Exhibit 99.1
CONSULTING AGREEMENT
This CONSULTING AGREEMENT (the "Agreement") entered into effective this
3rd day of February, 2005, by and between Amazon Biotech, Inc., a Utah
corporation ("AMZB") and Halcyon, S.A., a Panamanian corporation ("Consultant").
WHEREAS, Consultant has agreed to provide business strategy consulting
services to AMZB; and
WHEREAS, this Agreement is made to set out the compensation, conditions
and guidelines that will govern the relationship between the parties.
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained herein, the receipt and sufficiency of which is expressly acknowledged
by the parties hereto, the parties agree as follows:
1. The Services. Effective the date above (the "Effective Date"), and for the
term of this Agreement, Consultant will provide business strategy consulting
services, including, but not limited to, reviewing, revising, and developing a
business plan, model, and growth strategy for AMZB (the "Services"). Consultant
has not been engaged to perform, nor does Consultant agree to perform any
services in connection with capital raising transactions. It is mutually
understood and agreed that any fees for the Services provided by Consultant,
which result in some benefit for AMZB in connection with a capital raising
transaction, shall be negotiated separately from this Agreement.
2. Term of Agreement. Unless otherwise terminated as provided hereunder, the
Services shall be provided to AMZB from the Effective Date through April 30,
2005. This Agreement may be renewed at the option of the parties.
3. Costs and Expenses. AMZB understands that, in the course of Consultant's
efforts to develop AMZB's corporate image, it may be necessary for Consultant to
incur certain costs or expenses. AMZB will reimburse Consultant for the costs or
expenses by Consultant in providing the Services to AMZB, provided such expenses
are approved by AMZB in writing in advance.
4. Payment for Services. In consideration for the services, AMZB agrees to issue
to Consultant 1,500,000 shares (the "Shares") of common stock for services
rendered.
5. Investment Representations; Registration.
(a) Investment Representations.
(i) The Consultant represents that the Consultant has been given
full and complete access to AMZB for the purpose of obtaining such information
as the Consultant or its qualified representative has reasonably requested in
connection with the decision to acquire the Shares. The Consultant represents
that such Consultant has been afforded the opportunity to ask questions of the
officers of AMZB regarding its business prospects and the Shares, all as the
Consultant or the Consultant's qualified representative have found necessary to
make an informed investment decision to purchase the Shares.
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Exhibit 99.1
(ii) The Consultant has been advised that the Shares have not been
registered under the Securities Act or any other applicable securities laws and
that Shares are being offered and sold pursuant to Section 4(2) of the
Securities Act and Rule 506 of Regulation D thereunder, and that AMZB's reliance
upon Section 4(2) and Rule 506 of Regulation D is predicated in part on the
Consultant representations as contained herein. The Consultant acknowledges that
the Shares will be issued as "restricted securities" as defined by Rule 144
promulgated pursuant to the Securities Act. None of the Shares may be resold in
the absence of an effective registration thereof under the Securities Act and
applicable state securities laws unless, in the opinion of AMZB's counsel, an
applicable exemption from registration is available.
(iii) The Consultant represents that the Consultant is acquiring the
Shares for the Consultant's own account, and not as nominee or agent, for
investment purposes only and not with a view to, or for sale in connection with,
a distribution, as that term is used in Section 2(11) of the Securities Act, in
a manner which would require registration under the Securities Act or any state
securities laws.
(iv) The Consultant understands and acknowledges that the Shares,
when issued, will bear the following legend:
THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR THE SECURITIES LAWS OF ANY STATE. THE
SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT AND MAY NOT
BE SOLD OR TRANSFERRED FOR VALUE IN THE ABSENCE OF AN
EFFECTIVE REGISTRATION THEREOF UNDER THE SECURITIES ACT
OF 1933 AND/OR THE SECURITIES ACT OF ANY STATE HAVING
JURISDICTION OR AN OPINION OF COUNSEL ACCEPTABLE TO THE
CORPORATION THAT SUCH REGISTRATION IS NOT REQUIRED UNDER
SUCH ACT OR ACTS.
(v) The Consultant acknowledges that an investment in the Shares is
not liquid and is transferable only under limited conditions. The Consultant
acknowledges that such Shares must be held indefinitely unless they are
subsequently registered under the Securities Act or an exemption from such
registration is available. The Consultant is aware of the provisions of Rule 144
promulgated under the Securities Act, which permits limited resale of restricted
securities subject to the satisfaction of certain conditions and that such Rule
is not now available and, in the future, may not become available for resale of
any of the Shares.
