SERVICES AGREEMENT
THIS SERVICES AGREEMENT (the "Agreement") is made and entered into this
15th day of May, 2004, by and between CANCER THERAPEUTICS, INCORPORATED, a
Tennessee corporation ("CTI"), and Chene Gardner, an individual residing in
South Ogden, Utah ("CG"), collectively referred to hereinafter as the "Parties"
or individually as a "Party."
R E C I T A L S
-----------
CTI desires to engage CG, and CG desires to accept such engagement from
CTI, to perform various financial and accounting services in accordance with
generally accepted accounting principles (the "Services"), including, but not
limited to, preparing financial statements for the years 2002 and 2003,
forecasting and working with auditors for and on behalf of CTI.
This Agreement contains the entire understandings between the Parties
concerning the subject matter hereof, and all other agreements, understandings
and documents are hereby merged into this Agreement and made a part hereof.
NOW THEREFORE, In consideration of the foregoing premises and the
mutual covenants contained herein, the Parties hereto agree as follows:
A G R E E M E N T
--------------
1. TERM. This Agreement shall commence on the Effective Date and may be
terminated by either Party at any time with thirty (30) days' written notice to
the other Party of the intent to terminate. Upon the termination of this
Agreement, all obligations of the Parties shall cease, except that the
provisions of this Agreement contained in Sections 8 and 9 shall continue in
effect.
2. SERVICES.
2.1. During the term of this Agreement, CG agrees to provide the Services
as requested by CTI on a continuous basis and in accordance with accepted
industry practices and guidelines and all applicable federal, state and local
laws, rules and regulations. CG also agrees to provide the Services pursuant to
the guidelines and requirements promulgated by CTI from time to time and
provided to CG by CTI.
2.2. During the term of this Agreement, CTI understands, agrees and
acknowledges that by performing the Services for and on behalf of CTI, CG:
(a) is not providing any legal or tax advice to CTI or any other
person;
(b) is acting as an independent contractor to provide the Services,
and that no employment, partnership, joint venture, or fiduciary
relationship has been created by this Agreement;
(c) is not responsible for advising CTI in respect of any applicable
laws and regulations, and CTI will undertake to obtain appropriate advice
in respect of all other laws and regulations which may be applicable in any
relevant jurisdiction and promptly to communicate that advice to CG insofar
as the same is relevant to the performance by CG of the Services; and
(d) will not incur any liability to CTI in respect of any breach of
applicable laws or regulations where CG has acted in good faith in the
absence of or in accordance with such advice.
1
3. FEES AND EXPENSES.
3.1. FEES. In exchange for his Services under this Agreement, CG shall
receive from CTI a non-refundable fee in the amount of Fifty Thousand Dollars
and No Cents ($ 50,000.00), payable as of the Effective Date of this Agreement.
3.2. EXPENSES. Unless otherwise specified in writing, CG shall be
responsible for all expenses incurred while performing services under this
Agreement. This includes license fees, memberships and dues; general automobile
and other travel expenses; meals and entertainment; insurance premiums; and all
salary expenses and other compensation paid to employees or contract personnel
CG hires to complete the work under this Agreement, unless approved by CTI in
advance. Notwithstanding the above, CTI will reimburse CG for documented,
out-of-pocket expenses incurred in connection with the Services performed by CG
under this Agreement.
4. OBLIGATIONS OF CTI.
4.1. Information. CTI will provide CG with all material information
relevant in his performance of the Services under this Agreement. CTI will
ensure that information so supplied is true and accurate in all material
respects and is not misleading, whether by omission or otherwise.
4.2. Authorization. CTI confirms and undertakes that it has all necessary
powers and has obtained or will obtain all necessary authorizations, consents
and approvals, including from the board of directors of CTI, validly and
lawfully required to enter into this Agreement. The entering into of this
Agreement does not violate the Bylaws of CTI or any other agreement.
