Case 4:16-cv-01555-KAW Document 1 Filed 03/29/16 Page 1 of 8 1 Richard Mooney (Cal. Bar No. 176486) RIMON, P.C. 2 One Embarcadero Center #400 San Francisco, California 94111 3 richard.mooney@rimonlaw.com 4 5 6 7 8 Paul Beattie, pro hac vice pending RIMON, P.C. 500 Yale Ave. N., 1st Floor Seattle, Washington 98109 paul.beattie@rimonlaw.com Telephone: 206.696.9095 Facsimile: 800.930.7271 9 Attorneys for Plaintiff Daniel E. Levy 10 IN THE UNITED STATES DISTRICT COURT 11 NORTHERN DISTRICT OF CALIFORNIA 12 SAN FRANCISCO DIVISION 13 14 DANIEL E. LEVY, an individual domiciled in California, 15 17 COMPLAINT Plaintiff, 16 Civil Action No. v. DEMAND FOR JURY TRIAL 18 PREVACUS, INC., a Delaware corporation 19 residing in Florida, 20 Defendant. 21 22 23 24 25 26 27 28 COMPLAINT -1 - Case No. ____________ Case 4:16-cv-01555-KAW Document 1 Filed 03/29/16 Page 2 of 8 1 2 INTRODUCTION Pursuant to Rules 8 and 10 of the Federal Rules of Civil Procedure, Plaintiff Dr. Daniel E. 3 Levy ("Dr. Levy") brings this civil action under the federal Declaratory Judgment Act and state 4 contract, quantum meruit/unjust enrichment, and detrimental reliance/promissory estoppel law and 5 further alleges as follows: 6 7 THE PARTIES 1. Plaintiff Dr. Levy is a Ph.D. chemist with particular knowledge and expertise 8 synthesizing chemical molecules. At all times relevant to this Complaint, Dr. Levy has lived in 9 California within this judicial district. 10 2. Defendant Prevacus, Inc. ("Prevacus") is a Delaware for-profit corporation with its 11 principal place of business in the State of Florida at 1400 Village Square Blvd., Suite 3 #414, 12 Tallahassee, Florida 32312. According to its website, "Prevacus is a development stage company 13 focusing on a new treatment for concussions, a.k.a., mild traumatic brain injuries or mTBI." 14 (http://prevacus.com/about/the-prevacus-story/). Prevacus' "new treatment for concussions" centers 15 on two synthetic molecules – one created by Dr. Levy under contract and the other being the 16 original molecule under development by Prevacus for which Dr. Levy was retained to improve the 17 manufacturing process. 18 19 JURISDICTION AND VENUE 3. This Court has subject matter jurisdiction over this case under 28 U.S.C. § 1332 20 (Diversity Jurisdiction), because Dr. Levy is domiciled in California (in this judicial district) and 21 Prevacus is a Delaware corporation with its principal place of business in Florida. The Parties are 22 thus completely diverse. Additionally, Prevacus currently owes Dr. Levy at least $79,000 in 23 compensation under the contract between the parties, as discussed below, without interest or 24 punitive damages or litigation costs and expenses. This is obviously over the jurisdictional "amount 25 in controversy" requirement of $75,000. Prevacus also currently owes Dr. Levy over $10,000 in 26 attorneys' fees for prior efforts to settle this matter and to recover monies due him. Prevacus also 27 owes Dr. Levy prejudgment interest in an amount exceeding $14,000. 28 COMPLAINT -2 - Case No. ____________ Case 4:16-cv-01555-KAW Document 1 Filed 03/29/16 Page 3 of 8 1 4. Additionally, Dr. Levy is suing for a share of equity or an ownership interest in 2 Prevacus and, on information and belief, the value of Dr. Levy's ownership interest would be 3 significantly greater than $500,000 under any reasonable fair market value assessment of that 4 ownership interest. Moreover, Dr. Levy is asserting the right to rescind the contract between him 5 and Prevacus on the grounds that Prevacus has breached that contract and denied Dr. Levy the 6 benefit of the bargain. Under that remedy (if ultimately chosen), Dr. Levy might be obligated to pay 7 back over $100,000 he previously received in compensation from Prevacus, but he would get all 8 legal and equitable interests in the molecules he designed and helped synthesize, all legal and 9 equitable interests in any manufacturing processes he developed, and the patent applications (and 10 any patents issuing from those applications). The value of those patent applications and patents is 11 certainly in the millions of dollars under any fair market assessment, and the amount that Dr. Levy 12 might have to pay to perfect that remedy is also significantly in excess of the $75,000 jurisdiction 13 limit. For all these reasons, Dr. Levy can comfortably establish diversity jurisdiction under several 14 theories. 15 5. The Court also has "arising under" jurisdiction over the case under the federal 16 Declaratory Judgment Act. 17 6. This Court has personal jurisdiction over Defendant Prevacus under a specific 18 jurisdiction theory, because the contract between the parties was negotiated with Dr. Levy in 19 California, Dr. Levy was retained out of California, and Prevacus advertised for a consultant, and 20 sought to retain that consultant, in the San Francisco Bay area. Additionally, during the entire 21 relationship between the Parties, Dr. Levy worked out of his office in California, traveling when 22 needed to and from California, but supervising and working overwhelmingly from his office in 23 California. Moreover, Prevacus sent compensation totaling more than $100,000 to Dr. Levy in 24 California. Prevacus thus purposely chose to do business in California. Additionally, most of the 25 important documents relevant to this case are located in California, where Dr. Levy directed the 26 synthesis of the two molecules (used for treating concussions) at issue. The actual synthesis of those 27 molecules occurred in China, not in Florida, but the conceptual work, instruction, and guidance of 28 that synthesis occurred in and from California by Dr. Levy, who is one of the foremost experts on COMPLAINT -3 - Case No. ____________ Case 4:16-cv-01555-KAW Document 1 Filed 03/29/16 Page 4 of 8 1 synthesizing such molecules. Finally, and critically, the claims at issue in this case surround and 2 concern the precise contract that Dr. Levy reviewed, signed, and agreed to be bound by in 3 California. The Court therefore has specific jurisdiction over Prevacus, who purposely availed itself 4 of business opportunities in California and then reneged on and breached the contract that it entered 5 into with a California resident. 