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Exhibit 99.1
(vi) The Consultant is an "accredited investor" as defined under
Rule 501 under the Securities Act.
(vii) Consultant acknowledges that it is able to protect its
interests in connection with the acquisition of the Shares and can bear the
economic risk of investment in such securities without producing a material
adverse change in Consultant's financial condition. Consultant, either alone or
with the Consultant's representative(s), otherwise has such knowledge and
experience in financial or business matters that Consultant is capable of
evaluating the merits and risks of the investment in the Shares.
(viii) The Consultant has a preexisting personal or business
relationship with AMZB, one or more of its officers, directors or controlling
persons, or one of the selling agents of AMZB, if any.
(ix) The Consultant represents, warrants and covenants that it is
not acquiring the Shares as part of a group within the meaning of Section
13(d)(3) of the Securities Exchange Act of 1934, as amended.
(b) Registration.
(i) Registration Rights. If, at any time after March 21, 2005 and
expiring March 21, 2008, AMZB proposes to register any of its securities under
the Securities Act (except for registrations on Forms S-8 or S-4 or their
equivalent), it will give written notice by registered mail, at least thirty
(30) days prior to the filing of each such registration statement, to Consultant
of its intention to do so. If Consultant notifies AMZB within twenty (20) days
after receipt of any such notice of its desire to up to 750,000 Shares (the
"Registrable Shares") in such proposed registration statement, AMZB shall afford
Consultant the opportunity to have any such Registrable Shares registered under
such registration statement at AMZB's sole cost and expense. These rights may be
exercised at any time on an unlimited number of occasions prior to March 21,
2008, subject to the absolute discretion of any underwriter of AMZB's securities
requesting that the Registrable Shares not be sold for a period not to exceed
one hundred eighty (180) days from the effective date of such registration
statement.
(ii) Expenses of Registration. All registration expenses (exclusive
of underwriting discounts and commissions) shall be borne by AMZB. The
Consultant shall bear all underwriting discounts, selling commissions, sales
concessions and similar expenses applicable to the sale of the Registrable
Shares sold by the Consultant.
(iii) Registration Procedures. In the case of the registration,
qualification or compliance effected by AMZB pursuant to Section 5(b) hereof,
AMZB will keep the Consultant advised as to the initiation of registration,
qualification and compliance and as to the completion thereof. At its expense,
AMZB will furnish such number of prospectuses and other documents incident
thereto as the Consultants or underwriters from time to time may reasonably
request.
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Exhibit 99.1
(iv) Information. AMZB may require Consultant as to which any
registration is being effected to furnish such information regarding the
distribution of the Registrable Shares as AMZB may from time to time reasonably
request and AMZB may exclude from such registration the Registrable Shares of
any seller who unreasonably fails to furnish such information after receiving
such request.
(v) Blue Sky. AMZB will, as expeditiously as possible, use its best
efforts to register or qualify the Registrable Shares covered by a registration
statement at the expense of AMZB in such jurisdictions as the Consultant or, in
the case of an underwritten public offering, the managing underwriter shall
reasonably request at the expense of the Consultant being registered provided
that AMZB shall not be required in connection with any such registration or
qualification or as a condition thereto to qualify to do business in any
jurisdiction where it is not so qualified or to take any action which would
subject it to taxation or service of process in any jurisdiction where it is not
otherwise subject to such taxation or service of process.
(vi) Notification of Material Events. AMZB will, as expeditiously as
possible, immediately notify Consultant under a registration statement, at any
time when a prospectus relating thereto is required to be delivered under the
Securities Act, of the happening of any event as a result of which the
prospectus contained in such registration statement, as then in effect, includes
an untrue statement of a material fact or omits to state any material fact
required to be stated therein or necessary to make the statements therein not
misleading in the light of the circumstances then existing and, as expeditiously
as possible, amend or supplement such prospectus to eliminate the untrue
statement or the omission.
6. Involvement of AMZB. AMZB expects to be kept informed on the progress of
Consultant's Services and, in this regard, Consultant agrees to keep AMZB
apprised of all material developments in writing at least quarterly. Conversely,
there may be times when Consultant will need to obtain information from AMZB.
All requests for access to documents, employees, or other information of AMZB
shall be granted without unreasonable delay.
7. Termination. Either party may terminate this Agreement upon thirty (30) days
notice by registered or certified mail, return receipt requested, addressed to
the other party. If either party terminates this Agreement, AMZB shall only be
liable for payment of fees earned or accruing to Consultant prior to the
Effective Date of the termination. The thirty (30) days notice shall be measured
from the date the notice is mailed.
