EXHIBIT 10.2
CONSULTING AGREEMENT
THIS AGREEMENT, dated as of the 1st day of July, 2004, by and between
BEIJING MED-PHARM CORPORATION, a Delaware corporation (the "Company"), whose
mailing address is ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ and NING NING ▇▇▇▇▇,
whose mailing address is ▇▇▇▇ ▇, ▇▇▇, ▇▇. ▇▇▇▇▇▇'▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ 3QP, UK
(the "Consultant").
WHEREAS, the Company desires the Consultant to be a consultant to the
Company commencing on July 1, 2004, and the Consultant is desirous of such
relationship, upon the terms and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the agreements contained herein, the
parties intending to be legally bound hereto agree as follows:
1. Definitions. As used in this Agreement, the following terms shall have
the following meanings:
(a) "Agreement" means this Consulting Agreement, as the same may,
from time to time, be amended in accordance with the provisions hereof.
(b) "Company" means Beijing Med-Pharm Corporation and its respective
successors, whether now or hereafter existing.
(c) "Confidential Information" means all that knowledge, data,
concepts and other like information acquired by the Consultant in the course of
her retention as a Consultant to the Company.
(d) "Executive" shall have the meaning given to such term in Section
3(a) of this Agreement.
(e) "Secret or Confidential Information" means any ideas or any
compilations of information kept or which shall hereafter be kept confidential
by the Company in the operation of its business or the conduct of its research
and which are not in the public domain, and which give or can give to the
Company an advantage over its competitors, including, by way of illustration but
not limitation: source codes, object codes, engineering and other sketches,
drawings and tracings, specifications, engineering data, memoranda, designs,
sources of supplies and materials, cost and financial data, processes,
production machines and equipment, procedures, customer lists, marketing plans
and business forecasts, together with all "know-how" and Technical Data relating
thereto.
(f) "Technical Data" means all written, printed and other tangible
materials embodying or containing "know-how", and includes, without limiting the
generality of the foregoing, all correspondence, designs, processes, source
codes, object codes, engineering sketches, drawings and tracings, specifications
and engineering data, reporting formats,
memoranda, notebooks, and all copies thereof, together with all models and
prototypes of every description.
(g) "Term" means from July 1, 2004 to December 31, 2005 and any
extension of the Term entered into pursuant the second sentence of Section 5 of
this Agreement.
2. Retention. The Company hereby retains the Consultant, and the
Consultant hereby accepts such retention, upon the terms and conditions set
forth in this Agreement.
3. Services; Supervision and Reporting.
(a) The Consultant shall be retained by the Company and shall render
such consulting services as may from time to time be requested of her by the
Company, including assistance in connection with (i) the establishment of new
businesses and/or partnerships with pharmaceutical companies in the People's
Republic of China (the "PRC"), United States and Europe, (ii) the establishment
of strategic objectives for the Company and its PRC subsidiaries, (iii)
discussions with representatives of PRC federal and local governmental officials
and pharmaceutical industry executives, and (iv) communications with the
Company's shareholders and management of the Company's PRC subsidiaries. The
Consultant's principal contact with the Company shall be ▇▇▇▇▇ ▇▇▇, the
President and Chief Executive Officer of the Company (the "Executive").
(b) During the Term of this Agreement, the Consultant shall be under
the supervision of, and shall report to, the Executive or such other individual
as shall be determined by the Company from time to time.
4. Extent of Service. During the Term of this Agreement, the Consultant
agrees that she will not directly or indirectly represent any distributor of
pharmaceutical products and/or medical devices competitive with or similar to
the pharmaceutical products and/or medical devices being distributed by the
Company or any of its subsidiaries or represent any past or current customer of
the Company or any of its subsidiaries without the Company's prior written
consent.
While performing consulting services under this Agreement, the
Consultant agrees that she will:
(a) Serve the Company faithfully, diligently and to the best of her
ability under the direction of the Executive; and
(b) Devote her best efforts, attention and energy to the performance
of her duties hereunder and to promoting and furthering the interests of the
Company.
