ex1012.htm


    CONSULTING
AGREEMENT

    


    


    This Consulting Agreement (the “Agreement”)
is made as of this 4th day
of January 2010, between Shrink Nanotechnologies, Inc., a Delaware corporation
(the "Company"),
and Justin Heit (the "Consultant")
and shall be effective upon execution by the Company and the Consultant (the
"Effective
Date").  The Company and the Consultant are collectively
referred to herein as the “Parties.”

    


    The Consultant has agreed to provide
certain services  to the Company in developing its biotech and related
products and, has also agreed to provide research, prototype and product
development assistance relating to the Company’s life sciences related products
as more fully enumerated on Exhibit
A annexed hereto (collectively, the “Field of
Interest”), and to prepare instructional videos or materials for use in
academic and corporate laboratories, each as more fully enumerated in Exhibit A annexed
hereto (collectively, as more fully elaborated herein, the “Services”).  Accordingly,
the Parties agree as follows:

    


    1.           Services.  The
Consultant shall provide the Services in the relevant Field of Interest, as
requested by the Company and set forth in Exhibit A attached
hereto. Consultant will provide consulting services, which shall
amount to not less than five days per month or such other amount of time as is
necessary for the Consultant to complete the Services as reasonably requested by
the Company and as the Consultant’s schedule
permits.    Consultation may be sought by the Company over
the telephone, in person, at the Company's offices or another reasonable
location or through written correspondence, and will involve reviewing
activities and developments in the Field of Interest.  Additionally,
Consultant may be requested to attend, to the extent Consultant’s schedule
permits, one or more in person meetings with other members of the Board or
committees or advisory committees of the Board or scientific advisors to the
Company, in keeping with the terms of this Agreement.  In addition,
Consultant shall provide a full and detailed report no later than [6] months after the date of
this Agreement and, during said time period shall have provided the Service
faithfully.

    


    2.           Term and
Termination.  The term of this Agreement will begin on the
Effective Date of this Agreement and will end on the first year anniversary
(based on a 360 day year containing four (4) ninety (90) day quarterly periods)
of this Agreement or upon earlier termination as provided below (the "Term"); provided, however, that the
Term may be renewed, by mutual consent of the Parties, for successive one-year
periods. This Agreement may be terminated at any time upon sixty (60) days
written notice by either party.  The Consultant agrees, following the
termination of this Agreement or upon earlier request by the Company, to
promptly return all drawings, tracings, research reports, product manufacturing
information or brochures, instructional materials, and all visual or written
materials in the Consultant’s possession that were either supplied by the
Company in conjunction with the Consultant’s consulting services under this
Agreement, or, that were generated by the Consultant in the performance of
consulting services under this Agreement.

    


    3.           Compensation.  Consultant
shall receive stock based compensation upon entering into this Agreement and
cash compensation as follows:

    


    3.1           Hourly Compensation;
Commencing Six Month Anniversary of Term.  Consultant may be
compensated an hourly fee of $250.00 for all work requested to be performed by
the Company after six months after the effective date of this Agreement and
only within agreed upon
budgets agreed to in advance so as to avoid payment dispute.  Nothing
herein however shall be deemed to require any form of cash or other compensation
other than the below mentioned shares, for any services unless agreed to by the
company in advance.

    


    3.2           Stock Based
Compensation. Consultant shall receive 1,450,000 shares (the “Shares”)
of Common Stock which shall vest immediately upon acceptance of the terms hereof
by the Consultant.  Notwithstanding the foregoing, in the event
Consultant does not provide the Services and related report at the times
contemplated hereby, then the Company shall be entitled to terminate this
Agreement and seek damages not to exceed return of the shares, or, if
transferred, the value thereof.  The foregoing shares shall, after the
effective date and acceptance of the terms hereof by the Consultant, be deemed
duly authorized, validly issued, fully paid and non-assessable.

    


    All
shares are restricted and may only be issued in accordance with an exemption
from registration under the Securities Act of 1933, as amended (the “Securities
Act”).  The Shares are being acquired on an as is basis from
the Company.  The Company has made no, and currently makes no warranty
or representation whatsoever as to the present or future value or liquidity
levels of the Shares.  The parties acknowledge and agree that any
presumed value provided on a 1099 or in similar tax documents or any dollar
amount valuation of the Company or the Shares as indicated on the Company’s past
or future SEC reports or financial statements, are not necessarily indicative of
the present or future actual value of the Shares.

