EXHIBIT 10
CONSULTING AGREEMENT WITH PROFESSOR XXXX XXXXXX
CONSULTING AGREEMENT
This Agreement is made as of June 10, 2004, to be (partially
retroactively) effective January 15, 2004 between MYMETICS CORPORATION, a
Delaware Corporation (the "COMPANY"), and Professor XXXX XXXXXX, an individual
resident of Lyon, France (the "CONSULTANT").
PREAMBLE
The Company requires certain scientific assistance and advice in
matters of vaccines research and development, and the Consultant has valuable
experience and contacts and wishes to assist the Company in this regard. The
parties have been actively cooperating since January 15, 2004 on the basis of a
Gentlemen's agreement and a Company Board Resolution dated January 9, 2004. Now
therefore, the parties, intending to be legally bound, agree as follows.
AGREEMENT
1. ENGAGEMENT. The Company hereby engages the Consultant to render the
following services, and other services as reasonably requested by the Company:
(1) In close consultation with the Company's Chief Scientific Officer,
direct the Company's vaccine development efforts;
(2) Assist the Company's Chief Scientific Officer in all matters of
scientific importance;
(3) Advise the Board of directors in matters of scientific and
strategic importance;
(4) Address issues relating to the Company's patents and patent
applications;
(5) Assist the Company's Chief Executive Officer in identifying and
developing strategic joint venture opportunities for the Company world-wide.
The Consultant hereby accepts such engagement and covenants that he will devote
his best efforts and skill to the performance of these services and such
additional services as may be mutually agreed upon by the Company and the
Consultant. The Company and the Consultant agree that the engagement shall
comprise approximately 11 days of full time work per month.
2. FEES & EXPENSES.
(A) RETAINER FEE AND EXPENSES. The Company agrees to pay the Consultant
for his services E4'000.00 per month. The Company is obligated to pay the
Consultant only for such time that the Consultant is available to and works for
the Company. The Company shall reimburse the Consultant for his ordinary,
necessary, and reasonable business expenses incurred on Company business upon
presentation of properly documented expense reports to the Company's Chief
Operating Officer. It is agreed that the Consultant shall be entitled to
air-travel in business class for flights lasting more than 3 hours only.
(B) STOCK ISSUE. In addition to the compensation set forth in (a)
above, the Consultant shall receive free of charge 500'000 common shares of the
Company.
3. TERM.
(a) This Agreement shall commence as of its effective date and shall
continue indefinitely unless terminated by either party at any time and for any
reason upon 15 days' prior written notice given to the other party.
Notwithstanding any other provisions of this Agreement, this Agreement shall
terminate automatically without notice at any time upon the occurrence of any of
the following events:
(i) The Consultant's death or Total and Permanent Disability
(as defined below);
(ii) A material breach of this Agreement by the Consultant;
(iii) The Consultant's engaging in conduct materially
injurious to the Company or to himself, including but not limited to acts of
dishonesty or fraud, commission of a felony or a crime of moral turpitude, or
substance abuse; or
(iv) The Consultant's continuing and unreasonable refusal to
substantially perform his duties for the Company as specifically directed by the
Company.
(b) TOTAL AND PERMANENT DISABILITY. "TOTAL AND PERMANENT DISABILITY"
shall mean a mental or physical condition of the Consultant which, in the
reasonable opinion of the Company's Board of Directors, renders the Consultant
unable or incompetent, with or without reasonable accommodation, to perform the
essential functions of his job or devote his best efforts (measured against
prior performance) to the Company, or any of its successors, for more than 60
days.
4. PROPRIETARY AND/OR CONFIDENTIAL INFORMATION. The Consultant agrees
that he will not reveal (or permit to be revealed) to a third party or use for
his own benefit, either during or for five years after the term of this
Agreement, without the prior written consent of the Company, any proprietary
and/or confidential information pertaining to the business of the Company, its
shareholders, subsidiaries or other affiliates (collectively, "AFFILIATES")
including but not limited to information about strategy, customers, suppliers,
employees, financial condition, operations, procedures, know-how, formulas
production, distribution, experiments, patents, or other trade secrets obtained
while working with the Company or its Affiliates except for information clearly
established to be in the public record. Consultant will communicate findings,
conclusions, recommendations, and supporting data and analyses to the Company,
and any such reports shall become the property of the Company. It is agreed and
Consultant agrees that any and all inventions and discoveries, whether or not
patentable, which he conceives and/or makes within the consulting period and
which are a direct result of his consulting with the Company under this
agreement and/or a direct result of proprietary and/or confidential information
received from the Company shall be the property of the Company. Consultant
further agrees that he will, upon request by the Company, promptly execute all
applications, assignments, or other instruments which the Company shall deem
necessary or useful in order to apply for and obtain Letters Patent in the
United States and any foreign countries for such inventions and discoveries. It
is understood that the Company will bear the cost of any such patent filing and
prosecution.
