EXHIBIT 10.67
Dear Xx. Xxxxx:
This letter is to confirm our mutual agreement with respect to the terms and
conditions under which Xxxxxx Xxxxx and Associates, Inc. and Xxxxxx Xxxxx
(individually) (together hereinafter known as "Consultant") agree to provide
ViraGenics (Viragen Inc.'s wholly owned subsidiary), directly or through its
subsidiaries, affiliated and associated companies, with services in a consulting
capacity during the period beginning February 1, 2003 and ending January 31,
2004 (hereinafter referred to as the "CONSULTING PERIOD"), it being understood
that this CONSULTING PERIOD shall be extended unless written notice of
termination is delivered by either party one to the other ninety (90) days prior
to the expiration of the CONSULTING PERIOD or upon the annual anniversary
thereof.
1. "Consulting capacity" herein means that Consultant will provide
VIRAGENICS with the full benefit of his knowledge, experience and skill
with respect to all questions and projects, which VIRAGENICS will
stipulate. During the term of this Agreement, Consultant shall provide
advice to, consult with, and perform services for the Company. In this
regard, the Company will submit any and all new projects it proposes
for your review, acceptance or rejection. You agree to notify the
Company as to your acceptance or rejection of your involvement as a
consultant in any new project within fifteen (15) days from the date of
VIRAGEN's submission to you.
VIRAGEN and VIRAGENICS acknowledge that other clients may use your consulting
services and it is understood and agreed that you are not to disclose to VIRAGEN
any confidential information of other parties, including past and present
clients. VIRAGEN will rely upon your ethical judgment to avoid conflicts of
interest. It is understood and agreed that during the CONSULTING PERIOD you
shall not consult for other parties on Avian Transgenics or leukocyte derived
and/or lymphoblastoid derived human interferon alpha and on monoclonal
antibodies for the treatment of melanoma. 2.
3. During the Consulting Period, VIRAGEN agrees to pay Consultant at the
rate of $12,916.67 per month, payable semimonthly. In the event that
consulting services are provided at a location away from the
metropolitan area of Consultant's regular place of business, VIRAGEN
will reimburse Consultant for reasonable travel and living expenses
incurred. It is understood and agreed that VIRAGEN will stipulate in
advance in writing the places and locations where Consultant will
provide services. Payment for Consultant's services and expenses will
be made upon submission and approval to VIRAGEN of an itemized account
of expenses incurred and payments due. All payments shall be made by
check payable to Xxxxxx Xxxxx and Associates, Inc.
4. During the discussions leading up to this Agreement, including
Consultants prior employment with Viragen, Inc. and during the
CONSULTING PERIOD and any extensions thereof Consultant has acquired
and will continue to acquire from VIRAGEN information which VIRAGEN
considers to be proprietary and confidential, for example, information
with respect to materials, compounds, formulations, samples, processes,
methods, apparatus, operations, clinical trial plans and results and
present and future plans of VIRAGEN. Consultant agrees to keep
confidential and not to use, except in connection with services in a
consulting capacity provided to VIRAGEN, all such information, as well
as all information developed as a result of Consultant's services to
VIRAGEN under this Agreement, and not to divulge any such information
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to others at any time. Upon termination of this Agreement or at any
other time VIRAGEN requests, Consultant will transmit to VIRAGEN any
written, printed or other materials embodying such information,
including all copies, excerpts thereof, and samples given or prepared
in connection with work performed for VIRAGEN under this Agreement.
These obligations with respect to VIRAGEN information shall continue at
all times beyond the CONSULTING PERIOD and any extensions thereof.
Notwithstanding the above, this Agreement shall not restrict
Consultant's use or disclosure of information which:
(1) is or later becomes publicly known through no fault
of Consultant;
(2) was already known to Consultant (other than through
Consultant's previous employment by XXXXXXX) as
evidenced by written records at the time of its
receipt from VIRAGEN; or
(3) is lawfully and in good faith made available to
Consultant without restriction on disclosure or use
by a third party.
Specific information disclosed by VIRAGEN shall not be deemed to be
available to the public or in your prior possession merely because it
is embraced by more general information available to the public or in
Consultant's prior possession.
5. Any and all information, inventions and discoveries, whether or not
patentable, which Consultant develops, conceives and/or makes as a
result of confidential information received from VIRAGEN shall be the
sole and exclusive property of VIRAGEN. Consultant will, upon request
of VIRAGEN, promptly execute any and all applications, assignments or
other instruments which VIRAGEN shall deem necessary or useful in order
to apply for and obtain patent protection worldwide for said inventions
and discoveries, and in order to assign and convey to VIRAGEN the sole
and exclusive right, title and interest in and to said inventions and
discoveries and patent applications and patents thereon. VIRAGEN will
bear the costs of preparation and filing of all said patent
applications.
6. While providing services for VIRAGEN Consultant will be acting as an
independent contractor and not as an employee or agent of VIRAGEN and
will not be entitled to any of the benefits, direct or indirect, of an
employee of VIRAGEN other than reimbursement of group health insurance
costs and an automobile and related expenses during the term of this
Agreement.
7. The validity, interpretation and performance of this Agreement and any
dispute connected herewith shall be governed and construed in
accordance with the laws of the State of Florida, USA.
8. Consultant will not be liable for any loss, injury or damage incurred
by VIRAGEN or by a third party as a result of performance of the
consulting services, including any loss, injury or damage resulting
from the negligent or willful act or omission by VIRAGEN. VIRAGEN shall
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indemnify and hold Consultant harmless from any liability, loss, cost,
and expense (including attorneys' fees and costs) incurred as a result
of VIRAGEN's breach of this agreement, negligence or willful
misconduct. This obligation shall survive the expiration or earlier
termination of this agreement.
9. Consultant hereby certifies that Consultant will not or has not
employed or otherwise used in any capacity the services of any person
debarred under Section 306(a) or (b) of the Federal Food, Drug, and
Cosmetic Act in performing any services hereunder.
10. This agreement contains the entire understanding between and among the
parties and supersedes any prior understanding and agreement among them
including, but not limited to, Consultant's Employment Agreement dated
March 1, 2001.
11. Arbitration. The parties hereto desire to avoid and settle without
litigation future disputes that may arise between them relative to this
Agreement. Accordingly, the parties agree to engage in good faith
negotiations to resolve any such dispute. In the event they are unable
to resolve any such dispute by negotiation, such dispute shall be
submitted to arbitration in Miami, Florida in accordance with the rules
of the State of Florida. The arbitration award shall be final and
binding on the signatories hereto and may be filed with and enforced by
any court of competent jurisdiction. The prevailing party shall be
reimbursed by the other for all legal fees connected therewith. In the
event that the parties cannot agree upon the venue as provided for
herein, within THIRTY (30) DAYS from the date a party has notified the
other of the need for arbitration then each party shall have the right
to pursue any claim and to litigate within the court system in the
State of Florida.
12. The parties hereto cannot assign this Agreement.
If the foregoing terms and conditions meet with your understanding and approval,
please show your acceptance and agreement by signing this letter in duplicate at
the place indicated below.
Very truly yours,
VIRAGEN, INC.
VIRAGENICS, INC.
By: /s/ XXXX X. XXXXXX By: /s/ XXXXXX XXXXX
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Xxxx X. Xxxxxx Name: Xxxxxx Xxxxx, President
Chairman Xxxxxx Xxxxx & Associates, Inc.
and individually