    


    3.2.1           Consultant
understands that any restricted shares, and any securities issued in respect
thereof, shall bear the following legend:

    


    “THE
SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AND HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A
VIEW TO, OR IN CONNECTION WITH, THE SALE OR DISTRIBUTION THEREOF.  THESE
SECURITIES MAY NOT BE OFFERED, SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF UNLESS
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND ANY APPLICABLE
STATE SECURITIES LAWS OR AN EXEMPTION FROM SUCH REGISTRATION IS
AVAILABLE.

    


    3.3           Additional Success
Fees.  The Consultant shall not receive any form of success or
finance success based compensation and, shall not take any actions or act in any
manner requiring FINRA registration.

    


    3.4           Acknowledgement of Risks
Relating to Shares.  Consultant understands and acknowledges
that the shares being received are illiquid and do not vest for a period of time
and certain shares are further subject to forfeiture if this Agreement is
terminated prior to the end of any Term.  In addition, the securities
of the Company are generally illiquid and subject a high degree of
risk.  Consultant represents that it has the knowledge and experience
to assess the nature of a risk relating to such shares.  Consultant
understands therefore, that it is possible that he will not be able to monetize
the value of the shares.  Additionally, and without limitation,
Consultant acknowledges that:

    


    3.4.1           the
Shares are “restricted securities” (as such term is defined in Rule 144
promulgated under the Act (“Rule 144”),
and that the Shares may include a restrictive legend, and, that the Shares may
not be able to be sold unless registered with the United States Securities and
Exchange Commission and qualified by appropriate state securities regulators, or
unless the Consultant complies with an exemption from such registration and
qualification (including, without limitation, compliance with
Rule 144);

    


    3.4.2           Consultant
has adequate means of providing for current needs and contingencies, has no need
for liquidity in the investment, and is able to bear the economic risk of an
investment in the Shares offered by the Seller of the size contemplated. The
Consultant represents that he/she has read and reviewed all public filings made
available by each Issuer, with the United States Securities Commission’s EDGAR
filing service (www.sec.gov) and understands that each Issuer maintains
questionable financial stability.  The Consultant represents that
he/she is able to bear the economic risk of the investment and at the present
time could afford a complete loss of such investment;

    


    3.4.3           the
Consultant is an “Accredited Investor” as defined in Regulation D of the
Securities Act or the Consultant, and, directly or indirectly, has sufficient
knowledge and experience in financial and business matters that the Consultant
is capable of evaluating the merits and risks of an investment in the Shares
offered by the Seller and of making an informed investment decision with respect
thereto and has the capacity to protect the Consultant’s own interests in
connection with the Consultant’s proposed investment in the Shares. Consultant
is not acquiring the shares as part of a public solicitation or offering and is
not acquiring said shares with intent to distribute the same;

    


    3.4.4           The
Consultant is acquiring the Shares solely for the Consultant’s own account as
principal, for investment purposes only and not with a view to the resale or
distribution thereof, in whole or in part, and no other person or entity has a
direct or indirect beneficial interest in such Shares other than the Consultant
and its principals.

    


    3.4.5           The
Consultant will not sell or otherwise transfer the Shares without registration
under the Act or an exemption therefrom and fully understands and agrees that
the Purchaser must bear the economic risk of their purchase for an indefinite
period of time because, among other reasons, the Shares have not been registered
under the Securities Act or under the securities laws of any state and,
therefore, cannot be resold, pledged, assigned or otherwise disposed of unless
they are subsequently registered under the Securities Act and under the
applicable securities laws of such states or unless an exemption from such
registration is available.

    


    4.           Certain Other
Contracts.  Company is aware that Consultant is involved in
several professional engagements with various commercial
entities.  The Consultant will not disclose to the Company any
information that the Consultant is obligated to keep secret pursuant to an
existing confidentiality agreement with a third party, and nothing in this
Agreement will impose any obligation on the Consultant to the
contrary.  The consulting work performed hereunder will not be
conducted on time that is required to be devoted to any other third party. The
Consultant shall not use the funding, resources and facilities of the any other
third party to perform consulting work hereunder and shall not perform the
consulting work hereunder in any manner that would give any third party rights
to the product of such work.  The Consultant has disclosed and, during
the Term, will disclose to the President of the Company any conflicts between
this Agreement and any other relevant agreements binding the
Consultant.