6 7. Venue is proper in this Court under 28 U.S.C. §§ 1391(b), because "a substantial part 7 of the events or omissions giving rise to the claim" occurred in this venue. Id. 8 CLAIMS/CAUSES OF ACTION 9 COUNT 1 10 (Breach of Contract) 11 8. The allegations from all prior paragraphs of this Complaint are incorporated by 12 reference here. 13 9. On or about March 30, 2013, the Parties entered into a written contract called the 14 March 30, 2013 Consulting Agreement ("Agreement"). A true and correct copy of that Agreement is 15 attached to the Complaint as Exhibit A and is fully incorporated by reference. The document itself 16 is the best evidence of its terms, but essentially, Dr. Levy agreed to consult with Prevacus and to 17 help Prevacus synthesize, and optimize the synthesis of, a molecule that could be used to treat 18 concussions and other brain traumas. Dr. Levy then went on to design a second, even more useful 19 molecule for Prevacus, and directed and supervised the synthesis of that molecule. More generally, 20 Dr. Levy performed all obligations he had under the Agreement, with no complaints and concerns 21 stated from Prevacus or its management. Indeed, Dr. Levy received unstinting praise for his work 22 from Prevacus; but he did not receive all the compensation to which he was entitled. Dr. Levy was 23 supposed to be fully compensated for his efforts under the Agreement. (See Exhibit A at ¶ 2.1) Yet 24 Prevacus currently owes Dr. Levy more than $79,000 under the Agreement. Prevacus also owes Dr. 25 Levy prejudgment interest and over $10,000 in attorneys' fees, previously incurred to try to get 26 Prevacus to honor its Agreement. 27 10. Additionally, Prevacus repeatedly promised Dr. Levy an ownership/equity interest in 28 Prevacus, both before and after the signing of the Agreement (Exhibit A). On numerous occasions, COMPLAINT -4 - Case No. ____________ Case 4:16-cv-01555-KAW Document 1 Filed 03/29/16 Page 5 of 8 1 Prevacus promised Dr. Levy stock in the company and implied that his compensation would not be 2 complete or adequate without it. Yet, as Dr. Levy performed his obligations, under the lure and 3 promise of additional compensation, that compensation never materialized from Prevacus. 4 11. Prevacus ultimately filed several patent applications on the work that Dr. Levy did 5 for Prevacus under the Agreement ("Patent Applications"). On information and belief, some of these 6 Patent Applications have been published and are thus likely to issue, but -- to the best of Dr. Levy's 7 knowledge -- no patent has issued yet from his work. Dr. Levy has dutifully assigned to Prevacus 8 the rights to his inventions, to the Patent Applications, and to any resulting patents, all in reliance on 9 Prevacus' promise to pay his compensation under the Agreement and to give him an equity interest 10 in Prevacus. But Prevacus has breached the Agreement and its oral and written promises relating to 11 stock ownership. 12 12. Dr. Levy has been injured by Prevacus' breaches of the Agreement and its promises 13 in an amount to be determined at trial, but representing fair and reasonable compensation. He is 14 currently owed over $79,000 under the Agreement. He is also entitled to recover the promised stock 15 interests and over $10,000 in past attorneys' fees, as well as prejudgment interest. Finally, he is 16 entitled to costs and reasonable attorneys' fees under the Agreement, which has an explicit attorney 17 fee provision. Dr. Levy reserves the right to choose rescission of the Agreement as his remedy and 18 to seek the legal and equitable assignment of all right, title, and interest in and to the Patent 19 Applications and any resulting patents. 20 COUNT 2 21 (Quantum Meruit/Unjust Enrichment) 22 13. The allegations from all prior paragraphs of this Complaint are incorporated by 23 reference here. Prevacus has also been unjustly enriched in that it received the full benefit of Dr. 24 Levy's efforts while not paying the just, agreed, and reasonable compensation. Under the 25 circumstances, it would be unjust to allow Prevacus to retain the Patent Applications, and any 26 resulting patents, while not fully compensating Dr. Levy with the money and stock interests to 27 which he is entitled. 28 COMPLAINT -5 - Case No. ____________ Case 4:16-cv-01555-KAW Document 1 Filed 03/29/16 Page 6 of 8 1 14. Dr. Levy is currently owed over $79,000. He is also entitled to recover over $10,000 2 in past attorneys' fees, as well as prejudgment interest. Finally, he is entitled to the stock which he 3 was promised. In the alternative, Dr. Levy reserves the right to ask for legal and equitable 4 assignment of all right, title, and interest in and to the Patent Applications and any resulting patents. 5 COUNT 3 6 (Promissory Estoppel/Detrimental Reliance) 7 15. The allegations from all prior paragraphs of this Complaint are incorporated by 8 reference here. 9 16. Dr. Levy is also entitled to an ownership interest or stock in Prevacus under a 10 detrimental reliance theory. As the Agreement was being negotiated, Prevacus' representatives 11 repeatedly told Dr. Levy that time was of the essence and that he needed to start working on the 12 molecule right away. Prevacus repeatedly promised it would work out a stock or ownership interest 13 arrangement with Dr. Levy, but as he completed his work, and they got what they wanted out of the 14 relationship, Prevacus reneged on its promises and failed to follow through with the promised stock 15 interest. 