This Consulting Agreement is made as of the 7th day of December, 2005
BETWEEN:
XXXXXX XXXXXXX, Consultant, of the City of Strathfoyle, Count Deny,
Northern Ireland (hereinafter referred to as "Xxxxxxx")
OF THE FIRST PART
AND
DERMISONICS, INC., a corporation incorporated pursuant to the laws of the
State of Nevada (hereinafter referred to as "Dermisonics")
OF THE SECOND PART
WHEREAS Dermisonics is the owner of certain intellectual property rights which
have been utilized to develop a sonically activated drug delivery device (the
"U-Strip") which facilitates the transdermal application of a variety of heavy
molecular drugs;
AND WHEREAS, as the plan for commercialization of the U-Strip progresses, the
management of Dermisonics want to develop a marketing program for the U-Strip in
the European Union;
AND WHEREAS Xxxxxxx, in his capacity as a strategic planner and consultant, has
developed marketing strategies for a number of North American and European
companies;
NOW THEREFORE THIS AGREEMENT WITNESSES that in consideration of the
premises, the mutual agreements and covenants herein contained and for other
good and valuable consideration now paid by each of the parties hereto to the
other (the receipt and sufficiency of which is hereby acknowledged), the parties
hereto agree as follows:
1. APPOINTMENT.
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Dermisonics hereby engages Xxxxxxx and Xxxxxxx agrees to render services to
Dermisonics as a consultant upon the terms and conditions hereinafter set forth.
2. TERM
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The term of this Consulting Agreement shall begin as of the date of this
Agreement, and shall terminate on December 7th, 2006, unless earlier terminated
in accordance with paragraph 7 herein or extended as agreed to between parties.
3. SERVICES
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During the term of this Agreement, Xxxxxxx shall provide advice to,
undertake for and consult with Dermisonics concerning management, marketing,
consulting and strategic planning in connection with the development,
maintenance and growth of a market in the European Union for the U-Strip. In
connection with this service, Xxxxxxx shall dedicate 100% of his time during the
term of this Consulting Agreement to working with and reporting to the
management of Dermisonics toward the successful implementation of the European
marketing plan for the U-Strip. Without limiting the generality of the
foregoing, Xxxxxxx shall be specifically responsible for::
(a) The implementation of short-range and long-term strategic
planning to fully develop and enhance Dermisonics's domestic
marketing plan as it relates specifically to the U-Strip and the
identification of pharmaceutical companies and other strategic
allies which represent potential sources of broad based and
reliable distribution in the European Union, and
(b) Assistance with regard to the identification, evaluation,
structuring, negotiating and closing of licensing programs, joint
ventures and/or strategic alliances dedicated to the efficient
and profitable distribution of the U-Strip in the European Union.
4. DUTIES OF DERMISONICS
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Dermisonics shall provide Xxxxxxx, on a regular and timely basis, with all
approved data and information about it, its subsidiaries, its management, the
ongoing technical development and regulatory status of the U-Strip and its
operations as shall be reasonably requested by Xxxxxxx, and shall advise Xxxxxxx
of any facts which would effect the accuracy of any data and information
previously supplied pursuant to this paragraph. Dermisonics shall promptly
supply Xxxxxxx with full and complete copies of financial reports, all filings
with all federal and state securities agencies; with full and complete copies of
all stockholder reports; with all data and information supplied by any financial
analyst, and with all brochures or other sales materials relating to its
products or services and with any further information which might reasonably be
deemed useful to Xxxxxxx in the provision of the services detailed in section 3
above.
5. COMPENSATION
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Dermisonics shall issue and deliver to Xxxxxxx an aggregate of two hundred
and seventy-five thousand shares (275,000) of the Corporation's $0.005 par value
common stock ("Shares") which shall be registered by Dermisonics with the SEC on
Form S-8 (the "Form S-8") of the Securities Act of 1933, as amended, no later
than five (5) business days from the execution of this Consulting Agreement. The
number of Shares which will be issued pursuant to this Consulting Agreement
shall be adjusted to reflect any splits,
recapitalization, reverse splits, capitalization's, mergers, consolidations,
sale of assets or other corporate reorganizations. Xxxxxxx shall receive the
Shares one day after the effectiveness of the Form S-8.
Expenses relating to any activities undertaken by Xxxxxxx under this
Consulting Agreement will be charged to Dermisonics at cost on a monthly basis.
Travel and accommodation terms will be mutually agreed upon prior to the
activity being undertaken. Expenses will be invoiced and payment due within
thirty (30) days of receipt of an invoice.
6. REPRESENTATION AND INDEMNIFICATION.
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Dermisonics shall be deemed to have made a continuing representation of the
accuracy of any and all facts, material information and data which it supplies
to Xxxxxxx and acknowledges its awareness that Xxxxxxx will rely on such
continuing representation in disseminating such information and otherwise
performing its advisory functions. Xxxxxxx in the absence of notice in writing
from Dermisonics will rely on the continuing accuracy of material, information
and data supplies to Dermisonics. Xxxxxxx represents that he has knowledge of
and is experienced in providing the aforementioned services.
7. LIMITATION OF LIABILITY
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In the event that either party shall be liable to the other pursuant to the
terms of this Consulting Agreement for any failure to perform in connection with
this Consulting Agreement, that party's liability shall be limited as follows:
(a) All liabilities in contract and tort for direct loss shall be
limited to the actual value of the shares paid in the year of the
claim; and
(b) All liabilities in contract and in tort for incidental, indirect,
special or consequential damages including, but not limited to,
loss of revenues or profits shall be excluded.