    


    5.           [Omitted.]

    


    6.           Inventions Discovered by the
Consultant While Performing Services Hereunder. The Consultant will
promptly and fully disclose to the President of the Company any invention,
improvement, discovery, process, formula, technique, method, trade secret, or
other intellectual property, whether or not patentable, whether or not
copyrightable (collectively, "Invention")
made, conceived, developed, or first reduced to practice by the Consultant,
either alone or jointly with others, while performing services hereunder,
whether for the Company or any subsidiary or affiliate of the Company. The
Consultant hereby assigns to the Company all of his right, title and interest in
and to any such Inventions. The Consultant will execute any documents necessary
to perfect the assignment of such Inventions to the Company and to enable the
Company to apply for, obtain, and enforce patents or copyrights in any and all
countries on such Inventions. The Consultant hereby irrevocably designates the
Secretary of the Company as his agent and attorney-in-fact to execute and file
any such document and to do all lawful acts necessary to apply for and obtain
patents and copyrights, and to enforce the Company's or any subsidiary’s or
affiliates’ rights under this paragraph. This Section 6 will survive the
termination of this Agreement.

    


    7.           Confidentiality.

    


    7.1           The
Consultant acknowledges that, during the course of performing his services
hereunder, the Company (which, for purposes of this Section 7 shall be deemed to
be defined as the Company and any subsidiary of the Company) will be disclosing
information to the Consultant, and the Consultant will be developing information
related to the Field of Interest, Inventions, projects, products, potential
customers, personnel, business plans, and finances, as well as other
commercially valuable information (collectively "Confidential
Information"). The Consultant acknowledges that the Company's business is
extremely competitive; dependent in part upon the maintenance of secrecy, and
that any disclosure of the Confidential Information would result in serious harm
to the Company.  The Consultant agrees that the Confidential
Information will be used by the Consultant only in connection with consulting
activities hereunder, and will not be used in any way that is detrimental to the
Company.  The Consultant agrees not to disclose, directly or
indirectly, the Confidential Information to any third person or entity, other
than representatives or agents of the Company. The Consultant will treat all
such information as confidential and proprietary property of the
Company.  The term "Confidential
Information" does not include information that (i) is or becomes
generally available to the public other than by disclosure in violation of this
Agreement, (ii) was within the relevant party's possession prior to being
furnished to such party, (iii) becomes available to the relevant party on a
non-confidential basis, or (iv) was independently developed by the relevant
party without reference to the information provided by the
Company.  The Consultant may disclose any Confidential Information
that is required to be disclosed by law, government regulation or court order.
If disclosure is required, the Consultant will give the Company advance notice
so that the Company may seek a protective order or take other action reasonable
in light of the circumstances.  Upon termination of this Agreement,
the Consultant will promptly return to the Company all materials containing
Confidential Information as well as data, records, reports and other property,
furnished by the Company to the Consultant or produced by the Consultant in
connection with services rendered hereunder, together with all copies of any of
the foregoing. Notwithstanding such return, the Consultant shall continue to be
bound by the terms of the confidentiality provisions contained in this Section 7
after the termination of this Agreement.

    


    7.2           If
the Consultant has a conflict of interest, or potential conflict of interest,
with respect to any matter, he shall excuse himself from the discussion of such
matter and at the time of the execution of this Agreement, Consultant shall
disclose and describe all potential conflicts of interest that may arise from
the execution of this Agreement with respect to prior engagements Consultant is
a party to.

    


    8.           Acknowledgments and
Assent.  The Parties acknowledge that they have been given at least
seven (7) days to consider this Agreement and that they were advised to consult
with an independent attorney prior to signing this Agreement and that they have
in fact consulted with counsel of their own choosing prior to executing this
Agreement.  The Parties may revoke this Agreement for a period of three (3)
calendar days after signing this Agreement, and the Agreement shall not be
effective or enforceable until the expiration of this three (3) day revocation
period.  The Parties agree that they have read this Agreement and
understand the content herein, and freely and voluntarily assent to all of the
terms herein.

    


    9.           Use of
Name.  It is understood that the name of the Consultant will
appear in disclosure documents required by securities laws, and in other
regulatory, administrative filings and public relations materials in the
ordinary course of the Company's business. The above-described uses will be
deemed to be acceptable uses.

