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EXHIBIT
10.4
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CONSULTING
SERVICES AGREEMENT
Between :
GENEMAX CORP.
And :
ALAN LINDSAY & ASSOCIATES
LTD.
GeneMax Corp.
Suite 400, 1681
Chestnut Street, Vancouver, British Columbia, Canada, V6J 4M6
__________
CONSULTING SERVICES
AGREEMENT
THIS CONSULTING SERVICES AGREEMENT is made and
dated for reference effective as at July 1, 2006, as fully executed
on this 17th day of November, 2006 .
BETWEEN :
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GENEMAX CORP. ,
a company incorporated under the laws of
the State of Nevada, U.S.A., and having an executive office and
an
address for notice and delivery located at Suite 400, 1681
Chestnut
Street, Vancouver, British Columbia, Canada, V6J 4M6
(the " Company
");
OF THE FIRST PART
AND :
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ALAN LINDSAY & ASSOCIATES LTD.
, a company
incorporated under the laws of the Province of British
Columbia,
Canada, and having an address for notice and delivery located
at
Suite 203, 1571 Bellevue Avenue, West Vancouver,
British
Columbia, Canada, V7V 1A6, on behalf of itself and ALAN
P.
LINDSAY , its principal
(collectively, the "
Consultant ");
OF THE SECOND PART
WHEREAS :
A.
The
Company is a reporting company incorporated under the laws of the
State of Nevada, U.S.A., and has its common shares listed for
trading on the NASDAQ Over-The-Counter Bulletin Board;
B.
The
Consultant has experience in and specializes in providing reporting
and non-reporting companies with valuable management and
operational services, and Alan P. Lindsay, the Consultant's
principal, is a current Director of the Company;
C.
The
Company is involved in the principal business of developing
innovative therapeutics to treat serious disorders, primarily for
cancer and infectious diseases (collectively, the " Business
"); and, as a consequence thereof, the Company is hereby desirous
of retaining the Consultant as a management consultant to the
Company, and the Consultant is hereby desirous of accepting such
position, in order to provide such related services to the Company
(collectively, the " General Services ");
D.
Since the introduction of the Parties hereto the
Parties hereby acknowledge and agree that there have been various
discussions, negotiations, understandings and agreements between
them relating to the terms and conditions of the General Services
and, correspondingly, that it is their intention by the terms and
conditions of this agreement (the " Agreement ") to hereby
replace, in their entirety, all such prior discussions,
negotiations, understandings and agreements with respect to the
General Services; and
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E.
The Parties hereto have agreed to enter into
this Agreement which replaces, in its entirety, all such prior
discussions, negotiations, understandings and agreements, and,
furthermore, which necessarily clarifies their respective duties
and obligations with respect to the within General Services to be
provided hereunder, all in accordance with the terms and conditions
of this Agreement;
NOW THEREFORE THIS AGREEMENT WITNESSETH that, in
consideration of the mutual covenants and provisos herein
contained, THE PARTIES HERETO AGREE AS FOLLOWS
:
Article 1
DEFINITIONS AND INTERPRETATION
1.1
Definitions . For all purposes
of this Agreement, except as otherwise expressly provided or unless
the context otherwise requires, the following words and phrases
shall have the following meanings:
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(a)
" Agreement
" means this Consulting Services Agreement as from time to time
supplemented or amended by one or more agreements entered into
pursuant to the applicable provisions hereof, together with any
Schedules attached hereto;
(b) "
Arbitration Act " means the International Commercial
Arbitration Act (British Columbia) and pursuant to the rules
and procedures of the British Columbia International Arbitration
Centre, as amended from time to time, as
set forth in Article "9" hereinbelow;
(c)
" Benefits "
has the meaning ascribed to it in section "4.9" hereinbelow;
(d)
" Board of
Directors " means the Board of Directors of the Company as duly
constituted from time to time;
(e)
" Bonus "
has the meaning ascribed to it in section "4.4" hereinbelow;
(f)
" Business "
has the meaning ascribed to it in recital "C." hereinabove.
