Exhibit 10.30
CONSULTING AGREEMENT
This AGREEMENT ("Agreement"), dated as of June 1, 2007, is made by and
between Duska Therapeutics, Inc. a Nevada corporation with its principal place
of business at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (the
"Company"), and ▇▇▇▇▇ ▇. ▇▇▇, M.D., M.B.A. of ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("Consultant").
WHEREAS, the Company is seeking to raise capital through private
placement of units (the "Units") with each unit consisting of one shares of
common stock of the Company (the "Common Stock") and one warrant to purchase
one share of common stock of the Company; and
WHEREAS, the Company desires to engage Consultant as its representative
in meetings with accredited investors (as such term is defined under Rule
501(a) of Regulation D issued by the Securities and Exchange Commission under
the Securities Act of 1933) and who may be interested in purchasing Units from
the Company (each a "Potential Investor", and collectively, "Potential
Investors"); and
WHEREAS, Consultant desires to be engaged by the Company on the terms
provided herein;
NOW, THEREFORE, the Company and Consultant agree as follows:
1. DUTIES. Consultant agrees to discuss the Company with Potential
Investors and, in connection therewith to describe the business of the Company,
it prospects and its value proposition. Consultant shall have no authority to
execute any documents on behalf of the Company, to bind the Company in any way
on any matter or to hold himself out to any Potential Investor or any other
person as being a representative of the Company. The Consultant will not be
responsible for any outcome or damage to the Company as a result of the
Company's present or future contact with any Potential Investor. Consultant
will devote as much of his time to his duties hereunder as Consultant deems
necessary to perform such services.
2. TERM. This Agreement shall commence upon the date hereof and shall
continue for a term that ends on the sooner of July 31, 2007 or the closing of
the private placement (the "Closing"), unless extended by mutual consent of the
parties. Either party may terminate this Agreement upon written notice
delivered to the other party at least ten (10) business days prior to effective
date of such termination.
1. COMPENSATION. Promptly after the execution of this Agreement,
Consultant will be awarded 10,000 options to purchase 10,000 shares
of Common Stock at an exercise price of $0.50 per share (the
"Options"). If the Closing occurs after June 30, 2007 and before
July 31, 2007, Consultant shall receive an additional number of
Options determined by multiplying 10,000 by the quotient of the
number of days up to and including the Closing and 31. For the
sake of clarity the formula is:
1
Number of Options granted
during July if the Closing = 10,000 x (Number of days up to and
including closing/31)
occurs in July
If the Closing does not occur before July 31, 2007, Consultant will be awarded
an additional 10,000 Options on July 31, 2007.
2. REIMBURSEMENT. The Company will reimburse Consultant with all
accountable travel, entertainment, and any out-of-pocket expenses
of Consultant incurred pursuant to this Agreement.
5. TAXES. Consultant is responsible for paying any federal, state or
local taxes on the consulting services provided under this Agreement.
6. INDEPENDENT CONTRACTOR. At all times during the term of this
Agreement, Consultant is and shall be an independent contractor, with the sole
right to supervise, manage, operate, control, and direct the performance
incident to the services. Nothing contained in this Agreement shall be deemed
or construed to create a partnership or joint venture, to create the
relationship of employee/employer or principal/agent, or otherwise create any
liability whatsoever as partner, joint venturer, employer, employee, principal,
or agent for either the Company or Consultant with respect to the indebtedness,
liabilities, or obligations of each other or of any other person or entity.
7. CONFIDENTIALITY. As a condition to this Agreement and the payment
of any fees under Section 3 hereof, Consultant has executed and delivered to
the Company a Confidentiality Agreement in the form attached hereto as Exhibit
A (the "CDA"). The CDA shall survive the term of this Agreement or any earlier
termination hereof. In the absence of a separately signed CDA, the Consultant
agrees that the terms and provisions of the CDA are incorporated into this
Agreement and that Consultant's signature herein also constitutes the
Consultant's acceptance of the terms of the CDA.
8. INDEMNIFICATION. The Company agrees to indemnify the Consultant
against any and all losses, claims, damages or liabilities ("Damages") of any
kind to which Consultant becomes subject directly or indirectly related to or
arising in connection with the performance by Consultant of services hereunder,
unless such Damages arose out of Consultant's negligence or willful misconduct
of Consultant in connection with the performance of his duties under this
Agreement.
9. MISCELLANEOUS.
(a) This Agreement may not be assigned by the Company without the
written consent of the Consultant, except that the Company shall assign this
Agreement to any entity to which it conveys substantially all of its assets or
into which it is merged or consolidated. The Consultant may not assign this
Agreement.
