CONSULTING AGREEMENT
THIS
CONSULTING AGREEMENT (this “Agreement”)
is
dated as of June 6, 2008, by and between Neuro-Hitech, Inc., a
Delaware corporation
(the “Company”)
and
Xxxxx Xxxxxxx (“Xxxxxxx”).
WHEREAS,
Consultant previously served as the Chief Executive Officer and Chief Financial
Officer, among other offices, of the Company; and
WHEREAS,
in connection with that certain Amended and Restated Stock Purchase Agreement
among GKI Acquisition Corporation, Neuro-Hitech, Inc., and Xxxxxxx, dated June
__, 2008 (the “Stock
Purchase Agreement”),
the
Company desires to engage Consultant to perform consulting services for the
Company, and Consultant is willing to serve in such capacity as an independent
contractor.
NOW,
THEREFORE, in consideration of the premises and respective agreements set forth
herein and the mutual benefits to be derived herefrom, the Company and
Consultant hereby agree as follows:
1. Services.
The
Company hereby engages Consultant and Consultant accepts such engagement as
an
independent contractor and not as the employee, agent, partner or joint venturer
of the Company, on the terms and conditions herein. Consultant agrees to provide
certain consulting and advisory services to the Company, including but not
limited to: (a) providing operational and strategic advice regarding the
Company’s business; (b) participating in conference calls and other forms of
communication to share Consultant’s ideas, experience and expertise with the
Company; and (c) providing such other services that the Company and Consultant
mutually agree upon (collectively, the “Services”).
Such
Services shall be provided by Consultant during the Term on an hourly-basis
from
time to time during the regular business hours for a minimum of ten (10) hours
per month and not to exceed twenty (20) hours per month without the consent
of
Consultant. Additionally, during each 12-month period following the Commencement
Date (as defined in Section 3(a)), Consultant shall use commercially reasonable
efforts to propose in writing to the Company at least twenty (20) pharmaceutical
products for which a viable commercial market exists or reasonably could exist,
which TG United Pharmaceuticals, Inc. or its Affiliates reasonably could produce
and which the Company could, to its reasonable commercial advantage,
distribute.
2. Compensation.
(a) Consulting
Fee.
As
consideration for the Services, the Company shall pay Consultant an annual
consulting fee of $150,000 (the “Consulting
Fee”),
which
shall be paid to Consultant in twice-monthly installments of $6,250. If during,
any 12-month period of this Agreement, Consultant proposes fewer than twenty
(20) pharmaceutical products, as described in Section 1 hereof, then the
Consulting Fee applicable for the subsequent 12-month period shall equal
$150,000 multiplied by a fraction the numerator of which is the number of
pharmaceutical products actually proposed during the prior year and the
denominator of which is 20, provided, however, that if such a short fall occurs
during the final 12-month period of the Term, Consultant shall rebate a portion
of the Consulting Fee with respect to such 12-month period in accordance with
the formula set forth in this sentence.
(b) Reimbursement
of Expenses.
Consultant shall be reimbursed for all reasonable expenses reasonably incurred
by Consultant in the performance of the Services pursuant to this Agreement
(the
“Out-of-Pocket
Expenses”).
Any
Out of Pocket Expenses in excess of $250 shall be subject to the Company’s prior
written approval.
(c) Taxes.
Consultant, as an independent contractor, agrees to pay in a timely manner
all
Social Security and other payroll taxes relating to his compensation, and
Consultant shall have no claim against the Company for vacation pay, sick leave,
retirement benefits, Social Security, worker’s compensation, disability or
unemployment insurance benefits or other employee benefits of any kind.
3.
Term
and Termination.
(a) Term.
The
term of this Agreement shall be for a period of three (3) years commencing
on
the date hereof (the “Initial
Term”).
This
Agreement shall be automatically renewed for a period of two (2) years following
the completion of the Initial Term (the “Renewal
Term”)
unless
the Company provides to the Consultant, or the Consultant provides to the
Company, as the case may be, with six (6) months written notice, that it does
not seek a Renewal Term. For purposes of this Agreement, references to the
“Term”
shall
mean the Initial Term or the Renewal Term, as appropriate.
(b) Termination.
Either
party may, at any time, terminate this Agreement with or without cause upon
thirty (30) days’ prior written notice to the other party; provided, however, if
the Company terminates this agreement prior to the expiration of the Term
without Cause (as defined below), then the Company shall immediately make a
lump-sum payment to Consultant equal to the Consultant Fee for the remainder
of
the Term and any incurred but unpaid Out-of-Pocket Expenses as of the effective
termination date. For purposes of this Agreement, “Cause” shall mean (i)
Consultant's fraud, theft, embezzlement, dishonest acts, illegal conduct or
similar acts of willful misconduct of Consultant that results, in the reasonable
judgment of the Board, in an adverse effect on the Company; or (ii) the habitual
use of alcohol or other harmful and addictive substances by the Consultant
that
substantially interferes with his abilities to perform the essential functions
of his position with the Company, or serious neglect by Consultant in the
performance of his duties that results in a material adverse effect on the
Company, which, in the case of serious neglect which is capable of being cured,
is not cured to the reasonable satisfaction of the Company within a reasonable
time after the Company gives Consultant written notice of such
neglect.