    


    10.           No Conflict: Valid and
Binding. The Consultant represents that neither the execution of this
Agreement nor the performance of the Consultant's obligations under this
Agreement will result in a violation or breach of any other agreement by which
the Consultant is bound. The Company represents that this Agreement has been
duly authorized and executed and is a valid and legally binding obligation of
the Company, subject to no conflicting agreements.

    


    11.           Notices. Any notice
provided under this Agreement shall be in writing and shall be deemed to have
been effectively given (i) upon receipt when delivered personally, (ii) one day
after sending when sent by private express mail service (such as Federal
Express), or (iii) 5 days after sending when sent by regular mail to the
following address:

     
 

    
      	
              In the case of the Company:

            	
              In the case of the
    Consultant:

            
	 
      	 
      
	
              Shrink
      Nanotechnologies, Inc.

            	
              Attention:
      Justin Heit

            
	
              2038
      Corte del Nogal, Suite 110

            	
              ____________________

            
	
              Carlsbad,
      California 92011

            	
              _____,
      California ______

            


    

    


    or to
other such address as may have been designated by the Company or the Consultant
by notice to the other given as provided herein.

    


    12.           Independent Contractor:
Withholding. The Consultant will at all time be an independent
contractor, and as such will not have authority to bind the
Company.  The Parties acknowledge that this Agreement is not a
contract within the meaning of Section 2750 of the California Labor Code, and
the Consultant is not an employee of the Company for any purpose under the
California Labor Code.  Consultant will not act as an agent nor shall
he be deemed to be an employee of the Company for the purposes of any employee
benefit program, unemployment benefits, or otherwise. The Consultant recognizes
that no amount will be withheld from his compensation for payment of any
federal, state, or local taxes and that the Consultant has sole responsibility
to pay such taxes, if any, and file such returns as shall be required by
applicable laws and regulations. Consultant shall not enter into any agreements
or incur any obligations on behalf of the Company.

    


    13.           Assignment.  Due
to the personal nature of the services to be rendered by the Consultant, the
Consultant may not assign this Agreement. The Company may assign all rights and
liabilities under this Agreement to a subsidiary or an affiliate or to a
successor to all or a substantial part of its business and assets without the
consent of the Consultant. Subject to the foregoing, this Agreement will inure
to the benefit of and be binding upon each of the heirs, assigns and successors
of the respective parties.

    


    14.           Severability.  If
any provision of this Agreement shall be declared invalid, illegal or
unenforceable, such provision shall be severed and the remaining provisions
shall continue in full force and effect.

    


    15.           Indemnification.
Consultant agrees to indemnify, hold harmless, reimburse and defend the the
Company and each of their respective officers, directors, agents, affiliates,
members, managers, control persons, and principal shareholders (each, together
with the Company, an “Indemnified
Party”), against any claim, cost, expense, liability, obligation, loss or
damage (including reasonable legal fees) of any nature, incurred by or imposed
upon the Company or any such person which results, arises out of or is based
upon: (i) any act by the Consultant of fraud or violation of state or federal
law causing any Claim (as hereinafter defined) or investigation on or against an
Indemnified Party; (ii) any intentional or fraudulent material misrepresentation
by the Consultant or intentional or fraudulent breach of any representation or
warranty by the Consultant in this Agreement document prepared by the Consultant
for use by the Company or third parties; or (iii) after any applicable notice
and/or cure periods, any material breach or default in performance by the
Consultant of any covenant or undertaking to be performed by the
Consultant  hereunder.

     

    If any
claim, suit, action or other proceeding to which the indemnity set forth herein
applies (“Claim”) is
brought against the Company an Indemnified Party, such Indemnified Party shall
give the Consultant prompt notice of such Claim, and the Consultant shall have
the right, at its own expense, to participate in or assume, with the consent of
the Indemnified Party (such consent not to be unreasonably withheld), the
defense of such Claim, provided that, the Consultant
shall use counsel reasonably acceptable to the Indemnified Party in defending
such Claim.

