Consulting Agreement - Axiom Pharmaceuticals Inc. and Tripoint Capital Advisors LLC
CONSULTING AGREEMENT
This Agreement is made as of August 25, 2003, by and between Axiom
Pharmaceuticals, Inc. ("Company"), a China Pharmaceutical company with its
principal offices at No. F.3004 Sankei Torch Bldg, 262A Shifu Road, Shenyang
City, Lianing Province, Peoples Republic of China and US Representative Offices
at 8324 Delgany Avenue, Playa del Rey, California, 90293 and Tripoint Capital
Advisors, LLC ("Consultant"), a Maryland limited liability company, with its
principal offices at 15245 Shady Grove Road, Suite 400, Rockville, Maryland
20850.
Witnesseth
WHEREAS, the Company requires expertise in the area of business development to
support it's business and growth and desires to engage Consultant to provide
such business development services and specifically to assist the Company with
structuring of capital transactions; business development; corporate
development; and
WHEREAS, Consultant, through its principals, agents and employees, has certain
expertise in the evaluation of potential business opportunities and the
implementation of various projects of the nature and type contemplated by the
Company in its future expansion and development which Consultant has agreed to
provide to the Company;
NOW, THEREFORE, in consideration of the premise and the mutual promises and
covenants contained herein and subject specifically to the conditions hereof,
and intending to be legally bound thereby, the parties agree as follows:
1. Appointment of Consultant
The Company hereby appoints Consultant, and Consultant agrees to represent the
Company, as a non-exclusive consultant to assist the Company in its business and
corporate development, in structuring its capital transactions and to assist in
the contemplated marketing and development of the Company in the United States.
Consultant shall have the right during the term of this agreement to represent
to the public that it is a consultant to the Company.
2. Consultant's Rights and Duties
Consultant shall use its best efforts to assist the Company in its business and
corporate development, including but not limited to:
(ii) Assist in the development and implementation of the Company's
business plan.
(iii) Work with the Company's Auditors in order to assist the Company to
comply with US accounting standards ("GAAP")
(iv) Assist the Company in creating a corporate image.
(v) Assist the Company in maintaining proper US corporate compliance and
governance.
(vi) Review any private placements.
3. Company Obligations
(a) The Company will be required to sign separate retention agreements with
outside professionals. Fees specified under this Agreement include all legal
work relating to SEC filings (excluding any litigation) through the entire
period of the engagement provided the Company employs counsel recommended by
Consultant. Such counsel may require that the Company sign a separate retainer
agreement.
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(b) The Company's officers, attorneys and accountants will have to be ready to
answer questions from the SEC, NASDAQ and/or other regulatory agencies, markets
or exchanges. For NASDAQ applications, expect several rounds of comments. If the
Company desires an American Stock Exchange Listing, the Company will need to
follow a similar application process.
(c) The Company will need to have audited financial statements for at least the
last two fiscal years prepared in accordance with US GAAP. In addition, the
Company will need to prepare and present quarterly information that has been
reviewed by an independent auditor for the previous two years and on a
"go-forward basis".
4. Company Information
In connection with Consultant's performance of its duties hereunder, the Company
shall (i) provide Consultant, on a timely basis, all information reasonably
requested by Consultant, and (ii) make its officers and professionals available
to Consultant and such third parties as Consultant shall designate at reasonable
times and upon reasonable notice.
5. Confidential Information
Consultant acknowledges that, in the course of performing its duties hereunder,
it may obtain information relating to the Company, which the Company has marked
as confidential ("Confidential Information"). Consultant shall hold at all
times, both during the term of this agreement and at all times thereafter, such
Confidential Information in the strictest confidence, and shall not use such
Confidential Information for any purpose, other than as may be reasonably
necessary for the performance of its duties pursuant to this agreement, without
the Company's prior written consent. Consultant shall not disclose any
Confidential Information to any person or entity, other than to Consultant's
employees or consultants as may be reasonably necessary for purposes of
performing its duties hereunder, without the Company's prior written consent.
The foregoing notwithstanding, the term "Confidential Information" shall not
include information which (i) becomes generally available to the public, other
than as a result of a breach hereof, (ii) was available on a non-confidential
basis prior to its disclosure to Consultant by the Company, or (iii) becomes
available to Consultant on a non-confidential basis from a source other than the
Company, provided that such source is not bound by a confidentiality agreement
with respect to such information. The foregoing notwithstanding, Consultant may
disclose Confidential Information to the extent required by law or regulation,
including but not limited to court orders, subpoenas, civil investigative
demands and interrogatories.
