CONSULTING AGREEMENT WITH TBF
Published on November 19, 2001
CONSULTING AGREEMENT
Consulting Agreement, dated as of this _____ day of November, 2001, between
Tampa Bay Financial, a Florida corporation ("TBF"); American Communications
Enterprises, Inc., a Nevada corporation ("ACEN"); and NeoGenomics, Inc., a
Florida corporation ("NeoGenomics").
RECITALS
A. TBF, ACEN, NeoGenomics and Michael Dent, M.D., have entered into a
certain Agreement and Plan of Exchange dated as of November ___, 2001 (the "Plan
of Exchange"), pursuant to which, among other things, ACEN will acquire all of
the outstanding shares of NeoGenomics.
B. Under the terms of the Plan of Exchange, TBF has agreed to provide
consulting services to ACEN and NeoGenomics (the "Companies"), and the Companies
have agreed to engage TBF to provide such services, on the terms and conditions
set forth in this Agreement.
NOW, THEREFORE, in consideration of the foregoing recitals and the mutual
covenants contained in this Agreement, the parties hereby agree as follows:
1. Engagement. The Companies hereby retain TBF, on the terms and conditions
set forth in this Agreement, to serve as an independent consultant to the Companies
in connection with the operations of the Companies.
2. Services to Be Rendered.
(a) The consulting services of TBF shall consist of: (i) the
assistance in locating a chief financial officer for the Companies; (ii) the provision
of a director to the Companies; (iii) investor relations for the Companies; (iv)
assistance in coordinating the preparation of ACEN's financial statements and
any required SEC filings; (v) assistance in obtaining market makers for ACEN;
(vi) advice concerning the Companies' finances and operations, including their
bank and lending arrangements, potential acquisitions, its personnel, equipment
and marketing operations, potential product lines, competition and customer
services; and (vii) such other matters as the Companies may reasonably request.
(b) As part of its services, TBF shall pay from its own funds
the following expenses of the Companies:
(i) the salary of their chief financial officer;
(ii) the costs incurred by the Companies in preparing
all required filings under federal and state securities laws, including the fees
and expenses of securities counsel, the fees and expenses of the accountants for
the Companies (and each party hereto consents to the representation by such counsel
of Companies, and the payment by TBF of such fees), the fees and expenses of the
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transfer agent and any fees and expenses of maintaining ACEN's listing on the
OTC Bulletin Board.
(c) TBF shall make available to consult with the management of
the Companies, with reasonable frequency, at TBF's offices by phone or at the
Companies' office, or such other place as the parties may agree, executives or
other employees or agents of TBF; provided, however, that TBF shall be entitled
to full and complete compensation as set forth in Section 4 whether or not
called upon by the Companies to render any consulting services.
3. Term. This Agreement shall commence on the date of this Agreement,
and shall have an initial term of one year and may be extended at the option of TBF
for two additional terms of one year each. This Agreement shall terminate in the
event that TBF fails to consummate the purchase of shares of ACEN in accordance
with the terms of the Plan of Exchange.
4. Compensation. The Companies shall pay TBF a fee of $10,000 per month
for its services.
5. Right of First Refusal. TBF shall have a right to first refusal to
purchase any securities which may be offered by ACEN, on the following terms and
conditions:
(a) In the event that ACEN proposes to sell any of its securities
(the "Offered Securities"), ACEN shall provide to TBF written notice of the proposed
sale, including the type of securities to be sold, the number or amount of such
securities to be sold, the purchase price of the securities and the proposed
terms of the offering (the "Notice of Sale"). For a period of 20 days, TBF shall
have the right to purchase any or all Offered Securities on the terms set forth
in the Notice of Sale, with the exception that TBF will only be obligated to pay
an amount equal to 50% of the purchase price set forth in the Notice of Sale.
TBF may exercise its right by delivering written notice of such exercise to ACEN
within the required 20 day period.
(b) If TBF exercises its right to purchase some or all of the
Offered Securities within the required period, then TBF and ACEN will complete the
sale to TBF within 20 days after TBF exercises its right to purchase the Offered
Securities.
