Exhibit 99.2
CONSULTING AGREEMENT
This Consulting Agreement (AGREEMENT) is made effective March 20, 2009
(EFFECTIVE DATE) and is entered into by CytoGenix, Inc. with its principal place
of business at 0000 Xxxxxxxx Xxxxx, Xxxxxxx, XX 00000 (COMPANY), and Xxxxxx X.
Xxxxx, PhD, JD, who resides at 0000 Xxxxxxxxxxx Xxxxx, Xxxxxxx, XX 00000
(CONSULTANT).
The COMPANY desires to retain the services of CONSULTANT and CONSULTANT
desires to perform services to advise COMPANY on general operations, strategic
and business directives for the COMPANY. In consideration of the mutual
covenants and promises contained herein and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged by
the parties hereto, the parties agree as follows.
The COMPANY is engaged in the development of nucleic acid compounds and
related nucleic acid therapeutics including in vivo single-stranded expression
systems and the manufacture of cell-free DNA. CONSULTANT has a experience with
various corporate and patent matters, biotech research experience and has an
extended history with the COMPANY. She holds a JD and PhD and is a registered
Patent Attorney and enters this Agreement solely as an independent CONSULTANT,
without conflict with Sexing Technologies ("ST"), where she concurrently holds a
position as Corporate and Patent Counsel. This Agreement is solely between
COMPANY and CONSULTANT as described herein below.
1. SERVICES.
CONSULTANT agrees to perform such consulting and related services to and
for the COMPANY as may be reasonably requested from time to time by the
COMPANY. During the consultation period (as defined below), CONSULTANT will
timely notify COMPANY of their engagement in any activity that they know to
be a conflict of interest with the business of the COMPANY, including any
competitive employment, business or other activity, as well as any similar
assistance of another person or organization he knows competes or intends
to compete with the COMPANY. The CONSULTANT shall not engage in any
activity which conflicts with policies or regulations of ST.
CONSULTANT shall have the use of a COMPANY laptop computer for confidential
remote access to the COMPANY'S computer system as needed. Such computer
shall be returned to COMPANY at the COMPANY'S discretion on an as needed
basis, to be returned no later than termination of this agreement or upon
mutual agreement of the Parties that the computer no longer has value.
CONSULTANT shall backup any software on the computer upon taking possession
and shall secure said software until delivered to the COMPANY.
2. TERM.
The term of this Consulting Agreement shall terminate one (1) year from the
date of execution ("Consultation Period"), but may be extended upon mutual
agreement of the Parties in writing as evidenced by Amendment to this
Agreement, and is subject to earlier termination in accordance with the
provisions of Section 4.
3. COMPENSATION.
3.1 CONSULTING FEES. The COMPANY shall pay CONSULTANT at the rate of
$150.00 per hour for the duration of this Agreement which may be
terminated at any time by either party in accordance with Section 4
herein. In return, CONSULTANT will provide services consistent with
the intent herein as mutually agreed by the Parties regarding the
COMPANY'S business objectives and technology. Compensation may be in
the form of stock or cash as agreed upon by the parties at the time of
invoice.
3.2 EXPENSES. The COMPANY shall reimburse CONSULTANT for all reasonable
and necessary expenses paid by CONSULTANT in connection with or
related to the performance of services under this Consulting
Agreement. CONSULTANT shall submit to the COMPANY itemized statements
in the form satisfactory to the COMPANY. The COMPANY agrees to pay for
each such statement within 30 days of receipt thereof.
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3.3 BACK WAGES. As further consideration for this Agreement, the Parties
herein agree that upon the COMPANY either undergoing a major financial
restructuring whereby the share value exceeds $0.50/share at anytime
within approximately six months thereafter, OR upon the raise of funds
or revenue by the COMPANY exceeding a total of one million dollars
($1,000,000) received by COMPANY in any six month period of time
(whichever is sooner), that $40,000, representing about half the value
of all unpaid back wages earned by CONSULTANT as a former employee of
COMPANY, be paid within one month of such receipt, unless such amount
has already been paid to employee by other means following execution
of this Agreement. The Parties further agree to pay CONSULTANT the
remaining $40,000 representing the second half of the unpaid back
wages, if still outstanding, upon receipt of a second one million
dollars ($1,000,000) of revenue or funding. Failure to pay such
amounts shall terminate this Agreement and upon notice of such
termination shall start to accrue interest at the rate of one percent
(1%) per month on any unpaid amounts.
