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Consulting Agreement

THIS CONSULTING AGREEMENT for independent consulting services (“Agreement”) is made and entered into as of Date by and between Bionatus, LLC, (“COMPANY”) and (the “Consultant”).

Consulting Services. Consultant shall provide COMPANY with business services, including but not limited to advice and counsel regarding government affairs and regulatory issues, assistance in developing product commercialization strategies, introductions to potential business partners / clients, introduction to potential investors (“Bionatus Investors”), and other services as may be reasonably requested from time to time by COMPANY during the Term (as defined below).
Independent Consultant Relationship. All services rendered hereunder by Consultant shall be rendered by Consultant as an independent contractor. Any persons employed by Consultant shall be deemed conclusively as employees of Consultant, and they shall at all times be under Consultant's direction and control unless otherwise agreed to in writing by both parties. Consultant shall have the full power, authority, and discretion to select the means, manner, and method of performing the services hereunder without detail, control or direction from COMPANY or its officers or directors. Neither Consultant nor any individuals retained by Consultant shall be considered employees of COMPANY for any purposes and they shall not be entitled to participate in any employee benefit plans sponsored or maintained by COMPANY. Consultant shall not have the authority to act on behalf of COMPANY or to bind COMPANY in any respect, or to incur any debts or liabilities in the name of or on behalf of COMPANY, without COMPANY’s written approval.
Term. Consultant commenced providing services hereunder as of the date of this Agreement (the “Effective Date”), and shall continue to do so for a period of three hundred sixty five (365) days (“Term”) and thereafter until the Term of this Agreement is terminated by either party pursuant to Section 4 of this Agreement.
Termination by Notice. The Term of this Agreement is terminable at any time by either party upon thirty (30) days advance written notice to the other party. In the event of a Termination, Consultant and COMPANY shall mutually agree on a list of relevant customers, clients, partners and Bionatus Investors (see Section 6), which Consultant introduced to COMPANY and shall continue to receive relevant success fee payments in line with the terms stated in Section 6 below.
Payment. In consideration of Consultant’s consulting services, COMPANY agrees to pay Consultant success fees equal to five percent (5%) of the gross investment proceeds accepted by the COMPANY from Bionatus Investors in which Consultant was responsible for introducing COMPANY to such investors. Consultant shall also receive five percent (5%) of the gross investment proceeds in COMPANY profits interest Units which shall be deemed to have a value for said purposes of $2.50 per unit. Consultant shall not receive any additional benefits or compensation for consulting services, except for the reimbursement of expenses, as is more fully described below in Section 7. Such success fees shall be deemed earned upon COMPANY’s receipt of the relevant investment capital. Consultant shall issue a written Invoice to COMPANY in conjunction with any Payment owed to Consultant as outlined above in this Section 6. Consultant shall be paid, in full, within 30 days of receipt of said Invoice. Consultant shall have the option of receiving all or part of said five percent (5%) success fee in COMPANY profits interest Units which shall be deemed to have a value for said purposes of $2.50 per unit.
Consultant Responsible for Taxes. Consultant agrees to accept exclusive liability for the payment of taxes due on any amounts paid to Consultant under this Agreement.
Indemnification. COMPANY shall indemnify, defend, and hold harmless Consultant from any claims or liabilities (including costs and attorney's fees) arising out of or in connection with Consultant's services hereunder.
Non-Disclosure and Confidentiality Agreement. Consultant agrees to be bound by the Non-Disclosure and Confidentiality Agreement, attached hereto and incorporated herein by reference as Exhibit A.
Arbitration, Choice of Law. This Agreement shall be deemed to have been executed and delivered within the State of California, and the rights and obligations of the parties hereunder shall be construed and enforced in accordance with, and governed by, the laws of the State of California without regard to principles of conflict of laws. In the event of a dispute, the parties agree to binding arbitration in Los Angeles, California under the Rules of Comprehensive Arbitration before the Judicial Arbitration and Mediation Service ("JAMS"). Judgment upon the award rendered by the arbitrators may be entered in any state or federal court sitting in Orange County, California. In any arbitration pursuant to this Section 13, except as otherwise required by law, each party shall be responsible for the fees and expenses of its own attorneys and witnesses, and the fees and expenses of the arbitrators shall be divided equally between COMPANY, on the one hand, and Consultant, on the other hand.
Severability. If any provision of this Agreement or the application thereof is held invalid, the invalidity shall not affect other provisions or applications of the Agreement which can be given effect without the invalid provisions or applications and, to this end, the provisions of this Agreement are declared to be severable.
Advice of Counsel. In entering into this Agreement, the parties recognize that this Agreement is a legally binding contract and acknowledge and agree that each party has had the opportunity to consult with legal counsel of its choice.
Entire Agreement. This agreement including the Non-Disclosure and Confidentiality Agreement constitutes and contains the entire Agreement and final understanding between the parties covering the services provided by Consultant. It is intended by the parties as a complete and exclusive statement of the terms of their agreement. It supersedes all prior negotiations and agreements, proposed or otherwise, whether written or oral, between the parties concerning consulting services provided by Consultant. Any representation, promise or agreement not specifically included in this Agreement shall not be binding upon or enforceable against either party. This is a fully integrated document. This Agreement may be modified only with a written instrument duly executed by each of the parties. No person has any authority to make any representation or promise on behalf of any of the parties not set forth herein and this Agreement has not been executed in reliance upon any representations or promises except those contained herein. The failure of any party at any time or times to require performance of any provision hereof shall in no manner affect the right at a later time to enforce the same. No waiver by any party of the breach of any term or provision contained in this Agreement, whether by conduct or otherwise, in any one or more instances, shall be deemed to be, or construed as, a further or continuing waiver of any such breach, or a waiver of the breach of any other term or covenant contained in this Agreement.
No Assignment. Consultant shall not assign either in whole or in part any of Consultant's duties or responsibilities hereunder without the written consent of COMPANY, and any attempt of assignment transfer or delegation without such consent shall be void.
Written Reports. Consultant, when reasonably directed, shall provide written reports with respect to the services rendered hereunder.
Construction of Agreement. The language in all parts of this Agreement shall be in all cases construed according to its fair meaning and not strictly for or against COMPANY or Consultant. As used herein, the words “day” or “days” shall mean a calendar day or days. Headings are used only for ease of reference and are not controlling. Nothing expressed or implied herein is intended or shall be construed to confer upon or give to any person, other than the parties hereto, any right, remedy or claim under or by reason of this Agreement or of any term, covenant or condition hereof.
Notices. Any notice required or permitted hereunder shall be in writing and shall be sufficiently given if personally delivered or if sent by registered or certified mail, postage prepaid, with return receipt requested, addressed to the parties at the addresses set forth beneath the signatures hereto. For purposes of this Agreement, email notification also shall be deemed to be written notice wherever written notice is required hereunder, including, without limitation, the termination of the Term pursuant to Section 4, above.
Counterparts. This Agreement may be executed in multiple counterparts, with all counterparts equal to one document, and may be executed electronically (including by digital signature) or by facsimile, and an electronic and/or facsimile document shall be deemed an original for all purposes.