8. Non- Exclusive Relationship. This Agreement, neither expressly nor impliedly,
creates a relationship of principal and agent between AMZB and Consultant, nor
is Consultant bound by this Agreement or the contractual relationship created
hereunder to act exclusively for AMZB, or to provide AMZB with any priority or
exclusive right to any Services, whether on behalf of AMZB or resulting from
work which Consultant has performed for other clients.
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Exhibit 99.1
9. Independent Contractor. It is understood and agreed that Consultant is acting
as an independent contractor in providing the Services under this Agreement,
Accordingly, Consultant will be responsible for payment of all of his federal,
state, and local taxes on fees paid under this Agreement, including income and
social security taxes, unemployment, insurance, and any other taxes as may be
required.
10. Confidential Non-Circumvention. Not withstanding Consultant's non-exclusive
relationship with AMZB, Consultant and AMZB Agree that all nonpublic information
concerning the identity of the Opportunities introduced to AMZB and AMZB's
business in general, is highly confidential and proprietary ("Confidential
Information"). Consultant and AMZB acknowledge that such Confidential
Information represents a legitimate, valuable, and protectable interest of AMZB,
which AMZB has invested considerable time, expenses and other valuable
resources, and gives AMZB a competitive advantage, which would otherwise be lost
if the Confidential Information was improperly disclosed or used by consultant.
11. Assignment. Notwithstanding contained herein to the contrary, the rights to
the Shares and the obligation to provide the Services set forth in this
Agreement, may be assigned or transferred by Consultant to an Affiliate,
otherwise, this Agreement and the rights and obligations hereunder shall not be
assigned. For the purpose of this Agreement, the term "Affiliate" shall be
defined as a person or enterprise that directly, or indirectly, through one or
more intermediaries, controls or is controlled by, or is under control of
Consultant.
12. Counterparts: Facsimile. This Agreement may be executed simultaneously in
two or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument. A facsimile,
telecopy or other reproduction of the original, or any counterpart hereof, and
such executed original, or any counterpart hereof, may be delivered by facsimile
or similar instantaneous electronic transmission device pursuant to which the
signature of or on behalf of such party can be seen, and such execution and
delivery shall be considered valid, binding and effective for all purposes. At
the request of any party hereto, all parties agree to execute an original of
this instrument as well as any facsimile, telecopy or other reproduction hereof.
13. Further Documentation. Each party hereto agrees to execute such additional
instruments and take such action as may be reasonably requested by the other
party to effect the transaction, or otherwise to carry out the intent and
purposes of this Agreement.
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Exhibit 99.1
14. Notice. All notices and other communications hereunder shall be in writing
and shall be sent by prepaid first class mail to the parties at the following
addresses, as amended by the parties with written notice to the other:
To Consultant: Halcyon, S.A.
222 Old Prospect Road
P.O. Box 31485 SMB
Grand Cayman
Cayman Islands
To AMZB: Amazon Biotech, Inc.
33 West 43rd Street, Suite 405
New York, NY 10001
15. Governing Law. This Agreement was negotiated and shall be governed by the
laws of the state of New York notwithstanding any conflict-of-law provision to
the contrary.
16. Entire Agreement. This Agreement set forth the entire understanding between
the parties hereto and no other prior written or oral statement or agreement
shall be recognized or enforced.
17. Severability. If a court of competent jurisdiction determines that any
clause or provision of this Agreement is invalid, illegal or unenforceable, the
other clauses and provisions of the Agreement shall remain in full force and
effect and the clauses and provisions which are determined to be void, illegal
or unenforceable shall be limited so that they shall remain in effect to the
extent permissible by law.
18. Amendment or Waiver. Every right and remedy provided herein shall be
cumulative with every other right and remedy, whether conferred herein, at law,
or in equity, and may be enforced concurrently herewith, and no waiver by any
party of the performance of any obligation by the other shall be construed as a
waiver of the same or any other default then, theretofore, or thereafter
occurring or existing. A writing signed by all parties hereto may amend this
Agreement.
19. Headings. The section and subsection headings in this Agreement are inserted
for convenience only and shall not affect in any way the meaning or
interpretation of this Agreement.
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Exhibit 99.1
IN WITNESS WHEREOF, the parties have executed this Agreement the dates
first written above.
"AMZB"
Amazon Biotech, Inc.
By: /s/ Mechael Kanovsky, Ph.D.
---------------------------------
Name: Mechael Kanovsky, Ph.D.
Title: President
"Consultant"
Halcyon, S.A.
By: /s/ Debbie Gushlak
---------------------------------
Name: Debbie Gushlak
Title: President
[Signature Page to Consulting Agreement]
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