16 17. Dr. Levy detrimentally relied on Prevacus' promise to give him stock (or an 17 ownership interest) under circumstances in which it was reasonable to do so for several reasons, 18 including the repeated promises he received from Prevacus, the great results Dr. Levy obtained for 19 Prevacus, and the seemingly honesty and professionalism of Prevacus' representatives, who had not 20 previously shown an inclination to dissemble or cheat Dr. Levy out of his fair compensation. 21 18. Dr. Levy is entitled to receive the stock shares he was promised under a theory of 22 detrimental reliance/promissory estoppel. 23 COUNT 4 24 (Federal Declaratory Judgment Act) 25 19. The allegations from all prior paragraphs of this Complaint are incorporated by 26 reference here. 27 20. There is an actual case or controversy between the Parties that is live, immediate, 28 real, and capable of resolution by the Court. That controversy includes how much money and stock COMPLAINT -6 - Case No. ____________ Case 4:16-cv-01555-KAW Document 1 Filed 03/29/16 Page 7 of 8 1 Prevacus owes Dr. Levy and, in the event of failure of consideration and material breach of the 2 Agreement by Prevacus, whether Dr. Levy is entitled to claim all right, title, and interest in and to 3 the Patent Applications and any resulting patents. 21. 4 Dr. Levy seeks an order declaring that he is the legal, equitable, and/or beneficial 5 owner of all right, title, and interest in and to the Patent Applications and any resulting patents and 6 he respectfully asks the Court to order Prevacus to assign him those Patent Applications and any 7 resulting patents. DEMAND FOR A JURY TRIAL 8 Pursuant to Rule 38(b) of the Federal Rules of Civil Procedure, Dr. Levy hereby demands a 9 10 jury trial of all issues so triable. PRAYER FOR RELIEF 11 WHEREFORE, Plaintiff Dr. Levy respectfully requests the Court to award the following 12 13 relief: 14 a. A judgment or order that Defendant has breached the Agreement; 15 b. A judgment or order that Defendant must pay Dr. Levy all monies and other 16 compensation owing to him under the Agreement or under any applicable legal 17 theory; 18 c. stock or ownership interest in the company; 19 20 d. e. f. An award of damages sufficient to compensate Dr. Levy under all applicable legal theories, including general, special, compensatory, and consequential damages; 25 26 In the alternative, an order rescinding the Agreement and ordering Prevacus to assign the Patent Applications and any resulting patents to Dr. Levy; 23 24 A judgment or order that Defendant have committed the other wrongs or torts alleged; 21 22 A judgment or order that Defendant must issue Dr. Levy an appropriate amount of g. Costs and expenses of this action, including reasonable attorneys' fees; 27 28 COMPLAINT -7 - Case No. ____________ Case 4:16-cv-01555-KAW Document 1 Filed 03/29/16 Page 8 of 8 1 h. Pre and post-judgment interest; 2 i. Any other relief this Court deems to be just and proper. 3 Dated: March 29, 2016 Respectfully Submitted, 4 5 By: /s/ Richard Mooney Richard Mooney, Esq. (Cal. Bar No. 176486) Rimon, PC One Embarcadero Center #400 San Francisco, California 94111 richard.mooney@rimonlaw.com Telephone: 415.539.0443 Facsimile: 800.930.7271 6 7 8 9 10 Paul Beattie, Esq., pro hac vice pending Rimon, PC 500 Yale Ave. N., 1st Floor Seattle, Washington 98109 Paul.Beattie@RimonLaw.com Telephone: 206.971.9763 ext. 236 Mobile: 206.696.9095 Facsimile: 800.930.7271 11 12 13 14 15 Attorneys for Plaintiff, Daniel E. Levy 16 17 18 19 20 21 22 23 24 25 26 27 28 COMPLAINT -8 - Case No. ____________ Case Document 1-1 Filed 03/29/16 Page 1 of 9 EXHIBIT A Case Document 1-1 Filed 03/29/16 CONSULTING AGRELMEM Effective Date: March 30, 2013 THIS CONSULTING AGREEMENT (this ?Agreement") is entered into by and between Prevacus. Inc., a Delaware corporation located at 12085 Research Drive, Alachua. FL 32615 (the and Daniel E. Levy, dba DEL BioPharma, an individual residing at 37 Lakewood Circle. San Mateo, CA 94402 ("Consultant"). as of the date set forth above (the "Effective Date"). WHEREAS, the Company wishes to obtain the services ofConsultant for certain purposes. and Consultant wishes to provide such services, all subject to the terms and conditions of this Agreement. NOW. THEREFORE, in consideration of the mutual covenants contained herein. the Company and Consultant hereby agree to be legally bound as follows: 1 . Services. 1.1 Services. During the Term, Consultant shall perform for the Company the consulting services described in Schedule as such Schedule may be amended by the Company from time to time (the - 2. Compensation. Fees for_Ser_'v_i_ces. In connection with the Services, the Company shall pay Consultant an hourly rate of $275. which shall be paid Payment for travel time shall be at one-half the normal hourly rate with a maximum of 10 hours per day. In addition. time spent working while away from Consultant?s home of?ce is paid at the normal hourly rate with a maximum of 9 hours per day. 2.2 l_nygie_es. Consultant shall submit to Company invoices on a basis. which invoice shall set forth in detail the Services rendered by Consultant for such month. Company shall make payment to Consultant within thirty (30) days of receipt of invoice. 2.3 Bene?ts. Consultant is not an employee of the Company and will not be entitled to participate in or receive any bene?t or right as a Company employee under any Company employee bene?t and welfare plan, including. without limitation. employee insurance. pension, savings and security plans as a result of his entering into this Agreement. 