6. Compensation
As compensation for Consultant's services, the Company shall pay Consultant
$10,000 upon the execution of this agreement and thereafter $10,000 per month,
payable on the 1st day of each month. In addition, the Company shall pay the
Consultant's nominee for the Board of Directors a monthly of $2500.00 and any
other expense reimbursement or fee, which is consistent with any other outside
members of the Board.
7. Expense Reimbursement
The Company shall reimburse Consultant periodically for its reasonable
out-of-pocket expenses (excluding compensation to Consultant's employees)
arising from Consultant's performance hereunder.
8. Indemnification
The Company agrees to indemnify and hold harmless Consultant (including each of
its directors, officers, employees, partners and agents) with respect to any
liability (and actions in respect thereof) incurred by Consultant by virtue of
its retention hereunder and shall reimburse Consultant for any legal or other
expenses reasonably incurred in connection with investigating or defending any
such liability or action, provided that the Company shall have the right to
control the defense of any claim giving rise to such liability and no such claim
shall be settled without the consent of the Company. The foregoing provisions
shall survive termination of this Agreement and any investigation with respect
thereto by any party hereto.
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Furthermore, the Company understands and agrees that its financial statements,
any filings which the Company makes with the SEC, NASD, state regulators or any
market or exchange and the contents thereof are ultimately the responsibility of
the Company and its officers and directors. Consultant can assist and advise you
in the preparation of such filings but the Company must approve and is
responsible for the contents of all filings.
9. Other Engagements
The Company acknowledges that Consultant is and will be acting as a consultant
to other business enterprises seeking business development, investment banking
and/or other services normally provided by Consultant and agrees that
Consultant's provision of services to such enterprises shall not constitute a
breach hereof or of any duty owed to the Company by virtue of this agreement.
10. Term
This agreement is effective upon execution by the Company as provided below and
shall continue in effect for 12 months or until terminated by either party
pursuant to Section 11.
11. Termination
Either party may terminate this agreement at any time and for any reason, with
or without cause, upon the giving 30 days written notice of termination to the
other party; provided, however, that Consultant shall be entitled to full
compensation, as set forth in Section 6, up to the date of termination,
regardless of the reason for the termination and shall be paid all expenses
incurred in connection with its acting as a consultant to the Company pursuant
to Section 7.
12. General Provisions
(a) This agreement shall be governed by and under the laws of the State of
Maryland without giving effect to conflicts of law principles. If any provision
hereof is found invalid or unenforceable, that part shall be amended to achieve
as nearly as possible the same effect as the original provision and the
remainder of this agreement shall remain in full force and effect.
(b) Any dispute arising under or in any way related to this agreement shall be
submitted to binding arbitration by the American Arbitration Association in
accordance with the Association's commercial rules then in effect. The
arbitration shall be conducted in Rockville, Maryland. The arbitration shall be
binding on the parties and the arbitration award may be confirmed by any court
of competent jurisdiction.
(c) This agreement constitutes the entire agreement and final understanding of
the parties with respect to the subject matter hereof and supersedes and
terminates all prior and/or contemporaneous understandings and/or discussions
between the parties, whether written or verbal, express or implied, relating in
any way to the subject matter hereof. This agreement may not be altered,
amended, modified or otherwise changed in any way except by a written agreement,
signed by both parties.
(d) Any notice or other communication pursuant hereto shall be given to a party
at its address first set forth above by (i) personal delivery, (ii) commercial
overnight courier with written verification of receipt, or (iii) registered or
certified mail. If so mailed or delivered, a notice shall be deemed given on the
earlier of the date of actual receipt or three (3) days after the date of
authorized delivery.
(e) This agreement may be executed in counterparts, each one of which shall
constitute an original and all of which taken together shall constitute one
document. The Company shall confirm that the foregoing is in accordance with its
understanding by signing and returning to Consultant the enclosed copy of this
agreement, which shall become a binding agreement upon Consultant's receipt.
IN WITNESS WHEREOF, the parties hereto have caused this agreement to be
duly executed as of the date first written above.
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TRIPOINT CAPITAL ADVISORS, LLC
By: /s/ Mark Elenowitz
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Mark Elenowitz
Axiom Pharmaceuticals, Inc.
By: /s/ That Ngo
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That Ngo
President, CEO
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