EXHIBIT A

NON-DISCLOSURE AND CONFIDENTIALITY AGREEMENT

During the term of the Agreement to which this Non-Disclosure And Confidentiality Agreement is attached, COMPANY may share certain proprietary information with Consultant. Therefore, in consideration of the mutual promises and covenants contained in this Agreement, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows:

Definition of Confidential Information.

For purposes of this Agreement, “Confidential Information” means any data or information that is proprietary to COMPANY and not generally known to the public, whether in tangible or intangible form, whenever and however disclosed, including, but not limited to: (i) any marketing strategies, plans, financial information, or projections, operations, sales estimates, business plans and performance results relating to the past, present or future business activities of such party, its affiliates, subsidiaries and affiliated companies; (ii) plans for acquisitions, dispositions, products or services, and investor, customer or supplier lists; (iii) any scientific or technical information, invention, design, process, procedure, formula, improvement, technology or method; (iv) any concepts, business plans, reports, data, know-how, works-in-progress, designs, development tools, specifications, computer software, source code, object code, flow charts, databases, inventions, information and trade secrets; and (v) any other information that should reasonably be recognized as confidential information of COMPANY. Confidential Information need not be novel, unique, patentable, copyrightable or constitute a trade secret in order to be designated Confidential Information. Consultant acknowledges that the Confidential Information is proprietary to COMPANY, has been developed and obtained through great efforts by COMPANY and that COMPANY regards all of its Confidential Information as trade secrets.
Notwithstanding anything in the foregoing to the contrary, Confidential Information shall not include information which: (i) was known by Consultant prior to receiving the Confidential Information from COMPANY; (ii) becomes rightfully known to Consultant from a third-party source not known (after diligent inquiry) by Consultant to be under an obligation to COMPANY to maintain confidentiality; (iii) is or becomes publicly available through no fault of or failure to act by Consultant in breach of this Agreement; (iv) is required to be disclosed in a judicial or administrative proceeding, or is otherwise requested or required to be disclosed by law or regulation, although the requirements of Section 4 hereof shall apply prior to any disclosure being made; and (v) is or has been independently developed by employees, consultants or agents of Consultant without violation of the terms of this Agreement or reference or access to any Confidential Information.

Disclosure of Confidential Information.