2.4 Expenses. The Company shall reimburse Consultant for all pre-approved. reasonable expenses incurred by Consultant in connection with the performance of the Services, including reagents and travel expenses. Consultant shall invoice the Company for such expenses. which invoice shall include reasonable supporting documentation (such as receipts) verifying such expenses. 2.5 Taxes and Withholdings. All taxes relating to Consultant's performance under this Agreement shall be the responsibility of Consultant. In particular, Consultant shall be solely responsible for the payment of all federal. state and local taxes or contributions imposed or required Wm?. Case Document 1-1 Filed 03/29/16 Page 3 of 9 under unemployment insurance. social security and income tax laws that pertain to the compensation paid or reimbursements provided to Consultant. 3. Duties of Consultant. 3.1 AvailabilitvofConsultgg. Consultant shall hold himself available to render Services during normal business hours, other reasonable times and such other times as the parties may agree, at the Company's offices. places the Company may request from time to time or such other places as the parties may agree. 3.2 Efforts of_ Consultant. Consultant shall perform Services conscientiously and in a professional manner. and devote his best efforts and abilities thereto. Consultant shall observe all policies and procedures of the Company. and such other directives as may be promulgated from time to time by the Company?s o?icers or board of directors. 3.3 No Conflicting Agreements. Consultant represents and warrants that Consultant is not a party to any existing agreement that would prevent Consultant from entering into and performing its obligations under this Agreement in accordance with its terms. Consultant shall not enter into any agreement that is in con?ict with. or that would prohibit or impair the performance of, Consultant?s obligations under this Agreement in accordance with its terms. 3.4 Independent Contractor. Consultant understands and agrees that he is acting solely as an independent contractor of the Company in performing any of the Services and as such agrees that. at all times. Consultant is not an employee of the Company. This Agreement shall not be construed as authority for Consultant to act as the Company?s agent or in any similar capacity. or to make commitments of any kind for the account ofor on behalf of the Company. and Consultant shall not take any action suggesting otherwise. 3.5 Non-Conlpemio_n. During the Term and for a period oftwo years thereafter (the ?Restricted Period"). Consultant shall not. either directly or indirectly, engage (as principal. partner. employee. consultant. owner. independent contractor. advisor or otherwise. with or without compensation) in any business that competes directly or indirectly with the Company. 3.6 Modi?cation. Consultant agrees that. should a court determine that any provision. term or condition set forth in Section 3.5 are invalid or unenforceable, the court may alter or modify any such provision. term or condition in a manner so as to protect the Company's legitimate business interests. 3.7 Social Security Number. Consultant certifies that he will supply his correct Social Security Number to the Company. Consultant acknowledges that the Company will rely upon the foregoing certi?cation in ?ling certain documents and instruments required by law in connection with this Agreement, including. without limitation, Form 1099 under the Internal Revenue Code of 1986, as amended (or any successor form). 4. on?dentialitv. Companv Con?dential Information. Consultant shall hold in strict con?dence. and not use. except for the benefit of the Company. and not disclose to any person or entity without written authorization of the Chief Executive Of?cer of the Company. any on?dcntial information 2 we Case Document 1-1 Filed 03/29/16 Page 4 of 9 (as de?ned below) of the Company. ?Con?dentialInformation" means any proprietary or con?dential information, technical data. trade secrets or know-how. including, but not limited to. research, product plans, products. services. customer lists and customers, markets, software. developments, inventions, processes. formulas, technology. designs. drawings. engineering. marketing, distribution and sales methods and systems. sales and pro?t ?gures, ?nances and other business information disclosed to Consultant by or on behalf of the Company. either directly or indirectly, whether in writing, orally or by drawings or inSpeetion of documents or other tangible property; prgyided, that Con?dential Information shall not include any of the foregoing items to the extent they have become publicly known and made generally available through no wrongful act of Consultant. 4.2 Third Party Infomlation Held by Consultant shall not improperly use or disclose to the Company or any of its directors. of?cers. employees or agents, any Con?dential Information of any current or former client or other person or entity with whom Consultant has an agreement or duty to keep such information con?dential, and that Consultant shall not bring onto the premises of the Company any such information in any medium unless consented to in writing by such client, person or entity. 4.3 Third Party Information the Company. Consultant recognizes that the Company has received. and in the future may receive, from third parties Con?dential Information subject to a duty on the Company?s part to maintain the con?dentiality of such information and to use it only for certain limited purposes. Consultant shall hold all such information in strict confidence and not disclose it to any person or entity or use it except as necessary in carrying out Services, consistent with the Company?s agreement with such third party. For purposes of this Agreement, such third party information shall be deemed part of the Con?dential Information of the Company. 