2
(b) This Agreement shall be construed and enforced in accordance
with, and the rights of the parties shall be governed by, the laws of the State
of Pennsylvania, without giving effect to the conflict of law provisions
thereof.
(c) This Agreement shall be binding upon and inure solely to the
benefit of the parties hereto, and no other person shall have or be construed
to have any legal or equitable right, remedy or claim under or in respect of or
by virtue of this Agreement or any provisions herein contained, except as
otherwise stated herein.
(d) Notices hereunder shall be deemed made if given by registered
or certified mail with postage prepaid and addressed to the party to receive
such notice at the address given above or as may hereafter be designated by
notice.
(e) This Agreement (including any Exhibits hereto and the
documents delivered pursuant hereto) constitutes the entire agreement of the
parties hereto with respect to the subject matter hereof and supersedes all
prior agreements and undertakings, both written and oral, among the parties
hereto with respect to the subject matter.
(f) If any term or other provision of this Agreement (or any
Exhibit hereto) is invalid, illegal or incapable of being enforced under any
law or public policy, all other terms and provisions of this Agreement will
nevertheless remain in full force and effect. Upon such determination that any
term or other provision is invalid, illegal or incapable of being enforced, the
parties hereto will negotiate in good faith to modify this Agreement so as to
effect the original intent of the parties as closely as possible in an
acceptable manner. It is expressly understood and agreed that the restrictions
contained in this Agreement are reasonable and necessary to protect Duska.
Accordingly, if a final judicial determination is made that the time,
territory, scope or any other restriction contained in this Agreement is
unreasonable or otherwise unenforceable, this Agreement shall not be rendered
void, but shall be deemed amended to apply as to such maximum scope, time and
territory and to such other extent as such court may judicially determine or
indicate to be reasonable, or if the court or other governmental authority does
not so determine or indicate, to the maximum extent which any pertinent statute
or judicial decision may indicate to be a reasonable restriction under the
circumstances involved, as so modified, the restrictions contains in this
Agreement shall be binding and enforceable.
(a) Except as expressly provided herein, neither this Agreement
nor any term hereof may be amended, waived, discharged or
terminated other than by a written instrument signed by the
party against whom enforcement of any such amendment, waiver,
discharge or termination is sought.
(h) Whenever the context may require, any pronouns used herein
shall include the corresponding masculine, feminine or neuter forms and the
singular forms on the nouns and pronouns shall include the plural and vice
versa.
3
(i) The section headings are used solely for convenience, and
shall not affect the construction thereof.
(j) This Agreement may be executed in a number of identical
counterparts, each of which, for all purposes, is to be deemed an original, and
all of which constitute, collectively, one agreement; but in making proof of
this Agreement, it shall not be necessary to produce or account for more than
one such counterpart.
IN WITNESS WHEREOF, this Agreement has been executed by the Company and
Consultant as of the date first written above.
DUSKA THERAPEUTICS, INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇, Ph.D.
-----------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇, Ph.D.
Title: President and COO
▇▇▇▇▇ ▇. ▇▇▇, M.D., M.B.A.
/s/ ▇▇▇▇▇ ▇. ▇▇▇, M.D.
-------------------------
4
CONFIDENTIALITY AGREEMENT
This Confidentiality Agreement (the "Agreement") is made this 1st day of June
2007, by and between Duska Therapeutics, Inc., whose address is ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ("Duska", hereunder), and ▇▇▇▇▇ ▇. ▇▇▇, M.D.,
M.B.A. of ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("Kuo", hereunder).
BACKGROUND:
▇. ▇▇▇▇▇ has certain confidential and proprietary information,
including but not limited to inventions, patent applications,
patents, data, information, methods, processes, know how, and ideas
relating to purinergic receptors, adenosine 5'-triphosphate (ATP),
adenosine, cardio-cardiac and pulmonary-pulmonary reflexes, allergy
and asthma and related disorders, male infertility and in vitro
fertilization and related scientific and business information
("Information").
▇. ▇▇▇ has an extensive experience and expertise in all aspects of the
pharmaceutical industry including management, financing and drug
development.
▇. ▇▇▇▇▇ is desirous of disclosing Information to Kuo in connection
with its consideration of appointing Kuo as its President and Chief
Executive Officer, and Kuo's is desirous of considering this
appointment.
NOW THEREFORE, intending to be legally bound, the parties agree as
follows:
1. Duska may, in its discretion, disclose to Kuo Information in
writing or verbally. Information disclosed in writing will be labeled
CONFIDENTIAL, and verbal Information will be submitted within two weeks of its
disclosure in a succinct written form labeled CONFIDENTIAL. Kuo agrees to
receive and maintain in strict confidence all Information received from Duska
whether in writing or verbally. Kuo agrees not to disclose such Information to
any third party. Kuo agrees not to use any such Information except to evaluate
and analyze the Information in determining if he will enter into a contractual
relationship with Duska.
