ex10-8   add support document data to this file









Exhibit 10.8




 




CONSULTING

AGREEMENT BETWEEN




ORIGENESIS,

LLC  & FARM TEAM MENTORS, LLC

(“CONSULTANTS”)




AND

CYTOGENIX, INC.




 




This Agreement, made in

Houston, Harris County, Texas, and entered into this 18th day of

October 2001, by and between Farm Team Mentors, LLC  (hereinafter “FTM”), a Texas limited liability company, and

Origenesis, LLC (“hereinafter “ORIGENESIS”), a Texas limited liability company,

jointly “CONSULTANTS”, and Cytogenix, Inc. (hereinafter “CYGX”), a Texas

publicly-traded corporation, collectively the “Parties” or individually

“Party”, is made for the purposes of providing consultation services to CYGX in

the additional capitalization of CYGX’S business.




 




WHEREAS, CYGX is currently

seeking additional capitalization in an Offering Amount through a Private

Placement of common shares at discount to market; and




 




WHEREAS, CONSULTANTS desire

to jointly assist and consult to CYGX in seeking the additional capital; and




 




WHEREAS, CYGX desires

consulting services from CONSULTANTS to assist CYGX in the raising of

additional capital; and




 




WHEREAS, CYGX acknowledges

and understands that ORIGENESIS and FTM are not, either individually or

jointly, a legal firm, accountancy, investment bank or dealer in securities and

that ORIGENESIS and FTM do not, either individually or jointly,

provide legal, corporate securities, or investment advice of any kind; and




 




WHEREAS, the Parties intend

to be legally bound and mutually agree to enter into a business relationship;




 




THE PARTIES HEREBY NOW

AGREE, WITH CONSIDERATION, TO THE FOLLOWING, WHICH ACCURATELY REFLECTS THEIR

ENTIRE UNDERSTANDING:




 




1.               Definitions.  For the purposes of this entire Agreement,

the following term(s) will have these definitions:




 




a.               “Consultant(s)” shall mean a

general business consultant contracted as an independent contractor and shall

not in any manner be construed to mean an agent, an employee or representative

of CYGX except to the extent of his duties and obligations as an Advisor of

CYGX.  Additionally nothing in this

Agreement shall in any way define Consultant as a broker or dealer under the

Securities Exchange Act of 1934, as amended or other state or federal

securities laws.




b.              “Offering Amount” shall

initially mean the amount of three million dollars ($3,000,000.00), subject to

change at the discretion of CYGX and with written notification to CONSULTANTS.




 




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c.               “Source(s)” shall mean any

person, persons, business entity or business entities which may or may not have

interest in CYGX as a potential partner, alliance, acquisition or investment

opportunity.




 




2.               Consulting / Advisory

Services.  CONSULTANTS

agree to advise/consult and provide services to CYGX on the following business

matters:




 




a.               Certain limited corporate

finance matters,




b.              Review its business plan,




c.               Review its business model;




d.              Review its technology and

strategy;




e.               Participate in telephone

conferences or conversations with legal counsel, clients and accountants;




f.                 Give input to limited

company matters, including business, marketing and technology strategies;




g.              Assist in identify

prospective customers;




h.              Assist in identify potential

staff and partners; and




i.                  Introduce CYGX to

prospective capital Sources and/or operating partners for the purpose of having

them finance CYGX up to the Offering Amount through the purchase of discounted

shares.




 




CONSULTANTS will not

represent CYGX as an agent, will not enter into commitments on behalf of CYGX, will not act

so as to make a third party believe CONSULTANTS are an agent of CYGX and

CONSULTANTS will not hold funds or securities on behalf of CYGX.




 




CONSULTANTS will not be required to travel

in connection with these services, unless compensated in advance.  CYGX further agrees to be entirely

responsible for any and all further expenses related to this Agreement

including, but limited to, legal fees, teleconference or communication fees,

brokerage fees, postal and delivery fees, and any other expenses reasonably

expected in the ordinary course of a financing through a Private Placement offering.




 




CONSULTANTS do not

and cannot guarantee, either expressly or impliedly, that CYGX

will benefit or be financed as a result of the efforts of CONSULTANTS’

services.




