Exhibit 10.2
CONSULTING AGREEMENT
This Consulting Agreement ("Agreement") is effective as of April 01, 2011
between Xxxxxxx Xxxxx, MD, PhD, 0000 Xxxxxx, Xxxxx 0000, Xxxxxxx, XX 00000
("Consultant"), and Cardigant Medical Inc., a Delaware Corporation located at
0000 Xxxxxxxxx Xxxxxx, Xx 000, Xxxxxxxxx Xxxxx, XX 00000 ("Cardigant,"
"Client" or the "Company"), in connection with the rendering by Consultant
to Cardigant of consulting services, as described herein below, for and in
consideration of the compensation described.
WHEREAS, Client desires to retain Consultant to perform certain consulting
services as described herein and Consultant is willing to render and provide
such service to the Company.
THEREFORE, in consideration of the mutual agreements and covenants set forth
in this Agreement, and intending to be legally bound hereby, the parties agree
as follows:
1. Engagement of Consultant. The Company hereby engages and retains Consultant
to render to the Company the consulting services (the "Consulting Services")
described in paragraph 2 hereof for the period commencing on the effective
date of this Agreement and ending on December 31, 2012 (the "Consulting
Period").
2. Description of Consulting Services. The Consulting Services rendered by
Consultant hereunder shall consist of filling the role of Chief Medical
Officer which may consist of consultations with management of the Company as
such management may from time to time require during the consulting period.
Such consultation with management shall be with respect to preclinical and
clinical trial strategies, scientific oversight, data analysis and review,
competitive technology assessment, product training and such other matters
as may be agreed upon between the Company and Consultant.
3. Extent of Consulting Services. Client agrees that, during reasonable
periods of time prior to and during which Client is deemed to be in the
process of raising capital and/or offering securities, as defined under the
United States Securities Act of 1933 (the "Securities Act"), Consultant will
suspend its consulting services to the extent such consulting services may
affect the market price of Client's securities.
4. Compensation for Consulting Services. The Company shall pay to Consultant
for the Consulting Services rendered hereunder, 30,000 shares of restricted
common stock of the Company ("Shares") which shall be earned in the following
manner: 30,000 shares will be earned by the Consultant in two equal
installments of 15,000 shares on April 01, 2011 and January 01, 2012. In the
event of termination by either party, Consultant must return any unearned
shares.
5. Restrictions. Consultant recognizes that there is no current market for
the Shares; that there can be no assurances that such a market will exist any
time in the future and accordingly it may not be able to sell or dispose of
any of the Shares even if the Consultant had held them for a number of years;
that its right to transfer the Shares will be restricted by federal and state
securities laws and a legend to this effect will be placed on the certificates
representing the Shares if the Shares are issued prior to being registered;
that such laws impose strict limitations upon such transfer; and although the
Company is undertaking to file a registration statement as set out herein
there is no guarantee that said registration statement will become effective
and the Company, other than its undertaking, is under no obligation in
connection with the subsequent transfer thereof by the Consultant or to aid
the Consultant in obtaining an exemption from such registration.
The following representations and warranties of the Consultant, among other
things, pertain to U.S. securities laws and the sale or transfer in the United
States of the Shares. The Consultant represents and warrants to the Company
as follows:
The Consultant understands that prior to the registration of the Shares in
the U.S., such securities may not be offered or sold, directly or indirectly,
in the United States to or, or for the account or benefit of, a "U.S. Person"
(as defined in Rule 902 of Regulation S promulgated under the Securities Act),
which definition includes, but is not limited to: (1) any natural person
resident in the United States, (2) any partnership or company organized under
the laws of the United States, (3) any estate or trust of which the executor
or administrator or trustee, respectively, is a U.S. person, (4) any
discretionary or non-discretionary account held by a dealer or fiduciary for
the benefit or account of a U.S. person and any partnership or company
organized or incorporated under the laws of a foreign jurisdiction by a U.S.
person principally for the purpose of investing in securities not registered
under the Securities Act (a "U.S. Person") until registered under the
Securities Act and the securities laws of all applicable states unless an
exemption from such registration requirements is available. The Consultant
agrees not to engage in any hedging transaction involving of the Shares.
The Consultant understands that the Company may implement procedures to ensure
that the Shares may not be delivered within the United States other than in
offerings deemed to meet the definition of a "Cardigant transaction" pursuant
to Rule 902(h) of Regulation S promulgated under the Securities Act or an
exemption from registration under the Securities Act is available.
Consultant recognizes that, a restrictive legend in substantially the
following form shall be placed on each such certificate evidencing any of the
Shares:
The shares represented by this Certificate have not been registered under the
United States Securities Act of 1933, as amended (the "Securities Act") or
under any applicable state securities laws (the "State Laws"). The shares
have been acquired for investment purposes and may not be sold, transferred,
pledged or otherwise disposed of except in compliance with the registration
requirements of the Securities Act and applicable State Laws, or pursuant to
applicable exemptions from such registration requirements which may include
sale through a Designated Cardigant Securities Market. Further, unless the
shares represented by this Certificate have been registered under the
Securities Act, the sale, transfer, pledge or other disposition of these
shares in the United States is prohibited except in accordance with the
provisions of Regulation S (Rule 901 through 905 and the Preliminary Notes)
promulgated under the Securities Act.
