CONTRACT CHIEF FINANCIAL OFFICER AGREEMENT
Exhibit 10.1
THIS CONTRACT CHIEF FINANCIAL OFFICER AGREEMENT (the
“AGREEMENT’) is dated as of theday
of February, 2017. It is made and entered into by and between
Cocrystal Pharma, Inc., a Delaware corporation, located at 0000
Xxxxxxxx Xxxx, Xxxxxx, Xxxxxxx 00000 (“Company”), and
Xxxxx X. Xxxxxx (“Contract CFO”).
RECITALS
WHEREAS, Contract CFO has specialized financial skills,
experience and knowledge to help the Company
with its full reporting requirements;
WHEREAS, the Company is desirous of
retaining Contract CFO’s services as an Independent
Contractor and Contract CFO is desirous of formalizing a new
relationship with the Company;
WHEREAS, the Company is willing to enter
into an agreement with the Contract CFO to provide services for the
Company, but only upon the terms and condition provided for
hereinafter; and
NOW, THEREFORE, IN CONSIDERATION of the mutual promises made
herein and certain additional valuable consideration, as provided
for hereafter, it is AGREED, that
1. SERVICES.
Engagement
of the Contract CFO and in connection therewith, the Contract CFO
agrees to perform the following services (the
“Services”): Consult with the Company's Board of
Directors, the officers of the Company, and the Company’s
administrative staff, at reasonable times. The Contract CFO shall
be responsible for overseeing all aspects of the Company's
financial results, especially in preparing the Annual Financial
Statements and Quarterly Interim Financial Statements and the
required preparation work for the year-end audit. In net, the
Contract CFO acts as an external part-time CFO/Controller providing
the Company with the tools, systems and support necessary to
complete the financial reporting responsibilities of the
business.
The
Company agrees to retain Contract CFO to provide such services
under the terms and conditions set forth herein. Contract CFO
agrees to render all services under this Agreement in a
professional and business-like manner and in full accordance with
the terms and conditions of this Agreement. During the term of this
Agreement, Contract CFO shall devote his energy, skill and best
efforts to promote the Company’s business and affairs and to
perform his duties hereunder.
2. COMPENSATION
AND TERM.
The
Company shall pay the Contract CFO for his loyal and consistent
services as follows:
2.1 REMUNERATION AND TERM. For a period of four
months, starting 27th February, 2017
through 30th June, 2017, the
Contract CFO will be paid $125.00 per hour up to a maximum of 60
hours per week. Contract CFO will inform Company when 60 hours per
week are reached so Company can determine future action. To the
extent the Company authorizes additional hours in any weekly
period, it shall be at the rate of $125.00 per hour. Contract CFO
shall submit a xxxx bi-weekly detailing the hours worked for that
bi-weekly period. Company shall tender payment within 14 calendar
days of receipt of Contract CFO’s xxxx.
3. INDEPENDENT
CONTRACTOR STATUS.
The
Contract CFO is an independent contractor. The Contract CFO shall
not be deemed for any purpose to be an employee or agent of
Company, and neither party shall have the power or authority to
bind the other party to any contract or obligation. The Contract
CFO is not entitled to unemployment insurance or workers
compensation insurance and the Contract CFO shall be solely
responsible for timely remittance to appropriate authorities of all
federal, state, and local taxes and charges incident to the
provision of and payment of compensation for Services, and to the
operation of the Contract CFO’s business, including but not
limited to payment of worker’s compensation insurance
premiums, social security taxes and federal and state income taxes
(including quarterly estimated taxes). THE CONTRACT CFO CONSULTANT
SHALL NOT HOLD HIMSELF OUT OR OTHERWISE REPRESENT HIMSELF TO ANY
PERSON OR ENTITY AS ANYTHING OTHER THAN AN INDEPENDENT CONTRACT CFO
OF THE COMPANY, REGARDLESS OF ANY TITLE OR DESIGNATION THAT THE
CONTRACT CFO MAY HOLD WITH THE COMPANY.
4. BEST
EFFORTS OF CONTRACT CFO.
The
Contract CFO is expected to devote his best efforts to the business
of the Company and to all of the duties that may be required by the
terms of this Agreement to the reasonable satisfaction of the
Company. The Contract CFO shall at all times faithfully, with
diligence and to the best of his ability, experience and talents,
perform all the duties that may be required of and from him
pursuant to the express and implicit terms hereof to the reasonable
satisfaction of the Company. Such services shall be rendered at
such place or places as the Company shall in good faith require or
as the interest, needs, business or opportunity of the Company
shall require.
5. EXPENSES.
The
Contract CFO is authorized to incur reasonable expenses only upon
prior approval of management. The Company shall reimburse the
Contract CFO for all such expenses on the presentation by the
Contract CFO, from time to time, of an itemized account of such
expenditures in accordance with the guidelines set forth by the
Internal Revenue Service for travel and entertainment.
6.
DISABILITY.
(a) Should the Contract
CFO, by reason of illness or incapacity, be unable to perform his
job for a period of up to and including a maximum of 1 month, the
compensation payable to him for and during such period under this
Agreement shall be unabated. The Board of Directors shall have the
right to determine the incapacity of the Contract CFO for the
purposes of this provision, and any such determination shall be
evidenced by its written opinion delivered to the Contract CFO.
Such written opinion shall specify with particularity the reasons
supporting such opinion and be manually signed by at least a
majority of the Board.
