CONSULTING AGREEMENT
October 27th, 2009
The
parties to this agreement are Dr. Harry H.S. Fong (the
“Consultant”) and Caleco Pharma Corporation, a Nevada
corporation (the “Company”).
The
Company is engaged in the analysis, testing, development and
commercialization of proprietary substances that may have medical
value in the treatment of certain diseases in humans; such
substances include, but are not limited to, a botanical-based
product known as “Lamiridosins,” also known as
Lamiridosin (“Lamiridosins”) which is owned by and
based on intellectual property of the Company (all of the foregoing
activities being hereinafter referred to as the
“Business”).
The
Consultant is a Professor Emeritus of Pharmacognosy, Department of
Medicinal Chemistry and Pharmacognosy, University of Illinois at
Chicago, holds a Ph.D. degree from The Ohio State University, has
substantial experience in the testing and evaluation of
botanical-based substances for potential medicinal uses, and has
acted as a consultant for several companies in connection with the
evaluation and/or testing of products owned or licensed by such
companies.
Concurrently
with the execution and delivery of this agreement, a corporation
controlled by the Consultant (“NPPharm”), on the one
hand, and the Company, on the other hand, are entering into a
testing agreement (the “Testing Agreement”) pursuant to
which, among other things, NPPharm will be responsible for the
conduct of certain tests with respect to the Company’s
“Lamiridosins” substance.
The
Company wishes to retain the Consultant, and the Consultant wishes
to be retained by the Company, for the purposes, and on the terms
and conditions, set forth below in this agreement.
NOW,
THEREFORE, in consideration of the mutual covenants and agreements
of the parties contained herein, and other good and valuable
consideration, the receipt and legal sufficiency of which are
hereby acknowledged, the parties hereto agree as
follows:
1.
Retention as Consultant; Services .
(a) The
Company hereby retains the Consultant to render consulting services
to the Company on the terms, provisions and conditions of this
agreement, and the Consultant hereby accepts that retention. The
Consultant shall render his services under this agreement
diligently, to the best of the Consultant's talents, skills and
expertise, and in accordance with the highest ethical standards.
The Consultant shall not delegate the performance of any such
services to any other person, firm or corporation without the
prior
written
consent of the Company, which consent the Company may grant or
withhold in its sole and absolute discretion.
(b)
The Consultant shall, as requested by the Company from time to
time, consult with and advise the Company's management, employees
and agents, at reasonable times, in matters related to the
Business. Such consultation services shall include, without
limitation, assisting the Company with development of its general
scientific direction and strategy, assisting the Company with the
recruitment of additional full-time or part-time scientific and
management personnel, assisting the Company (including through
participating in presentations) with the due diligence activities
of potential investors and strategic partners, interacting with
representatives of government authorities (including licensing
authorities) related to potential geographic markets for the
Company’s products, and performing such other technical
matters and activities within the Consultant’s area of
expertise as the Company may reasonably request to assist the
Company in its pursuit, development, licensing and
commercialization of its products relating to the
Business.
(c) If
requested by the Company, the Consultant also will participate as a
founding member of the Company's Scientific Advisory Board which
the Company may establish. The Consultant’s services as a
member of the Company’s Scientific Advisory Board, if
applicable, shall be considered part of the Consultant’s
services hereunder and the Consultant’s time, if any, spent
in connection with the Scientific Advisory Board shall be
compensated pursuant to the terms of this agreement.
(d) The
Consultant shall provide not less than twenty (20) hours of
consulting per year (with a “year” for this purpose
beginning on September 1 and ending on August 31). As reasonably
requested by the Company, the consulting services pursuant to this
agreement shall be provided by the Consultant over the telephone,
in person at the Consultant's office, at the Company's offices or
another reasonable location, or through written reports or
correspondence (including e-mail). If the Company requests
additional consulting hours, the Consultant shall be paid a fee for
each additional hour as set forth in section 3 hereof.
(e) Subject
to the foregoing, and subject to the provisions of Section 8
hereof, the Consultant shall have the right to engage in any other
gainful activities, ventures and businesses.
2.
Term . Subject to earlier termination pursuant to Section 6
hereof, the term of the retention of the Consultant under this
agreement (as the same may be extended in accordance with this
Section 2 or terminated earlier as provided herein, the "Term")
shall commence on the date hereof and shall continue in effect
until the first anniversary hereof, whereupon this agreement shall
automatically renew for successive one-year periods unless
terminated by either party by written notice to the other party not
less than sixty (60) days prior to the end of the then-existing
Term, in which event this agreement shall terminate as of the last
day of the then-existing Term.
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3.
Compensation; No Benefits .
(a)
In consideration of the services rendered by the Consultant
hereunder, the Company shall pay to the Consultant a monthly fee of
$1,000.00, which fee shall be payable at the beginning of each
month. The Consultant shall provide prompt notice to the Company in
the event that the Consultant anticipates that the consulting
services performed by the Consultant during any year shall exceed
20 hours. Upon approval by the Company, the Consultant shall
perform such additional services, and the Company shall compensate
the Consultant for such services at the hourly rate of $600.00 per
hour, payable promptly after submission by the Consultant of
reasonable time records describing the services performed for such
year.