 




3.               Contingent

Consulting/Advisory Compensation.  Because CONSULTANTS estimate the success of CYGX receiving

financing to be highly probable, CONSULTANTS are, therefore, willing to risk

compensation for its consulting services on a contingency compensation basis as

follows:




 




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Within the term of this

Agreement and/or for twelve months (12 months) after this

Agreement terminates, should CYGX receive financing, merge with, divest, or be

acquired from an identified Source that CONSULTANTS have identified,

introduced, and worked on in connection with and for the benefit of CYGX and

has documented to CYGX, in writing, this relationship and consulting work, CYGX

agrees to compensate CONSULTANTS the following:




 




a.               A Finder’s Fee

of any financial commitments from Sources related to the financing of the

Offering Amount according to the following scale:




 




	

  Amount Financed


  	

   


  	

  Finder’s

  Fee


  	

   


  
	

  0 — $1,00,000.00


  	

   


  	

  10.0


  	

  %


  
	

  $1.0 — $2.0 million


  	

   


  	

  7.50


  	

  %


  
	

  $2.0 — $3.0 million


  	

   


  	

  5.00


  	

  %


  





 




The Finder’s Fee shall be in the form of

cash; however, at the mutual, expressed consent of the Parties, the Finder’s

Fee may be bifurcated to include both cash payment combined with equity in CYGX

common shares equivalent to the balance beyond cash of the Finder’s Fee at a

25% discount to market.  Any equity

payments under this provision shall be subject to Rule 144 or other applicable

provisions that may be required by law or SEC regulation.




b.              One seat on the

Board of Directors to be filled by Nhan H.T. Nguyen, M.D. with appropriate

Directors & Officers Insurance provided by CYGX.




c.               One position as

an Investor’s/Public Relations Personnel to be filled by Richard Holdren.




d.              Accrued Monthly

Fee of six thousand dollars ($6,000.00), combined, to CONSULTANTS for positions

provided under 3(b) & (c).  The

Monthly Fee shall be bifurcated into three thousand dollars cash ($3,000.00)

and an equivalent amount of CYGX common shares determined by a 25% discount of

the average closing price for the previous monthly period.    All common shares under this provision

shall be subject to Rule 144.




e.               Accrued Monthly Consulting Fees

detailed in Section (3-d) above shall be payable only if and when CONSULTANTS

have successfully raised no less than Three hundred thousand Dollars

(($300,000).




 




Should CONSULTANTS successfully advise CYGX

to be financed up to the Offering Amount, CYGX shall grant CONSULTANTS first

right of refusal for additional consulting services in subsequent tranche(s) of

financing under terms to be determined, should said tranche(s) be required by

CYGX.




 




4.               Payment Of Consulting Fees.  Except for compensation in the form of

executive, management or board/advisory positions in Provision 3, which will

begin to accrue immediately on the Effective Date of this Agreement, consulting

compensation in the form of equity and/or fees in Provision 3 due to

CONSULTANTS shall be paid in bank or cashier’s check in US dollars and/or take 




 




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                        the form of

CYGX stock or membership certificates issued  to CONSULTANTS  at

the closing  of any funding of CYGX.   In the event that a portion of the

financing is completed in delayed increments, the compensation shall be paid

pro-rata as each increment is advanced.




 




CONSULTANTS reserve the

right to assign or transfer any forms of equities received as a result of

compensation to any third party at CONSULTANTS’ discretion and expressed

notification to CYGX subject to Securities and Exchange Commission

Rule  144.




 




Any compensation due to

CONSULTANTS under this Agreement shall be paid within fourteen (14) calendar

days when due.  Any cash payments not

paid with fourteen (14) calendar days shall be subject to a monthly interest

charge of one percent (1.0%) until paid in full.




 




5.               Agreement Termination

(120-Day Exclusive Agreement with Automatic Renewal Option).  The initial term of this agreement shall be

one hundred  twenty days (120 days) with

an automatic renewal option on the written consent of the Parties.  Any Party may terminate this Agreement at

any time only with written and verifiable notification to the

non-terminating Party of at least thirty days (30 days) prior to the effective

date of termination.  Any termination

under this Agreement shall not affect the obligations of any compensation due

the Parties under Compensation terms in Provision 3 and 4 of this Agreement and

shall not affect the compensation CYGX may have to pay CONSULTANTS, should a

funding transaction herein stated be consummated in accordance with this

Agreement.




 




6.               Accurate & Confidential

Information (CYGX’S List of Previous Contacts for Financing).  CYGX hereby represents and warrants that all

information provided to CONSULTANTS in Appendix A pertaining to CYGX shall be

true and correct to the best of CYGX’S knowledge.




