Exhibit 10.20
CONSULTING AGREEMENT
This Agreement is made effective as of April 1, 2005 by and between
China Biopharmaceuticals Holdings, Inc. ("Company") with its principal business
office located in the People's Republic of China, and Robin Smith, M.D., MBA
("Consultant") residing at 930 Fifth Ave., Apt. 8H, New York, NY. 10021.
Consultant is knowledgeable in the development of businesses relating
to pharmaceuticals, therapeutics and diagnostics, and is willing to provide the
Company, based on this background and on the terms and conditions set forth in
this Agreement.
The Company is in the business of developing and distribution of
pharmaceuticals in China, and desires to engage the services provided by the
Consultant.
Therefore. the parties agree as follows:
CONSULTING SERVICES
1. DESCRIPTION OF SERVICES. Beginning on the effective date of this Agreement,
Consultant will provide consulting and advisory services in furtherance of the
Company's development of its business as directed by the Company's CEO and or
his designee(s) which may included, without limitation, the services described
below (collectively, the "Services"). Consultant shall diligently perform all
Services utilizing her best efforts and the highest ethical and professional
standards, shall promote the Company and its business efforts within the medical
and business community, and shall provide complete monthly reports thereof as to
her progress and results and as reasonably requested by the Company.
1) CONTACTS: Chair the recently created Advisory Board and assist in
developing building the Company's business, increase exposure and recognition
through spokespeople in related industries and to the medical and investment
community. The Advisory Board members which the Consultant and members of the
Company and its professional intermediaries will secure, would be in clinical,
marketing and business disciplines. The advisors would be instrumental in
building internal boards and teams to address clinical issues, scientific
development. reimbursement and business strategies and gain exposure in the
investment community;
2) MEDIA EXPOSURE: Increase public awareness. Consultant would work
closely with the Company's selected IR/PR firm in the US to get the exposure the
company need;
3) PUBLICATIONS: Assist in getting publications in the medical journals
and enhance the authorship and acceptance of publications;
4) LICENSING OPPORTUNITIES: bring Company licensing and cooperation
opportunities with US pharmaceutical and Medical Companies in the US and other
parts of the world in the area of diagnostics, pharmaceutical and new
therapeutics, and helping the company to evaluate and advice on new technology,
drug and acquisition opportunities.
5) MERGERS AND AQUIS1TIONS: Consultant will assist in finding,
reviewing and evaluating potential merger and/or acquisition candidates and
supervising in the due diligence process as well as assisting in the sourcing of
any financing needed.
6) F1NANCING: Continue to assist the Company's Bankers in the interim
financing process and the lead investment banks chosen by the company for the
secondary public offering.
2. COMPENSATION. Upon signing, the Company will issue a fee of 60,000 shares of
unregistered stock per year to Consultant for the Services beginning on April 1,
2005 and ending March 31, 2006. Company agrees to register these shares on the
next registration statement but no later than on its secondary offering. In
addition, upon signing the Consultant shall be granted, a three year warrant to
purchase 35,000 shares of common stock of the Company at an exercise price equal
to $2.00 on the terms being offered in the current $2m convertible preferred.
3. EXPENSE REIMBURSEMENT. The Consultant shall be entitled to reimbursement from
the Company for all actual. reasonable, and necessary "out-of-pocket" expenses,
in accordance with the normal policy currently in place for the Company's
employees. All expenses in excess of $300 require pre-approval by the Company
and submittal of acceptable substantiating documentation. Expenses report shall
be submitted to the Company on a monthly basis and will be reimbursed within 15
days of receipt of such invoices via wire to a designated US bank or check
addressed to the Consultant.
4. TERM/TERMINATION. This Agreement shall be effective for 12 months and
renewable upon mutual consent. If Consultant shall die during the term of this
Agreement or become physically or mentally disabled, whether totally or
partially, such that the Consultant is unable to perform substantially all of
the Consultant's Services in the usual and customary fashion for an aggregate of
thirty (30) days or more, this Agreement shall immediately terminate. The
Company shall have no financial obligation to the Consultant or his estate for
Services not performed and Wellfleet Partners will have the right to name an
alternate Advisory Board Member reasonably acceptable to the company.
5. RELATIONSHIP OF PARTIES. It is understood by the parties that the Consultant
is an independent contractor with respect to the Company, and not an employee of
the Company. The Company will not provide fringe benefits, including health
insurance benefits, paid vacation, or any other employee benefit. for the
benefit of the Consultant. Consultant is required to disclose to Company any
outside activities or beneficial or equity interests in any competitors of the
Company, or in any entity that conflicts or may conflict with the best interests
of the Company. The Consultant acknowledges the Consultant's obligation to
obtain appropriate insurance coverage for the benefit of the Consultant (and the
Consultant's employees, if any). The Consultant waives any rights to recovery
from the Company for any injuries that the Consultant (and/or the Consultant's
employees) may sustain while performing services under this Agreement.
Consultant is not authorized to legally obligate the Company or make
any representations, warranties or other promises on behalf of the Company or to
act as the Company's Consultant other than as specifically authorized in writing
by the Company's CEO.