(g)
" business
day " means any day during which Canadian Chartered Banks are
open for business in the City of Vancouver, Province of British
Columbia, Canada;
(h)
" Company "
means GeneMax Corp., a company incorporated under the laws of the
State of Nevada, U.S.A., or any successor company, however formed,
whether as a result of merger, amalgamation or other action;
(i)
" Company's
Non-Renewal Notice " has the meaning ascribed to in section
"3.2" hereinbelow;
(j)
" Consultant
" means Alan Lindsay & Associates Ltd., a company incorporated
under the laws of the Province of British Columbia, Canada, or any
successor company, however formed, whether as a result of merger,
amalgamation or other action, on behalf of itself and Alan P.
Lindsay, its principal;
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(k)
" Effective
Date " has the meaning ascribed to in section "3.1"
hereinbelow;
(l)
" Effective
Termination Date " has the meaning ascribed to it in each of
sections "3.3", "3.4", "3.5", "3.6" and "5.3" hereinbelow;
(m)
" Exchange
Act ", " Form S-8 Registration Statement ", " SEC
", " Registration Statement " and " Securities Act "
have the meanings ascribed to them in section "4.8"
hereinbelow;
(n)
" Expenses "
has the meaning ascribed to it in section "4.5" hereinbelow;
(o)
" Fee " has
the meaning ascribed to it in section "4.1" hereinbelow;
(p)
" Initial
Term " has the meaning ascribed to it in section "3.1"
hereinbelow;
(q)
" General
Services " has the meaning ascribed to it in section "2.1"
hereinbelow;
(r)
" Indemnified
Party " has the meaning ascribed to it in section "7.1"
hereinbelow;
(s)
" Notice of
Termination Date " has the meaning ascribed to it in each of
sections "3.3", "3.4", "3.5" and "5.3" hereinbelow;
(t)
" Option "
has the meaning ascribed to it in section "4.7" hereinbelow;
(u)
" Option
Plan " has the meaning ascribed to it in section "4.7"
hereinbelow;
(v)
" Option
Share " has the meaning ascribed to it in section "4.7"
hereinbelow;
(w)
" OTCBB "
means the NASDAQ Over-The-Counter Bulletin Board ;
(x)
" Parties "
or " Party " means, individually and collectively, the
Company, and/or the Consultant hereto, as the context so requires,
together with each of their respective successors and permitted
assigns as the context so requires;
(y)
" Property "
has the meaning ascribed to it in section "5.4" hereinbelow;
(z)
" Regulatory
Approval " means the acceptance for filing, if required, of the
transactions contemplated by this Agreement by the Regulatory
Authorities;
(aa) "
Regulatory Authorities " and " Regulatory Authority "
means, either singularly or collectively as the context so
requires, such regulatory agencies who have jurisdiction over the
affairs of either of the Company and/or the Consultant and
including, without limitation, and where applicable, the United
States Securities and Exchange Commission, the NASDAQ, the OTCBB
and all regulatory authorities from whom any such authorization,
approval or other action is required to be obtained or to be made
in connection with the transactions contemplated by this
Agreement;
(ab) "
subsidiary " means any company or companies of which more
than 50% of the outstanding shares carrying votes at all times
(provided that the ownership of such shares confers the right at
all times to elect at least a majority of the directors of such
company or companies) are for the time being owned by or held for
that company and/or any other company in like relation to that
company and includes any company in like relation to the
subsidiary; and
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1.2
Interpretation . For the
purposes of this Agreement, except as otherwise expressly provided
or unless the context otherwise requires:
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(a)
the words "
herein ", " hereof " and " hereunder " and
other words of similar import refer to this Agreement as a whole
and not to any particular Article, section or other subdivision of
this Agreement;
(b)
any reference to an
entity shall include and shall be deemed to be a reference to any
entity that is a permitted successor to such entity; and
(c)
words in the
singular include the plural and words in the masculine gender
include the feminine and neuter genders, and vice versa
.