     

    16.           Remedies. The
Consultant acknowledges that the Company would have no adequate remedy at law to
enforce Sections 3, 4, 5, 6, 7, and 15 hereof.  In the event of a
violation by the Consultant of such Sections, the Company shall have the right
to obtain injunctive or other similar relief, as well as any other relevant
damages, without the requirement of posting bond or other similar
measures.  In the event any dispute is asserted by the Company as to
the Services, the Company may issue a stop order with the Company’s stock
transfer agent, for all or a portion of the shares issued without the
requirement that a bond be posted therefore.  In such connection,
Consultant waives any obligation of Company to post a bond as to such stop order
and, will not contest any efforts or application of the Company to take such
action without the requirement of posing a bond.  Notwithstanding the
foregoing, in the event Consultant does not provide the Services and related
report at the times contemplated hereby, then the Company shall be entitled to
terminate this Agreement and seek damages not to exceed return of the shares,
or, if transferred, the value thereof.  (i.e. liquidated damages shall
be limited to return of the shares or, the value thereof based on current market
prices).

    


    17.           Governing Law; Entire
Agreement; Amendment. This Agreement shall be governed by the laws of the
State of California applicable to agreements made and to be performed within
such State, represents the entire understanding of the parties, supersedes all
prior agreements between the parties, and may only be amended in
writing.

    


    [Signature
Page Follows]

     

     

     

    
      
         

      

      
         

        
          

        

      

      
         

      

    

     

    
 

    [Signature
Page to Consulting Agreement]

    


    IN
WITNESS WHEREOF, the parties have executed this Agreement as of the date first
written above.

    


    Shrink
Nanotechnologies,
Inc.                                                                           Consultant

    


    


    


    ____________________________                                                                  _____________________________

    By: Mark
L.
Baum                                                                                                  
By: Justin Heit

    Its:
CEO                                                                                                                
 an individual

    
 

     

     

    
      
         

      

      
         

        
          

        

      

      
         

      

    

     

     

    
 

    Exhibit
A

    


    Field Of
Interest

    


    
      	
              I.  

            	
              Consultant
      shall provide service which
includes:

            


    

    


    
      	
              A.  

            	
              Development
      of product launch and commercialization supporting material for the
      Company’s Biotech and life sciences research tools.  The initial
      focus shall be on on integrated solutions for Stem Cell researchers as
      further defined in I(B) and II
below.

            


    

    
      	
              B.  

            	
              Submit
      a background and product research reference report
  on:

            


    

    
      	
              a.  

            	
               StemDisc
      US Provisional Patent 61/161,388
and

            


    

    
      	
              b.  

            	
              Tunable
      Shrink-induced honeycomb microwell arrays for uniform embryoid bodies
      published in Lab Chip, 2009, 9, 3338-3344, DOI 10.1039/b914091c for final
      approval. 

            


    

    


    
      	
              II.  

            	
              Consultant
      to provide supporting product collateral for the following
      StemDiscTM  suite of
products:

            


    

    


    Product
Line                                                Germ Layer
Disposition

    StemDisc
Ecto
                                                                Endoderm
(liver, pancreas, lungs)

    StemDisc
Endo                                                Mesoderm
(heart, muscle, bone,  kidneys)

    StemDisc
Meso                                                Ectoderm
(nervous tissue, epidermis)

    CellAlign                                                Ectoderm
(Heart and nervous tissue)

    


    Consultant
shall also provide product collateral for the Company’s Rapid Prototyping
Solution TM (RPS)

    


    
      	
              III.  

            	
              Product
      Information prepared by the Consultant should
  include:

            


    

    


    
      	
              A.  

            	
              Product
      packaging, product  specification brochures, instructions for use and
      related tools;

            


    

    
      	
              B.  

            	
              Instructional
      videos for use in the academic and corporate
  laboratories;

            


    

    
      	
              C.  

            	
              Copy
      writing including translating science terminology into easier to
      understand terminology;

            


    

    
      	
              D.  

            	
              Typography
      selection and story board for each
project

            


    

    


    


    In
addition, and for the above items, Consultant shall compile and prepare
corporate information and videos for internal use to assist in lab automation
and training for the Company’s overall management of research and development
efforts for Solar, Biotech research tools and diagnostic applications. 
   

    


    All work
shall be provided in a commercially acceptable business like manner reasonably
satisfactory to the Company.  Under no circumstances may any product
information, videos or other content or materials be provided without prior
review and written approval by the Company, in its sole and absolute
discretion.

     

     

     

     

    
      
         

      

      
         

        
          

        

      

      
         

      

    

     

     

    
 

    Exhibit
B

    Curriculum
Vitae