EXHIBIT 10.7
NON-EXCLUSIVE CONSULTING AGREEMENT
This Non-Exclusive Consulting Agreement ("AGREEMENT") is executed this
5th day of April, 2004, to be effective as of March 20, 2004 (the "EFFECTIVE
DATE") by and between Xtrana, Inc., a Delaware corporation (the "COMPANY"), and
JHC Consulting Inc., a California corporation (the "CONSULTANT"), in reference
to the following:
PRELIMINARY STATEMENT
The Company wishes to retain the Consultant on a non-exclusive basis,
and the Consultant wishes to be retained by the Company to assist the Company,
and to provide to the Company the "Services" set forth below, all upon the terms
and subject to the conditions set forth in this Agreement.
AGREEMENT
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Company and the Consultant
agree as follows:
1. TERM. The Company retains the Consultant and the Consultant
accepts this appointment with the Company for a period commencing as of the
Effective Date and terminating on earlier to occur of September 20, 2004 and the
closing of a Company Transaction (the "TERM"). For purposes of this Agreement, a
"COMPANY TRANSACTION" means the closing of a reverse merger transaction or
similar transaction or other merger, consolidation or reorganization involving
the Company, or the liquidation or dissolution of the Company.
2. DUTIES OF CONSULTANT. The Consultant has performed and will
continue to perform such of the following non-exclusive consulting services for
the Company as the parties may mutually agree, and subject to Consultant's
availability: (a) serving as Interim Chief Executive Officer and Interim Chief
Financial Officer, and (b) such other services related thereto as are reasonably
requested by the Company's Board of Directors (the "SERVICES"). The Consultant
will determine, in his sole discretion, the method, details and means of
performing the Services, but will at all times provide the Services through
Xxxxx Xxxxxxxxxxx. Xxxxx Xxxxxxxxxxx shall not be required to devote his full
time and business attention to the performance of the Services; PROVIDED that
Consultant shall cause Xxxxx Xxxxxxxxxxx to give priority to the Services over
his other business obligations.
3. COMPENSATION. As compensation for the Services, the Company
will pay to the Consultant the sum of $30,000 (the "CONSULTING FEE"), payable in
installments of $5,000 per calendar month (pro rated for any partial month of
the Term); PROVIDED, HOWEVER, that any remaining unpaid portion of the
Consulting Fee shall be paid to the Consultant in a lump sum upon the closing of
a Company Transaction. Xxxxx Xxxxxxxxxxx shall continue to receive such
additional compensation as paid to the Company's non-employee directors pursuant
to the Company's Board of Directors compensation policies as in effect from time
to time.
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4. NONDISCLOSURE.
4.1 ACCESS TO CONFIDENTIAL INFORMATION. The Consultant
agrees that during the Term of the business relationship between the Consultant
and the Company, the Consultant will have access to and become acquainted with
confidential proprietary information ("CONFIDENTIAL INFORMATION") which is owned
by the Company and is regularly used in the operation of the Company's business.
The Consultant agrees that the term "Confidential Information" as used in this
Agreement is to be broadly interpreted and includes (i) information that has, or
could have, commercial value for the business in which the Company is engaged,
or in which the Company may engage at a later time, and (ii) information that,
if disclosed without authorization, could be detrimental to the economic
interests of the Company. The Consultant agrees that the term "Confidential
Information" includes, without limitation, any patent, patent application,
copyright, trademark, trade name, service xxxx, service name, "know-how,"
negative "know-how," trade secrets, customer and supplier identities,
characteristics and terms of agreement, details of customer or consultant
contracts, pricing policies, operational methods, marketing plans or strategies,
product development techniques or plans, business acquisitions plans, science or
technical information, ideas, discoveries, designs, computer programs (including
source codes), financial forecasts, unpublished financial information, budgets,
processes, procedures, formulae, improvements or other proprietary or
intellectual property of the Company, whether or not in written or tangible
form, and whether or not registered, and including all memoranda, notes,
summaries, plans, reports, records, documents and other evidence thereof. The
Consultant acknowledges that all Confidential Information, whether prepared by
the Consultant or otherwise acquired by the Consultant in any other way, will
remain the exclusive property of the Company.
4.2 NO UNFAIR USE BY CONSULTANT. The Consultant promises
and agrees that the Consultant (which shall include its employees and
contractors) will not misuse, misappropriate, or disclose in any way to any
person or entity any of the Company's Confidential Information, either directly
or indirectly, nor will the Consultant use the Confidential Information in any
way or at any time except as required in the course of the Consultant's business
relationship with the Company.