5. Term. The term of retention of the Consultant under this Agreement
shall be for the Term, unless terminated pursuant to Section 9 of this
Agreement. On or within ten days after December 31, 2005, the Company will
advise the Consultant whether the Company wishes to terminate the Agreement or
to reduce the compensation payable under the Agreement. In the event that the
Company does not exercise its option to terminate the Agreement in accordance
with this Section, the Term shall be deemed automatically to be extended for a
further period of one year on the basis of the same compensation subject to any
adjustment to the compensation that may be agreed to by the Parties, such
adjustment to be upwards only. Identical arrangements will govern the extension
of the Agreement or any upwards only variation of the compensation on December
31, 2006 and successive years until such time as the Agreement is terminated by
either Party in accordance with this Agreement.
6. Compensation. For all services to be rendered by the Consultant under
this Agreement, the Company agrees to pay the Consultant a fee of $5,000 per
month for service each month, free and clear of any tax or other deduction. The
Consultant's fee shall be paid on July 1, October 1, January 1 and April 1 of
each year during the Term; provided, however, that the initial fee payment shall
be made as soon as reasonably practicable following the execution and delivery
of this Agreement by the Company and the Consultant. On or before March 15, June
15, September 15 and December 15 of each calendar year, the Consultant shall
provide the Company with written invoices for services rendered and expenses
incurred in the immediately preceding three months in sufficient detail to
evidence the services provided and expenses incurred during such months. Such
written invoices shall be delivered to ▇▇▇▇▇ Norse, Treasurer of the Company, at
the mailing address set forth above.
7. Other Compensation. The Consultant will be eligible to receive an
annual bonus and/or incentive compensation based on her performance of the
services contemplated hereunder. The Board of Directors of the Company shall
have complete discretion as to whether the Consultant shall receive any annual
bonus and/or incentive compensation.
8. Other Benefits.
(a) Reimbursement of Expenses. The Company shall reimburse the
Consultant for reasonable out-of-pocket expenses incurred in connection with the
Company's business, including travel expenses, food, and lodging while away from
home, subject to such policies as Company may from time to time reasonably
establish for its consultants and subject to substantiation of expenses as
required under applicable federal and state tax laws and regulations.
(b) Indemnification. The Company agrees to defend the Consultant and
shall indemnify and hold harmless the Consultant to the fullest extent permitted
by law from any and all liabilities, costs and expenses which may be assessed
against the Consultant by reason of the performance of her responsibilities
under the terms of this Agreement, provided such liabilities do not result from
the willful misconduct or gross negligence of the Consultant.
9. Termination.
(a) The Term of this Agreement and the retention of the Consultant
hereunder shall terminate in the event of the death of the Consultant and, at
the option of the Company, upon written notice given to the Consultant at least
ninety days prior to the intended date of termination; provided, however, that
the earliest notice date under this Section 9(a) shall be October 1, 2005 and
the earliest termination date shall be December 31, 2005.
(b) The Consultant shall have the right to terminate this Agreement
upon written notice given to the Company at least ninety days prior to the date
of her intended date of termination.
10. Representations and Warranties of the Consultant. The Consultant
hereby represents and warrants to the Company that her retention by the Company
does not and will not violate any agreement or instrument to which she is a
party or by which she is bound, and the Consultant agrees that she will
indemnify and hold harmless the Company, its directors, officers and employees
against any claims, damages, liabilities and expenses (including reasonable
attorneys' fees) which may be incurred, including amounts paid in settlement, by
any of them in connection with any claim based upon or related to a breach of
the Consultant's representations and warranties set forth in this Section 10. In
the event of any claim based upon or related to a breach of the Consultant's
representations and warranties set forth in this Section 10, the Company will
give prompt notice thereof, in writing, to the Consultant and the Consultant
shall have the right to defend such claim, at the Company's expense, with
counsel reasonably satisfactory to the Company.
