Exhibit 10.9
CONSULTANCY AGREEMENT
THIS CONSULTANCY AGREEMENT (this "Agreement") is made as of this 19th day
of January, 2005, by and between Advaxis, Inc, a Colorado corporation, having a
principal place of business at 000 Xxxxxxxx Xxxxxx, Xxxxxxxxx, XX ("Company"),
and LVEP Management, LLC with a place of business at 000 Xxxxx Xxxxxx, 00xx
xxxxx, Xxxxxxx, XX 00000 ("Consultant").
WHEREAS, Consultant and Company desire to enter into an agreement for the
performance by Consultant of certain consulting services (the "Services"); and
WHEREAS, Consultant has the specific knowledge, experience, and expertise
to perform the Services;
NOW, THEREFORE, in consideration of the mutual covenants, terms, and
conditions hereinafter set forth, and intending to be legally bound, Company and
Consultant agree as follows:
1. SERVICES AND COMPENSATION
1.1 Services: Consultant shall provide the Services and perform the duties
set in Schedule A. The parties may agree at any time to modify Schedule A.
Company agrees that Consultant shall have reasonable access to Company's
representatives as necessary to perform the Services provided for by this
Agreement. Consultant shall report directly to the CEO of the Company.
1.2 Compensation. Consultant shall be paid for performance of the Services
as specified in Schedule B.
1.3 Non-Exclusive Arrangement. Consultant may from time to time act as a
consultant to, perform services for, or enter into agreements similar to this
Agreement with, other persons or entities without the necessity of obtaining
approval from Company; provided, however, that in no event shall Consultant
provide such other persons or entities with, or incorporate into or provide as
part of any services for such other persons or entities, any information or
know-how obtained by Consultant through its conduct of the Services (including,
without limitation, any Confidential Information (as defined below)).
1.4 Non Competition: Consultant shall not for two years following the
termination or non renewal of this agreement for any reason: (a) directly or
indirectly compete with the Company, or advise or become a partner, consultant,
agent, director, advisor or a 1% shareholder in a business that is substantially
similar to or competitive with the business or planned business of the Company.
Consultant acknowledges and agrees that the geographic, length of term, and
types of activity restrictions contained in this Section 1.4 are reasonable and
necessary to protect the legitimate business interests of the Company.
2. CONFIDENTIAL INFORMATION
2.1 Confidentiality. Consultant agrees to maintain in strict confidence
all Confidential Information (as defined below) provided to, or learned or
developed by, Consultant for a period of five (5) years from the date of
termination. Consultant shall not disclose or disseminate any Confidential
Information to any person or entity, except with the prior written consent of
Company. In addition, Consultant shall not use or copy any Confidential
Information for any purpose other than in connection with performance of the
Services hereunder.
2.2 Definition of Confidential Information. The term "Confidential
Information" shall mean all trade secrets, processes, formulae, data and
know-how, improvements, inventions, chemical or biological materials,
techniques, marketing plans, strategies, customer lists, or other information
that has been created, discovered, or developed by Company, or has otherwise
1
become known to Company, or which proper rights have been assigned to Company,
as well as any other information and materials that are deemed confidential or
proprietary to or by Company (including, without limitation, all information and
materials of Company's customers and any other third party and their
consultants), regardless of whether any of the foregoing are marked
"confidential" or "proprietary" or communicated to Consultant by Company in
oral, written, graphic or electronic form.
2.3 Exceptions to Confidential Information. Notwithstanding the foregoing
paragraph, "Confidential Information" shall not include any information or
materials that: (a) are or become known to the general public through no act or
omission of Consultant or any other person with an obligation of confidentiality
to Company, or (b) are required to be disclosed pursuant to applicable law
(provided, however, that prior to any disclosure of Confidential Information as
required by applicable law, Consultant shall advise Company of such required
disclosure promptly upon learning thereof and shall cooperate with Company in
order to afford them a reasonable opportunity to contest or limit such
disclosure).
2.4 Consultant-Restricted Information. Consultant agrees that Consultant
will not improperly use or disclose to the Company any proprietary or
confidential information or trade secrets of any person or entity with whom
Consultant has an agreement or duty to keep such information or secrets
confidential.
2.5 Use of Third Party Information. Consultant will not use any equipment,
supplies, chemicals, molecules, organisms, biological materials, or other
physical property, facilities or trade secret information of any present or
former employee or consulting client which are not generally available to the
public, unless Consultant has obtained prior written authorization for such use
and have delivered a copy of such authorization to Company prior to such use.
Notwithstanding such authorization, Company shall have the right, at its sole
discretion, to exclude the use of any of the foregoing by Consultant.
