CONSULTING AGREEMENT
This
CONSULTING AGREEMENT (this “Agreement”),
dated
effective as of May 31, 2007, is entered into on November 5, 2007 by and between
NuRx Pharmaceuticals, Inc. (formerly known as Quest Group International, Inc.),
a Nevada corporation (the “Company”),
and
SOQ Inc., a California Corporation (“Consultant”)
for
the services of Xx. Xxxxxxx Xxxx (“Xxxx”).
R
E C
I T A L S
WHEREAS,
Xxxx has certain knowledge, expertise, experience and reputation which the
Company desires to avail itself;
WHEREAS,
Consultant acknowledges that the Company desires to engage Xxxx’x services, and
that the Company’s sole reason for entering into this Agreement is to retain
Xxxx’x services;
WHEREAS,
Xxxx has furnished consulting services since May 31, 2007 to the Company with
the understanding that the Company and Consultant would enter into an Agreement
to document the terms and conditions previously agreed upon by each of the
Company and Consultant;
WHEREAS,
the Company and Xxxx had previously contemplated an employment arrangement,
but
have determined to engage in a consulting arrangment; and
WHEREAS,
upon the terms and subject to the conditions of this Agreement, the Company
desires to retain Consultant to provide certain consulting services to the
Company, and Consultant wishes to render such services.
NOW,
THEREFORE, in consideration of the foregoing recitals and the mutual promises
and agreements herein contained, Consultant and the Company by this Agreement
agree as follows:
ARTICLE
I
EMPLOYMENT;
TERM; DUTIES
1.1 Engagement.
Upon
the terms and conditions hereinafter set forth, the Company hereby engages
Consultant, and Consultant hereby accepts engagement to serve as Chairman of
the
Company’s Scientific Board, with such duties as described below, commencing May
31, 2007 (the “Commencement
Date”)
and,
subject to Section 3.2, ending five years thereafter (the
foregoing period and the same as may be extended pursuant to Section 3.2 of
this
Agreement, hereinafter, the“Term”).
1.2 Duties.
(a) Consultant
hereby agrees that it shall furnish Xxxx to provide the following consulting
services to the Company:
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(i)
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Participate
in establishing the scientific and research and development goals;
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| (ii) |
Participate
in the drug development plan;
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| (iii) |
Recruitment
and co-ordination with regulatory affairs of clinical
trials;
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| (iv) |
Recruitment
and co-ordination of clinical research associates or clinical research
organization;
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| (v) |
Participate
in the selection of scientific and clinical advisors;
and
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| (vi) |
Participate
in the selection of clinical centers and investigators for the trials,
and
conduct of the studies.
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(b) Consultant
agrees that Xxxx will at all times faithfully and industriously and to the
best
of his ability, experience and talents perform all of the duties that may be
required of and from him pursuant to the terms of this Agreement. Such duties
will be performed at such place or places as the interests, needs, business
and
opportunities of the Company will require or render advisable.
(c) During
the Term of the Agreement, neither Consultant nor Xxxx shall directly or
indirectly, either as an employee, employer, consultant, agent, investor,
principal, partner, stockholder (except as the holder of less than 1% of the
issued and outstanding stock of a publicly held corporation), corporate officer
or director, or in any other individual or representative capacity, engage
or
participate in any business that is in competition in any manner whatsoever
with
the business of the Company. For purposes of this Section, “business of the
Company” shall mean the development of Retinoic Acid Receptor and Retinoid X
Receptor target therapeutics for use in the treatment of acute myeloid leukemia,
solid cancers, and chemotherapy associated neutropenia. Subject to the foregoing
prohibition and provided such services or investments do not violate any
applicable law, regulation or order, or interfere in any way with the faithful
and diligent performance by Consultant of the services to the Company otherwise
required or contemplated by this Agreement, the Company expressly acknowledges
that Consultant or Xxxx may:
(i) make
and
manage personal business investments without consulting the Board;
(ii) serve
in
any capacity with any non-profit civic, educational or charitable organization
without consulting with the Board; and
(iii) continue
to provide services for the University of Southern California Xxxx School of
Medicine, Vasgene, and the Mesothelioma Research Foundation, in substantially
the same capacity as provided as of the date of this Agreement, or for such
other entities or in such other capacities as may be approved by the written
consent of the CEO of the Company from time to time.
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1.3 Covenants
of Consultant
(a) Reports.