The Consultant warrants that she will account to the tax authorities of
the United Kingdom or any other country in which she may be deemed to be
resident for tax purposes in the future for the tax payable by her on the
compensation payable under this Agreement
11. Confidentiality.
(a) During the Term of this Agreement and at all times thereafter,
the Consultant will not use Secret or Confidential Information for her own
benefit or for the benefit of any person or legal entity other than the Company,
nor will she disclose the same to any other person or legal entity, except as
required to conduct the business of the Company in the ordinary course.
(b) Except with the prior written approval of the Company, or except
as required to conduct the business of the Company in the ordinary course, the
Consultant will not, at any time, directly or indirectly, use, disseminate,
disclose, lecture upon, or publish articles concerning, any Secret or
Confidential Information.
(c) Upon the termination of her retention with the Company, all
documents, records, notebooks and similar repositories of, or containing, Secret
or Confidential Information, including any copies thereof, then in the
Consultant's possession, or under her control, whether prepared by her or
others, will be left with or immediately returned to the Company by the
Consultant.
12. Injunctive Relief. In addition to any other rights or remedies
available to the Company as a result of any breach by the Consultant of her
obligations under this Agreement, the Company shall be entitled to enforcement
of such obligations by an injunction or a decree of specific performance from a
court with appropriate jurisdiction.
13. Severability. The provisions of this Agreement shall be severable and
if any part of any provision shall be held invalid or unenforceable, or any
separate covenant contained in any provision is held to be unduly restrictive
and void by a final decision of any court or other tribunal of competent
jurisdiction, such part, covenant or provision shall be construed or limited in
scope to give it maximum lawful validity, and the remaining provisions of this
Agreement shall nonetheless remain in full force and effect.
14. Entire Agreement. This Agreement contains the entire agreement of the
parties relative to the subject matter hereof, superseding and terminating all
prior agreements or understandings, whether oral or written, between the parties
hereto relative to the subject matter hereof, and this Agreement may not be
extended, amended, modified or supplemented without the prior written consent of
the parties hereto.
15. Waivers. Any waiver of the performance of the terms or provisions of
this Agreement shall be effective only if in writing and signed by the party
against whom such waiver is to be enforced. The failure of either party to
exercise any of its rights under this Agreement or to require the performance of
any term or provision of this Agreement, or the waiver by either party of any
breach of this Agreement, shall not prevent a subsequent exercise or enforcement
of such rights or be deemed a waiver of any subsequent breach of the same or any
other term or provision of this Agreement.
16. Notices. Any notice required or permitted to be given under this
Agreement shall be in writing and shall be deemed given when personally
delivered or sent by overnight courier or certified mail, postage prepaid,
return receipt requested, to their respective addresses of the parties hereto as
set forth above or to such other address as either party may designate by notice
to the other party given as herein provided.
17. Assignment. This Agreement shall not be assignable by either party
without the prior written consent of the other party.
18. Governing Law. This Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of Delaware, without giving
effect to the conflict of laws rules such state.
19. Survival of Terms. The terms of this Agreement and the respective
obligations of the parties hereto shall survive the termination of the
Consultant's retention with the Company for as long as any obligation or duty
remains outstanding.
20. Binding Effect. This Agreement shall inure to the benefit of and be
binding upon each of the Company and the Consultant, their respective successors
and assigns, including, without limitation, any person, firm, corporation or
other entity which may acquire all or substantially all of the Company's assets
and business, or with or into which the Company may be consolidated or merged,
and this provision shall apply in the event of any subsequent merger,
consolidation or transfer.
21. Execution in Counterparts. This Agreement may 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.
22. Effectiveness. This Agreement shall be effective upon execution and
delivery by the Company and the Consultant.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
BEIJING MED-PHARM CORPORATION
By:
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Name: ▇▇▇▇▇ ▇▇▇
Title: President and Chief Executive Officer
By:
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Ning Ning ▇▇▇▇▇