3. INTELLECTUAL PROPERTY
3.1 Assignment of Inventions. Consultant agrees that Consultant will
promptly make full written disclosure to Company, will hold in trust for the
sole right and benefit of Company, and hereby assigns, transfers and conveys to
Company, or its designee, all of Consultant's worldwide right, title, and
interest in and to any and all inventions, original works of authorship,
findings, conclusions, data, discoveries, developments, concepts, improvements,
trade secrets, techniques, processes and know-how, whether or not patentable or
registrable under copyright or similar laws, which Consultant may solely or
jointly conceive or develop or reduce to practice, or cause to be conceived or
developed or reduced to practice, in the performance of the Services or which
result, to any extent, from use of Company's premises or property (collectively,
the "Inventions"), including, without limitation, any and all intellectual
property rights inherent in the Inventions and appurtenant thereto including,
without limitation, all patent rights, copyrights, trademarks, know-how and
trade secrets (collectively, "Intellectual Property Rights"). Consultant
acknowledges and agrees that certain of the Inventions (whether made solely by
Consultant or jointly with others) may be "works made for hire," as that term is
defined in the United States Copyright Act, and therefore Company would be
deemed the owner of such Inventions. For purposes of clarification, to the
extent any Invention is not a "work made for hire," such Invention would be
subject to the assignment in the first sentence of this Section 3.1.
3.2 Further Assurances. Upon the request and at the expense of 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 3.1 or to enable Company to secure its rights
in the Inventions and any patents, trademarks, copyrights or other intellectual
property rights relating thereto in any and all jurisdictions, or to apply for,
prosecute and enforce patents, trademark registrations, copyrights or other
intellectual property rights in any and all jurisdictions with respect to any
Inventions, or to obtain any extension, validation, re-issue, continuance or
renewal of any such intellectual property right.
2
4. REPRESENTATIONS AND WARRANTIES
4.1 Each party represents and warrants that, to the best of its knowledge,
it has the right to enter into and to perform its obligations hereunder without
thereby breaching any of its obligations to third parties.
4.2 Consultant represents and warrants to Company that: (i) the Services
performed by Consultant hereunder will be of professional quality, consistent
with generally-accepted industry standards and expectations for work of a
similar nature, (ii) all Services provided to Company hereunder shall conform to
the agreed-upon specifications therefor, if any, (iii) Consultant's performance
under this Agreement and Consultant's retention as a consultant by Company does
not and will not breach any obligation or agreement by which Consultant is bound
to keep in confidence any information Consultant may acquire, or not to compete
with any other person or entity.
5. TERM
5.1 Term. The initial term of this Agreement shall begin on January 1.
2005 and shall end on September 30, 2005 ("Initial Term"). Thereafter, the Term
shall be automatically extended by -6-month periods unless Company notifies
Consultant no later than 60 days prior to the end of the Initial Term or any
extension thereof of its intent not to extend the Agreement.
5.2 Termination. Consultant may terminate this Agreement for any reason
during the term hereof upon thirty (30) days prior written notice to the
Company. Company may terminate the Agreement upon sixty (60) days prior written
notice to the Consultant provided that upon such early termination Company shall
continue to pay Consultant the full consulting fee, benefits and expenses for
the lesser of: (a) 3 months following the termination date, or (b) the end of
the Term (as extended).
5.3 Return of Company Property. All property belonging to Company in
Consultant's possession or control, including, without limitation, all
Confidential Information (as well as all copies, summaries, or other
representations thereof) and all originals and copies of any documents, devices,
records, data, notes, reports, proposals, lists, correspondence, specifications,
drawings, blueprints, sketches, materials, and equipment shall be and remain the
sole property of Company and shall be returned promptly to Company upon the
expiration non renewal or termination of this Agreement, and earlier if
requested by Company at any time.
5.4 Survival. In the event this Agreement expires or is terminated for any
reason, the rights and obligations of Sections 5.2, 5.3 and Articles 2, 3, 4, 6
and 7 shall survive such expiration or termination.
6. NON-SOLICITATION
Non-solicitation. Consultant agrees that during the term of this Agreement and
for one year thereafter, Consultant shall not for any reason, either directly or
indirectly, on Consultant's own behalf or in the service or on behalf of others,
(i) solicit, recruit or attempt to persuade any person to terminate employment
or a consulting relationship with Company or (ii) interfere in any manner with
Company's relationship with, any of Company's co-venturers, vendors, suppliers,
licensors or partners.
7. MISCELLANEOUS
7.1 Independent Contractor. For purposes of this Agreement and all
Services to be provided hereunder, Consultant shall not be considered a partner,
co-venturer, agent, employee or representative of Company, but shall remain in
all respects an independent contractor.
7.2 Rules and Policies. While at Company's facilities, Consultant shall
observe and follow Company's work rules, policies, and standards as the same are
3
communicated to Consultant from time to time, including, without limitation,
those rules, policies and standards of Company relating to security of and
access to facilities, telephone systems, electronic mail systems, and computer
systems.