Consultant shall use its best efforts and skills to truthfully, accurately,
and
promptly make, maintain, and preserve all records and reports that the Company
may, from time to time, request or require, fully account for all money,
records, equipment, materials, or other property belonging to the Company of
which it may have custody, and promptly pay and deliver the same whenever it
may
be directed to do so by the Board.
(b) Rules
and Regulations.
Consultant and Xxxx shall obey all rules, regulations and special instructions
of the Company and all other rules, regulations, guides, handbooks, procedures,
policies and special instructions applicable to the Company’s business in
connection with his duties hereunder and shall endeavor to improve their ability
and knowledge of the Company’s business in an effort to increase the value of
their services for the mutual benefit of the Company and the
Consultant.
(c) Opportunities.
Consultant shall make all business opportunities of which it becomes aware
that
are relevant to the Company’s business available to the Company, and to no other
person or entity or to itself individually.
ARTICLE
II
COMPENSATION
2.1 Consideration.
During
the Term, for all services rendered by Consultant hereunder and all covenants
and conditions undertaken by both Parties pursuant to this Agreement, the
Company shall pay, and Consultant shall accept, as compensation, annual
consideration of $200,000 per year commencing the Commencement Date (the
“Consulting
Fee”),
payable in accordance with the normal payroll practices of the Company. The
Consulting Fee shall be increased annually, the amount of such increase to
be
determined in the Company’s sole discretion,
but by no less than 5% per year.
2.2 Performance
and Review.
Consultant’s performance will be reviewed on no less than an annual basis.
2.3 Discretionary
Bonus.
Consultant is eligible to receive an annual bonus during the Term of this
Agreement as determined by either the Board or a compensation committee
appointed by the Board (the “Compensation
Committee”).
This
bonus will be based on the following two factors, each of which shall be given
equal weight in determining the bonus amount Consultant will receive that
year:
(i) The
Company’s performance, based on the performance criteria established by either
the Board or the Compensation Committee in its sole discretion; and
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(ii) The
Consultant’s job performance, based on the performance criteria established by
mutual agreement of Consultant and the CEO, subject to review and approval
by
either the Board or the Compensation Committee.
2.4 Stock
Compensation.
At the
sole discretion of the Board, Consultant or Xxxx may be eligible to receive
awards under the Company’s Stock Compensation Plan.
2.5 Business
Expenses.
Consultant will be reimbursed for all reasonable, out-of-pocket business
expenses incurred in the performance of its duties on behalf of the Company
consistent with the Company’s policies and procedures, including prior approval
requirements and submission of appropriate supporting documentation. Such
business expenses shall include travel, promotional, professional continuing
education and licensing costs (to the extent required), professional society
membership fees, seminars and similar expenditures incurred by Consultant which
Company determines are reasonably necessary for the proper discharge of
Consultant’s duties under this Agreement and for which Consultant submits
appropriate receipts and indicates the amount, date, location and business
character in a timely manner.
(a) Xxxx
shall be entitled to “economy” class air travel accommodations and proper hotel
accommodations not to exceed a “4 star” rating. Xxxx shall be entitled to
“business” class air travel accommodations for flights that exceed 5 hours of
continuous air travel.
(b) Prior
to
incurring any business expense that exceeds Five Thousand Dollars (US$5,000),
Consultant shall first seek written consent of the CEO.
ARTICLE
III
TERMINATION
OF EMPLOYMENT
3.1 Termination
(a) Consultant’s
employment pursuant to this Agreement shall terminate on the earliest to occur
of the following:
(i) upon
the
death of Xxxx (“Death”);
(ii) upon
the
delivery to Consultant of written notice of termination by the Company if Xxxx
shall suffer a physical or mental disability or illness which renders Xxxx,
in
the reasonable judgment of the Board, unable to perform his duties and
obligations under this Agreement for either 60 consecutive days or 180 days
in
any 12-month period (“Disability”);
(iii) upon
delivery to the Company of written notice of termination by the Consultant
for
Good Reason; or
(iv) upon
delivery to Consultant of written notice of termination by the Company for
Cause.
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3.2 Unless
either (a) this Agreement has been terminated prior to the expiration of
the then current Term, or (b) one party notifies the other party at least
60 calendar days prior to the end of the then current Term that such party
does
not wish such Term to be extended or further extended, this Agreement shall
be
automatically extended upon the terms and conditions hereof for an additional
year at the conclusion of such Term.
