CORPORATE CONSULTING SERVICES AGREEMENT
CORPORATE
CONSULTING
SERVICES
AGREEMENT
THIS
CORPORATE CONSULTING SERVICES AGREEMENT
is dated
for reference effective (the “Effective
Date”)
as of
the 1st
day of
January, 2007.
BETWEEN:
XXXXX
XXXXXXX,
having
an address for delivery and service located at 20A Rehov Sharei Torah, Bayit
Vegan, Xxxxxxxxx, Xxxxxx 00000
(the
“Consultant”);
OF
THE FIRST PART
AND:
SINOBIOMED
INC. a
company
established under the laws of the State of Delaware, and having its address
for
notices hereunder at Xxxx 0000, Xxxx. #0, Xxxx 000, Xx-Xxxx Road, Xxxxx-Xxxxx
Plaza, Shanghai, China 200080
(the
“Company”);
OF
THE SECOND PART
(the
Consultant and the Company being hereinafter singularly also referred to as
a
“Party”
and
collectively referred to as the “Parties”
as
the
context so requires. In this Agreement “Company”
shall
also include any listed affiliates where the Consultant provides services
thereto and receives performance shares or options or other equity therein
and
such shall be deemed as if issued and contracted by the Company for the purposes
of, inter alia, termination fee provisions).
WHEREAS:
A.
The
Company is in the business (the “Business”)
of
developing
genetically engineered recombinant protein drugs and vaccines
that
respond
to a wide range of diseases and conditions, including malaria, hepatitis,
surgical bleeding, cancer, rheumatoid arthritis, diabetic ulcers and xxxxx,
and
blood cell regeneration
and in
order to help comply, satisfy and maintain the Company’s reporting obligations
in the United States, requires the skills, advice and supervision of a suitable
chief financial officer;
-2-
B.
The
Company wishes to retain the Consultant under this agreement (the “Agreement”)
to act
as the Company’s chief financial officer to assist the Company with its
accounting procedures and policies, to establish and maintain proper internal
financial controls, to assist the Company with its reporting requirements and
to
provide financial advice (such forms of interest of the Company generally called
the “Objectives”);
NOW
THEREFORE THIS AGREEMENT WITNESSETH THAT THE PARTIES HERETO AGREE AS
FOLLOWS:
Article
I
SERVICES
AND RESPONSIBILITIES OF THE CONSULTANT
1.1
Consultant
Services.
The
Consultant will provide such services specified herein on a proactive basis
or
as the Company may request, from time to time, in order to assist the Company
to
attempt to achieve the Objectives. Together with such instructions and
variations as the Company may give, the Consultant will provide the following
specific services and functions to the Company in pursuit of the
Objectives:
|
(a)
|
acting
as the chief financial officer of the
Company;
|
|
(b)
|
preparation
of quarterly and annual reports as required under Sections 13(d)
and 15 of
the Securities and Exchange Act of 1934, as
amended;
|
|
(c)
|
acting
as a member of the audit committee and to assist with communications
and
discussions with the Company’s independent registered public
accountants;
|
| (d) |
assistance
with establishing accounting procedures and policies as well as
establishing and maintaining internal financial controls and procedures;
and
|
| (e) |
such
other assistances as the board may reasonably request to achieve
the
Objectives;
|
(such
above-referenced Objectives services being, collectively, the “Consulting
Services”).
Article
II
INFORMATION
TO BE PROVIDED BY THE COMPANY
2.1
Information
to be made available.
The
Company agrees to make available to the Consultant all corporate, financial
and
operating information, Company personnel or other consultants, and other
reasonable resources which are reasonably necessary and sufficient to allow
the
Consultant to perform the Consulting Services. The Consultant may provide
Company information to legal and accounting advisers, and other persons, but
that such dissemination shall be effected with proper prudence and subject
to
such reasonable conditions and restrictions as the Company deems necessary
or
appropriate and subject to insider information rules and restrictions. The
Consultant will use such information only for the purposes set out herein and
for no competitive or other purpose whatsoever.
-3-
2.2
Accuracy
of the information.
The
Company agrees that it will bear sole responsibility for the accuracy and
completeness of the information provided to the Consultant, except for any
information created solely by the Consultant. The Company represents and
warrants that the information will be accurate and complete in all material
respects and not misleading and will not omit to state any fact or information
which would be material in its estimation.
2.3
Material
change in information.
The
Company agrees to advise the Consultant promptly of any material change in
the
affairs of the Company or in any information provided to the Consultant from
the
date at which such information is given.
Article
III
COMPLIANCE
WITH LAWS
3.1
Consultant
Compliance Issues.
The
Consultant shall comply with all laws, whether federal, provincial or state,
applicable to the Consulting Services provided by it and, when requested by
the
Company, will advise the Company of any particular compliance issues affecting
any Consulting Services for which the Consultant’s services have been engaged.
3.2
Company
Compliance Issues.