3.4 BENEFITS. The CONSULTANT shall not be entitled to any benefits,
coverage, or privileges, including without limitation, social
security, unemployment, medical, or pension payments as may be
available to the employees of the COMPANY.
4. TERMINATION.
The COMPANY or the CONSULTANT may terminate the Consulting Agreement,
effective immediately upon receipt of written notice.
5. COOPERATION.
CONSULTANT shall use his/her best efforts in the performance of his/her
obligations under this Consulting Agreement. The COMPANY shall provide such
access to its information and property as may be reasonably required in
order to permit CONSULTANT to perform his/her obligations hereunder. The
CONSULTANT shall cooperate with COMPANY personnel; shall not interfere with
the conduct of the business of the COMPANY; and shall observe all rules,
regulations, confidentiality and security provisions of the COMPANY
concerning the safety, confidentiality and security of persons and
property, real, personal and intellectual.
6. DISCLOSURE AND ASSIGNMENT OF INTELLECTUAL PROPERTY.
CONSULTANT will disclose promptly to the COMPANY any new development of
intellectual property arising from CONSULTANT'S employment by COMPANY
during the term of this AGREEMENT. Upon the request and at the expense of
the COMPANY, CONSULTANT will assist the company in filing for patents and
or copyrights to protect said intellectual property. As the inventor or
author of intellectual property developed under this Consulting Agreement,
CONSULTANT agrees to assign such intellectual property to the COMPANY
unless otherwise mutually agreed upon in writing.
7. INSTITUTIONAL OBLIGATIONS.
Prior to entering into this Consulting Agreement with the COMPANY,
CONSULTANT was and is employed by ST. COMPANY recognizes that in connection
with CONSULTANT'S employment, CONSULTANT'S primary responsibility is to ST
and that in connection with such employment CONSULTANT has entered into an
agreement relating to ownership of patent rights and other matters with ST.
CONSULTANT will only perform services for the COMPANY within the limits
allowed by ST. It is agreed and acknowledged by both parties that COMPANY
does not seek to have CONSULTANT violate any of CONSULTANT'S obligations to
ST, but seeks to limit ownership rights of any COMPANY-related intellectual
property solely to COMPANY or CONSULTANT. CONSULTANT therefore agrees to
limit his consultation services solely to those that would not be in
conflict with his obligations to ST as described herein above.
It is understood that there is currently no conflict between ST and the
development of CytoGenix ssDNA expression technology, CytoGenix synDNA
production technology, or other CytoGenix technology which is ongoing or
planned, and therefore does not directly conflict with or interfere with
the interests of ST and therefore should pose no conflict problems between
the two companies.
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8. CONFIDENTIALITY.
Confidential information has been and is being disclosed by COMPANY to
CONSULTANT and by CONSULTANT to COMPANY to enable a mutually advantageous
research and business relationship. Confidential information disclosed to
COMPANY is for purposes of developing a strategic business and operations
plan for further development of DNA based therapeutics and related nucleic
acid-based products. COMPANY and CONSULTANT wish to preserve and protect
the confidential material and information which may be disclosed between
COMPANY and CONSULTANT. Therefore, the parties agree as follows:
8.1 CONFIDENTIAL INFORMATION means any secret or proprietary information
or material relating to COMPANY'S or CONSULTANT'S research,
development or business activities.
a. COMPANY Confidential Information includes without limitation:
business records and plans, financial statements, customer lists and
records, trade secrets, technical information and reports, products,
inventions, pricing structure, discounts, costs, copyrights, patent
applications and other intellectual property, market or business
segment to be serviced by COMPANY, purposes for which COMPANY'S
service is offered, scientific data, laboratory or clinical
procedures, and other proprietary information whether or not owned or
developed by COMPANY, which is not generally known other than by
COMPANY, and which CONSULTANT may obtain through any direct or
indirect contact with COMPANY and which is not available from any
other source besides the COMPANY.
b. As used herein, CONSULTANT'S Confidential Information shall mean
any and all information, know-how and data, technical or non-technical
relating to the business goals of COMPANY with respect to DNA-based
products and therapeutics under this Agreement.
c. The party providing its Confidential Information is the DISCLOSER.