(a) Notwithstanding
the foregoing Sections 3.1 and 3.2, either party to this Agreement may terminate
this Agreement prior to the expiration of the Term if the terminating party
notifies the other party at least 60 calendar days prior to the end of any
twelve month period ending May 31 (the “Year”).
3.3 Certain
Definitions.
For
purposes of this Agreement, the following terms shall have the following
meanings:
(a) “Cause”
shall
mean, in the context of a basis for termination of Consultant’s employment with
the Company, that:
(i) Consultant
or Xxxx has committed an act of actual fraud, moral turpitude, misappropriation
of funds or embezzlement in connection with his duties under this
Agreement;
(ii) Consultant
or Xxxx is convicted
of, or pleas nolo
contendere
(no
contest) to, any crime (whether or not involving the Company) constituting
a
felony in the jurisdiction involved;
(iii) Consultant’s
or Xxxx’x
willful misconduct in the performance of Consultant’s duties
hereunder;
(iv) Consultant’s
or Xxxx’x
gross
negligence in the performance of his duties hereunder or willful and repeated
failure or refusal to perform such duties as may be delegated to Consultant
by
the Company commensurate with his position; or
(v) Consultant
is in material breach of any provision of this Agreement, or willfully fails
to
or refuses to comply with the lawful directives of the CEO or the Board in
the
performance of his duties under this Agreement (other than a failure caused
by
temporary disability).
(b) “Good
Reason”
giving
rise to Consultant’s right to terminate this Agreement means if
Consultant claims that the Company has materially breached this Agreement,
Consultant shall have first provided written notice to the Company of any such
claimed material breach with exact details of the claimed material breach and
the Company shall have had thirty (30) days from the date of receipt of such
written notice to cure any such breach; if curable, and in the event the Company
does so cure such breach within said thirty (30) days, such claimed breach
shall
not constitute good reason or a breach of this Agreement.
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3.4 Effect
of Termination.
In the
event the Agreement is terminated without Cause or the Consultant terminates
for
Good Reason, the Company shall continue to pay to Consultant the compensation
provided for under Section 2.1 for the remainder of the Year of such
termination.
ARTICLE
IV
CONFIDENTIAL
INFORMATION; NON-SOLICITATION; INTELLCTUAL PROPERTIES
4.1 Trade
Secrets of the Company.
Consultant and Xxxx, during the Term, will develop, have access to and become
acquainted with various trade secrets which are owned by the Company and/or
its
affiliates and which are regularly used in the operation of the businesses
of
such entities. Neither Consultant nor Xxxx will disclose such trade secrets,
directly or indirectly, or use them in any way, either during the Term or at
any
time thereafter, except as required in the course of this Agreement. All files,
contracts, manuals, reports, letters, forms, documents, notes, notebooks, lists,
records, documents, customer lists, vendor lists, purchase information, designs,
computer programs and similar items and information, relating to the businesses
of such entities, whether prepared by Consultant or Xxxx or otherwise and
whether now existing or prepared at a future time, coming into his possession
will remain the exclusive property of such entities, and will not be removed,
other than work-related purposes, from the premises where the work of the
Company is conducted, except with the prior written authorization by the
Company.
4.2 Confidential
Data of Customers of the Company.
Consultant and Xxxx, in the course of their duties under this Agreement, will
have access to and become acquainted with financial, accounting, statistical
and
personal data of customers of the Company and of their affiliates. All such
data
is confidential and will not be disclosed, directly or indirectly, or used
by
Consultant or Xxxx in any way, either during the Term (except as required in
the
course of employment by the Company) or at any time thereafter.
4.3 Inevitable
Disclosure.
After
the Agreement has terminated for Cause or without Good Reason, Neither
Consultant nor Xxxx will enter into any Agreement with any direct competitor
of
the Company for a period of one (1) year, where the new employment is likely
to
result in the inevitable disclosure of the Company’s trade secrets or
confidential information, or it would be impossible for Consultant to perform
under the new Agreement without using or disclosing trade secrets or
confidential information.
4.4 Limited
Exceptions.
Notwithstanding the foregoing, no information will be considered trade secret
or
confidential to the extent it is or becomes publicly available without breach
of
this Agreement by Consultant or Xxxx, is rightfully received by Consultant
or
Xxxx without obligations of confidentiality, or is ordered released or disclosed
by court order, lawful process or government authority.
4.5 No
Solicitation.