(b) The Contract CFO's
compensation thereafter shall be reduced to zero. The Contract CFO
shall receive full compensation upon his return to services and
regular discharge of his full duties hereunder. Should the Contract
CFO be absent from his services for whatever cause for a continuous
period of more than 30-calendar days, the Company may terminate
this Agreement and all obligations of the Company hereunder shall
cease upon such termination.
7. TERMINATION.
7.1. The Contract CFO can terminate this
agreement by giving the Company thirty (30) days notice to the
Company. The Company can terminate this agreement by giving the
Contract CFO thirty (30) days notice.
7.2. The Company can terminate this agreement
immediately, without penalties, by demonstrating willful
misconduct, malfeasance, gross negligence or other like conduct
adversely affecting the best interests of the Company, including,
without limitation, (i) the failure or neglect by the Contract CFO
to perform his duties hereunder; (ii) the commission of any felony
against the Company, including, without limitation, any fraud
against the Company, any of its affiliates, clients or customers of
the Company; (iii) failure to abide by Company’s written
policies including without limitation those pertaining to xxxxxxx
xxxxxxx, harassment or workplace safety.
8. CONFIDENTIALITY.
The
Contract CFO shall not divulge to others any information he may
obtain during the course of his term relating to his services for
the Company without first obtaining written permission of the
Company.
Provided,
however, that nothing contained in this agreement shall be
construed to prevent the Contract CFO from reporting any act or
failure to act to the Securities and Exchange Commission or other
governmental body or prevent the Contract CFO from obtaining a fee
as a “whistleblower” under Rule 21F-17(a) under the
Securities Exchange Act of 1934 or other rules or regulations
implemented under the Xxxx-Xxxxx Xxxx Street Reform Act and
Consumer Protection Act, and provided, further, the Company and the
Contract CFO acknowledge the Contract CFO’s disclosure rights
under the Defend Trade Secrets Act of 2016.
9. RETURN
OF DOCUMENTS.
On
termination of the Contract CFO’s services with the Company,
or at any time upon the request of the Company or its affiliates,
the Contract CFO shall return to the Company all documents,
including all copies thereof, and all other property relating to
the business or affairs of the Company, including, without
limitation, customer lists, agents or representatives lists,
commission schedules and information manuals, letters, materials,
reports, lists and records (all such documents and other property
being hereinafter referred to collectively as the
“Materials”), in his possession or control, no matter
from whom or in what manner he may have acquired such property. The
Contract CFO acknowledges and agrees that all of the Materials are
property of the Company and releases all claims of right of
ownership thereto.
10. ASSIGNMENT
OF CONTRACT.
The
Contract CFO may not assign his rights under this Agreement without
the written consent of the Company.
11. GOVERNING
LAW.
This
Agreement, and the rights and obligations of the parties hereto,
shall be governed by and construed in accordance with the laws of
the State of Georgia without regard to principles of conflict of
laws. Each of the parties waives any right to object to the
jurisdiction or venue of such courts in Georgia or to claim that
such courts are an inconvenient forum.
12. ENTIRE
AGREEMENT AMENDMENT.
This
Agreement constitutes the entire Agreement, representation and
understanding of the parties hereto with respect to the subject
matter hereof, and no amendment or modification shall be valid or
binding unless made in writing and signed by the parties to this
Agreement. This Agreement supersedes any and all other agreements,
either oral or written, between the Company and Contract CFO with
respect to the subject matter hereof, and contains all of the
covenants and agreements between the parties relating in any way to
Contract CFO’s services for the Company.
13. NOTICES.
All
notices or other communications required or permitted hereunder
shall be in writing. All notices or other required or permitted
communications shall be delivered or sent, as the case may be, by
any of the following methods: (i) personal delivery; (ii) overnight
commercial carrier; or (iii) registered or certified mail, postage
prepaid, return receipt requested. Receipt and effective delivery
shall occur upon the earlier of the following: (a) If personally
delivered, the date of delivery to the address of the person to
receive such notice; (b) If delivered by overnight commercial
earner, one day following the receipt of such communication by such
carrier from the sender as shown on the sender’s delivery
invoice from such carrier; or (c) If mailed, two (2) business days
after the date of posting by the United States post office. No
notice or other required or permitted communication shall be
effective unless and until received.
14. MODIFICATION
AND WAIVER.
No
change or modification of this Agreement shall be valid or binding
upon the parties hereto unless such change or modification shall be
in writing and signed by the Company and Contract CFO. No course of
dealing between the Company and Contract CFO, nor any waiver by the
Company of a breach of any provision of this Agreement, or delay in
exercising any right under this Agreement, shall operate or be
construed as a waiver of any subsequent breach by Contract
CFO.
15. NO
PARTNERSHIP OR JOINT VENTURE.
Nothing
in this Agreement is intended, and should not in any way be
construed to, create any form of joint venture, partnership or
agency relationship of any kind between the Company and Contract
CFO. The parties expressly disclaim any intention of any kind to
create any such relationship between themselves.
IN WITNESS WHEREOF, the parties have
executed this Agreement or caused this Agreement to be executed on
the date first set forth above.
(“The
Company”)
By:
/s/ Xxxx
Xxxxxx
Title:
Interim CEO
Date:
February 22, 2017
Xxxxx
X. Xxxxxx
("Contract
CFO")
By:
/s/ Xxxxx X.
Xxxxxx
Date:
February 23, 2017