From time to time, COMPANY may disclose Confidential Information to Consultant. Consultant will: (a) limit disclosure of any Confidential Information to its directors, officers, employees, agents or representatives (collectively “Representatives”) who have a need to know such Confidential Information in connection with the current or contemplated business relationship between the parties to which this Agreement relates, and only for that purpose; (b) advise its Representatives of the proprietary nature of the Confidential Information and of the obligations set forth in this Agreement and require such Representatives to keep the Confidential Information confidential; (c) shall keep all Confidential Information strictly confidential by using a reasonable degree of care, but not less than the degree of care used by it in safeguarding its own confidential information; and (d) not disclose any Confidential Information received by it to any third parties (except as otherwise provided for herein). Each party shall be responsible for any breach of this Agreement by any of their respective Representatives.

Use of Confidential Information.

Consultant agrees to use the Confidential Information solely in connection with the current or contemplated business relationship between the parties and not for any purpose other than as authorized by this Agreement without the prior written consent of an authorized representative of COMPANY. No other right or license, whether expressed or implied, in the Confidential Information is granted to Consultant hereunder. Title to the Confidential Information will remain solely in COMPANY. All use of Confidential Information by Consultant shall be for the benefit of COMPANY and any modifications and improvements thereof by Consultant shall be the sole property of COMPANY. Nothing contained herein is intended to modify the parties' existing agreement that their discussions in furtherance of a potential business relationship are governed by Federal Rule of Evidence 408.

Compelled Disclosure of Confidential Information.

Notwithstanding anything in the foregoing to the contrary, Consultant may disclose Confidential Information pursuant to any governmental, judicial, or administrative order, subpoena, discovery request, regulatory request or similar method, provided that Consultant promptly notifies, to the extent practicable, COMPANY in writing of such demand for disclosure so that COMPANY, at its sole expense, may seek to make such disclosure subject to a protective order or other appropriate remedy to preserve the confidentiality of the Confidential Information; provided in the case of a broad regulatory request with respect to Consultant’s business (not targeted at COMPANY), Consultant may promptly comply with such request provided Consultant give (if permitted by such regulator) COMPANY prompt notice of such disclosure. Consultant agrees that it shall not oppose and shall cooperate with efforts by, to the extent practicable, COMPANY with respect to any such request for a protective order or other relief. Notwithstanding the foregoing, if COMPANY is unable to obtain or does not seek a protective order and Consultant is legally requested or required to disclose such Confidential Information, disclosure of such Confidential Information may be made without liability.

Term.

The parties’ duty to hold in confidence Confidential Information that was disclosed during the term of the Agreement shall remain in effect for five years from the Effective Date.

Remedies.

Both parties acknowledge that the Confidential Information to be disclosed hereunder is of a unique and valuable character, and that the unauthorized dissemination of the Confidential Information would destroy or diminish the value of such information. The damages to COMPANY that would result from the unauthorized dissemination of the Confidential Information would be impossible to calculate. Therefore, both parties hereby agree that COMPANY shall be entitled to seek injunctive relief preventing the dissemination of any Confidential Information in violation of the terms hereof. Such injunctive relief shall be in addition to any other remedies available hereunder, whether at law or in equity. COMPANY shall be entitled to recover its costs and fees, including reasonable attorneys’ fees, incurred in obtaining any such relief. Further, in the event of litigation relating to this Agreement, the prevailing party shall be entitled to recover its reasonable attorney’s fees and expenses.

Return of Confidential Information.

Consultant shall immediately return and redeliver to the other all tangible material embodying the Confidential Information provided hereunder and all notes, summaries, memoranda, drawings, manuals, records, excerpts or derivative information deriving there from and all other documents or materials (“Notes”) (and all copies of any of the foregoing, including “copies” that have been converted to computerized media in the form of image, data or word processing files either manually or by image capture) based on or including any Confidential Information, in whatever form of storage or retrieval, upon the earlier of (i) the completion or termination of the dealings between the parties contemplated hereunder; (ii) the termination of this Agreement; or (iii) at such time as COMPANY may so request; provided however that Consultant may retain such of its documents as is necessary to enable it to comply with its document retention policies. Alternatively, Consultant, with the written consent of COMPANY may (or in the case of Notes, at Consultant’s option) immediately destroy any of the foregoing embodying Confidential Information (or the reasonably nonrecoverable data erasure of computerized data) and, upon request, certify in writing such destruction by an authorized officer of Consultant supervising the destruction).

Notice of Breach.

Consultant shall notify COMPANY immediately upon discovery of any unauthorized use or disclosure of Confidential Information by Consultant or its Representatives, or any other breach of this Agreement by Consultant or its Representatives, and will cooperate with efforts by COMPANY to help COMPANY regain possession of Confidential Information and prevent its further unauthorized use.

In witness whereof, the parties hereto have executed this Agreement as of the date first above written.

BIONATUS, LLC

Name: Peter Capuciati

Its: Chief Executive Officer

NOTICE ADDRESS

BIONATUS, LLC

3 Mason

Suite 100

Irvine, CA 92618

CONSULTANT

Consultant Address

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