4.3. Accuracy. In performing his services hereunder, CG shall be entitled
to assume the accuracy and completeness of all financial and other information
that may be furnished to CG by CTI and CG will not be responsible for
independently verifying the accuracy and completeness of such information, and
CTI will review all materials prepared by CG for factual accuracy.
5. OBLIGATIONS OF CG.
5.1. Licenses and Education. CG shall be responsible for obtaining and
maintaining his professional licenses, and/or certifications, if any, and
obtaining any continuing education or certification that is required or is
prudent to remain current and knowledgeable in his field.
5.2. Federal and State Taxes. CG shall pay all taxes incurred while
performing the Services under this Agreement, including all applicable income
taxes and self-employment (social security) taxes. Upon demand, CG shall provide
CTI with proof that such payments have been made.
5.3. No Conflicts. CG hereby represents that, to the best of his knowledge
and belief, the performance by CG of all of the terms of this Agreement and work
as an independent contractor for CTI does not breach any oral or written
agreement which CG has made prior to the Effective Date of this Agreement.
6. INDEPENDENT CONTRACTOR STATUS. CG is an independent contractor, not an
employee of CTI. Any employee or contract personnel employed or hired by CG to
complete the work under this Agreement are not employees of CTI. CG and CTI
agree to the following terms and conditions consistent with an independent
contractor relationship:
6.1. This Agreement is non-exclusive, and CG has the right to perform
services for others during the term of this Agreement, provided such services
are not in conflict with the Services to be performed by CG under this
Agreement;
6.2. CG has the sole right to control and direct the means, manner and
method by which the Services will be performed;
2
6.3. CG has the right to perform the Services at any place, location or
time;
6.4. CG will furnish all equipment and materials used to provide the
Services;
6.5. CG has the right to hire assistants as subcontractors, or to use
employees to provide the Services, without the approval of CTI;
6.6. Neither CG nor any employee or contract personnel employed or hired by
CG shall receive any training from CTI in the skills necessary to perform the
Services; and
6.7. CTI shall not require CG or any employee or contract personnel
employed or hired by CG to devote full time to performing the Services.
7. BENEFITS.
7.1. Fringe Benefits. CG understands that neither CG nor any employee or
contract personnel employed or hired by CG are eligible to participate in any
employee pension, health, vacation pay, sick pay or other fringe benefit plan of
CTI.
7.2. Workers' Compensation. CTI shall not obtain workers' compensation
insurance on behalf of CG or any employee or contracted personnel employed or
hired by CG. If CG hires employees to perform any Service under this Agreement,
CG will cover them with workers' compensation insurance and provide CTI with a
certificate of workers' compensation insurance before the employees begin the
work.
7.3. Unemployment Compensation. CTI shall make no state or federal
unemployment compensation payments on behalf of CG any employee or contract
personnel employed or hired by CG. CG will not be entitled to these benefits in
connection with the Services performed under this Agreement.
7.4. Insurance. CTI shall not provide any insurance coverage of any kind
for CG or any employee or contract personnel employed or hired by CG.
8. CONFIDENTIAL INFORMATION. CG acknowledges that during the term of this
Agreement, CG will develop, discover, have access to, and become acquainted with
technical, financial, marketing, personnel, and other information relating to
the present or contemplated products or the conduct of business of CTI which is
of a confidential and proprietary nature (the "Confidential Information"). CG
agrees that all files, records, documents, and the like relating to such
Confidential Information, whether prepared by him or otherwise coming into his
possession, shall remain the exclusive property of CTI, and CG hereby agrees to
promptly disclose such Confidential Information to CTI upon request and hereby
assigns to CTI any rights which CG may acquire in any Confidential Information.