4.4 Required Disclosure ofCon?dential Information. lfConsultant is required by law or court or governmental order to disclose Con?dential Information. Consultant shall give the Company prompt written notice of such requirement such that the Company shall have the opportunity to apply for a protective order. injunction or for con?dential treatment ofsuch Con?dential Information. 5. Ownership of Results. 5.1 Assignment of Inventions. Consultant shall make full written disclosure to the Company, shall hold in trust for the sole right and bene?t of the Company. and hereby assigns. transfers and conveys to the Company. or its designee. all of Consultant?s worldwide right. title and interest in and to any and all inventions, original works ofauthorship, ?ndings, conclusions, data. discoveries. developments. concepts, improvements, trade secrets, techniques, processes and know- how, whether or not patentable or registrable under patent, copyright or similar laws, that Consultant may solely or jointly conceive. develop or reduce to practice, or cause to be conceived, developed or reduced to practice, in the performance of the Services or that result. to any extent. from use of the Company?s premises or property (collectively, the ?Inventions"), including any and all moral rights and intellectual property rights inherent therein and appurtenant thereto, including, but not limited to, all patent rights, copyrights. trademarks, know-how and trade secrets and the rights to apply for the same (collectively, "Intellectual Property Rights?). Consultant further acknowledges and agrees that all original works of authorship that are made by Consultant (solely LIJ Case Document 1-1 Filed 03/29/16 Page 5 of 9 or jointly with others) in the performance of the Services (a "Work?_) and that are protectable by copyright are "works made for hire," as that term is de?ned in the United States Copyright Act. 5.2 Further_A_s_su_rances. Upon the request and at the expense of the Company, Consultant shall execute and deliver any and all instruments and documents and take such other acts as may be necessary or desirable to document the assignment and transfer described in Section 5.1 or to enable the Company to secure its rights in the Inventions. Works and Intellectual Property Rights relating thereto in any and all jurisdictions, or to apply for, prosecute and enforce Intellectual Property Rights in any and all jurisdictions with respect to any Inventions or Works, or to obtain any extension, validation, re-issue, continuance or renewal of any such Intellectual Property Right. Without limiting the foregoing. Consultant shall disclose to the Company all pertinent information and data with reSpect thereto and shall execute all applications, speci?cations. oaths and all other instruments which the Company deems necessary in order to apply for and obtain such rights and in order to assign and convey to the Company the sole and exclusive right. title and interest in and to such Inventions, Works and any Intellectual Property Rights relating thereto. If the Company is unable for any other reason to secure Consultant?s signature to apply for or to pursue any application for any United States or foreign patent, trademark, copyright or other registration covering Inventions or Works assigned to the Company hereunder, then Consultant hereby irrevocably designates and appoints the Company and its duly authorized officers and agents as Consultant?s agent and attorney in fact, to act for and in Consultant?s behalf and stead to execute and ?le any such applications and to do all other lawfully permitted acts to further the prosecution and issuance of letters patent or trademark. copyright or other registrations thereon with the same legal force and effect as if executed by Consultant. 6. Term and Termination. 6.1 Term. The initial term of this Agreement shall begin on the Effective Date and shall continue for twelve (12) months thereafter (the ?Initial Term") unless earlier terminated pursuant to this Section 6. At the expiration of the Initial Term, the term of this Agreement shall automatically renew for successive thirty (30) day periods (the Initial Term and all such renewal periods. the unless written notice of non-renewal is provided by one party to the other at least thirty (30) days prior to the applicable renewal date. 6.2 Termination by_ the Company. The Company shall have the right to terminate this Agreement: without cause at any time upon thirty (30) day written notice to Consultant, and without notice or penalty. upon the occurrence of any of the following events: the death or disability of the Consultant; (ii) Consultant's breach of any of his obligations under this Agreement: or onsultant?s failure to perform the Services as contemplated under this Agreement. 6.3 Terminationby Consultant. Consultant shall have the right to terminate this Agreement without cause upon thirty (30) days written notice to Company. 6.4 Obligations. Upon termination. the Company shall have no obligation to pay Consultant any fees or expenses that accrued subsequent to the termination of the Agreement il'temiinated without cause by Company or Consultant. 4 WE Case Document 1-1 Filed 03/29/16 Page 6 of 9 Upon termination pursuant to Section the Company shall have no obligation to pay Consultant any fees or expenses that accrued subsequent to a breach of Consultant?s obligations hereunder, (ii) the failure of Consultant to perform the Services as contemplated by this Agreement or the commission of fraud upon the Company by Consultant. 6.5 Sgryiyal. The provisions of Sections 3.4. 3.5 and Articles 4. 5. 6 and 7 shall survive the exp1ration or termination of this Agreement. The expiration or termination of this Agreement shall not impair any right or obligation of any party accruing prior to the effective date of such expiration or termination. 