Consultant agrees that it will not, during the Term and for one (1) year
thereafter if terminated without Cause or with Good Reason or for two (2) years
thereafter if terminated for Cause or without Good Reason, encourage or solicit
any other employee of the Company to terminate his or her employment for any
reason, nor will he assist others to do so.
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4.6 Intellectual
Properties.
This
Agreement is subject to and conditioned upon Consultant and Xxxx entering into
a
separate innovation, proprietary information and confidentiality agreement
with
the Company.
4.7 Continuing
Effect.
The
provisions of this Article
IV
will
remain in effect after the Termination Date.
ARTICLE
V
MISCELLANEOUS
5.1 Independent
Contractor: Limitation of Liability.
The
Consultant is an independent contractor to the Company, and nothing herein
shall
be deemed to constitute the Consultant, Xxxx, or any of its agents as an
employee or agent of the Company. Consultant has no power or authority to bind
the Company, and shall not make any representation or statement that it has
such
power.
5.2 Taxes
and Benefit Programs.
Consultant shall be liable and responsible to pay any and all taxes relating
to
all amounts paid to Consultant hereunder. It is understood and agreed that
because Consultant is not an employee of the Company, the Company shall not
withhold any taxes from amounts paid to Consultant. Consultant shall be fully
and solely responsible to report income and expenses. Consultant acknowledges
that it is solely responsible for its own tax planning and that the Company
has
not provided Consultant with any tax advice regarding the tax implications
of
this Agreement. It is also understood and agreed that Consultant shall not
be
eligible to participate in any benefits or programs sponsored or financed by
the
Company for its employees.
5.3 Binding
Effect; Assignment.
This
Agreement shall be binding upon and inure to the benefit of the Parties and
their respective legal representatives, heirs, distributees, successors and
assigns. Consultant may not assign any of his rights and obligations under
this
Agreement. The Company may assign its rights and obligations under this
Agreement to any successor entity.
5.4 Notices.
Any
notice provided for herein shall be in writing and shall be deemed to have
been
given or made (a) when personally delivered or (b) when sent by telecopier
and
confirmed within 48 hours by letter mailed or delivered to the party to be
notified at its or his/hers address set forth herein; or three days after being
sent by registered or certified mail, return receipt requested, (or by
equivalent xxxxxxx with delivery documentation such as FEDEX or UPS) to the
address of the other party set forth or to such other address as may be
specified by notice given in accordance with this section 5.4:
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If
to the Company:
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NuRx
Pharmaceuticals,
Inc.
00000
Xxxx Xxxxxxx Xxxxxxxxx, Xx. 0000X
Xxx
Xxxxxxx, Xxxxxxxxxx 00000
Telephone: (000)
000-0000
Facsimile: (000)
000-0000
Attention: Chief
Executive Officer
|
|
If
to Consultant:
|
SOQ,
Inc.
c/o
Xxxxxxx Xxxx
00000
Xxxxxxxxxx Xxxxx
Xxxxxx,
Xxxxxxxxxx 00000
Telephone: (000)
000-0000
|
5.5 Severability.
If any
provision of this Agreement, or portion thereof, shall be held invalid or
unenforceable by a court of competent jurisdiction, such invalidity or
unenforceability shall attach only to such provision or portion thereof, and
shall not in any manner affect or render invalid or unenforceable any other
provision of this Agreement or portion thereof, and this Agreement shall be
carried out as if any such invalid or unenforceable provision or portion thereof
were not contained herein. In addition, any such invalid or unenforceable
provision or portion thereof shall be deemed, without further action on the
part
of the parties hereto, modified, amended or limited to the extent necessary
to
render the same valid and enforceable.
5.6 Waiver.
No
waiver by a party hereto of a breach or default hereunder by the other party
shall be considered valid, unless expressed in a writing signed by such first
party, and no such waiver shall be deemed a waiver of any subsequent breach
or
default of the same or any other nature.
5.7 Entire
Agreement.
This
Agreement and the agreements explicitly mentioned herein set forth the entire
agreement between the Parties with respect to the subject matter hereof, and
supersedes any and all prior agreements between the Company and Consultant,
whether written or oral, relating to any or all matters covered by and contained
or otherwise dealt with in this Agreement. This Agreement does not constitute
a
commitment of the Company with regard to Consultant’s employment, express or
implied, other than to the extent expressly provided for herein.