4. Confidentiality
Covenants; Noncompetition.
Consultant acknowledges that the information, observations and data obtained
by
him concerning the business and affairs of the Company and its affiliates and
its and their predecessors during the course of his performance of Services
pursuant to this Agreement are the property of the Company and its affiliates,
including information concerning acquisition opportunities in or reasonably
related to the Company’s or its affiliates’ business or industry of which
Consultant becomes aware while providing the Services. Therefore, Consultant
agrees that he will not (and shall cause each of his affiliates not to) at
any
time (whether during or after the termination of the Services hereunder)
disclose to any unauthorized person or, directly or indirectly, use for his
own
account, any of such information, observations or data without the Company’s
consent, unless and to the extent that the aforementioned matters become
generally known to and available for use by the public other than as a direct
or
indirect result of Consultant’s acts or omissions to act.
5.Miscellaneous.
(a) Entire
Agreement.
This
Agreement sets forth the entire agreement between the parties with respect
to
the subject matter of this Agreement and supersedes any and all prior agreements
or understandings between the parties pertaining to the subject matter hereof.
(b) Notices.
Any
notices required or desired to be given hereunder shall be deemed sufficiently
given when sent by facsimile, first class certified or registered mail, postage
prepaid and return receipt requested, as follows:
If
to the
Company: At
the
address set forth on the signature page
2
If
to
Consultant: At
the
address set forth on the signature page
or
to
such other address as the parties shall designate in a writing delivered to
the
other party hereto. Any such notice or communication required or permitted
herein shall be deemed to have been given as of the date faxed or transmitted
so
mailed as evidenced by the postmark on the envelope.
(c) Survival
of Obligations.
The
parties expressly agree and understand that all of the provisions in this
Agreement which impose post-termination obligations on a party, or which are
related to or necessary to enforce those obligations, shall remain in full
force
and effect and survive the termination of this Agreement.
(d) Disclaimer
of Agent or Employee Status.
It is
expressly understood that Consultant is acting at all times in the role of
an
independent contractor to the Company. Nothing in this Agreement shall be
construed to constitute Consultant as an agent or employee of the Company;
nor
shall anything contained in this Agreement be construed to constitute the
Company as an agent of Consultant.
(e) Indemnification.
(i) Consultant
shall indemnify and hold harmless the Company, and its respective shareholders,
members, partners, directors, officers, employees and agents from all claims,
actions, costs, debts, damages or suits, arising from any material breach
of
this Agreement by Consultant, or any act or omission by Consultant, and from
all
related costs, legal fees, expenses and other liabilities incurred in connection
with such claims, actions or lawsuits. This covenant shall be deemed continuing
and shall survive any termination or expiration of this Agreement.
(ii) The
Company shall indemnify and hold harmless Consultant from all claims, actions,
costs, debts, damages or suits, arising from Consultant's performance of
services under this Agreement or any material breach of this Agreement by the
Company, or any act or omission by the Company, and from all related costs,
legal fees, expenses and other liabilities incurred in connection with such
claims, actions or lawsuits; provided, however, the Company shall not be
obligated to indemnify Consultant for any loss, expense or damage resulting
from
the intentional misconduct, gross negligence or fraud of Consultant. This
covenant shall be deemed continuing and shall survive any termination or
expiration of this Agreement.
(f) Binding
Effect.
This
Agreement shall be binding upon the parties hereto, their heirs, administrators,
representatives, executors, successors and assigns, and shall inure to the
benefit of the parties, and their heirs and assigns; provided,
however,
that
this Agreement is personal to Consultant and may not be assigned by Consultant.
The Company may assign all or any portion of this Agreement by providing written
notice to Consultant.
(g) Interpretation. This
Agreement shall, in all respects be, interpreted, enforced and governed under
the laws of the State of Florida without regard to its conflicts of laws
principles that would refer the construction or governance of construction
of
the Agreement to the laws of another jurisdiction. The language of all parts
of
this Agreement shall, in all cases, be construed as a whole, according to its
fair meaning, and not strictly for or against any of the parties.
(h) Severability.
Whenever possible, each provision of this Agreement shall be interpreted in
such
manner as to be effective and valid under applicable law, but if any provision
of this Agreement is held to be invalid, illegal or unenforceable in any respect
under any applicable law or rule in any jurisdiction, such invalidity,
illegality or unenforceability shall not affect any other provision or any
other
jurisdiction, but this Agreement shall be reformed, construed and enforced
in
such jurisdiction as if such invalid, illegal or unenforceable provision had
never been contained herein.
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[Signature
Page Follows]
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IN
WITNESS WHEREOF, the parties hereto have executed this Consulting Agreement
as
of the date first written above.
| CONSULTANT: | ||
| /s/ Xxxxx Xxxxxxx | ||
| Xxxxx Xxxxxxx | ||
| Address for Notice: | ||
| COMPANY: | ||
| Neuro-Hitech, Inc. | ||
| By: |
/s/
Xxxxx Xxxxxxx
|
|
| Its: |
Chief
Financial Officer
|
|
| Address for Notice: | ||
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