 




It is expected in the performance of this

Agreement that the Parties shall share and have access to certain information,

regarding any or all the Parties, not available to the public domain.  Such information may include, but not be

limited to, any information related to technology, technical data, or know-how,

including, software, designs, software architecture, source code, educational

materials, research, product plans, products, services, customers, partners,

markets, inventions or patents, processes, designs, drawings, engineering, and

marketing or finances.  Such information

shall be deemed and labeled with a mark designating “CONFIDENTIAL” and shall

not be disclosed by any of the Parties, except internal staff or agents related

to the performance of this Agreement, without the written consent of the

Parties.  Confidential Information does

not include 




 




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information, technical data or know-how

which (i) prior to or after the time of disclosure becomes part of the public

knowledge or literature, not as a result of any improper inaction or action of

any of the Parties, (ii) is subsequently disclosed to any of the Parties by a

fourth-party not related to this Agreement and having the legal right to make

such disclosure or (iii) is approved by the Party-owner of the information, in

writing, for release.




 




In connection with the services CONSULTANTS

shall provide under this Agreement, CYGX shall provide to CONSULTANTS within

five (5) business days of the Effective Date of this Agreement a completed list

of previous contacts for financing on Appendix “A” (attached to this

Agreement).  Contacts shall include, to the

extent known, complete names and contact person and information of

all person(s), companies, groups, brokers, associations, foundations, or any

other entities with whom CYGX has had previous communication or relations

related to the financing of the proposed Offering Amount prior to the Effective

Date of this Agreement.  Any

provision(s) described in a signed Appendix “A” shall be construed as an

amendment to this Agreement.




 




7.               Applicable Law.  The Parties understand that this Agreement

is governed by and construed under the laws of the State of Texas.  Any action brought by either Party against

the other Party to enforce or interpret this Agreement shall be brought in an

appropriate court of such State.  In the

event of any such action, the prevailing Party shall recover all court costs

and reasonable attorney’s fees from the losing Party.




 




8.               Entire Agreement.  This Agreement constitutes the entire

agreement and understanding between the Parties and supersedes all prior

agreements and understandings, both written and oral, between the Parties

hereto with respect to the subject matter.




 




9.               Headings And Capitalized

Terms.  The headings herein are for

convenience only, do not constitute a part of this Agreement and shall not be

deemed to limit or affect any of its provisions.




 




10.         Successors And Assigns.  The terms and conditions of this Agreement

shall inure to the benefit of and be binding upon the respective successors and

permitted assigns.   Neither Party may

assign their rights nor delegate their obligations under this agreement without

the expressed written consent of the non-assigning Party.




 




11.         Modification And Waiver.  None of the terms or conditions of this

Agreement may be waived except in writing by the Party that is entitled to the

benefits thereof.  No supplementation,

modification or amendment of this Agreement shall be binding unless executed in

writing by both Parties.   No waiver of

any of the provisions of 




 




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                        this Agreement

shall be deemed nor shall constitute a waiver of any other provision (whether

or not similar) nor shall such waiver constitute a continuing waiver. 




 




12.         Acknowledged E-Mail Defined.  When one Party sends an e-mail and requests

that the other Party acknowledge receipt, they agree to respond by e-mail with

the phrase “I acknowledge receipt of the message below” and send the

acknowledgement by selecting “Reply” on the computer.  An acknowledged receipt is especially required when CONSULTANTS

introduce CYGX to capital sources or when either Party notifies the other that

they wish to terminate the Agreement.




 




13.         Invalid Provisions &

Severability.  If any

provision of this Agreement is held to be illegal, invalid or unenforceable

under present or future laws by any court of competent jurisdiction, such

illegality, invalidity or unenforceability shall not affect the legality,

enforceability or validity of any other provisions nor of the same provision as

applied to any other fact or circumstance. 

Furthermore, such illegal, unenforceable or invalid provision shall be

modified to the minimum extent necessary to make such provision legal, valid or

enforceable, as the case may be.




 




14.         Non-circumvention.  CYGX agrees that while this Agreement is in

effect and for a one-year (1 year) period after this Agreement terminates,

neither CYGX or its employees, agents, consultants, accountants, attorneys,

officers, corporations, divisions, subsidiaries, or partnerships will make any

contact with, deal with or enter into any transaction with any capital source

that CONSULTANTS have first worked on and introduced to CYGX for the purpose of

contemplating a transaction involving financing, without the written consent of

CONSULTANTS.   Within this period, if a

subsequent financing or other financial transaction is entered into between

CYGX and the same Source or any other introduced party or entity that completed

the Offering

Amount, any part thereof described herein, or any other future

corporate financings that will be completed or benefited from such

introductions to Sources by CONSULTANTS, then CYGX agrees to compensate

CONSULTANTS by mutual agreement of the Parties, not to exceed terms outlined in

Provisions 3 and 4 of this Agreement of such total financing, Offering Amount

or value of such transaction.