Article 2
GENERAL SERVICES AND DUTIES
OF THE EXECUTIVE
2.1
General Services . During the
Initial Term and during the continuance of this Agreement the
Company hereby agrees to retain the Consultant as a
management consultant to the Company, and the
Consultant hereby agrees to be subject to the direction and
supervision of, and to have the authority as is delegated to the
Consultant by, the Board of Directors consistent with such
position, and the Consultant also agrees to accept such position in
order to provide such related services as the Board of Directors
shall, from time to time, reasonably assign to the Consultant and
as may be necessary for the ongoing maintenance and development of
the Company's various Business interests during the Initial Term
and during the continuance of this Agreement (collectively, the "
General Services "); it being expressly acknowledged and
agreed by the Parties hereto that the Consultant shall initially
commit and provide to the Company the General Services on a
reasonably part-time basis during the Initial Term and during the
continuance of this Agreement for which the Company, as more
particularly set forth hereinbelow, hereby agrees to pay and
provide to the order and direction of the Consultant each of the
proposed compensation amounts as set forth in Articles "4"
hereinbelow.
In
this regard it is hereby acknowledged and agreed that the
Consultant shall be entitled to communicate with and shall rely
upon the immediate advice, direction and instructions of the
Chairman of the Board of Directors of the Company, or upon the
advice or instructions of such other director or officer of the
Company as the Chairman of the Board of Directors of the Company
shall, from time to time, designate in times of the Chairman's
absence, in order to initiate, coordinate and implement the General
Services as contemplated herein subject, at all times, to the final
direction and supervision of the Board of Directors.
2.2
Additional duties respecting the General
Services . Without in any manner limiting the generality
of the General Services to be provided as set forth in section
"2.1" hereinabove, it is hereby also acknowledged and agreed that
Consultant will, during the Initial Term and during the continuance
of this Agreement, devote a reasonable portion of the Consultant's
consulting time to the General Services of the Consultant as may be
determined and required by the Board of Directors of the Company
for the performance of said General Services faithfully,
diligently, to the best of the Consultant's abilities and in the
best interests of the Company and, furthermore, that the
Consultant's employment time will be prioritized at all times for
the Company in that regard.
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2.3
Adherence to rules and policies of the
Company . The Consultant hereby acknowledges and agrees
to abide by the reasonable rules, regulations, instructions,
personnel practices and policies of the Company and any changes
therein which may be adopted from time to time by the same as such
rules, regulations, instructions, personnel practices and policies
may be reasonably applied to the Secretary and Chief Financial
Officer of the Company .
Article 3
INITIAL TERM, RENEWAL AND TERMINATION
3.1
Effectiveness and Initial Term of the Agreement . The
initial term of this Agreement (the " Initial Term ") is for
a period of one year commencing on July 1, 2006 (the " Effective
Date "), however, is subject, at all times, to the Company's
prior receipt, if required, of Regulatory Approval from each of the
Regulatory Authorities to the terms and conditions of and the
transactions contemplated by this Agreement.
3.2
Renewal by the Company after the Initial Term .
Subject at all times to sections "3.3", "3.4", "3.5" and "5.3"
hereinbelow, this Agreement shall renew automatically if not
specifically terminated in accordance with the following
provisions. The Company agrees to notify the Consultant in writing
at least 90 calendar days prior to the end of the Initial Term of
its intent not to renew this Agreement (the " Company's
Non-Renewal Notice "). Should the Company fail to provide a
Company's Non-Renewal Notice this Agreement shall automatically
renew on a three-month to three-month term renewal basis after the
Initial Term until otherwise specifically renewed in writing by
each of the Parties hereto for the next three-month term of renewal
or, otherwise, terminated upon delivery by the Company of a
corresponding and follow-up 90 calendar day Company's Non-Renewal
Notice in connection with and within 90 calendar days prior to the
end of any such three-month term renewal period. Any such renewal
on a three-month basis shall be on the same terms and conditions
contained herein unless modified and agreed to in writing by the
Parties in advance.
3.3
Termination without cause by the Consultant .
Notwithstanding any other provision of this Agreement, this
Agreement may be terminated by the Consultant at any time after the
Effective Date and during the Initial Term and during the
continuance of this Agreement upon the Consultant's delivery to the
Company of prior written notice of its intention to do so (the "
Notice of Termination " herein) at least 30 calendar days
prior to the effective date of any such termination (the end of
such 30-day period from such Notice of Termination being the "
Effective Termination Date " herein). In any such event the
Consultant's ongoing obligation to provide the General Services
will continue only until the Effective Termination Date and the
Company's ongoing obligation to provide and to pay to the
Consultant all of the amounts otherwise payable to the Consultant
under Article "4" hereinbelow will continue only until the
Effective Termination Date.
3.4
Termination without cause by the Company .
