Consulting Agreement between Dermisonics, Inc. and DD Investment (October 18, 2004)

Summary

Dermisonics, Inc. has entered into a one-year consulting agreement with DD Investment to provide financial and investor public relations services in Germany. DD Investment will act as an independent contractor, offering advice and assistance on public and investor relations, including efforts to expedite the listing of Dermisonics' stock on German exchanges. In return, DD Investment will receive a monthly cash retainer and 400,000 shares of Dermisonics' common stock. The agreement includes confidentiality obligations and clarifies that DD Investment has no authority to bind the company without approval.

EX-10.40 10 doc9.txt EXHIBIT 10.40 CONSULTING AGREEMENT AGREEMENT, made this day 18th of October, 2004 by and between DERMISONICS, INC., Four Tower Bridge, 200 Bar Harbor Drive, West Conshohocken, Pennsylvania ###-###-#### (hereinafter the "Company"), and DD INVESTMENT, Kranichsteiner Strasse 21, 06598 Frankfurt am Main, Germany (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 ---------- 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 ------------------------- 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 --------------------------------------- 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 ---- 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 -------------------- 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 - 1 - 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 ---------------- 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. ----------------------------------------------- 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 --------------- 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. ------------ - 2 - a. Cash Retainer. For the period of one year beginning on the date ------------- 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 ------------------- 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 --------------------------- 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 --------------------------- 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 -------------------------- 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 ------------ 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. - 3 - (iv) Valid Issuance of the Shares. The Shares being issued ---------------------------- 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 -------------------------- 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 --------------------- 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 - 4 - 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 ----------------- 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. - 5 - 2. Modification and Waiver. No supplement, modification or amendment ------------------------- 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 -------------- 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 Clark 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 ------------------------ 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 ------------ 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 ------------------- 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 -------- 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 ------- 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. - 6 - (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. 2 Park Plaza, Suite 450 Irvine, California 92614 Attn.: Bruce H. Haglund Facsimile: (949) 733-1188 with a copy to: Ruffa & Ruffa, P.C. 150 East 58th Street, 33rd Floor New York, NY 10155 Attn.: William P. Ruffa, Esq. Facsimile: (212) 759-7696 (b) If to the Consultant, to: DD Investment Kranichsteiner Str. 21 06598 Frankfurt am Main Germany 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 --------- 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. - 7 - 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: ------------------------- ------------------------- Bruce H. Haglund, Alexander Holtermann, Chairman President - 8 -