2. Kuo agrees to treat Information as strictly confidential and to
take all necessary precautions to prevent the disclosure of such Information to
others. Kuo agrees to notify Duska in the event that Kuo has reason to believe
that any third party, firm or corporation has or may have access to Information
when such access has not been authorized by Duska. Kuo agrees that Information
will be reviewed by the least possible number of people necessary to evaluate
Information and only by those employed by Kuo who have secrecy agreements with
Kuo. Such review shall be completed as promptly as possible. Upon Duska's
request, Kuo will promptly return to Duska all Information provided by Duska to
Kuo under this Agreement except as required by law. The return of Information
will not relieve Kuo of its continuing obligation of confidentiality hereunder.
1
3. The foregoing restrictions on the use and disclosure shall not
apply to any such Information which:
a. at the time of disclosure, was already known to Kuo as
evidenced in writing;
b. at the time of disclosure, is generally available to the
public or subsequently becomes available to the public other
than by an act or omission on Kuo's part;
c. shall be made available to Kuo on a non-confidential basis by
a third party having the lawful right to do so; or
d. is required to be disclosed pursuant to legal, judicial or
administrative proceedings, in which event Kuo shall give
Duska as much advance notice as reasonably possible of such
required disclosure.
4. Nothing contained herein shall be construed as giving Kuo any
rights or license in or with respect to any of Information, except the right to
review, analyze and evaluate Information on behalf of Duska. Neither party
shall have any obligation to enter into any investment banking or other
commercial relationship as a result of entering into this Agreement.
5. This Agreement supersedes all prior understandings and agreements
between the parties hereto, whether oral or written, with respect to the
subject matter hereof. To be effective, an amendment, waiver or termination of
this Agreement or any of its provisions must be in a document signed by each
party which specifically states that it amends, waives or terminates, as the
case may be, this Agreement or such provision.
6. The obligations imposed on Kuo hereunder shall continue in force
until such Information enters into the public domain or after three years from
the date of execution of this Agreement, whichever come first.
7. This Agreement shall be governed by the laws of the Commonwealth of
Pennsylvania and enforceable in any court of competent jurisdiction in the
Commonwealth of Pennsylvania. Kuo hereby submits to the jurisdiction of
Pennsylvania courts and waives any objections it may have to such jurisdiction
for controversies arising under this Agreement.
2
8. It is expressly understood and agreed that the restrictions
contained in this Agreement are reasonable and necessary to protect Duska.
Accordingly, if a final judicial determination is made that the time,
territory, scope or any other restriction contained in this Agreement is
unreasonable or otherwise unenforceable, this Agreement shall not be rendered
void, but shall be deemed amended to apply as to such maximum scope, time and
territory and to such other extent as such court may judicially determine or
indicate to be reasonable, or if the court or other governmental authority does
not so determine or indicate, to the maximum extent which any pertinent statute
or judicial decision may indicate to be a reasonable restriction under the
circumstances involved, as so modified, the restrictions contains in this
Agreement shall be binding and enforceable. In the event any one or more of
the provisions of this Agreement is invalid or otherwise unenforceable, the
enforceability of remaining provisions shall be unimpaired.
9. This Agreement shall not be assigned or transferred by Kuo.
10. Kuo acknowledges that the restrictions contained in this Agreement
are in view of the nature of Information reasonable and necessary to protect
the legitimate proprietary interests of Duska and that any breach of any
provision of this Agreement by Kuo could result in substantial and irreparable
harm to Duska. Accordingly, Kuo agrees that damages at law may be an
inadequate remedy for breach of this Agreement and that Duska shall be entitled
to seek injunctive relief, enjoining and restraining Kuo from disclosing or
using any such Information and specific performance, without the necessity of
proving actual damages for any such breach. The rights set forth in this
Section shall be in addition to all other rights Duska may have at law or in
equity.
IN WITNESS WHEREOF, the parties, intending to be legally bound, have
caused this Agreement to be executed by their duly authorized representatives
on the date indicated below.
▇▇▇▇▇ ▇. ▇▇▇, M.D., M.B.A.
/s/ ▇▇▇▇▇ ▇. ▇▇▇, M.D.
--------------------------
Date: June 1, 2007
DUSKA THERAPEUTICS, INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇, Ph.D.
----------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇, Ph.D.
Title: President and COO
Date: June 1, 2007
3