Notwithstanding any other provision of this Agreement, this
Agreement may be terminated by the Company at any time after the
Effective Date and during the Initial Term and during the
continuance of this Agreement upon the Company's delivery to the
Consultant of prior written notice of its intention to do so (the "
Notice of Termination " herein) at least 30 calendar days
prior to the effective date of any such termination (the end of
such 30-day period from such Notice of Termination being the "
Effective Termination Date " herein). In any such event the
Consultant's ongoing obligation to provide the General Services
will immediately cease upon the date of the Notice of Termination,
however, the Company shall continue to be obligated to provide and
to pay to the Consultant all of the amounts otherwise payable to
the Consultant under Article "4" hereinbelow until the end of the
entire Initial Term under this Agreement; such ongoing compensation
representing the Consultant's clear and unequivocal severance for
the early termination by the Company without cause of this
Agreement prior to the completion of the Initial Term.
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3.5
Termination for cause by any Party . Notwithstanding
any other provision of this Agreement, this Agreement may be
terminated by any Party hereto at any time upon written notice to
the other Party of such Party's intention to do so (the " Notice
of Termination " herein) at least 30 calendar days prior to the
effective date of any such termination (the end of such 30-day
period from such Notice of Termination being the " Effective
Termination Date " herein), and damages sought, if:
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(a) the
other Party fails to cure a material breach of any provision of
this Agreement within 21 calendar days from its receipt of written
notice from said Party (unless such material breach cannot be
reasonably cured within said 21 calendar days and the other Party
is actively pursuing to cure said material breach);
(b)
the other Party is
willfully non-compliant in the performance of its respective duties
under this Agreement within 21 calendar days from its receipt of
written notice from said Party (unless such willful non-compliance
cannot be reasonably corrected within said 21 calendar days and the
other Party is actively pursuing to cure said willful
non-compliance);
(c)
the other Party
commits fraud or serious neglect or misconduct in the discharge of
its respective duties hereunder or under the law; or
(d) the
other Party becomes adjudged bankrupt or a petition for
reorganization or arrangement under any law relating to bankruptcy,
and where any such involuntary petition is not dismissed within 21
calendar days.
In any such event the Consultant's ongoing obligation to provide
the General Services will continue only until the Effective
Termination Date and the Company shall continue to pay to the
Consultant all of the amounts otherwise payable to the Consultant
under Article "4" hereinbelow until the Effective Termination
Date.
3.6
Disability or death and Advance
. Notwithstanding any other provision of this Agreement, this
Agreement may be terminated at any time by any Party within 21
calendar days after the death or disability of
the Consultant, as a without fault termination (the
resulting effective date of any such termination being
herein also the " Effective Termination Date "). For the purposes of this Agreement the term "
disability " shall mean the Consultant shall have been
unable to provide the General Services contemplated under this
Agreement for a period of 90 calendar days, whether or not
consecutive, during any 360 calendar day period, due to a physical
or mental disability. A determination of disability shall be made
by a physician satisfactory to both the Consultant and the Company;
provided that if the Consultant and the Company do not agree on a
physician, the Consultant and the Company shall each select a
physician and these two together shall select a third physician
whose determination as to disability shall be binding on all
Parties. In the event that the Consultant's employment is
terminated by death or because of disability pursuant to this
Agreement, the Company shall pay to the estate of the Consultant or
to the Consultant, as the case may be, all amounts to which the
Consultant would otherwise be entitled under Article "4"
hereinbelow until the Effective Termination Date.
3.7
Effect of Termination . Terms of this Agreement
relating to accounting, payments, confidentiality, accountability
for damages or claims and all other matters reasonably extending
beyond the terms of this Agreement and to the benefit of the
Parties hereto or for the protection of the Business interests of
the Company shall survive the termination of this Agreement, and
any matter of interpretation thereto shall be given a wide latitude
in this regard. In addition, and without limiting the foregoing,
each of sections "3.3", "3.4", "3.5", "3.6" and "5.3" hereinabove
shall survive the termination of this Agreement.