The party receiving Confidential Information is the RECIPIENT.
d. Confidential Information does NOT include:
i. Confidential Information that was known to the RECIPIENT prior to
the disclosure by DISCLOSER;
ii. Confidential Information that is or becomes publicly known
through no fault or omission attributable to the RECIPIENT; or
iii. Confidential Information that is rightfully given to the
RECIPIENT from sources independent of DISCLOSER.
8.2. Protection of Confidential Information. CONSULTANT understands and
acknowledges that COMPANY Confidential Information has been developed
or obtained by COMPANY by the investment of significant time, effort
and expense, and that COMPANY Confidential Information is a valuable,
special and unique asset of COMPANY which provides COMPANY with a
significant competitive advantage. Therefore, CONSULTANT agrees to
hold in confidence and to not disclose COMPANY Confidential
Information to any person other than those colleagues involved with
promoting the goals of this Agreement and only on a 'need to know'
basis without the prior written consent of COMPANY.
COMPANY understands and acknowledges that CONSULTANT'S Confidential
Information has been developed or obtained by the investment of
significant time, effort and expense, is a compilation of a life-time
career in this field of study, and is a valuable, special and unique
asset belonging to CONSULTANT. Therefore, COMPANY agrees to hold in
confidence and to not disclose CONSULTANT'S Confidential Information
to any person or entity outside of COMPANY without the prior written
consent of CONSULTANT.
8.3. No Copying. RECIPIENT will not copy or modify any Confidential
Information without the prior written consent of DISCLOSER.
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8.4. Application to Employees. Neither party shall disclose any
Confidential Information to any of its employees, except those
employees who are required to have the Confidential Information in
order to perform their job duties in connection with the limited
purposes of this Agreement. Each permitted employee to whom
Confidential Information is disclosed shall be made aware of this
Agreement and the obligation to abide by it.
8.5. Unauthorized Disclosure of Information. If it appears that either
party has disclosed (or has threatened to disclose) Confidential
Information in violation of this Agreement, the party whose
information is or has been disclosed shall be entitled to an
injunction to restrain the disclosing party from disclosing, in whole
or in part, the Confidential Information. Neither party shall be
prohibited by this provision from pursuing other remedies, including a
claim for losses and damages.
8.6. Return of Confidential Information. Upon the written request of
DISCLOSER, RECIPIENT shall return to DISCLOSER all materials whether
written, magnetically stored or reduced to any other tangible medium
containing the Confidential Information. At the written request of
DISCLOSER, RECIPIENT shall also deliver to DISCLOSER written
statements signed by RECIPIENT certifying that all materials have been
returned within thirty (30) days of receipt of the request. RECIPIENT,
however, may retain in its confidential files one copy of written
Confidential Information for record purposes only.
9. LIMITED LICENSE TO USE.
Neither party shall acquire any intellectual property rights to the other
party's Confidential Information under this Agreement except as set out
above. CONSULTANT acknowledges that as between COMPANY and CONSULTANT,
COMPANY Confidential Information and all related copyrights, patents and
all other intellectual property rights, are (and at all times will be) the
property of COMPANY. COMPANY acknowledges that, as between COMPANY and
CONSULTANT, CONSULTANT'S Confidential Information and all related
copyrights, patents and all other intellectual property rights, are (and at
all times will be) the property of CONSULTANT.
IN WITNESS WHEREOF, the parties hereto have executed this agreement as of the
EFFECTIVE DATE set forth above.
CytoGenix, Inc. Consultant
/s/ Xxx Xxxxxxx /s/Xxxxxx X. Xxxxx, Phd, Esq.
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Xxx X. Xxxxxxx Xxxxxx X. Xxxxx, PhD, Esq.
President and CEO
March 20, 2009 March 20, 2009
Date Date
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