6. ASSIGNMENT. Consultant's obligations and the Services under this Agreement
may not be assigned or transferred to any other person, firm, or corporation
without the prior written consent of Company, which consent may be withheld in
the absolute discretion of the Company, it being understood that the Company has
engaged Consultant because of his special and unique knowledge and business
experience.
7. INTELLECTUAL PROPERTY. The following provisions shall apply with respect, but
not limited to copyrightable works, ideas, discoveries, inventions, applications
for patents, patents and trademarks (collectively', "Intellectual Property"):
a. Consultant's Intellectual Property. For the benefit of the Company
only (and not for the benefit of any person not a party hereto), the Consultant
disclaims any rights or interests in any Intellectual Properly other than as
described on the attached Exhibit C (the "Consultant's Intellectual Property").
The Consultant's Intellectual Property is not subject to this Agreement.
b. Development of Intellectual Property. Any improvements to the
Company's Intellectual Property currently developed or under development by the
Company, and further inventions or improvements to any processes, technologies
and inventions of any type, nature, description or purpose, the extent that same
relate to functional imaging as a medical, industrial, commercial, diagnostic or
investigational tool, whether or not patentable, and any new Intellectual
Property discovered or developed by the Consultant (including the Consultant's
Personnel) during the term of this Agreement shall be the property of the
Company. The Consultant and, if applicable, the Consultant's Personnel, shall,
upon request, and whether during or after the expiration of this Agreement, sign
all documents necessary to perfect or otherwise evidence the rights of the
Company in such Intellectual Property, including the filing and/or prosecution
of any applications for trademarks, copyrights or patents. By signing below, the
Consultant hereby assigns all rights to inventions to the Company and upon
request, and whether during the term or after the expiration of this Agreement,
shall sign all documents to effect such assignment.
8. CONFIDENTIALITY. In view of the fact that the Consultant's work for the
Company will bring the Consultant into close contact with confidential affairs,
information and plans for future developments of the Company not readily
available to the public, as well as access to certain trade secrets pertaining
to the business of the Company, all of which the Consultant acknowledges are
proprietary, to and the exclusive property of the Company, the Consultant
agrees:
a. to keep and retain in the strictest confidence, except that which is
available in the public domain, all confidential matters of the Company,
including, without limitation, inventions, products, prices, apparatus, business
affairs. technical information, customer lists, product design information,
trademarks, copyrights, and other proprietary information (collectively,
"Information") which are valuable, special and unique assets of Company and need
to be protected from improper disclosure. In consideration for the disclosure of
the Information, the Consultant agrees that the Consultant will not at any time
or in any manner, either directly or indirectly, use any Information for the
Consultants own benefit, or divulge, disclose, or communicate in any manner any
Information to any third party without the prior written consent of the Company.
The Consultant will protect the Information and treat it as strictly
confidential.
b. to deliver promptly to the Company on termination of the
Consultant's engagement, or at any time the Company may so request, all
memoranda, notes, records, reports, manuals, drawings, blueprints and other
documents and all copies thereof, including computer programs, discs, software,
etc., relating to the Company's business, operations, financial condition,
Intellectual Property and all other tangible and intangible property associated
therewith which the Consultant may possess or have under the Consultant's
control.
9. UNAUTHORIZED DISCLOSURE OF INFORMATION. If it appears that Consultant has
disclosed (or has threatened to disclose) Information in violation of this
Agreement, the Company shall be entitled to an injunction to restrain the
Consultant from disclosing, in whole or in part, such Information, or from
providing any services to any party to whom such Information has been disclosed
or may be disclosed. The Company shall not be prohibited by this provision from
pursuing other remedies, including a claim for losses and damages.
10. CONFIDENTIALITY AND NONSOLICITATION AFTER TERMINATION. The confidentiality
provisions of this Agreement shall remain in full force and effect for three (3)
years following the termination of this Agreement. Consultant agrees so long as
Company is in compliance with its obligations under this Agreement that during
the Term and for one (1) year after the termination, he will not, directly or
indirectly, without the prior written consent of the Company, induce or solicit
any person employed or hereafter employed by the Company to leave the employ of
the Company or solicit, recruit, hire or attempt to solicit, recruit or hire any
person employed by the Company. Further, Consultant agrees that for a period of
one (1) year after the termination of this Agreement, he will not, directly or
indirectly, without the prior written consent of the Company, solicit for any
business similar to that of the Company, divert away, take away, or attempt to
take away any customer of the Company who was a customer or a potential customer
at the time of termination or expiration of this Agreement. Further, Consultant
and Company agree that neither will disparage, defame, slander, libel or
otherwise speak negatively of the other or of any affiliate, officer, director
or employee of the other.
11. RETURN OF RECORDS. Upon termination of this Agreement, Consultant shall
deliver all records, notes, data, memoranda, models, and equipment of any nature
that are in the Consultants possession or under the Consultant's control and
that are the Company's property or relate to the Company's business.
12. NOTICES. All notices required or permitted under this Agreement shall be in
writing and shall be deemed delivered when delivered in person or deposited in
the United States mail, postage prepaid, addressed as written above. Such
address may be changed from time to time by either party by providing written
notice to the other in the manner set forth above.