7.3 Successors. All of the terms and provisions of this Agreement shall be
binding upon and inure to the benefit of and be enforceable by the respective
heirs, executors, administrators, legal representatives, successors and assigns
of the parties hereto, except that the duties and responsibilities of Consultant
hereunder are of a personal nature and shall not be assignable or delegable in
whole or in part by Consultant.
7.4 Amendments. No change, modification, extension, termination or waiver
of this Agreement, or any of the provisions herein contained, shall be valid
unless made in writing and signed by Consultant and a duly authorized
representative of Company.
7.5 No Waiver. No term or provision of this Agreement will be considered
waived and no breach consented to by either party unless such waiver or consent
is in writing signed on behalf of the party against whom it is asserted. No
consent to or waiver of a breach of this Agreement by either party, whether
express or implied, will constitute a consent to, waiver of, or excuse for any
other, different, or subsequent breach of this Agreement by such party.
7.6 Severability. Any provisions of this Agreement which are determined to
be invalid or unenforceable in any jurisdiction shall be ineffective to the
extent of such invalidity or unenforceability in such jurisdiction, without
rendering invalid or unenforceable the remaining provisions of this Agreement or
affecting the validity or enforceability of such provisions in any other
jurisdiction. If a court of competent jurisdiction declares any provision of
this Agreement to be invalid or unenforceable, the parties hereto shall request
that such court reduce the scope, duration, or area of the provision, delete
specific words or phrases from the provision, or to replace the provision with a
provision that is valid and enforceable and that comes closest to expressing the
original intention of the parties hereto, and this Agreement shall be
enforceable as so modified in the jurisdiction in which the provision was
declared invalid or unenforceable.
7.7 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of New Jersey without regard to its conflict of law
provisions.
7.8 Entire Agreement. This Agreement represents the entire agreement
between the parties regarding the Services provided during the term of this
Agreement and shall supersede all previous communications, representations,
understandings, and agreements, whether oral or written, by or between the
parties with respect thereto, whether theretofore or hereafter disclosed to
Consultant. Without limitation, this Agreement does not supersede any
confidentiality agreement that may have been signed between Company and
Consultant.
7.9 Counterparts. This Agreement may be executed in two counterparts, each
of which shall be deemed to be an original as against any party whose signature
appears thereon, but both of which together shall constitute but one and the
same instrument.
[SIGNATURE PAGE IMMEDIATELY FOLLOWS]
IN WITNESS HEREOF, the parties have read and agree to be bound by the above
terms and conditions and have entered into this Agreement effective as of the
date set forth above.
Company Consultant
By: /s/ J. Xxxx Xxxxxx By: /s/ Xxxx Xxxxx
---------------------------------- ---------------------------------------
(Signature) (Signature)
J. Xxxx Xxxxxx Xxxx Xxxxx
---------------------------------- ---------------------------------------
Printed Name Printed Name
CEO Manager
---------------------------------- ---------------------------------------
Title Title
19/January 2005
---------------------------------- ---------------------------------------
Date Date
SCHEDULE A
Schedule A
CONSULTING SERVICES
For a Total time commitment of 20 hours per week on average, Consultant shall
provide the following services:
i. Assisting and advising Company on defining its scientific and
business milestones;
ii. Reviewing and preparing Company technical and business data and
materials;
iii. Assisting the company in preparing its financial statements and
reports;
iv. Assisting the Company in complying with SEC regulation;
v. Reviewing and negotiating legal documents and agreements on behalf
of Company;
vi. Assisting in implementing the Company's commercialization strategy.
vii. Providing various financial services to Company.
viii. Other services as agreed from time to time.
ix. Xxxx Xxxxx shall serve as Acting CFO of the Company and sign off on
various financial statement and representations.
Schedule B
COMPENSATION AND PAYMENT SCHEDULE.
i. Cash: $7,000 per month payment, starting as of January 1, 2004,
during the Term of the Agreement.
ii. Bonus: Consultant shall receive a payment at year-end equal to 40%
of the bonus earned by the CEO of the Company. If Consultant
terminated this Agreement prior to the end of the Term, the bonus
shall be paid the bonus on a pro rata basis based on the actual
number of months this Agreement was in effect.
5
iii. Additional one time payment: Upon the execution of this agreement
Company shall pay Consultant a one-time payment of $4,500.
iv. Benefits: Company shall reimburse Consultant for individual health
insurance expenses.
v. Expenses: Company shall reimburse all approved expenses incurred by
Consultant in connection with the Services provided herein. Expenses
in excess of $1,000.00 shall have prior authorization from the CEO.
vi. Equity: Company shall pay Consultant $1004.5 per month payable in
3500 unrestricted common shares of Company priced at $0.287 per
share.
vii. Vacation: 21 days not including holidays.
6