5.8 Amendment.
No
modification, change or amendment of this Agreement or any of its provisions
shall be valid, unless in writing and signed by the party against whom such
claimed modification, change or amendment is sought to be enforced.
5.9 Authority.
The
parties each represent and warrant that it/he or she has the power, authority
and right to enter into this Agreement and to carry out and perform the terms,
covenants and conditions hereof.
5.10 Attorneys’
Fees.
If
either party hereto commences an arbitration or other action against the other
party to enforce any of the terms hereof or because of the breach by such other
party of any of the terms hereof, the prevailing party shall be entitled, in
addition to any other relief granted, to all actual out-of-pocket costs and
expenses incurred by such prevailing party in connection with such action,
including, without limitation, all reasonable attorneys’ fees, and a right to
such costs and expenses shall be deemed to have accrued upon the commencement
of
such action and shall be enforceable whether or not such action is prosecuted
to
judgment.
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5.11 Titles.
The
titles of the sections of this Agreement are inserted merely for convenience
and
ease of reference and shall not affect or modify the meaning of any of the
terms, covenants or conditions of this Agreement.
5.12 Applicable
Law; Choice of Forum.
This
Agreement, and all of the rights and obligations of the parties in connection
with the employment relationship established hereby, shall be governed by and
construed in accordance with the substantive laws of the State of California
without giving effect to principles relating to conflicts of law.
5.13 Arbitration.
(a) Scope.
To the
fullest extent permitted by law, Consultant and the Company agree to the binding
arbitration of any and all controversies, claims or disputes between them
arising out of or in any way related to this Agreement, the employment
relationship between the Company and Consultant and any disputes upon
termination of employment, including but not limited to breach of contract,
tort, discrimination, harassment, wrongful termination, demotion, discipline,
failure to accommodate, family and medical leave, compensation or benefits
claims, constitutional claims; and any claims for violation of any local, state
or federal law, statute, regulation or ordinance or common law. For the purpose
of this agreement to arbitrate, references to “Company” include all parent,
subsidiary or related entities and their employees, supervisors, officers,
directors, agents, pension or benefit plans, pension or benefit plan sponsors,
fiduciaries, administrators, affiliates and all successors and assigns of any
of
them, and this agreement to arbitrate shall apply to them to the extent
Consultant’s claims arise out of or relate to their actions on behalf of the
Company.
(b) Arbitration
Procedure.
To
commence any such arbitration proceeding, the party commencing the arbitration
must provide the other party with written notice of any and all claims forming
the basis of such right in sufficient detail to inform the other party of the
substance of such claims. In no event shall this notice for arbitration be
made
after the date when institution of legal or equitable proceedings based on
such
claims would be barred by the applicable statute of limitations. The arbitration
will be conducted in Los Angeles, California, by a single neutral arbitrator
and
in accordance with the then-current rules for resolution of employment disputes
of the American Arbitration Association (“AAA”).
The
Arbitrator is to be selected by the mutual agreement of the Parties. If the
Parties cannot agree, the Superior Court will select the arbitrator. The parties
are entitled to representation by an attorney or other representative of their
choosing. The arbitrator shall have the power to enter any award that could
be
entered by a judge of the trial court of the State of California, and only
such
power, and shall follow the law. The award shall be binding and the Parties
agree to abide by and perform any award rendered by the arbitrator. The
arbitrator shall issue the award in writing and therein state the essential
findings and conclusions on which the award is based. Judgment on the award
may
be entered in any court having jurisdiction thereof. The Company shall bear
the
costs of the arbitration filing and hearing fees and the cost of the
arbitrator.
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5.14 This
Agreement shall not be terminated by any voluntary or involuntary dissolution
of
the Company resulting from either a merger or consolidation in which the Company
is not the consolidated or surviving corporation, or a transfer of all or
substantially all of the assets of the Company. In the event of any such merger
or consolidation or transfer of assets, Consultant’s rights, benefits and
obligations hereunder shall be assigned to the surviving or resulting
corporation or the transferee of the Company’s assets.
[Signature
page to follow]
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IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
day
and year first above written.
| SOQ, Inc. | NuRx Pharmaceuticals, Inc. | |||
| By: | /s/ Xxxxxxx Xxxx | By: | /s/ Xxxxx Xxxxx- Xxxxxx | |
| Name: Xx. Xxxxxxx Xxxx | Name:Xx. Xxxxx Xxxxx-Xxxxxx | |||
|
Title:
President
|
Title:CEO
|
|||
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