Consulting Agreement - Axiom Pharmaceuticals Inc. and Amaroq Capital LLC
CONSULTING AGREEMENT
RECITALS
This Consulting Agreement (hereinafter referred to as "Agreement" or "Consulting
Agreement") is made on the 1st day of May 2003, between Axiom Pharmaceuticals,
Inc., whose address is 8324 Delgany Avenue, Playa del Rey, CA 90293,
(hereinafter referred to as "Axiom" or "Company") and Amaroq Capital LLC, of 2
Wolf Road, Bourne, MA 02532 (hereinafter referred to as "Consultant") with
reference to the following facts:
I. Axiom has asked to retain Consultant to provide various services to
Axiom as agreed to by both parties and outlined in Article 3.
II.The Consultant has advised Axiom of its willingness, ability and desire
to provide such services as outlined in Article 3 and on the terms and
conditions as set forth in this Agreement.
NOW, therefore, in consideration of the foregoing recitals and the terms,
conditions and covenants contained herein, it is hereby agreed as follows:
ART. 1 APPOINTMENT
Axiom hereby appoints Consultant and Consultant hereby agrees to hold themselves
available to render, and to render at the request of Axiom and to render
non-exclusive, independent advisory and consulting services, set forth in "I"
and "II" above, to the best of its ability, in compliance with all applicable
laws, Axiom's Articles of Incorporation and By-Laws and the terms and conditions
set forth herein. Consultant further agrees to render such services
conscientiously and to devote its best reasonable efforts and abilities thereto.
Consultant further agrees to observe all policies and guidelines that have been
promulgated by Axiom's Board of Directors or its Officers.
ART. 2 TERMS AND TERMINATION
The term of this Agreement shall be six (6) months and commence on 1 May 2003
and up to 1 November 2003, thereafter, this Agreement shall automatically
terminate. Neither party has the right to terminate this Agreement anytime prior
to its conclusion unless by mutual agreement and in writing.
ART. 3 SCOPE OF CONSULTANCY
The Consultant will perform such financial and operational consulting for and on
behalf of Axiom in relation to Axiom's on-going business and financial
development. The Consultant will be available, by mutual agreement, on an
as-needed basis, to provide consulting services to Axiom, including, without
limitation:
3.1 Undertake the development of a business plan for Axiom. Such
business plan will include an Annual Operating Plan and a Strategic
Plan for the Company.
3.2 Carry out such merchant banking activities as may be required and
mutually agreed. Such activities may include identifying and
approaching financial partners, valuations, and financial and
business modeling.
3.3 Commence certain business development activities, as mutually
agreed, which may include lease financing and other vendor
negotiations.
3.4 Undertake and assist Axiom with corporate development program
development and implementation. Such activities may include work in
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various disciplines including partnering, licensing, joint ventures
and other such strategic planning and development activities.
ART. 4 REMUNERATION
Consultant will be remunerated for such services rendered under Art. 3 as
follows:
4.1 $5,000.00, payable 30 days from the effective date of this
Agreement. Payment shall be made via wire transfer or check.
Consultant is entitled to a 5% late fee should monies due fail to be
paid as of the effective payment date.
4.2 40,000 restricted shares of Axiom Pharmaceutical (OTB BB AXIM) with
piggy-back registration rights at next registration.
ART. 5 EXPENSES
In addition to the fees paid under the previous Article, Consultant shall be
reimbursed for all reasonable expenses incurred by Consultant during the term of
this Agreement including but not limited to fax, telephone, transportation,
translation, and incidental travel expenses. All non-incidental travel expenses
(over US$300) shall be arranged and prepaid by Axiom including airfare and
suitable hotel accommodation. The Consultant shall submit itemized reimbursement
requests supported by sufficient documentation of the expenditures and
explanation of their purposes. All expenses must be reimbursed by Axiom to
Consultant, not later than ten (10) business days, subsequent to Consultants
expense reimbursement request.
ART. 6 INDEPENDENT CONTRACTOR
It is expressly agreed that Consultant is acting as an independent contractor in
performing the services hereunder. Axiom shall carry no worker's compensation
insurance or any health or accident insurance to cover Consultant or any of
Consultant's employees. Axiom shall not pay any contribution to social security,
unemployment insurance, state and federal income taxes.
ART. 7 CONFLICT OF INTEREST
Should there occur any conflict of interest, Consultant will advise Axiom
thereof immediately and both Axiom and Consultant will then determine the
appropriate approach to be followed.
ART. 8 LIABILITY
Axiom will indemnify and hold Consultant harmless from and against any and all
liabilities incurred, brought or threatened to be brought or entered or enforced
or conducted against Axiom or any of its Connected Persons which arise out of
matters or transactions contemplated by or consequent upon Consultant or its
engagement under the terms of this Agreement, except to the extent that those
liabilities arise out of the willful default or gross negligence of Consultant,
or, as the case may be, such connected persons. The Consultant shall not bind or
commit Axiom to any third party agreements or arrangements or obligations
without the explicit written consent of Axiom. The Consultant, if party to any
Axiom agreement shall have the written signature of two (2) Officers or
Directors at Axiom upon any such occasion or event or a written wavier from
two(2) Officers or Directors at Axiom thereof.
ART. 9 CONFIDENTIALITY
Consultant shall not disclose or appropriate to his own use, or to the use of
any third party, at any time during or subsequent to the term of this Agreement,
any secret or confidential information of Axiom or any of Axiom's affiliates or
subsidiaries of which Consultant becomes aware during such period. Upon
termination of this Agreement, Consultant shall promptly deliver to Axiom all
manuals, letters, notes, data and all other materials of a secret or
confidential nature that are under the control of the Consultant.
ART. 10 NO ASSIGNMENT
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This Agreement is between Axiom and Consultant and neither Axiom nor Consultant
may sell, assign, transfer or hypothecate any rights or interests created under
this Agreement or delegate any of their duties without the prior written consent
of the other. Any such assignment or delegation of either party without such
consent shall be void.
ART. 11 SEVERABILITY
If any provision of this Agreement is held to be unenforceable, invalid or
illegal by any court of competent jurisdiction, or arbitration, such
unenforceable, invalid or illegal provision shall not effect the remainder of
this Agreement.
ART. 12 ENTIRE AGREEMENT
This Agreement represents the entire agreement between the parties. It may not
be changed orally, but only in writing, signed by the party against whom
enforcement of any waiver, charge, modification, extension or discharge is
sought.
ART. 13 APPLICABLE LAWS
The validity of this Agreement and the interpretation and performance of all of
its terms shall be governed by the laws of Barnstable County, the Commonwealth
of Massachusetts, USA. The prevailing party in any legal action brought by one
party against the other arising out of this Agreement shall be entitled, in
addition to other rights and remedies it may have, to reimbursement for its
expenses, including court costs and reasonable attorney's fees.
AGREED TO AND ACKNOWLEDGED:
"CONSULTANT"
/s/ Joseph T. Cunningham Date: 5/1/03
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Joseph T. Cunningham
President, Amaroq Capital LLC
AXIOM PHARMACEUTICALS, INC.
/s/ Douglas Maclellan Date: 5/1/03
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Douglas Maclellan
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