13. INJUNCTIVE RELIEF. Consultant acknowledges and agrees that the covenants and
obligations contained in this Sections 8 through 12 relate to special, unique
and extraordinary matters and that a violation of any of the terms of this
Sections 8 through may cause the Company irreparable injury for which adequate
remedies at law are not available. Therefore, Consultant agrees that the Company
shall he entitled (without having to post a bond or other surety) to an
injunction, restraining order, or other equitable relief from any court of
competent jurisdiction, restraining the Consultant from committing any violation
of the covenants and obligations set forth in Sections 8 through 12. The
Company's rights and remedies under Sections 8 through 12 are cumulative and are
in addition to any other rights and remedies the Company may have pursuant to
the specific provisions of this Agreement and at law or in equity.
14. INDEMNIFICATION
a. Consultant shall indemnify and hold the Company harmless from and
against any and all liabilities, damages, claims, costs and expenses, including,
without limitation, reasonable fees and disbursements of counsel, arising in
connection with, or incident to any breach or violation of any covenant or
agreement contained in this Agreement or otherwise arising out of any of the
transactions contemplated by this Agreement and with any claims, liabilities or
damages resulting from claims against the Company.
b. The Company shall indemnify and hold the Consultant harmless from
and against any and all liabilities, damages, claims, costs and expenses,
including, without limitation, reasonable fees and disbursements of counsel,
arising in connection with, or incident to any breach or violation of any
covenant or agreement contained in this Agreement or otherwise arising out of
any of the transactions contemplated by this Agreement.
15. AMENDMENT. This Agreement may be modified or amended if the amendment is
made in writing and is signed by both parties.
16. SEVERABILITY. If any provision of this Agreement shall be held to be invalid
or unenforceable for any reason, the remaining provisions shall continue to be
valid and enforceable. If a court finds that any provision of this Agreement is
invalid or unenforceable, but that by limiting such provision it would become
valid and enforceable, then such provision shall be deemed to be written.
construed, and enforced as so limited.
17. WAIVER OF CONTRACTUAL RIGHT. The failure of either party to enforce any
provision of this Agreement shall not be construed as a waiver or limitation of
that party's right to subsequently enforce and compel strict compliance with
every provision of this Agreement.
18. APPLICABLE LAW AND DISPUTE RESOLUTION.
18.1 Applicable Law
The execution, validity, construing and performance of this Agreement,
and resolution of the disputes under this Agreement, shall be in accordance with
the laws of the State of New York, the United States of America..
18.2 Dispute Resolution
The Parties shall make good faith effort to settle any dispute arising
from the interpretation or performance of this Agreement through friendly
negotiation. In case no settlement can be reached, each Party shall submit the
dispute to an arbitration panel ("Panel") under the auspices of the American
Arbitration Association ("AAA") at a venue located in New York City. The Panel
shall consist of one or three to be selected by the mutual agreement of the
Parties. If the Parties can not agree on the arbitrator, each may select one
arbitrator and the two designated arbitrators shall select the third arbitrator.
If the third arbitrator can not be agreed upon, the American Arbitration
Association in New York shall select the third arbitrator. A majority decision
by the three arbitrators shall be final and binding upon and enforceable against
the Parties. Such arbitration shall follow the rules of the AAA.
18.3 Enforceability
Arbitration shall be the only remedy for the Parties in any dispute.
There Parties hereby waive any right to litigate any dispute, including but not
limited to the exclusivity of this arbitration provision contained in Section 12
in any court. The Parties hereby submit themselves to the exclusive
jurisdiction.
19. CONSULTANT'S PERSONNEL. The Consultant warrants, represents and undertakes
that his employees, assistants and sub consultants (all of such persons
hereinafter referred to as "Consultant's Personnel"), if any, who perform
services on his behalf hereunder shall be bound by a written Agreement which (i)
prohibits them from engaging in any activities in which the Consultant would be
prohibited by the terms hereof, including without limitation the use or
disclosure of Intellectual Property or other information covered by Sections 8
through 12, and (ii) requires the Consultant's Personnel to otherwise comply
with the provisions of Sections 8 through 12 on the substantially the same basis
as the Consultant. At the request of the Company, the Consultant shall provide
adequate evidence with respect to such Agreements. For purposes hereof,
"Consultant's Personnel" include persons who assist with or work with the
Consultant, whether or not such persons are (1) employed by the Consultant, (2)
independent contractors retained by the Consultant, or (3) otherwise assist,
work with or render services to or on behalf of the Consultant on any other
basis.
20. ENTIRE AGREEMENT. This Agreement together contains the entire understandings
and agreements of the parties, and there are no other promises or conditions or
understandings in any other agreement, whether oral or written. This Agreement
supersedes any prior written or oral understandings or agreements between the
parties.
In Witness Whereof; the parties have executed this Agreement as of the
date first above written.
China Biopharmaceuticals Holdings, Inc.
By: /Chris Mao/
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Chris Mao, CEO
By: / Robin Smith/
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Robin Smith, D. MBA
CC Steve Globus and other Members of the Board