5. TERMINATION.
5.1 TERMINATION ON DEFAULT. Should either party default
in the performance of this Agreement or materially breach any of its provisions,
the non-breaching party may terminate this Agreement by giving written
notification to the breaching party. Termination shall be effective immediately
on receipt of said notice. For purposes of this section, material breaches of
this Agreement shall include, but not be limited to, (i) the failure by the
Company to pay the compensation set forth in SECTION 3 above; (ii) the
Consultant's commission of acts of material fraud or material misrepresentation;
(iii) the failure by the Consultant to conform in all material respects to all
laws and regulations governing the Consultant's duties under this Agreement.
5.2 AUTOMATIC TERMINATION. This Agreement terminates
automatically on the occurrence of any of the following events: (i) the
bankruptcy, insolvency, liquidation or dissolution of the Company; or (ii) the
death or disability of Xxxxx Xxxxxxxxxxx.
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5.3 RETURN OF COMPANY PROPERTY. Upon the termination or
expiration of this Agreement, the Consultant will immediately transfer to the
Company all files (including, but not limited to, electronic files), records,
documents, drawings, specifications, equipment and similar items in its
possession relating to the business of the Company or its Confidential
Information (including the work product of the Consultant created pursuant to
this Agreement).
7. BUSINESS EXPENSES. The Company will reimburse the Consultant
for all reasonable, pre-approved business expenses incurred by the Consultant.
8. NOTICES. Unless otherwise specifically provided in this
Agreement, all notices or other communications (collectively and severally
called "NOTICES") required or permitted to be given under this Agreement, shall
be in writing, and shall be given by: (A) personal delivery (which form of
Notice shall be deemed to have been given upon delivery), (B) by telegraph or by
private airborne/overnight delivery service (which forms of Notice shall be
deemed to have been given upon confirmed delivery by the delivery agency), or
(C) by electronic or facsimile or telephonic transmission, provided the
receiving party has a compatible device or confirms receipt thereof (which forms
of Notice shall be deemed delivered upon confirmed transmission or confirmation
of receipt). Notices shall be addressed to the address set forth on the
signature page of this Agreement, or to such other address as the receiving
party shall have specified most recently by like Notice, with a copy to the
other party.
9. MISCELLANEOUS.
9.1 CHOICE OF LAW. This Agreement shall be governed
according to the laws of the state of Delaware, notwithstanding the conflict of
laws principles thereof.
9.2 ENTIRE AGREEMENT. This Agreement supersedes any and
all other agreements, either oral or in writing, between the parties hereto with
respect to the services to be rendered by the Consultant to the Company and
contains all of the covenants and agreements between the parties with respect to
the services to be rendered by the Consultant to the Company in any manner
whatsoever. Each party to this Agreement acknowledges that no representations,
inducements, promises, or agreements, orally or otherwise, have been made by any
party, or anyone acting on behalf of any party, which are not embodied herein,
and that no other agreement, statement, or promise not contained in this
Agreement shall be valid or binding on either party.
9.3 COUNTERPARTS. This Agreement may be executed manually
or by facsimile signature in two or more counterparts, each of which shall be
deemed an original, and all of which together shall constitute but one and the
same instrument.
9.4 SEVERABILITY. If any term or provision of this
Agreement or the application thereof to any person or circumstance shall, to any
extent, be determined to be invalid, illegal or unenforceable under present or
future laws effective during the term of this Agreement, then and, in that
event: (A) the performance of the offending term or provision (but only to the
extent its application is invalid, illegal or unenforceable) shall be excused as
if it had never been incorporated into this Agreement, and, in lieu of such
excused provision, there shall be added a provision as similar in terms and
amount to such excused provision as may be possible and be legal, valid and
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enforceable, and (B) the remaining part of this Agreement (including the
application of the offending term or provision to persons or circumstances other
than those as to which it is held invalid, illegal or unenforceable) shall not
be affected thereby and shall continue in full force and effect to the fullest
extent provided by law.
9.5 INDEMNIFICATION. The Company must indemnify, defend
and hold Consultant harmless for all losses, damages, claims or proceedings
involving the Consultant and relating to the Company (including any of its
officers or directors or any of its subsidiaries) to the fullest extent provided
by applicable law, unless such losses, damages, claims or proceedings directly
relate to Consultant's own gross negligence, fraud or material breach of this
Agreement.
WHEREFORE, the parties have executed this Agreement on the date first
written above, to be effective as of the Effective Date.
"CONSULTANT"
JHC CONSULTING INC.
By: /S/ XXXXX X. XXXXXXXXXXX
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Name: Xxxxx X. Xxxxxxxxxxx
Title:
Address:
"COMPANY"
XTRANA, INC.
By: /S/ XXXXXXX X. XXXX, PH.D.
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Name: Xxxxxxx X. Xxxx, Ph.D.
Title: Chairman of the Board of Directors
Address:
X.X. Xxx 000
Xxxxxxx, Xxxxxxxx 00000
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