whether oral or written. This Agreement
supersedes any prior written or oral agreements between the parties.
4 AMENDMENT - This Agreement may only be modified or amended if the amendment
is made in writing and is signed by both parties.
5 SEVERABILITY - If any provision of this Agreement shall be held to be
invalid or unenforceable for any reason, the remaining provisions shall
continue to be valid and enforceable. If a court finds that any provision
of this Agreement is invalid or unenforceable, but that by limiting such
provision it would become valid and enforceable, then such provision shall
be deemed to be written, construed, and enforced as so limited.
6 WAIVER OF CONTRACTUAL RIGHT - The failure of either party to enforce any
provision of this Agreement shall not be construed as a waiver or
limitation of that party's right to subsequently enforce and compel strict
compliance with every provision of this Agreement.
7 APPLICABLE LAW - This Agreement shall be governed by the laws of the State
of Illinois.
8 ARBITRATION - If the parties are unable to resolve any dispute between them
arising out of or in connection with this Agreement, either party may refer
the dispute to arbitration by a single arbitrator selected by the parties
according to the rules of the American Arbitration Association ("AAA"), and
the decision of the arbitrator will be final and binding on both parties.
Such arbitration will be conducted by the Chicago, Illinois office of the
AAA and governed by Illinois law. In the event that the parties fail to
agree on the selection of the arbitrator within thirty (30) days after
either party's request for arbitration under this Section VI., the
arbitrator will be chosen by AAA. The arbitrator may in his discretion
order documentary discovery, but in no event may depositions be taken. The
arbitrator will have no authority to award punitive damages. Judgment on
the award of the arbitrator may be entered in and enforced by any court of
competent jurisdiction. Notwithstanding the foregoing, no issue related to
the ownership of intellectual property will be subject to arbitration but
will instead be subject to determination by a court of competent
jurisdiction. All expenses associated with Arbitration shall be borne
exclusively by MDI.
Page 2 of 4
EXHIBIT 1 - STATEMENT OF WORK AND FEES
This Statement of Work and Fees ("Statement") is made as part of the Consulting
Agreement dated 2003 (:Effective Date") between Dan Burns, Eugene Martineau, and
Molecular Diagnostics, Inc. ("MDI") and shall be construed as the description of
expectations by and on behalf of MDI of Mr. Burns and Mr. Martineau in their
consultant role, and their expectations of the remuneration afforded them for
such services.
1. MR. BURNS' AND MR. MARTINEAU'S RESPONSIBILITIES - Mr. Burns and Mr.
Martineau, independently, or collectively shall provide the following
services to MDI:
A. Solicit investments into MDI's Bridge and/or Equity
financing, up to a maximum amount of $7,700,000, segregated
as follows
i. No more than $1,700,000 in Bridge Funding accumulating
as of the Effective Date of this Agreement
ii. No more than $6,000,000 in equity funding in Cash or
via Strategic Partnerships coming directly thru Mr.
Burns and/or Mr. Martineau;
B. Assist in maximizing the shareholder value for and on behalf
of MDI's shareholders;
C. Provide guidance and dedicated effort to assist in
establishing strategic partners with other companies
interested in MDI's technologies, products, and services;
2. PERFORMANCE FEES - For their efforts, Mr. Burns and Mr. Martineau
shall be remunerated as follows:
2.a Issuance of Stock Certificates: MDI shall, upon execution of this
Agreement, render 1,400,000 shares to, collectively, Mr. Burns
and Mr. Martineau as follows:
2.a.i Mr. Burns 1 stock certificate for 1,025,000 common
shares of MCDG stock; and
2.a.ii Mr. Martineau 1 stock certificate for 375,000 common
shares of MCDG stock.
2.a.iii Stock Legends: The aforementioned certificates / shares
shall be 144 registered. The Company shall use its best
efforts to register these shares in September 2003, in
conjunction with the MDI's next registration.
2.a.iv Stock Vesting: The parties agree that the shares
contained in these certificates shall vest as follows:
2.a.v 300,000 shares at delivery for services performed for
the period June 1, 2003 thru September 1, 2003;
2.a.vi 600,000 shares covering the balance of this Agreement,
covering the period September 1, 2003 thru August 1,
2004;
2.a.vii 500,000 shares at delivery for performance in having
raised, prior to the this Agreement, an aggregate amount
of $600,000 in Bridge funding. The parties agree that
this $600,000 is not to be construed as performance with
respect to the $1,500,000 to be raised in Bridge funding
pursuant to this Agreement;
2.a.viii Should either party Terminate this Agreement as
stipulated above, any non-vested shares shall be
returned to MDI by virtue of Mr. Burns and/or Mr.
Martineau relinquishing the certificates substantiating
non-vested shares.
Page 3 of 4
2.b Investment Compensation: The following remuneration shall be
provided Mr. Burns and Mr. Martineau, collectively, based on
their performance in directly leading to the generation of
investments pursuant to this Agreement:
2.b.i Bridge Funding (Maximum to be raised $1,700,000
commencing with the Effective Date of this Agreement):
2.b.i.ii 10% of the Bridge funding in the form of
144 registered shares of MCDG, based on
the same terms as the Bridge investment;
plus
2.b.i.iii For Bridge funding raised between July
1, 2003 and September 1, 2003, an
additional 5% of the Bridge funding in
the form of cash, payable September 15,
2003.
2.b.ii Equity Funding (up to a maximum of $6,000,000):
2.b.ii.ii 10% of the investment in the form of 144
registered shares in MCDG;
2.b.ii.iii Per share price will be the same as the
Equity Funding price, and is expected to
be higher than $0.40 per share
2.c All shares earned pursuant to Performance as outline in Section 2
herein, shall be registered and have their 144 legends removed at
the next registration undertaken by the company.
AGREED:
DAN BURNS EUGENE MARTINEAU MOLECULAR DIAGNOSTICS, INC.
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______________________ ____________________ __________________________
Signature Signature Signature
Dan Burns Eugene Martineau Peter P. Gombrich
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Name Name Name
__________________ __________________ ____________________
Date Signed Date Signed Date Signed