The
Company shall comply with all laws, whether federal, provincial or state,
applicable to the Consulting Services and the Company. The Company shall effect
best efforts to maintain its registration as a listed issuer in good
standing.
3.3
Insider
Issues.
The
Consultant shall comply with all reasonable endeavors of the Company, industry
practice, and law and regulation to ensure that it affords security to
information of the Company and that the Consultant, or any persons with whom
the
Consultant works or with whom the Consultant deals, do not employ information
of
the Company in any manner contrary to law or fiduciary obligations.
3.4
Trading.
In the
event that the Consultant, or any person with whom the Consultant works or
with
whom the Consultant deals, trades in the Company’s, or affiliates, securities
then the Consultant shall employ reasonable prudence and good market practice
as
to such trading and shall effect such in compliance with law.
-4-
Article
IV
TERM,
RENEWAL AND TERMINATION
4.1
Term.
The
Term of this Agreement (the “Term”)
is for
a period of one year commencing on January 1, 2007 (the “Effective
Date”)
and
terminating January 1, 2008 and includes any renewal periods.
4.2
Renewal.
This
Agreement shall renew automatically for subsequent one-year periods if not
specifically terminated in accordance with the following provisions. Renewal
shall be on the same terms and conditions contained herein, unless modified
and
agreed to in writing by the Parties, and this Agreement shall remain in full
force and effect (with any collateral written amendments) without the necessity
to execute a new document. A Party hereto determining not to renew agrees to
notify the other Parties hereto in writing at least 60 calendar days prior
to
the end of the Term of its intent not to renew this Agreement (the “Non-Renewal
Notice”).
In
this
Agreement the “Effective
Date of Termination” shall
mean, in the relevant circumstance, the 60th
day from
the Non-Renewal Notice or the 30th
day from
notice given in section 4.3(a) below or the date of the event of sections 4.3
(b) or (c) or, in any other circumstance, the date of noticed termination or
of
constructive or event of termination.
4.3
Termination.
Notwithstanding any other provision of this Agreement, this Agreement may be
terminated by a Party upon written notice if:
|
(a)
|
the
other Party fails to cure a material breach of any provision of this
Agreement within 30 calendar days from its receipt of written notice
from
said Party (unless such breach cannot be reasonably cured within
said 30
calendar days and the other Party is actively pursuing curing of
said
breach); or
|
|
(b)
|
the
other Party commits fraud or serious neglect or misconduct or illegal
act
in the discharge of its respective duties hereunder or under the
law;
or
|
|
(c)
|
the
other Party becomes adjudged bankrupt or a petition for reorganization
or
arrangement under any law relating to bankruptcy, and where any such
petition is not dismissed.
|
4.4
Disability.
If
Consultant is unable to continue the engagement, whether through disability
or
other disabling state, then the Company may terminate this Agreement as a
without fault termination. If physically capable, Consultant shall be made
available for consultation for up to ten (10) hours per month, non-cumulative,
at no cost to the Company. For additional hours per month, the Consultant shall
be paid a rate of $100 per hour.
4.5
Death.
In the
event that the Consultant dies, the Company shall terminate this Agreement
as a
without fault termination and the Consulting Fee (as defined below) shall be
payable to the Consultant’s estate.
-5-
4.6
Return
of Materials. Upon
termination of this Agreement:
| (a) |
The
Consultant agrees that all Company property, including without limitation,
all books, manuals, records, reports, notes, contracts, lists, and
other
documents (collectively, the “Confidential Information”), copies of any of
the foregoing, and equipment furnished to or prepared by the Consultant
in
the course of or incidental to this Agreement and the duties hereof,
including, without limitation, records and any other materials pertaining
to the Company or its Business, belonging to the Company shall be
promptly
returned to the Company upon termination and the Consultant shall
keep no
copies thereof, except as may be agreed in writing on agreed terms
with
the Company; and
|
| (b) |
The
Consultant agrees that all Confidential Information is received or
developed in confidence and for the exclusive benefit of the Company.
During this Agreement and thereafter, the Consultant will not, directly
or
indirectly, except as required by the normal business of the Company
or
expressly consented to in writing by the
Company:
|
|
(i)
|
disclose,
publish or make available, other than to an authorized employee,
officer,
or director of the Company, any Confidential
Information;
|
|
(ii)
|
acquire,
possess for his own interest, sell, transfer or otherwise use or
exploit
any Confidential Information;
|
|
(iii)
|
permit
the sale, transfer, or use or exploitation of any Confidential Information
by any third party; or
|
|
(iv)
|
retain
upon termination or expiration of this Agreement any Confidential
Information, any copies thereof or any other tangible or retrievable
materials containing or constituting Confidential
Information;
|
Article
V
COMPENSATION
OF THE CONSULTANT
5.1
Compensation
to the Consultant.
The
Consultant shall be compensated for the Consulting Services by way of the
Company issuing 100,000 restricted shares of common stock of the Company on
a
post forward stock split basis that was effective March 2, 2007 (the “Consultant
Shares”) to the Consultant within 10 days of the full execution of this
Agreement, with such Consultant Shares being deemed to have been earned by
the
Consultant as of January 1, 2007. The Consultant Shares shall be held in escrow
by the Company’s legal counsel acting as the escrow agent in accordance with the
terms and provisions of the Escrow Agreement attached hereto as Schedule “A”. If
the Consultant is terminated prior to the end of the Term in accordance with
this Agreement, then the Parties hererto agree that the percentage of the
Consultant Shares equivalent to the number of days remaining in the Term after
the date of termination divided by 365 days shall be surrendered by the
Consultant to the Company for cancellation. The Consultant agrees that in the
case of the Consultan’s termination prior to the completion of the Term, the
Company is authorized to provide a copy of the termination notice and written
instructions to the escrow agent with respect to the amount of Consultant Shares
to be delivered back to the Company for surrender and cancellation, with the
Company providing a copy of such written instructions to the
Consultant.
-6-
5.2
Reimbursement
of Expenses.
During
the Term the Company shall reimburse the Consultant for all invoiced and
substantiated expenses properly incurred for the Consulting Services within
30
days of invoice. The Company shall not be responsible for expenses unless it
has
given approval as follows:
|
(a)
|
Any
single expense in excess of $500;
and
|
|
(b)
|
Any
month in which it is anticipated that aggregate expenses will exceed
$2000.
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Article
VI
INFORMATION
AND ADVICE CONFIDENTIAL
6.1
Confidential
Information.
No
information furnished hereunder in connection with the Consulting Services
shall
be published by any Party without the prior written consent of the other Party,
but such consent in respect of the reporting of factual data shall not be
unreasonably withheld, and shall not be withheld in respect of information
required to be publicly disclosed pursuant to applicable securities or
corporation laws.
6.2
Confidentiality
by the Consultant.
The
Consultant will not, except as authorized or required by the Consultant’s duties
hereunder, reveal or divulge to any person or companies any information
concerning the organization, business, finances, transactions or other affairs
of the Company, or of any of its subsidiaries, which may come to the
Consultant’s knowledge during the Term, and the Consultant will keep in complete
secrecy all confidential information entrusted to the Consultant and will not
use or attempt to use any such information in any manner which may injure or
cause loss, either directly or indirectly, to the Company’s Businesses and shall
not use or permit the same to be used for any purpose of the Consultant not
in
the pursuit of this Agreement or by any competitor or third party. The
Consultant shall immediately advise the Company at the time it shall come to
the
Consultant’s knowledge of any party employing the Company’s information for
purposes not authorized by this Agreement or the Company and the Consultant
shall give the Company all reasonable assistance to protect the Company’s
information, at the Company’s cost. This restriction will continue to apply
after the termination of this Agreement without limit in point of time but
will
cease to apply to information or knowledge which may come into the public
domain.
6.3
Opinions,
Reports and Advice of the Consultant.
The
Consultant acknowledges and agrees that all written and oral opinions, reports,
advice and materials provided by the Consultant to the Company in connection
with the Consultant’s engagement hereunder are intended solely for the Company’s
benefit and for the Company’s use only, and that any such written and oral
opinions, reports, advice and information are the exclusive property of the
Company. In this regard the Consultant agrees that the Company may utilize
any
such opinion, report, advice and materials for its purposes but the Company
shall not publish the same or use the same, or extracts thereof, for purposes
not specifically intended by the Consultant without the Consultant’s written
permission. The Consultant agrees that all resources, opportunities, or other
matters of value developed or pursued pursuant to this Agreement are the
property of the Company and shall accrue to the Company solely.
-7-
6.4
Right
of Ownership to the Business and related Property.
The
Consultant hereby acknowledges and agrees that any and all technology and
Business interests of the Company, together with any improvements derived
therefrom, and any patents, copyright, trade marks or trade names used in
connection with the same (collectively, the “Property”),
are
wholly owned and controlled by the Company. In this regard the Consultant hereby
further covenants and agrees not to, during or after the Term, contest the
title
to any of the Company’s Property interests, in any way dispute or impugn the
validity of the Company’s Property interests or take any action to the detriment
of the Company’s interests therein. The Consultant acknowledges that, by reason
of the unique nature of the Property interests, and by reason of the
Consultant’s knowledge of and association with the Property interests during the
Term, the aforesaid covenant, both during the term of this Agreement and
thereafter, is reasonable and commensurate for the protection of the legitimate
business interests of the Company. The Consultant hereby further covenants
and
agrees to immediately notify the Company of any infringement of or challenge
to
any of the Company’s Property interests as soon as the Consultant becomes aware
of the infringement or challenge.
6.5
Consultant’s
Business Conduct.
The
Consultant warrants that it shall conduct its Consulting Services and other
related activities in a manner which is lawful and reputable and which brings
good repute to the Company, the Consultant and the Business interests. In this
regard the Consultant warrants to provide all Consulting Services in a sound
and
professional manner such that the same meets superior standards of performance
quality within the standards of the industry or as set by the specifications
of
the Company.
Article
VII
INDEMNIFICATION
AND LEGAL PROCEEDINGS
7.1
Indemnification.
Each
Party agrees to indemnify and save the other, its affiliates and their
respective directors, officers, employees and agents (each an “Indemnified
Party”)
harmless from and against any and all losses, claims, actions, suits,
proceedings, damages, liabilities or expenses of whatsoever nature or kind,
including any investigation expenses incurred by any Indemnified Party, to
which
an Indemnified Party may become subject by reason of breach of this Agreement
or
of law by the defaulting Party. Specifically, but not to derogate from the
forgoing but for certainty for the comfort of the Consultant, the Company agrees
to indemnify the Consultant for any actions, losses, proceedings, or other
harm
suffered, including legal costs as incurred, in the service of the Company
except only where such harm was suffered by the Consultant primarily as a
consequence of its own grossly negligent or unlawful conduct.
-8-
7.2
Claim
of Indemnification.
The
Parties hereto agree to waive any right they might have of first requiring
the
Indemnified Party to proceed against or enforce any other right, power, remedy,
security or claim payment from any other person before claiming this
indemnity.
7.3
Notice
of Claim.
In case
any action is brought against an Indemnified Party in respect of which indemnity
may be sought, the Indemnified Party will give prompt written notice of any
such
action of which the Indemnified Party has knowledge and the indemnifying Party
will undertake the investigation and defense thereof on behalf of the
Indemnified Party, including the prompt employment of counsel acceptable to
the
Indemnified Party affected and the payment of all expenses. Failure by the
Indemnified Party to so notify shall not relieve the relevant Party of such
relevant Party’s obligation of indemnification hereunder unless (and only to the
extent that) such failure results in a forfeiture by the relevant Party of
substantive rights or defenses.
7.4
Settlement.
No
admission of liability and no settlement of any action shall be made without
the
consent of each of the Parties hereto, such consent not to be unreasonable
withheld.
7.5
Legal
Proceedings.
Notwithstanding that the indemnifying Party will undertake the investigation
and
defense of any action, an Indemnified Party will have the right to employ
separate counsel in any such action and participate in the defense thereof,
but
the fees and expenses of such counsel will be at the expense of the Indemnified
Party unless:
|
(a)
|
such
counsel has been authorized by the indemnifying
Party;
|
|
(b)
|
the
indemnifying Party has not assumed the defense of the action within
a
reasonable period of time after receiving notice of the
action;
|
|
(c)
|
the
indemnifying Party and the Indemnified Party shall have been advised
by
counsel that there may be a conflict of interest between the Parties;
or
|
|
(d)
|
there
are one or more legal defenses available to the Indemnified Party
which
are different from or in addition to those available to the indemnifying
Party.
|
Article
VIII
FORCE
MAJEURE
8.1
Events.
If
either Party hereto is at any time during this Agreement prevented or delayed
in
complying with any provisions of this Agreement by reason of strikes, walk-outs,
labour shortages, power shortages, fires, wars, acts of God, earthquakes,
storms, floods, explosions, accidents, protests or demonstrations by
environmental lobbyists or native rights groups, delays in transportation,
breakdown of machinery, inability to obtain necessary materials in the open
market, unavailability of equipment, governmental regulations restricting normal
operations, shipping delays or any other reason or reasons beyond the control
of
that Party, then the time limited for the performance by that Party of its
obligations hereunder shall be extended by a period of time equal in length
to
the period of each prevention or delay.
-9-
8.2
Notice.
A Party
shall within seven calendar days give notice to the other Party of each event
of
force
majeure
under
section 8.1 hereinabove, and upon cessation of such event shall furnish the
other Party with notice of that event together with particulars of the number
of
days by which the obligations of that Party hereunder have been extended by
virtue of such event of force
majeure
and all
preceding events of force
majeure.
Article
IX
DEFAULT
AND TERMINATION
9.1
Default.
The
Parties hereto agree that if either of the Parties is in default with respect
to
any of the provisions of this Agreement (hereinafter referred to as the
“Defaulting
Party”),
the
non-defaulting Party (hereinafter referred to as the “Non-Defaulting
Party”)
shall
give notice to the Defaulting Party designating such default, and within thirty
(30) business days after its receipt of such notice, the Defaulting Party shall
either:
|
(a)
|
cure
such default, or diligently commence proceedings to cure such default
and
prosecute the same to completion without undue delay, with notice
to the
Non-Defaulting Party of the procedures it has instigated to cure;
or
|
|
(b)
|
give
the Non-Defaulting Party notice that it denies that such default
has
occurred and that it is submitting the question to the appropriate
tribunal.
|
If
default is not addressed appropriately in the form required by (a) above, or
cured within 30 days of a tribunal’s finding of default, then the Non-Defaulting
Party may terminate this Agreement at any time, without prejudice to any claims
it may have for an accounting or damages.
Article
X
NOTICE
10.1
Notice.
Each
notice, demand or other communication required or permitted to be given under
this Agreement shall be in writing and shall be delivered to the other Party,
at
the address for such Party specified above. The date of receipt of such notice,
demand or other communication shall be the date of delivery thereof.
Transmission by facsimile, with electronic confirmation, shall be considered
delivery.
10.2
Change
of Address.
Either
Party may at any time and from time to time notify the other Party in writing
of
a change of address and the new address to which notice shall be given to it
thereafter until further change.
-10-
Article
XI
GENERAL
PROVISIONS
11.1
Entire
Agreement.
This
Agreement constitutes the entire agreement between the Parties hereto in respect
to this subject matter and supersedes every previous agreement, expectation,
negotiation, representation or understanding, whether oral or written, express
or implied, statutory or otherwise, between the Parties with respect to the
subject matter of this Agreement.
11.2
Enurement
and Assignment.
This
Agreement will enure to the benefit of and will be binding upon the Parties,
their respective heirs, executors, administrators and permitted assigns. This
Agreement may not be assigned as to any part by any Party without the permission
in writing of the other Party, such permission not to be unreasonably
withheld.
11.3
Time
of the Essence.
Time
will be of the essence of this Agreement.
11.4
Applicable
Law.
The
situs of this Agreement is Vancouver, British Columbia, and for all purposes
this Agreement will be governed exclusively by and construed and enforced in
accordance with the laws and Courts of the Province of British
Columbia.
11.5
Invalid
Provisions.
If any
provision of this Agreement is at any time unenforceable or invalid for any
reason it will be severable from the remainder of this Agreement and, in its
application at that time, this Agreement will be construed as though such
provision was not contained herein and the remainder will continue in full
force
and effect and be construed as if this Agreement had been executed without
the
invalid or unenforceable provision.
11.6
Currency.
Unless
otherwise stated, all references in this Agreement to currency shall be United
States currency.
11.7
Severability
and Construction.
Each
Article, section, paragraph, term and provision of this Agreement, and any
portion thereof, shall be considered severable, and if, for any reason, any
portion of this Agreement is determined to be invalid, contrary to or in
conflict with any applicable present or future law, rule or regulation in a
final unappealable ruling issued by any Court, agency or tribunal with valid
jurisdiction in a proceeding to which any Party hereto is a party, that ruling
shall not impair the operation of, or have any other effect upon, such other
portions of this Agreement as may remain otherwise intelligible (all of which
shall remain binding on the Parties and continue to be given full force and
effect as of the date upon which the ruling becomes final).
11.8
Warranty
of Good Faith.
The
Parties hereto warrant each to the other to conduct their duties and obligations
hereof in good faith and with due diligence and to employ all reasonable
endevours to fully comply with and conduct the terms and conditions of this
Agreement.
-11-
11.9
Representation
and Costs.
It is
hereby acknowledged by each of the Parties hereto that, as between the Company
and the Consultant, Xxxxxx Xxxxxx, Barristers and Solicitors, acts solely for
the Company, and that the Consultant has been advised to obtain independent
legal advice with respect to this Agreement and that he has consulted with
or
has had the opportunity to consult with independent counsel of his own choice
concerning this Agreement and that he has read and understands the Agreement,
is
fully aware of its legal effect, and has entered into it freely based on his
own
judgment.
11.10
Counterparts.
This
Agreement may be signed by the Parties hereto in as many counterparts as may
be
necessary, each of which so signed shall be deemed to be an original, and such
counterparts together shall constitute one and the same instrument and
notwithstanding the date of execution will be deemed to bear the execution
date
as set forth on the front page of this Agreement.
11.11
Consents
and Waivers.
No
consent or waiver expressed or implied by either Party in respect of any breach
or default by the other in the performance by such other of its obligations
hereunder shall be valid unless it is in writing, be relied upon as a consent
to
or waiver of any other breach or default of the same or any other obligation
or
constitute a general waiver under this Agreement, or eliminate or modify the
need for a specific consent or waiver in any other or subsequent
instance.