 




15.         Notices.  Payments, notices, or other communications

required by this Agreement shall be sufficiently made or given if mailed by

certified First Class United States mail, postage pre-paid, or by commercial

carrier (e.g., Federal Express, Airborne, etc.) when such carrier maintains

receipt or record of delivery, addressed to the address stated below, or to the

last address specified in writing by the intended recipient.




 




 




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  If to

  CYGX:


  	

  CytoGenix,

  Inc.


  	

   


  	

   


  
	

   


  	

  9881

  Wilcrest Drive


  
	

   


  	

  ouston,

  Texas 77099


  
	

   


  	

   


  	

   


  	

   


  
	

  If to

  FTM:


  	

  Farm

  Team Mentors, LLC


  	

   


  	

   


  
	

   


  	

  1107

  Briar Bayou Dr., Suite A


  
	

   


  	

  Houston,

  Texas 77077


  
	

   


  	

   


  	

   


  	

   


  
	

  If to

  ORIGENESIS or CONSULTANTS:


  	

   


  	

   


  	

   


  
	

   


  	

   


  	

   


  	

   


  
	

   


  	

  Origenesis,

  LLC


  
	

   


  	

  11418

  Oak Spring Drive


  
	

   


  	

  Houston,

  Texas 77043


  





 




The

Parties agree to notify the other Party of any change in address for

notification and the purpose of this Provision within fifteen days (fifteen

days) prior to the effective date for the change in address.




 




IN WITNESS WHEREOF, the

Parties have signed and executed this Agreement and have caused this Agreement

to become effective as of the Effective Date last executed below.




 




 




	

  /s/

  Richard Holdren


  	

   


  	

   


  	

  /s/

  Dell Gibson


  	

   


  
	

  Richard

  Holdren


  	

     Date: 10-27-01


  	

   


  	

  Dell Gibson, Executive Vice President


  	

     Date: 10-27-01


  
	

  Partner


  	

   


  	

   


  	

  CytoGenix,

  Inc.


  	

   


  
	

  Farm

  Team Mentors, LLC


  	

   


  	

   


  	

   


  	

   


  
	

   


  	

   


  	

   


  	

   


  	

   


  
	

   


  	

   


  	

   


  	

   


  	

   


  
	

   


  	

   


  	

   


  	

   


  	

   


  
	

   


  	

   


  	

   


  	

   


  	

   


  
	

   


  	

   


  	

   


  	

   


  	

   


  
	

  /s/

  Nhan H.T. Nguyen, M.D.


  	

   


  	

   


  	

   


  	

   


  
	

  Nhan

  H.T. Nguyen, M.D.


  	

     Date: 10-27-01


  	

   


  	

   


  	

   


  
	

  President

  / Founder


  	

   


  	

   


  	

   


  	

   


  
	

  ORIGENESIS,

  LLC


  	

   


  	

   


  	

   


  	

   


  





 




 




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APPENDIX “A”




CYTOGENIX, INC. PREVIOUS CONTACT LIST




 




Appendix “A” shall list  complete names and contact

person and information of all person(s), companies, groups, brokers,

associations, foundations, or any other entities with whom CYGX has had

previous communication or relations related to the equity financing of the

proposed Offering Amount prior to the Effective Date of the Agreement.  It does not include or concern entities that are

candidates for strategic alliances that may include equity consideration along

with license provisions.




 




Consultants shall not contact any entities

listed below for a period of four (4) weeks from the execution date of this

Appendix.  Thereafter, should any

financing be received from any entity listed below due to the efforts of

Consultants, then Consultants shall receive a Finder’s Fee of fifty percent

(50%) of the Finder’s Fee scale listed in Provision 3(a) of the Agreement.




 




 




Information Format:




Name (company and person)




Address




Telephone




Nature of Communication/Contact




 




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Appendix B




 




 




CytoGenix, Inc. Candidates for Strategic

Alliance




 




 




 




 




 




 




 




 




 




 




 




	

  Please

  deliver to:


  	

   


  	

   


  	

   


  
	

   


  	

  Nhan

  H.T. Nguyen, M.D.


  	

   


  	

   


  	

  Authorizing

  Signature


  
	

   


  	

  Date


  	

   


  	

   


  	

   


  
	

   


  	

  Origenesis,

  LLC


  	

   


  	

   


  	

   


  	

   


  
	

   


  	

  11418

  Oak Spring Drive


  	

   


  	

   


  	

  Name:


  	

   


  
	

   


  	

  Houston,

  Texas 77043


  	

   


  	

   


  	

   


  	

  Position:


  
	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  
	

   


  	

   


  	

   


  	

   


  	

  CytoGenix, Inc.


  





 




 




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