7. Miscellaneous. 7.1 Notices. All notices and other communications required or permitted hereunder shall be in writing and deemed to have been given when hand delivered, sent by facsimile or mailed by registered or certi?ed mail or overnight courier with tracking capabilities. as follows. or as a party may otherwise notify to the other in accordance with this Section 7 (provided that such notice of change of address or recipient shall be deemed given only when received): If to the Company, to: If to Consultant: Prevacus. Inc DEL BioPharma ATTN: Michael Lewandowski. CSO Daniel E. Levy. 12085 Research Dr. 37 Lakewood Circle Alachua. FL. 32615 San Mateo, CA. 94402 Tel: 727-692-6196 Tel: 650-704-3051 Email: Mike@Prevaeus.com Email: de1345@gmail.com 7.2 Company Property: Return. Consultant shall not remove any Company property from the Company?s premises without prior written authorization from the Company. upon the expiration or termination of this Agreement. and earlier if requested by the Company at any time. Consultant shall deliver to the Company (and shall not keep in Consultant's possession or deliver to anyone else) all on?dential Information of the Company (including all embodiments thereon and all software. documentation. devices, records, data. notes, reports. proposals. lists. correspondence, Speci?cations. drawings, blueprints. sketches, materials, equipment. other documents or property, or reproductions of any aforementioned items, or any other work product whatsoever. developed by Consultant as part of or in connection with the Services or otherwise belonging to the Company. 7.3 Indemnification. Consultant shall indemnify the Company for all costs, fees (including reasonable attorney?s fees), expenses, losses and other damages arising from any injury to person or damage to property caused by Consultant and any breach of this Agreement by Consultant. 7.4 Assignment; Bene?ciaries. The Company may assign this Agreement without the prior written consent of Consultant. Consultant hereby acknowledges and agrees that the duties and responsibilities ofConsultant hereunder are of a personal nature and shall not be assignable or delegable in whole or in part by Consultant. All of the terms and provisions of this Agreement shall be binding upon and inure to the bene?t of and be enforceable by the respective heirs. executors, administrators, legal representatives, successors and permitted assigns WE Case Document 1-1 Filed 03/29/16 Page 7 of 9 of the parties. Nothing in this Agreement. express or implied. is intended to confer on any person or entity other than the parties hereto or their respective successors and permitted assigns. any bene?ts, rights or remedies. 7.5 ?_overning and Attornev Fees. This Agreement shall be governed by and interpreted in accordance with laws of the state of Delaware without giving effect to any con?ict of laws provisions. Consultant agrees that any dispute or controversy arising out of or relating to any interpretation. construction, performance or breach of this Agreement may be brought in the state or federal courts in the State of Florida. The prevailing party in any dispute or legal action regarding the subject matter of this Agreement shall be entitled to recover attorney?s fees and costs. 7.6 Equitable Relief. Consultant agrees that the limitation on its ability to compete with the Company as set forth in Section 3.5 is reasonably necessary to protect the ompany?s legitimate business interests. Consultant acknowledges that such limitations will not constitute or cause it or the Principal any undue hardship. Consultant further agrees that it would be impossible or inadequate to measure and calculate the Company?s damages from any breach of the covenants set forth in Sections 3. 4 and 5 of this Agreement. and that a breach of such covenants could cause serious and irreparable injury to the Company. Accordingly. the Company shall have available. in addition to any other right or remedy available to it. the right to obtain an injunction from a court of competent jurisdiction restraining such a breach (or threatened breach) and to specific performance of any such Section. Consultant further agrees that no bond or other security shall be required in obtaining such equitable relief and Consultant hereby consents to the issuance of such injunction and to the ordering ofspeci?e performance. 7.7 Entire Agreement, Amendment and Wajycr. This Agreement (including the schedules hereto and any Work Orders) is the sole agreement between Consultant and the Company with respect to the Services and it supersedes all prior agreements and understandings with respect thereto. whether oral or written. No amendment. supplement or other modi?cation to any provision of this Agreement shall be binding unless in writing and signed by both Consultant and the Company. No waiver of any rights under this Agreement shall be effective unless in writing signed by the party to be charged. A waiver of a breach or violation of any provision of this Agreement will not constitute or be construed as a waiver of any subsequent breach or violation of that provision or as a waiver of any breach or violation of any other provision of this Agreement. 7.8 Sever-ability. if any provision of this Agreement or application thereof to anyone or under any circumstances is adjudicated to be invalid or unenforceable in any jurisdiction, such invalidity or unenforceability shall not affect any other provision or application of this Agreement which can be given effect without the invalid or unenforceable provision or application and shall not invalidate or render unenforceable such provision or application in any otherjurisdiction. 7.9 l-leadings. 