(c) If TBF does not exercise its right to purchase all of the
Offered Shares within the required period, then ACEN shall have the right to sell
any of the Offered Shares not acquired by TBF to one or more parties selected by
ACEN (including the other shareholders of ACEN) on the terms, including purchase
price, set forth in the Notice of Sale. The sale of Offered Shares must be
completed, if at all, within 120 days of the Notice of Sale.
(d) The provisions of this Section 5 shall not apply to the
following transactions:
(i) the issuance of stock options by ACEN to employees
of the Companies, and the sale of shares purchased pursuant to such stock options; or
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(ii) the issuance of shares in connection with a merger,
share exchange or similar acquisition of another company by ACEN.
(e) The provisions of this Section 5 shall expire 18 months after
the date of this Agreement.
6. Reimbursement. The Companies shall reimburse TBF for all reasonable
out-of-pocket and travel and travel-related expenses incurred by TBF in
connection with its performance of services under this Agreement, in accordance
with reasonable policies established from time to time by the Board of Directors
of the Companies.
7. Exculpation and Indemnification. TBF shall have no liability to the
Companies for any advice or other services rendered hereunder except such as may
arise from TBF's willful misconduct and gross negligence. The Companies shall
indemnify and save harmless TBF, its officers, directors, employees and
stockholders from and against any and all losses, liabilities, expenses
(including, without limitation, reasonable fees and disbursements of counsel),
claims, liens, or other obligations whatsoever which TBF may suffer or incur by
virtue of or as a result of its consultancy with the Companies.
8. Independent Contractor. TBF acknowledges that it is an independent
contractor. Except as otherwise provided in Section 6 hereof, TBF shall be
responsible for all taxes and other expenses attributable to the rendition of
services hereunder to the Companies. Nothing herein contained shall be deemed to
constitute a partnership between or a joint venture by TBF and the Companies,
nor shall anything herein contained by deemed to constitute TBF or the Companies
the agent of the other. Neither TBF nor the Companies shall be or become liable
or bound by any representation, act or omission whatsoever of the other one made
contrary to the provisions of this Agreement.
9. Confidentiality. TBF has and will come into possession of confidential
information concerning the Companies and its operations. TBF will not, during
the term of this Agreement or thereafter, reveal to outside sources, without the
Companies' consent, any such confidential information which TBF has in its
possession, or which may come into TBF's possession and is designated
confidential by the Companies unless required by law to do so or unless such
information has become public knowledge without the fault of TBF.
10. Benefit. This Agreement shall be binding upon and shall inure to the
benefit of the parties hereto and their respective successors and assigns.
11. Notices. All notices, requests, demands and other communications
hereunder shall be in writing, shall be effective upon receipt and shall be sent
by certified mail to the following addresses:
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If to TBF: Tampa Bay Financial, Inc.
355 Interstate Boulevard
Suite 309
Sarasota, Florida 34240
Attn: Carl L. Smith
If to the Companies: NeoGenomics, Inc.
840 111th Avenue North
Naples, Florida 34108
Attn: Michael T. Dent, M.D.
provided, however, that any of the parties hereto may, from time to time, give
to the other notice of some other address to which communications to it shall be
sent, in which event notice to such party shall be sent to such address.
12. Governing Law. This Agreement and its interpretation, construction
and enforcement shall be governed by the laws of the State of Florida applicable to
contracts made and to be performed entirely herein. Any action to enforce this
Agreement shall be brought within Collier County, Florida.
13. Integration; No Waiver. This Agreement contains the entire agreement
of the parties hereto with respect to its subject matter and may not be changed,
modified or amended unless in writing and signed by the parties hereto. Any
waiver or breach of any term or conditions of this Agreement shall not be deemed
to constitute a waiver of any other term or condition or subsequent breach of
the same condition.
14. Counterparts. 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.
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IN WITNESS WHEREOF, the parties have executed this Agreement this _____day
of __________, 2001.
TAMPA BAY FINANCIAL
By: __________________________________
Title:
Name:
AMERICAN COMMUNICATIONS
ENTERPRISES, INC.
By: __________________________________
Title:
Name:
NEOGENOMICS, INC.
By: __________________________________
Title:
Name: