CONSULTING SERVICES AGREEMENT
.
This
Agreement is made and is effective as of June 1, 2007 (“Effective
Date”).
BETWEEN:
(“VIREXX”)
OF THE
FIRST PART
and
XX.
XXXXXXX XXXXXXX
(the
“CONSULTANT”)
OF THE
SECOND PART
|
A.
|
VIREXX
is a publicly listed biotechnology company focused on developing novel
therapeutic products for treating cancer and chronic viral
infections.
|
|
B.
|
The
CONSULTANT has the expertise to act as a CONSULTANT to
VIREXX.
|
|
C.
|
The
parties desire that VIREXX retain the CONSULTANT to provide Consulting
Services to VIREXX upon the terms and conditions as set forth
below.
|
IN
CONSIDERATION of the mutual covenants herein contained the parties hereto
covenant and agree as follows:
1. Definitions
1.1. In
this Agreement, the terms used herein shall have the meanings set forth
below:
“Agreement” means this
agreement and any attached Schedule(s), together with any amendments to or
replacements of this agreement;
“Confidential Information”
means any non-public information provided to a Receiving Party concerning this
Agreement, including any know-how, show-how, confidential and other trade secret
information, business, technical, scientific, marketing, financial information,
method or other
information in any form, including without limitation, oral, written, graphic,
video, sample, device, apparatus, demonstrative or machine recognizable
form. Confidential Information shall not include information, which
the Receiving Party can demonstrate:
a) is
now in or hereafter enters the public domain in a manner otherwise than through
a breach of this Agreement;
b) is
rightfully known to the Receiving Party prior to the time of receipt from the
Disclosing Party or is independently developed by the Receiving Party, or its
employees, agents or CONSULTANTs, without access to information disclosed by
Disclosing Party;
c) the
Disclosing Party has agreed in writing is free of such obligations prior to its
disclosure to the Receiving Party;
d) is
disclosed to the Receiving Party by a third party, the third party having no
direct or indirect secrecy obligation to the Disclosing Party with respect to
the Confidential Information; or
e) is
required pursuant to an order of a court or government body except that the
Receiving Party shall provide the Disclosing Party with five (5) days notice
prior to any such disclosure and, at the Disclosing Party’s request and expense,
will cooperate with the Disclosing Party to resist such disclosure by all
reasonable means and through all legal channels
provided,
however, that the burden shall be on the Receiving Party to prove the
applicability of one or more of the foregoing exceptions by documentary evidence
should the Disclosing Party question the applicability of such
exceptions;
“Disclosing Party” means the
party disclosing Confidential Information to the Receiving Party;
“Consulting Services” means
the provision of consulting services by the CONSULTANT to VIREXX, as described
in Schedule A to this Agreement;
“Intellectual Property” means
all trade or brand names, business names, trade xxxx registrations and
applications, service marks, service xxxx registrations and applications, logos
and other proprietary designs, copyrights, copyright registrations and
applications, patents, patent registrations and applications and other patent
rights (including any patents issued on such applications or rights as well as
any reissues, renewals, extensions, divisions, continuations and
continuations-in-part), trade secrets, proprietary manufacturing information,
know-how, equipment and parts lists and descriptions, instruction manuals,
inventions, inventors’ notes, research data, blue prints, drawings and designs,
formulae, processes, technology and other intellectual property, together with
all rights of every kind and nature whatsoever under licenses, registered user
agreements, technology transfer agreements and other agreements or instruments
relating to any of the foregoing and all other intangible assets including
telephone numbers, facsimile numbers, websites, domain names and
software;
“VIREXX Confidential Information”
means: all Confidential Information disclosed by VIREXX to the CONSULTANT; all
Confidential Information relating to this Agreement, to Intellectual Property
owned by VIREXX, to the business affairs and financial affairs of VIREXX or to
anyone having business dealings with VIREXX.
“Receiving Party” means the
party receiving Confidential Information from the Disclosing Party.
2. Term
2.1. The
term of this Agreement shall commence on the Effective Date and continue until
May 31, 2008 unless earlier terminated. This Agreement may be renewed
for additional terms, of six (6) months each, by the parties mutually agreeing
to each additional term in writing within two (2) weeks prior to the expiry of
the term or of each additional term.
3. Performance of Consulting
Services
3.1 VIREXX
hereby retains the
CONSULTANT to supply the Consulting Services to VIREXX as described in
Schedule A.
3.2 The
CONSULTANT hereby agrees to use best efforts in providing the Consulting
Services to VIREXX as reasonably assigned to the CONSULTANT by
VIREXX.
3.3 The
CONSULTANT agrees to work diligently and faithfully to complete the Consulting
Services or any segments thereof as designated by VIREXX, in a good and
workmanlike manner within such reasonable time periods as VIREXX shall
establish.
3.4 In
providing the Consulting Services, the CONSULTANT shall at all times comply with
all applicable statutes, laws and regulations governing the CONSULTANT’s
occupation, profession, trade, craft or business and shall fully comply with all
applicable securities laws and regulations from any work locations authorized by
VIREXX and utilized by VIREXX in providing services to VIREXX.
4. Time
of Essence
4.1 Time
shall be of the essence of the Agreement provided that the time for completing
any work, which has been or is likely to be delayed by reason of force majeure or
other cause beyond the reasonable control of the CONSULTANT, shall be extended
by a period equal to the length of the delay so caused, further provided that
prompt notice in writing of the occurrence causing or likely to cause such delay
is given to VIREXX.
4.2 VIREXX
shall advise the CONSULTANT in writing of any occurrence causing or likely to
cause delays in the completion of the CONSULTANT’s responsibilities under this Agreement.
|
5.
|
Defective
Work
|
5.1 VIREXX
reserves the right to refuse any work of the CONSULTANT which is not in
accordance with the specifications of this Agreement and, without limiting the
remedies available to VIREXX, VIREXX at its discretion may return such work for
correction at the CONSULTANT’s own cost and expense.
6. Remuneration
and Expenses
6.1 In
consideration for VIREXX receiving Consulting Services from the CONSULTANT,
VIREXX shall pay to the CONSULTANT, a remuneration amount as reasonably
determined between the CONSULTANT and the Chief Executive Officer of VIREXX and
as reasonably ratified by the Director of VIREXX. The remuneration is
detailed in Schedule “B” and is
subject to any legally required deductions.
7. Assignment
7.1 This
Agreement is assignable by VIREXX to an affiliate of VIREXX without the prior
consent of the CONSULTANT. The CONSULTANT shall not assign to any
person any of the CONSULTANT’s obligations or benefits accruing under the
provisions of this Agreement without the prior written consent of
VIREXX.
8. Independent
Contractor
8.1 The
CONSULTANT is an independent contractor and not an employee, agent, joint
venturer or partner of VIREXX.
9. Intellectual
Property and Confidential Information Ownership
9.1. All
right, title and interest in intellectual property owned by VIREXX, in VIREXX
Confidential Information and in anything derived therefrom shall be and shall
remain the exclusive property of VIREXX.
9.2 All
notes, data, tapes, reference items, sketches, drawings, memoranda, computer
information, memory, disks, records, inventions, technology, intellectual
property and other materials in any way relating to VIREXX Confidential
Information or to the business of VIREXX shall belong exclusively to VIREXX and
the CONSULTANT hereby transfers any interest the CONSULTANT may have in such
materials to VIREXX.
9.3 The
CONSULTANT agrees to turn over to VIREXX all VIREXX Confidential Information and
material in the CONSULTANT’s possession, power or control that incorporates
VIREXX Confidential
Information, including but not limited to all originals and all copies of
materials, on the request of VIREXX, or in the absence of a request, on the
termination of this Agreement.
10. Non-Disclosure
10.1. During
the term of this Agreement, and for five (5) years following the expiry or
termination of this Agreement, or the expiry or termination of any extension or
renewal thereof, the CONSULTANT shall not, disclose or use VIREXX Confidential
Information for any purpose, except (i) with the prior written consent of VIREXX
or (ii) if the CONSULTANT is acting, as specifically contemplated in this
Agreement, in the course the CONSULTANT’s duties on behalf of and for the
benefit of VIREXX in connection with VIREXX’s business practices and
policies.
10.2 The
CONSULTANT shall take all reasonable precautions and actions to prevent the
disclosure to third parties of any VIREXX Confidential Information in the
possession or control of the CONSULTANT.
10.3 Disclosure
of any VIREXX Confidential Information by the CONSULTANT shall not be prohibited
if the disclosure is directly pursuant to a valid and existing order of a
governing court or other governmental body or agency within Canada; provided,
however that: (i) the CONSULTANT shall first provide immediate written notice to
VIREXX of any possible or prospective order, or proceeding pursuant to which any
order may result; and (ii) VIREXX shall have been afforded a reasonable
opportunity to prevent or limit any disclosure.
11. Injunction
11.1 The
CONSULTANT understands and agrees that VIREXX shall suffer irreparable harm in
the event that the CONSULTANT breaches any of the CONSULTANT’s obligations under
this Agreement and that monetary damages shall be inadequate to compensate
VIREXX for the breach. Accordingly the CONSULTANT agrees that, in the
event of a breach or threatened or potential breach by the CONSULTANT of any of
the provisions of this Agreement, VIREXX, in addition to and not in limitation
of any other rights, remedies or damages available to VIREXX at law or in
equity, shall be entitled to an interim injunction, interlocutory injunction,
and permanent injunction, in order to prevent or to restrain any such breach by
the CONSULTANT, or by any and all persons directly or indirectly acting for, on
behalf of, or with the CONSULTANT. This remedy shall be in addition
to and not in limitation of any other relief at law or in equity available to
the CONSULTANT.
12. Termination
by VIREXX
12.1 This
Agreement may be terminated by VIREXX for any reason by providing the CONSULTANT
two (2) weeks written notice or pay in lieu thereof.
12.2 This
Agreement may be terminated by VIREXX forthwith, at VIREXX’s sole discretion
immediately, upon the happening of any of the following events:
if the
CONSULTANT shall become insolvent or be adjudged bankrupt:
if the
CONSULTANT shall die or as a result of sickness, accident or other disability be
unable to substantially perform the Consulting Services for a continuous period
of two (2) months or for periods aggregating two (2) months in any six (6) month
period; or
if the
CONSULTANT shall be in default under any of its covenants contained in this
Agreement and such default shall continue for more than five (5) days after
receipt of a written notice from VIREXX to cure same.
12.3 Termination
of this Agreement by VIREXX shall not operate to relieve or discharge VIREXX
from any obligation under this Agreement it may have.
13. Termination
by Consultant
13.1 This
Agreement may be terminated by the CONSULTANT for any reason by providing VIREXX
with two (2) weeks written notice.
13.2 This
Agreement may be terminated by the CONSULTANT forthwith, at the CONSULTANT’s
sole discretion, upon the happening of any of the following events:
if VIREXX
shall become insolvent or be adjudged bankrupt; or
if VIREXX
shall be in default under any of its covenants contained in this Agreement and
such default shall continue for more than five (5) days after receipt of a
written notice from the CONSULTANT to cure same.
13.3 Termination
of this Agreement by the CONSULTANT shall not operate to relieve or discharge
the CONSULTANT from any obligation under this Agreement he may
have.
14. Severability
14.1 Any
term, condition or provision of this Agreement which is deemed to be, void,
prohibited or unenforceable shall be severable herefrom, be ineffective to the
extent of such avoidance, prohibition or unenforceability without in any way
invalidating the remaining terms, conditions and provisions hereof.
15. Successors
15.1 This
Agreement shall be binding on and shall enure to the benefit of VIREXX and the
CONSULTANT, and their respective heirs, personal and legal representatives,
successors and assigns.
16. Notices
16.1 Any
notice required or permitted to be given to the CONSULTANT shall be sufficiently
given if delivered to the CONSULTANT personally or if mailed by registered mail
to the CONSULTANT’s address last known to VIREXX.
16.2 Any
notice required or permitted to be given to VIREXX shall be sufficiently given
if delivered personally or faxed or if mailed by registered mail
to:
0000 Xxxxx Xxxx
Xxxxxxxx, XX X0X
0X0
Fax: (000) 000-0000
or at
such other address as VIREXX may advise the CONSULTANT in writing.
16.3 Any
notice given by mail shall be deemed to have been given forty eight (48) hours
after the time it is posted. Any notice given by personal delivery or
fax shall be deemed to have been given on the day of personal delivery or
faxing.
16.4 Either
one of the parties may advise the other, in the manner aforesaid, of any change
of address for the giving of notices.
17. Alteration
of this Agreement
17.1 No
change or modification to this Agreement shall be valid unless it shall be in
writing and signed by all parties hereto.
18. Governing
Law
18.1 This
Agreement shall at all times and in all respects be governed by the laws of the
Province of Alberta and all parties hereto shall irrevocably attorn to the
courts of competent jurisdiction of the Province of Alberta.
19. Entire
Agreement
19.1 This
Agreement constitutes the entire agreement between the parties and there are no
statements, representations, warranties, undertakings or agreements, written or
oral, express or implied, between the parties hereto except as herein set
forth.
20. Enurement
20.1 This
Agreement and everything herein contained shall enure to the benefit of and be
binding upon the parties together with their personal representatives,
successors and permitted assigns.
IN
WITNESS WHEREOF the parties hereto have executed this Agreement on the 29 day of
June, 2007 but made effective as of the day and year first above
written.
Per:______/s/
Xxxxx Smetek___________
___/s/ S.
Cabrito______________ ___/s/Xxxxxxx
Ascione__________
Signature
of
Witness XX. XXXXXXX
XXXXXXX
Print
Name:__Shirley
Cabrito___
.
Schedule
A
Consulting
Services:
Such
reasonable services as are from time to time requested by the Chief Executive
Officer and/or the Board of Directors of VIREXX.
.
Schedule
B
Remuneration:
VIREXX
shall pay the CONSULTANT a monthly fee of Five Thousand US dollars (US
$5,000.00), to be paid on the first of every month commencing July 1,
2007.
Expenses:
VIREXX
shall be responsible for all reasonable expenses incurred in the performance of
the work. Expenses
shall be pre-approved by VIREXX’s CEO if over $500.00.
Options:
The
CONSULTANT shall be granted an option to purchase 25,000 common shares of VIREXX
pursuant to VIREXX’s stock option plan. Such option to vest
immediately upon grant.
A further
option to purchase an additional 25,000 common shares shall be granted pursuant
to VIREXX’s stock option plan upon the CONSULTANT achieving milestones to be
agreed upon and reduced to writing between the CONSULTANT and the CEO of
VIREXX.