IN
WITNESS WHEREOF
the
Parties hereto have hereunto set their hands and seals in the presence of their
duly authorized signatories effective as at the date first above
written.
| SIGNED and DELIVERED by | ) | ||
| XXXXX XXXXXXX | ) | ||
| the Consultant herein, in the presence of: | ) | ||
| ) | |||
|
/s/
Omnit Xxxxxxxx
|
) | ||
|
Witness
Signature
|
) |
/s/
Xxxxx Xxxxxxx
|
|
| ) |
XXXXX
XXXXXXX
|
||
|
00
Xxxxx Xx., Xxx Xxxx,
Xxxxxx
|
) | ||
|
Witness
Address
|
) | ||
| ) | |||
|
Administrative
Assistant
|
) | ||
|
Witness
Name and
Occupation
|
) | ||
| The CORPORATE SEAL of | ) | ||
| SINOBIOMED INC., the Company | ) | ||
| herein, was hereunto affixed in the presence of: | ) |
(C/S)
|
|
| ) | |||
|
/s/
Ban-Xxx Xxxx
|
) | ||
|
Authorized
Signatory
|
) | ||
| ) | |||
|
Ban-Xxx
Xxxx, President
|
) | ||
|
(print
name and title)
|
) |
-12-
SCHEDULE
“A”
ESCROW
AGREEMENT
THIS
ESCROW AGREEMENT
is made
and dated for reference effective as of the 1st
day of
January, 2007 (the “Effective
Date”)
and is
a collateral agreement and attached as a document to the above Corporate
Consulting Services Agreement (“Consulting
Agreement”).
BETWEEN:
(hereinafter
referred to as the “Issuer”);
OF
THE FIRST PART
AND:
XXXXX
XXXXXXX
(hereinafter
referred to as "Consultant")
OF
THE SECOND PART
(the
foregoing hereinafter also singularly referred to as a "Party"
and
collectively referred to as the "Parties"
as the
context so requires).
AND:
Xxxxxx
Xxxxxx or such escrow agent as the Parties may subsequently appoint or such
escrow agent as subsequently may be appointed by Xxxxxx Xxxxxx or a court of
competent jurisdiction,
of
0000-000 Xxxx Xxxxxxxx Xxxxxx, Xxxxxxxxx, XX X0X 0X0
(hereinafter
referred to as the "Escrow
Agent"
but not
a “Party”);
OF
THE THIRD PART
WHEREAS:
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A.
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The
Parties have requested that the Escrow Agent act as escrow holder
of the
Consulting Shares as contemplated by the Consulting Agreement and
the
Escrow Agent has agreed subject to the below
terms;
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B.
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All
defined terms of the Consulting Agreement are herein incorporated
by
reference but none of the terms or obligations of the Consulting
Agreement
are incorporated herein and the Escrow Agent is not imposed with
any
obligations other than those of this Escrow
Agreement;
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C.
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The
Issuer has also joined to this Agreement to assist in the correction
of
any defects of Consulting Shares or delivery and to ensure the transfer
of
the Consulting Shares back to the Company, if
required;
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NOW
THEREFORE THIS AGREEMENT WITNESSES
that in
consideration of the premises and consideration now provided by each of the
Parties and the Escrow Agent hereto, each to the other (the receipt whereof
is
hereby acknowledged), and in further consideration of the mutual covenants
and
conditions hereinafter contained, the Parties each with the other and with
the
Escrow Agent hereto agree as follows:
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1.
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The
Issuer and Consultant hereby agree to the deposit of the Consulting
Shares
and Transfer Documents (collectively hereafter the “Shares”)
with and that the same shall be delivered to the Escrow Agent to
be held
in accordance with this Agreement.
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2.
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The
Escrow Agent hereby agrees to accept delivery and custody of the
Shares
for the purposes of this Agreement on the following specific agreements
and understanding by the Issuer and Consultant and such Parties warrant
irrevocably to abide by and that they are bound by such
provisions:
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(a)
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the
Escrow Agent is general counsel for the Issuer but not for this document,
such is recognized by the Parties, all Parties waive conflict thereof,
the
Issuer and Consultant have received actual and specific legal counsel
from
separate counsel in regard to this matter, and the Issuer and Consultant
are executing this Agreement without any reliance or expectation
whatever
of the Escrow Agent except as escrow holder as specifically required
by
the terms of the escrow of this
Agreement;
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(b)
|
this
agreement constitutes covenants only and there is no trust hereof
and
should any trust be implied hereof (which would be contrary to the
intention of this Agreement) then such is a limited trust specifically
for
the purposes of this Agreement and for no other purpose, shall be
interpreted strictly and with limitation and not by inferential
interpretation and not widely and
generously;
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(c)
|
the
Escrow Agent may resign at any time and tender the Shares to court
or
appoint an alternate escrow agent and tender the Shares to the alternate
and immediately upon such tendering the Escrow Agent shall be relieved
of
all and any accountability
thereafter;
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(d)
|
the
duty of the Escrow Agent is solely that of good faith and normal
care
merely to preserve the Shares and communicate adequately with the
Parties
and the Escrow Agent shall have no duty or obligation to determine
any
rights between the Parties, to interpret this Agreement, or to take
any
other act other than to preserve the Shares. In the event of conflict
in
respect to the Shares the Escrow Agent may determine to retain possession
of the Shares without liability whatsoever until instructed by mutual
direction of the Parties or until directed by a court of competent
jurisdiction. In the event that the Escrow Agent has communicated
any
matter to a Party notifying of an act or an understanding or an
interpretation or an intention to deliver or receipt of a matter
or any
other matter for which the Escrow Agent is giving information or
notice or
requesting response then a Party shall not complain and shall have
waived
all right to complain for the matters disclosed therein if the Party
has
not objected within five business days thereof and if the Escrow
Agent is
requesting response then a Party shall answer within such time frame.