'l'he headings in this Agreement are intended solely for convenience or reference and shall be given no effect in the construction or interpretation of this Agreement. 7.l0 Counterparts. This Agreement may be executed in two or more counterparts. each of which shall be deemed to be an original as against any party whose signature appears thereon. but all of which together shall constitute but one and the same instrument. Om? Case Document 1-1 Filed 03/29/16 Page 8 of 9 IN WITNESS WHEREOF. the undersigned, intending to be legally bound. have duly executed this Agreement as of the Effective Date. Prevacus, Inc. DEL BioPharma Authorized Signature Daniel E. Levy, Phj'). Name: Michael Lewandowski Title: Chief Scienti?c Of?cer Case Document 1-1 Filed 03/29/16 Page 9 of 9 SCHEDULE 1 Services Consultant will make available his services to consult with and advise Company with respect to Company?s efforts to optimize the process to make the enantiomer of Progesterone and such other matters as may be mutually agreed upon in writing between Company and Consultant. In particular Consultant will employ his scienti?c skills to optimize the process to improve yield and minimize the number of required steps with an end product suitable for scale-up to support preclinical and/or clinical development. Prcvacus authorizes initial reimbursement for the following: Literature search access - $1,000.00 for the initial term of this contract: Expenses for obtaining a China visa including but not limited to ABRIGGS fees. courier fees and passport (visa) photos. Schedule I to Consulting Agreement 444 2 Case 4:16-cv-01555-KAW Document 1-2 Filed 03/29/16 Page 1 of 2 CIVIL COVER SHEET JS 44 (Rev. 12/12) cand rev (1/15/13) The JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.) I. (a) PLAINTIFFS DANIEL E. LEVY DEFENDANTS San Mateo (b) County of Residence of First Listed Plaintiff County of Residence of First Listed Defendant (EXCEPT IN U.S. PLAINTIFF CASES) NOTE: (c) Attorneys (Firm Name, Address, and Telephone Number) Richard Mooney (SBN 176486), Paul Beattie (Pro Hac Vice Pending) (IN U.S. PLAINTIFF CASES ONLY) IN LAND CONDEMNATION CASES, USE THE LOCATION OF THE TRACT OF LAND INVOLVED. Attorneys (If Known) Rimon, P.C. One Embarcadero Center #400, San Francisco, CA 94111 800.930.7271 III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an “X" in One Box for Plaintiff II. BASIS OF JURISDICTION (Place an "X" in One Box Only) 1 U.S. Government Plaintiff 3 Federal Question (U.S. Government Not a Party) 2 U.S. Government Defendant 4 Diversity (Indicate Citizenship of Parties in Item III) (For Diversity Cases Only) PTF Citizen of This State 1 DEF 1 and One Box for Defendant) PTF DEF Incorporated or Principal Place 4 4 of Business In This State Citizen of Another State 2 2 Incorporated and Principal Place of Business In Another State 5 5 Citizen or Subject of a Foreign Country 3 3 Foreign Nation 6 6 IV. NATURE OF SUIT (Place an "X" in One Box Only) CONTRACT TORTS PERSONAL INJURY PERSONAL INJURY 110 Insurance 120 Marine 310 Airplane 130 Miller Act 315 Airplane Product Liability 320 Assault, Libel & Slander 330 Federal Employers' Liability 340 Marine 140 Negotiable Instrument 150 Recovery of Overpayment & Enforcement of Judgment 151 Medicare Act 152 Recovery of Defaulted Student Loans (Excludes Veterans) 153 Recovery of Overpayment of Veteran's Benefits 160 Stockholders' Suits 190 Other Contract 195 Contract Product Liability 196 Franchise REAL PROPERTY 345 Marine Product Liability 350 Motor Vehicle 365 Personal Injury Product Liability 367 Health Care/ Pharmaceutical Personal Injury Product Liability 368 Asbestos Personal Injury Product Liability PERSONAL PROPERTY 370 Other Fraud 371 Truth in Lending 355 Motor Vehicle Product Liability 360 Other Personal Injury 362 Personal Injury Medical Malpractice CIVIL RIGHTS 380 Other Personal Property Damage 385 Property Damage Product Liability PRISONER PETITIONS Habeas Corpus: 210 Land Condemnation 440 Other Civil Rights 220 Foreclosure 441 Voting 463 Alien Detainee 230 Rent Lease & Ejectment 442 Employment 240 Torts to Land 443 Housing/ Accommodations 445 Amer. w/Disabilities Employment 446 Amer. w/Disabilities Other 448 Education 510 Motions to Vacate Sentence 245 Tort Product Liability 290 All Other Real Property FORFEITURE/PENALTY 530 General 535 Death Penalty Other: 625 Drug Related Seizure of Property 21 USC 881 690 Other LABOR BANKRUPTCY OTHER STATUTES 422 Appeal 28 USC 158 375 False Claims Act 423 Withdrawal 28 USC 157 400 State Reapportionment PROPERTY RIGHTS 430 Banks and Banking 820 Copyrights 450 Commerce 410 Antitrust 830 Patent 460 Deportation 840 Trademark SOCIAL SECURITY 470 Racketeer Influenced and Corrupt Organizations 480 Consumer Credit 710 Fair Labor Standards Act 720 Labor/Management Relations 740 Railway Labor Act 861 HIA (1395ff) 864 SSID Title XVI 850 Securities/Commodities/ Exchange 890 Other Statutory Actions 751 Family and Medical Leave Act 790 Other Labor Litigation 865 RSI (405(g)) 891 Agricultural Acts 791 Employee Retirement Income Security Act 862 Black Lung (923) 863 DIWC/DIWW (405(g)) 893 Environmental Matters FEDERAL TAX SUITS 870 Taxes (U.S. Plaintiff or Defendant) 871 IRS—Third Party 26 USC 7609 IMMIGRATION 490 Cable/Sat TV 462 Naturalization Application 895 Freedom of Information Act 896 Arbitration 899 Administrative Procedure Act/Review or Appeal of Agency Decision 950 Constitutionality of State Statutes 465 Other Immigration Actions 540 Mandamus & Other 550 Civil Rights 555 Prison Condition 560 Civil Detainee Conditions of Confinement V. ORIGIN (Place an "X" in One Box Only) 1 Original Proceeding Transferred from 2 Removed from 3 Remanded from 4 Reinstated or 5 Another District 6 Multidistrict State Court Appellate Court Reopened (specify) Litigation Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity): VI. CAUSE