(b)
Because the Consultant is not an employee of Company, he
acknowledges and agrees that he is not entitled to participate in
or receive any benefit or right as a Company employee under any
Company employee benefit or welfare plan, including, without
limitation, employee insurance, pension, savings and security plans
as a result of his entering into this agreement. The Consultant
shall be solely responsible for payment of and withholding of all
income, employment, and other taxes. The Consultant shall not be
entitled to any payment for vacation time.
4.
Business Expenses . The Company shall reimburse the
Consultant for all reasonable expenses actually incurred or paid by
the Consultant during the Term in connection with activities that
are pre-approved in writing pursuant to the performance of the
Consultant's duties hereunder, after submission by the Consultant
to the Company of satisfactory supporting documentation in
accordance with the Company’s policies from time to time in
effect. Travel and lodging expenses shall require specific prior
written approval by the Company. The requirement that Consultant
obtain pre-approval in writing may be excused when, due to the
exigent circumstances, it is not practical to obtain written
pre-approval, in which case verbal pre-approval shall
suffice.
5.
Independent Contractor . The Consultant shall be an
independent contractor in providing the services hereunder and
shall report directly to the President of the Company. Nothing
contained in this agreement shall be deemed or construed to create
a partnership or joint venture or any principal/agent or
employer/employee relationship. The Consultant shall not have any
right to legally bind or otherwise obligate the Company. The
Consultant shall be liable for, and shall indemnify the Company
against, his own debts and obligations, including the payment of
all required taxes, unemployment insurance and similar
charges.
6.
Termination .
(a)
In the event of the death of the Consultant during the Term, the
Consultant's retention hereunder shall automatically terminate as
of the date of death. In the event of the Consultant's Incapacity
(as hereinafter defined), the Company may, in its sole discretion,
terminate the Consultant's retention hereunder effective upon
written notice to the Consultant. The Company shall have the right
to terminate the Consultant's retention under this agreement at any
time for Cause (as hereinafter defined) effective upon
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written
notice to the Consultant. The Consultant shall have the right to
terminate the Consultant's retention under this agreement at any
time for any reason effective upon written notice to the
Company.
(b) Upon
any termination of this agreement as provided in section 6(a)
hereof, the Consultant or the Consultant's legal representative, as
the case may be, shall be entitled to receive, and the Company
shall pay the Consultant or the Consultant’s legal
representative, as the case may be, (i) the compensation owing to
the Consultant hereunder through the date of termination; and (ii)
any business expenses that were properly reimbursable to the
Consultant pursuant to Section 4 hereof through the date of
termination. The Consultant shall be entitled to no further payment
upon such termination; provided , however , that if
the monetary value of the consulting services Consultant has
provided through the date of termination exceeds the amount of
compensation received by Consultant through that date, the Company
shall be required to pay Consultant the difference between the
monetary value and the compensation received. The monetary value of
Consultant’s services shall be based on his hourly rate of
$600 per hour.
(c)
For purposes of this agreement, “Incapacity” shall mean
the Consultant’s inability to perform his duties hereunder on
account of illness or other impairment for three (3) months in any
period of twelve (12) consecutive months.
(d)
For purposes of this agreement, “Cause” shall mean: (i)
any breach of any material covenant of the Consultant contained in
this agreement and the Consultant's failure to cure such breach
where it is capable of a cure within twenty (20) days of the
Consultant’s receipt of written notice with respect thereto;
(ii) any willful malfeasance, gross negligence or gross or willful
misconduct in the performance of the Consultant's duties or
obligations hereunder; or (iii) any conviction of the Consultant of
or no contest plea by the Consultant to a felony, or the entry of a
guilty plea by the Consultant to a lesser included offense or crime
in exchange for withdrawal of a felony indictment or felony charge
by information.
(e) No
termination by the Company of the Consultant’s retention
hereunder shall affect the Consultant’s duties and
obligations under section 8 or section 9 hereof.
7.
Return of Property . Upon a termination of the Consultant's
consultancy hereunder for any reason whatsoever, the Consultant
shall promptly deliver to the Company all property belonging to, or
administered by the Company or any of the other Company Parties or
any of their respective Clients, including, without limitation, all
materials relating to any Confidential Information (as defined
below). The Consultant further agrees that he shall not make or
retain any copy or extract from such materials.
8.
Covenants Not to Compete and Not to Solicit .
(a) The
Consultant shall not, anywhere in the world, during the Term and
for a period of one year after the termination of the
Term:
(i) except
as set forth in section 8(b) hereof, directly or indirectly engage
or participate in any Competitive Business (as hereinafter
defined), or
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aid or assist in the creation or operation of,
make any financial investment in, or render services (including,
but not limited to, as an employee, officer, director, consultant,
manager, advisor or otherwise) to or for, any Person, firm,
corporation or other business enterprise, wherever located, that is
engaged or intends to be engaged, directly or indirectly,
Competitive Business; or
(ii)
directly or indirectly, solicit, entice, persuade, induce or cause
any employee, officer, manager, director, consultant, agent or
independent contractor of the Company to terminate his, her or its
employment, consultancy or other engagement by the Company to
become employed by or engaged by any person or entity other than
the Company, or approach any such employee, officer, manager,
director, consultant, agent or independent contractor for any of
the foregoing purposes, or authorize or assist in the taking of any
of such actions by any person or entity.
&nb