The
Escrow Agent shall be absolutely entitled to rely upon the veracity,
truthfulness, authenticity, and integrity of communication by the
Parties
and shall not be obliged to inquire as to their bona fides or assume
any
defect therein and should a Party effect false communications or
should a
third party employ instruments of the Parties to effect false or
deceptive
acts then the Escrow Agent shall have no liability therefore. In
the event
the Shares are lost or destroyed while in the possession of the Escrow
Agent, the Parties agree that such is a non-actionable accident without
cost or recourse to the Escrow Agent and the Parties warrant to effect
all
matters as shall be required to cancel the lost certificate and replace
the same into the possession of the Escrow
Agent;
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(e)
|
the
Parties waive any and all claims against the Escrow Agent for any
acts
conducted pursuant hereto except only where the Escrow Agent acts
in fraud
or overt bad faith for personal profit (and for such purpose error,
negligence, confusion or mistake of interpretation, force majeure,
act of
third party, employee error and the like shall not be extended to
be
interpreted as bad faith but bad faith shall mean its normal and
extreme
meaning of an act taken with the objective intent of effecting a
wrong
purpose) and any claim in respect to the same shall be consequent
upon
actual and observable and documented default of such nature and not
inferential or interpretive or speculative and in the interpretation
of
such matters the onus and burden of proof (whether at trial or on
a
motion, inter alia, by the Escrow Agent to dismiss for insufficient
evidence) shall be on the claimant making claim against the Escrow
Agent
and shall be on a level of beyond a reasonable doubt. A Party making
complaint against the Escrow Agent for default based upon inferential,
speculative or interpretive claims shall be deemed irrevocably to
be
acting in bad faith and maliciously or for collateral improper purposes
(in this latter case such shall be inferred if the facts reasonably
illustrate that such claim is made in whole or in part to exert a
leverage) and such a claiming Party shall be liable for the maximal
damages and costs allowable in the appropriate
jurisdiction;
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(f)
|
the
Parties, jointly and severally (and a contributing Party shall have
a
right of claim from the non-contributing Parties), do hereby warrant
and
agree from time to time and at all times hereafter well and truly
to save,
defend and keep harmless and fully indemnify the Escrow Agent, its
successors and assigns, from and against all loss, costs, charges,
damages
and expenses which the Escrow Agent, its successors or assigns, may
at any
time hereafter bear, sustain, suffer or be put to for or by reason
or on
account of its acting as Escrow Agent pursuant to this Agreement
except
only in the event of bad faith or fraud, which shall not be assumed
or
employed as a plea to defeat a claim for indemnity unless such has
first
been adjudged by a court of competent jurisdiction. Unless a claimant
shall first have received approval of a court of competent jurisdiction,
pursuant to motion duly served and replied in the ordinary course
(and not
ex parte or expedited), and unless such court has found on a balance
of
probabilities on the evidence served by both parties that the Escrow
Agent
did probably commit fraud or bad faith, then failure to pay indemnity
or
advance costs shall be a fundamental default of this Agreement and
shall
be irrevocably deemed to be an act of bad faith and malice and the
claim
of the claimant shall be dismissed completely with prejudice for
such
matter alone. The Escrow Agent may, at it sole election, require
that one
or either Parties pre-advance any costs or fees to which the Escrow
Agent
may be put upon delivering to such Party estimates, quotes, or bills
of
the relevant professionals; and
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-15-
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(g)
|
in
case proceedings should hereafter be taken in any court respecting
the
Shares hereby escrowed or respecting the Escrow Agent and its duties
and
acts (or allegations of misdeeds), the Escrow Agent shall not be
obliged
to defend any such action or submit its rights to the court until
it shall
have been indemnified by good and sufficient security or advance
of
expected costs in addition to the indemnity given against its costs
of
such proceedings and in the event that a Party or Parties refuses
or
neglects to provide indemnity or otherwise violates the terms of
this
section then the Escrow Agent shall have, as a matter of right, the
election to enjoin and suspend the proceedings until the Parties
provide
proper and sufficient indemnity and until the actions and pleadings
of the
Parties are consistent with and compliant with the obligations and
restrictions of this section and in the event that a pleading Party
does
not so conform its actions and provide indemnity then the Escrow
Agent
shall have the right, and the pleading Party waives all defenses,
to have
any actions dismissed with prejudice as a consequence of such default
of
the pleading Party.