OF ACTION VII. REQUESTED IN COMPLAINT: VIII. RELATED CASE(S) IF ANY DATE March 29, 2016 28 U.S.C. § 1332 Brief description of cause: Breach of consulting agreement; quantum meruit, promissory estoppel, declaratory relief CHECK YES only if demanded in complaint: CHECK IF THIS IS A CLASS ACTION DEMAND $1,000,000.00 JURY DEMAND: UNDER RULE 23, F.R.Cv.P. (See instructions): JUDGE DOCKET NUMBER SIGNATURE OF ATTORNEY OF RECORD /s/ Richard Mooney IX. DIVISIONAL ASSIGNMENT (Civil L.R. 3-2) (Place an “X” in One Box Only) (X) SAN FRANCISCO/OAKLAND ( ) SAN JOSE ( ) EUREKA Yes No JS 44 Reverse (Rev. 12/12) Case 4:16-cv-01555-KAW Document 1-2 Filed 03/29/16 Page 2 of 2 INSTRUCTIONS FOR ATTORNEYS COMPLETING CIVIL COVER SHEET FORM JS 44 Authority For Civil Cover Sheet The JS 44 civil cover sheet and the information contained herein neither replaces nor supplements the filings and service of pleading or other papers as required by law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. Consequently, a civil cover sheet is submitted to the Clerk of Court for each civil complaint filed. The attorney filing a case should complete the form as follows: I.(a) (b) (c) Plaintiffs-Defendants. Enter names (last, first, middle initial) of plaintiff and defendant. If the plaintiff or defendant is a government agency, use only the full name or standard abbreviations. If the plaintiff or defendant is an official within a government agency, identify first the agency and then the official, giving both name and title. County of Residence. For each civil case filed, except U.S. plaintiff cases, enter the name of the county where the first listed plaintiff resides at the time of filing. In U.S. plaintiff cases, enter the name of the county in which the first listed defendant resides at the time of filing. (NOTE: In land condemnation cases, the county of residence of the "defendant" is the location of the tract of land involved.) Attorneys. Enter the firm name, address, telephone number, and attorney of record. If there are several attorneys, list them on an attachment, noting in this section "(see attachment)". II. Jurisdiction. The basis of jurisdiction is set forth under Rule 8(a), F.R.Cv.P., which requires that jurisdictions be shown in pleadings. Place an "X" in one of the boxes. If there is more than one basis of jurisdiction, precedence is given in the order shown below. United States plaintiff. (1) Jurisdiction based on 28 U.S.C. 1345 and 1348. Suits by agencies and officers of the United States are included here. United States defendant. (2) When the plaintiff is suing the United States, its officers or agencies, place an "X" in this box. Federal question. (3) This refers to suits under 28 U.S.C. 1331, where jurisdiction arises under the Constitution of the United States, an amendment to the Constitution, an act of Congress or a treaty of the United States. In cases where the U.S. is a party, the U.S. plaintiff or defendant code takes precedence, and box 1 or 2 should be marked. Diversity of citizenship. (4) This refers to suits under 28 U.S.C. 1332, where parties are citizens of different states. When Box 4 is checked, the citizenship of the different parties must be checked. (See Section III below; NOTE: federal question actions take precedence over diversity cases.) III. Residence (citizenship) of Principal Parties. This section of the JS 44 is to be completed if diversity of citizenship was indicated above. Mark this section for each principal party. IV. Nature of Suit. Place an "X" in the appropriate box. If the nature of suit cannot be determined, be sure the cause of action, in Section VI below, is sufficient to enable the deputy clerk or the statistical clerk(s) in the Administrative Office to determine the nature of suit. If the cause fits more than one nature of suit, select the most definitive. V. Origin. Place an "X" in one of the six boxes. Original Proceedings. (1) Cases which originate in the United States district courts. Removed from State Court. (2) Proceedings initiated in state courts may be removed to the district courts under Title 28 U.S.C., Section 1441. When the petition for removal is granted, check this box. Remanded from Appellate Court. (3) Check this box for cases remanded to the district court for further action. Use the date of remand as the filing date. Reinstated or Reopened. (4) Check this box for cases reinstated or reopened in the district court. Use the reopening date as the filing date. Transferred from Another District. (5) For cases transferred under Title 28 U.S.C. Section 1404(a). Do not use this for within district transfers or multidistrict litigation transfers. Multidistrict Litigation. (6) Check this box when a multidistrict case is transferred into the district under authority of Title 28 U.S.C. Section 1407. When this box is checked, do not check (5) above. VI. Cause of Action. Report the civil statute directly related to the cause of action and give a brief description of the cause. Do not cite jurisdictional statutes unless diversity. Example: U.S. Civil Statute: 47 USC 553 Brief Description: Unauthorized reception of cable service VII. Requested in Complaint. Class Action. Place an "X" in this box if you are filing a class action under Rule 23, F.R.Cv.P. Demand. In this space enter the actual dollar amount being demanded or indicate other demand, such as a preliminary injunction. Jury Demand. Check the appropriate box to indicate whether or not a jury is being demanded. VIII. Related Cases. This section of the JS 44 is used to reference related pending cases, if any. If there are related pending cases, insert the docket numbers and the corresponding judge names for such cases. Date and Attorney Signature. Date and sign the civil cover sheet. American LegalNet, Inc. www.FormsWorkFlow.com