Any transfer of the Shares on the books and records of the Company will only
be affected in accordance with such legend.
The Consultant undertakes and agrees that it will not offer or sell the
Shares in the United States unless such Shares are registered under the U.S.
Securities Act and the securities laws of all applicable states of the United
States or an exemption from such registration requirements is available, and
further that it will not resell the Securities in any jurisdiction, except in
accordance with the provisions of applicable securities legislation,
regulations, rules, policies and orders and stock exchange rules.
(i) Registering the Shares The Company will record the Shares issued to the
Consultant in the Company's share ledger and does not plan to certificate
the Shares until they are registered under the Securities and Exchange Act
of 1933 as amended.
(ii) Registration Company undertakes to include the Shares issued to the
Consultant in a re-sale registration statement on Form S-1 to be filed under
the provisions of the Securities Act. These Shares may not be transferred
prior to (a) such registration statement being made effective by the SEC or
(b) the consent of the board of directors of the Company if an exemption from
registration under the Act and any applicable State regulation is available.
6. Non Exclusivity of Consultants Undertakings. The Company expressly
understands and agrees that Consultant shall not be prevented or barred from
rendering services of the same nature as or a similar nature to those
described in this Agreement, or of any nature whatsoever, for or on behalf of
any person, firm, Company, or entity other than the Company. The Company
understands and accepts that Consultant is currently providing consulting
services to other public and private companies and will continue to do so
during the term of this Agreement. The Company also understands and accepts
that Consultant will seek new clients to provide its consulting services to
during the term of this Agreement.
7. Termination of Relationship. This Agreement shall, unless sooner terminated
as provided herein below, continue for the duration of the Consulting Period
as defined in paragraph 1 herein above. Such term shall be renewed upon mutual
agreement of the parties. Either Consultant or the Company may terminate this
Agreement with or without cause upon thirty (30) days written notice to the
other provided the Company may not give notice of termination prior to March
31, 2011.
In the event of Termination, Consultant shall be entitled to shares earned
prior to the date of the termination of this Agreement (ie: 30 days after
notice is given) and shall return share certificates representing any
un-earned Shares. The Company may cancel any un-earned Shares.
8. Miscellaneous.
A. Notices. Any notice or other communication required or permitted by any
provision of this Agreement shall be in writing and shall be deemed to have
been given or served for all purposes if delivered personally or sent by a
nationally recognized international courier such as FedEx.
B. Entire Agreement. This Agreement constitutes the entire agreement between
the parties relating to the subject matter of this Agreement and supersedes
all prior discussions between the parties. There are no terms, obligations,
covenants, express or implied warranties, representations, statements or
conditions other than those set forth in this Agreement. No variations or
modification of this Agreement or waiver of any of its terms or provisions
shall be valid unless in writing and signed by both parties.
C. Amendment. This Agreement shall not be modified or amended except by
written agreement of the parties hereto.
D. Governing Law. Each of the provisions of this Agreement shall be governed
by and construed and enforced in accordance with the laws of the State of
Delaware.
X. Xxxxx. No failure or delay by any party in exercising any right, power or
privilege under this Agreement shall operate as a waiver thereof; nor shall
any single or partial exercise of any right, power or privilege hereunder
preclude any other or further exercise thereof or the exercise of any other
right, power or privilege.
F. Severability. Should any part of the Agreement for any reason be declared
invalid or unenforceable, such decision shall not affect the validity or
enforceability of any remaining portion, which remaining portion shall remain
in force and effect as if this Agreement had been executed with the invalid or
unenforceable portion thereof eliminated and it is hereby declared the
intention of the parties hereto that they would have executed the remaining
portion of this Agreement without including therein any such part, parts or
portion which may, for any reason, be hereafter declared invalid or
unenforceable. Should any material term of this Agreement be in conflict
with any laws or regulations, the parties shall in good faith attempt to
negotiate a lawful modification of this Agreement which will preserve, to the
greatest extent possible, the original expectation of the parties.
G. Arbitration. Any controversy or claim arising out of or relating to this
Agreement, or the breach thereof, shall be settled by arbitration in
Los Angeles, CA in accordance with the rules of the American Arbitration
Association, and the judgment upon the award rendered may be entered in any
court having jurisdiction thereon.
H. Counterparts. This Agreement may be executed in multiple counterparts,
each of which shall be deemed an original, and all of which together shall
constitute one and the same instrument. Execution and delivery of this
Agreement by exchange of facsimile copies bearing facsimile signature of a
party shall constitute a valid and binding execution and delivery of this
Agreement by such party. Such facsimile copies shall constitute enforceable
original documents.
In Witness whereof, the undersigned parties hereto have executed this
Agreement on the dates set forth opposite their respective signatures.
Cardigant Medical Inc
/s/ Xxxxxx Xxxxx
Xxxxxx Xxxxx
Chief Executive Officer
Consultant
/s/ Xxxxxxx Xxxxx
Xxxxxxx X. Xxxxx, MD, PhD