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3.
|
The
Shares shall be delivered into possession of the Escrow Agent to
be held
and delivered by the Escrow Agent as follows in accordance with the
following circumstances:
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(a)
|
the
Shares shall be delivered to the Consultant in the event that the
Consultant provides the Escrow Agent with notice that is has completed
the
Consulting Services for the Term, and upon the Escrow Agent giving
the
Issuer five (5) business days notice, the Issuer has not provided
documentary proof materially contravening the Consultant’s notice;
or
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(b)
|
a
percentage of the Shares equivalent to the number of days remaining
in the
Term after the date of termination of the Consultant divided by 365
days
shall be delivered to the Issuer and the remainder of the Shares
shall be
delivered to the Consultant in the event that the Issuer provides
the
Escrow Agent with notice of the Consultant’s termination and the number of
days remaining in the Term, and upon the Escrow Agent giving the
Consultant five (5) business days notice, the Consultant has not
provided
documentary proof materially contravening the Issuer’s notice;
or
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-16-
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(c)
|
in
the event that if neither Party has given notice as to instruction
for
delivery of the Shares within one month of the completion of the
Term the
Escrow Agent may determine, after ten business days notice, to deliver
the
Shares to the Consultant or, failing delivery by non-acceptance or
non-location of the Consultant, to the
Issuer.
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Instructions
to or by the Escrow Agent as to the forgoing shall be given by written copy
to
the Escrow Agent with copies to the Parties. In all matters in respect to the
forgoing the Escrow Agent shall copy each Party with all correspondence. At
the
time of intention to deliver the Shares as above if no objection is taken within
the stated time then the Parties shall have no complaint and the Escrow Agent
shall be fully and completely discharged of all duties, accountabilities or
claims and this Agreement shall terminate but that the provisions of section
2
hereof shall continue for the benefit of the Escrow Agent for a period of ten
years.
The
Consultant hereby permits the Escrow Agent to register the Shares in the name
of
the Escrow Agent, or any contracted nominee, and to split the Shares into
several certificates for the purposes of efficient administration of this
escrow. The Escrow Agent or his nominee shall provide the Consultant with voting
powers of attorney in respect to any Shares so registered.
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4.
|
The
Issuer agrees that the Shares are delivered pursuant to exemptions
from
prospectus requirements, the Consultant is an exempt
sophisticated/accredited investor who does not require qualification,
filing, notice, or other qualifying act in their jurisdiction and
the
Consultant agrees and acknowledges that the Shares are or may be
subject
to restrictions under prevailing securities laws and that the certificate
for the same will be impressed with the appropriate legends advised
by
counsel.
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5.
|
The
Consultant shall be entitled to a letter or receipt from the Escrow
Agent
stating the Shares are held by the Escrow Agent subject to the terms
of
this Agreement; but such letter or receipt shall not be assignable.
The
cost of this Agreement shall be borne by the Issuer.
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6.
|
This
Agreement shall enure to the benefit of and be binding upon the Parties
and the Escrow Agent hereto, their and each of their heirs, executors,
administrators, successors and permitted assigns. All notices shall
be
delivered to the Parties at the addresses set forth in the Consulting
Agreement or to the e-mails set forth below and delivery thereto
shall be
considered absolute regardless of whether an occupant is present.
All
addresses for notice shall be changed only with delivery of notice
of
change.
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7.
|
This
Agreement may be executed in several parts in the same form and such
part
as so executed shall together constitute one original agreement and
such
parts, if more than one, shall be read together and construed as
if all
the signing Parties hereto had executed one copy of this Agreement.
This
Agreement and executions may be exchanged by fax and such faxed copies
shall be irrevocably deemed
originals.
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8.
|
This
Agreement shall be subject to the exclusive jurisdiction of British
Columbia and the courts thereof.
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9.
|
The
Consultant warrants that regardless of any defect, actual or alleged,
in
any transfer documents of the Shares, or of the Shares, that the
Consultant will take and act upon and conclude, without debate, the
requests of the Escrow Agent, or the Issuer (individually or collectively)
to transfer a proportionate amount of the Shares to the Issuer at
such
time as the Issuer may take the same in accordance with the Consulting
Agreement.
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-17-
IN
WITNESS WHEREOF
the
Parties have executed these presents as and from the day and year above
written.
| XXXXXX XXXXXX | ) | ||
| ) | E-Mail Address: xxxxxxxx@xxxxxxxxxxxx.xxx | ||
| ) | |||
| /s/ Xxxxxxx Xxxxxxx | ) | ||
| Per: Authorized Signatory | ) | ||
| SINOBIOMED INC. | ) | ||
| ) | E-Mail Address: | ||
| ) | |||
| /s/ Ban-Xxx Xxxx | ) | ||
| Per: Authorized Signatory | ) | ||
| XXXXX XXXXXXX | ) | ||
| ) | E-Mail Address: xxxxx@xxxxx.xxx | ||
| ) | |||
| /s/ Xxxxx Xxxxxxx | ) | ||
| Signature |