CG further agrees not to disclose or use any Confidential Information and to use
his best efforts to prevent the disclosure or use of any Confidential
Information either during the term of this Agreement or at any time thereafter,
except as may be necessary in the ordinary course of performing the Services
under this Agreement. Upon termination of this Agreement for any reason, CG
shall promptly deliver to CTI all materials, documents, data, equipment, and
other physical property of any nature containing or pertaining to any
Confidential Information, and CG shall not take from CTI, without its prior
written consent, any such material or equipment or any reproduction thereof.
9. INDMENITY. CTI hereby agrees to indemnify and hold harmless CG, its
agents, representatives, employees, partners and independent contractors for any
losses, damages or expenses that may be incurred by CG or such other parties as
a result of any breach of any covenant, agreement, representation or warranty
made hereunder or any other loss, damage or expenses incurred by CG or such
other parties resulting from the acts or actions of CTI under this Agreement. CG
hereby agrees to indemnify and hold harmless CTI, its agents, representatives,
employees and independent contractors for any losses, damages or expenses that
may be incurred by CTI or such other parties as a result of any breach of any
covenant, agreement, representation or warranty made under this Agreement by CG
in connection herewith.
3
10. MISCELLANEOUS.
10.1. Waiver. Any term or condition of this Agreement may be waived at any
time by the Party that is entitled to the benefit thereof, but no such waiver
shall be effective unless set forth in a written instrument duly executed by or
on behalf of the Party waiving such term or condition. No waiver by any party of
any term or condition of this Agreement, in any one or more instances, shall be
deemed to be or construed as a waiver of the same or any other term or condition
of this Agreement on any future occasion. All remedies, either under this
Agreement or by law or otherwise afforded, will be cumulative and not
alternative.
10.2. Amendment. This Agreement shall not be amended or modified, nor
rights hereunder waived, except by writing, signed by both Parties.
10.3. No Third Party Beneficiary. The terms and provisions of this
Agreement are intended solely for the benefit of each Party hereto and their
respective successors or permitted assigns, and it is not the intention of the
parties hereto to confer third-party beneficiary rights upon any person.
10.4. Invalid Provisions. If any provision of this Agreement is held to be
illegal, invalid or unenforceable under any present or future law, and if the
rights or obligations of any Party hereto under this Agreement will not be
materially and adversely affected thereby, (a) such provision will be full
severable, (b) this Agreement will be constituted and enforced as if such
illegal, invalid or unenforceable provision had never comprised a part hereof,
(c) the remaining provisions of this Agreement will remain in full force and
effect and will not be affected by the illegal, invalid or unenforceable
provision, there will be added automatically as a part of this Agreement a
legal, valid and enforceable provision as similar in terms to such illegal,
invalid or unenforceable provision as may be possible.
10.5. Counterparts. This Agreement nay be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. The Parties acknowledge
that the persons named below have the requisite authority to execute this
Agreement and bind their respective principals.
10.6. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Utah without regard to the conflict of
laws. The Parties further agree that proper venue and jurisdiction for any
dispute under this agreement shall be the courts in the State of Utah
10.7. Notices. All notices, demands to other communications to be given
under or by reason of the Agreement shall be in writing and shall be deemed to
have been received when delivered personally, or when transmitted by facsimile
or by overnight delivery service, addressed as follows:
If to CG:
Chene Gardner
11585 S. State Street, Suite 102
Draper, Utah 84020
If to CTI:
Cancer Therapeutics, Incorporated
Attention: Robert Oldham
412 Chelsa Cove
Franklin, Tennessee 37064
Either Party hereto may change its address for notices, demands and other
communications hereunder by giving notices of such change to the other party in
accordance with this Section 10.7.
4
10.8. Assignment; Binding Effect. This Agreement may not be assigned by either
Party without the prior written consent of the other. This Agreement shall bind
the Parties hereto and their assigns and successors in interest.
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be
duly executed as of the date set forth above.
"CG"
/s/ Chene Gardner
----------------------------
Chene Gardner
"CTI"
Cancer Therapeutics, Incorporated
/s/ Robert Oldham
------------------------------
Robert Oldham, President