8. CONFIDENTIAL INFORMATION
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Each party may use the information received from the other party pursuant
to this Consulting Agreement and may provide such information to their
respective employees as applicable for their use only in connection with the
Agreement.
Each party agrees that it shall use the same means it uses to protect its
own confidential and proprietary information to prevent the disclosure and to
protect the confidentiality of both
(i) written information received from the other party which is marked or
identified as "confidential",
(ii) written or verbal information which is of its nature confidential; and
(ii) oral or visual information identified as confidential at the time of
disclosure which is reduced to written form and provided to the other
in such written form promptly after such oral or visual disclosure,
The foregoing shall not prevent either party from disclosing Information
that is:
(iii) already known by the recipient party prior to the disclosure thereof
with no obligation of confidentiality;
(iv) publicly known or becomes publicly known not due to any unauthorized
act of the recipient party;
(v) rightfully received from a third party;
(vi) independently developed by the recipient party without use of the
other party's Information;
(vii) disclosed without similar restrictions by the party owning the
Information to any third party;
(viii) approved by the other party for disclosure; or
(ix) required to be disclosed pursuant to a governmental or legal
requirement provided that the disclosing party gives to the other
party written notice of such requirement prior to any such disclosure.
Upon expiration or termination of the Consulting Agreement or upon
written request of the party providing the Information, the other party shall
return all copies of the Information to the providing party or certify in
writing that all copies of the Information have been destroyed. Either party may
return the Information, or any part of it, to the other party at any time.
Each party makes no warranty, express or implied, with respect to the
Information. Neither party shall be liable to the other or to any other person
hereunder for amounts representing loss of profits or loss of business or
indirect, consequential or punitive damages of the other party or of such other
person in connection with the provision or use of the Information hereunder.
Nothing contained in this Agreement shall be construed as granting or
conferring any rights by license or otherwise in the Information.
Each party acknowledges and agrees that the Information is the
confidential and/or proprietary and/or trade secret information of the other and
the unauthorized use or disclosure of the Information could cause irreparable
harm and significant injury to the other party for which that other party would
have no adequate remedy at law.
Therefore each party shall have the right, in addition to any other
rights it may have at law or in equity, to seek and obtain immediate injunctive
relief in respect of any breach or potential breach of this Consulting Agreement
by the other.
The provisions of this Clause 8 shall survive the expiry or
termination for whatever reason of this Consulting Agreement.
9. MISCELLANEOUS
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Termination: This Consulting Agreement may be terminated by either Party
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upon written notice to the other Party for any reason which shall be effective
five (5) business days from the date of such notice. This Consulting Agreement
shall be terminated immediately upon written notice for material breach of this
Consulting Agreement.
Modification: This Consulting Agreement sets forth the entire understanding
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of the Parties with respect to the subject matter hereof. This Consulting
Agreement may be amended only in writing signed by both Parties.
Counterparts: This consulting agreement may be executed in any number of
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counterparts by original or facsimile signature by the authorized officer of
Dermisonics and Xxxxxxx each of which counterparts, when executed and delivered,
shall be an original but such counterparts together shall constitute one and the
same instrument.
Notices: Any notice required or permitted to be given hereunder shall be in
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writing and shall be mailed or otherwise delivered in person or by facsimile
transmission at the address of such Party set forth blow or to such other
address or facsimile telephone number as the Party shall have furnished in
writing to the other Party:
For Dermisonics: Dermisonics, Inc.,
Four Tower Bridge,
000 Xxx-Xxxxxx Xxxxx,
Xxxx Xxxxxxxxxxx, XX
X.X.X. 00000-0000
For Xxxxxxx: Xxxxxx Xxxxxxx,
0 Xxxxxxx Xxxx,
Xxxxxxxxxxx, Xxxxxxxxxxx,
XX000XX Northern Ireland
Waiver: Any waiver by either Party of a breach of any provision of this
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Consulting Agreement shall not operate as or be construed to be a waiver of any
other breach of that provision or of any breach of any other provision of this
Consulting Agreement. The failure of a Party to insist upon strict adherence to
any term of this Consulting Agreement on one or more occasions will not be
considered a waiver or deprive that Party of the right thereafter to insist upon
adherence to that term of any other term of this Consulting Agreement.
Severability: If any provision of this Consulting Agreement is invalid,
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illegal, or unenforceable, the balance of this Consulting Agreement shall remain
in effect, and if any provision is inapplicable to any person or circumstance,
it shall nevertheless remain applicable to all other persons and circumstances.
Disagreements: Any dispute or other disagreement arising from or out of
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this Consulting Agreement shall be submitted to arbitration under the rules of
the American Arbitration Association and the decision of the arbiter(s) shall be
enforceable in any court having jurisdiction thereof. Arbitration shall occur
only in the State of California. The interpretation and the enforcement of this
Agreement shall be governed by California Law as applied to residents of the
State of Califonia relating to contracts executed in and to be performed solely
within the State of California. In the event any dispute is arbitrated, the
prevailing Party ( as determined by the arbiter(s)) shall be entitled to recover
that Party's reasonable attorney's fees incurred ( as determined by the
arbiter(s)).
IN WITNESS THEREOF, this Consulting Agreement has been executed by the
Parties as of the date first above written.
Dermisonics, Inc.
/s/Xxxxx X. Xxxxxxx
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Xxxxx X. Xxxxxxx,
President
/s/ Xxxx Xxxx Xxxxxxx /s/Xxxxxx Xxxxxxx
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Witness Xxxxxx Xxxxxxx