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Article 4
COMPENSATION OF THE EXECUTIVE
4.1
Fee . It is hereby acknowledged and agreed that the
Consultant shall render the General Services as defined hereinabove
during the Initial Term and during the continuance of this
Agreement and shall thus be compensated from the Effective Date of
this Agreement to the termination of the same by way of the payment
by the Company to the Consultant, or to the further order or
direction of the Consultant as the Consultant may determine, in the
Consultant's sole and absolute discretion, and advise the Company
of prior to such payment, of the gross monthly fee of U.S.
$8,333.33 (the " Fee "). All such Fees will be due and
payable by the Company to the Consultant, or to the further order
or direction of the Consultant as the Consultant may determine, in
the Consultant's sole and absolute discretion, and advise the
Company of prior to any such Fee payment, bi-monthly and on or
about the fifteenth and thirtieth day of each month of the then
monthly period of service during the continuance of this
Agreement.
4.2
Payment of Fee and status as a non-taxable
consultant . It is hereby also acknowledged and
agreed that the Consultant will be classified as a non-taxable
consultant of the Company for all purposes, such that all
compensation which is provided by the Company to the Consultant
under this Agreement, or otherwise, will be calculated on the
foregoing and gross Fee basis and otherwise for which no statutory
taxes will first be deducted by the Company.
4.3
Increase in the Fee . It is
hereby acknowledged that the proposed Fee payments under this
Agreement were negotiated as between the Parties
hereto in the context of the stage of development of the Company
existing as at the Effective Date of this Agreement.
Correspondingly, it is hereby acknowledged and agreed that
the Fee shall be reviewed and
renegotiated at the request of either Party on a reasonably
consistent basis during the continuance of this Agreement and, in
the event that the Parties cannot agree, then the Fee shall be
increased on an annual basis by the greater of (i) 10% and (ii) the
percentage which is the average percentage of all increases to
management salaries and fees within the Company during the previous
12-month period. Any dispute respecting either
the effectiveness or magnitude of the final Fee hereunder shall be
determined by arbitration in accordance with Article "9"
hereinbelow.
4.4
Bonus payments . It is hereby
also acknowledged that the Board of Directors shall, in good faith,
consider the payment of reasonable industry standard annual bonuses
(each being a " Bonus ") based upon the performance of the
Company and upon the achievement by the Consultant and/or the
Company of reasonable management objectives to be reasonably
established by the Board of Directors (after reviewing proposals
with respect thereto defined by the Consultant in the Consultant's
capacity as the Secretary and Chief Financial Officer of the
Company, and delivered to the Board of Directors
by the Consultant at least 30 calendar days before the beginning of
the relevant year of the Company (or within 90 calendar days
following the commencement of the Company's first calendar year
commencing on the Effective Date)). These management objectives
shall consist of both financial and subjective goals and shall be
specified in writing by the Board of Directors, and a copy shall be
given to the Consultant prior to the commencement of the applicable
year. The payment of any such Bonus shall be payable no later than
within 120 calendar days of the ensuing year after any calendar
year commencing on the Effective Date. Any dispute respecting
either the effectiveness or the magnitude of any Bonus hereunder
shall be determined by arbitration in accordance with Article "8"
hereinbelow.
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4.5
Reimbursement of Expenses . It is hereby acknowledged
and agreed that the Consultant shall also be reimbursed for all
pre-approved, direct and reasonable expenses actually and properly
incurred by the Consultant for the benefit of the Company
(collectively, the " Expenses "); and which Expenses, it is
hereby acknowledged and agreed, shall be payable by the Company to
the order, direction and account of the Consultant as the
Consultant may designate in writing, from time to time, in the
Consultant's sole and absolute discretion, as soon as conveniently
possible after the prior delivery by the Consultant to the Company
of written substantiation on account of each such reimbursable
Expense.
4.6
Paid Vacation . It is hereby also acknowledged and
agreed that, during the continuance of this Agreement, the
Consultant shall be entitled to four weeks paid vacation
(collectively, the " Vacation ") during each and every year
during the continuance of this Agreement. In this regard it is
further understood hereby that the Consultant's entitlement to any
such paid Vacation during any year (including the initial year)
during the continuance of this Agreement will be subject, at all
times, to the Consultant's entitlement to only a pro rata portion
of any such paid Vacation time during any year (including the
initial year) and to the effective date upon which this Agreement
is terminated prior to the end of any such year for any reason
whatsoever.
4.7
Options . Subject to the following and
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