5. NON COMPETE. The Consultant agrees that he will not engage in any
lucrative or voluntary activity during the term of this Agreement which may
contribute to, aid or abet actual or potential competition for the Company.
6. ARBITRATION. Any disagreement or claim (other than a claim for
injunctive relief for violation of Sections 4 or 5 hereof) arising out of or
relating to this Agreement, or the breach thereof, or its termination shall be
submitted to arbitration pursuant to the provisions of the Uniform Arbitration
Act in New York, NY in accordance with the Commercial Arbitration Rules of the
American Arbitration Association, and judgment upon the award rendered by the
Arbitrator(s) may be entered in any court having jurisdiction thereof. The
disputants shall promptly endeavor by mutual agreement to designate one person
to serve as the Impartial Arbitrator within 30 days after written request for
arbitration by any party hereto. If the disputants cannot agree on a single
arbitrator, then each of the disputants shall promptly designate one person to
serve as an arbitrator, and the arbitrators so designated shall within 10 days
select another person (or two persons where necessary to ensure that the total
number of arbitrators is an odd number) as Impartial Chairman of the Board of
Arbitration (and where necessary, Impartial Vice Chairman) by agreement, or if
they are unable to agree, then the Impartial Arbitrator shall be selected
through the facilities of the New York Regional Office of the American
Arbitration Association and in accordance with the rules thereof. The Award of
the Impartial Arbitrator or the Board of Arbitration (as the case may be) shall
be final and binding upon the disputants, subject only to such rights of appeal
as are provided by the said Act. The costs of the arbitration proceeding,
including the fees of the Impartial Arbitrator or the Board of Arbitration (as
the case may be) shall be borne equally by the disputants.
7. INDEPENDENT CONTRACTOR. The Consultant, in entering into this
Agreement and carrying out his obligations hereunder, is an independent
contractor and not an employee of the Company. The Consultant hereby agrees and
understands that he is not entitled to any benefits or overtime payments that
are available to employees of the Company. The Consultant is not and shall not
be deemed to be an agent or Consultant of the Company, and shall have no power
to bind the Company to any contract or warranty or in any respect whatever,
whether by written or oral statements, by any course of conduct, or in any other
manner, without the express written consent of the Company, which consent may
not be general but must specifically refer to each particular instance as to
which the Company consents to be so bound. The Consultant shall indemnify the
Company against and hold it harmless from all damages, costs, and expenses
(including attorneys' fees) which the Company may suffer or incur should it be
held bound by any writing, speech, action or inaction of the Consultant other
than those consented to by the Company.
8. TAXES. To the extent any taxes may be due on the payments to
Consultant provided in this Agreement, Consultant agrees to pay them himself and
to indemnify and hold Company harmless for any tax claims or penalties resulting
from such payments. Consultant further agrees to provide any and all information
pertaining to Consultant upon request as reasonably necessary for Company to
comply with applicable tax laws.
9. MISCELLANEOUS. The invalidity or unenforceability of any provision
hereof shall in no way affect the validity or enforceability of any other
provision. This Agreement embodies the entire Agreement between the parties
hereto and supersedes any and all prior or contemporaneous, oral or written
understandings, negotiations, or communications on behalf of such parties. This
Agreement may be executed in several counterparts, each of which shall be deemed
original, but all of which together shall constitute one and the same
instrument. The waiver by either party of any breach or violation of any
provision of this Agreement shall not operate or be construed as a waiver of any
subsequent breach or violation hereof. This Agreement is executed in and shall
be governed by and construed in accordance with the laws of the State of New
York. Any action or proceedings instituted to enforce rights hereunder shall be
instituted in the State courts of New York and/or the federal courts of the
Southern district of New York, New York. This Agreement shall be changed,
waived, discharged, or terminated only by written agreement of both parties
hereto. This Agreement shall inure to the benefit of the Company, its successors
and assigns.
MYMETICS CORPORATION THE CONSULTANT
By: /s/ XXXXXXXXX XXXXXX /s/ XXXX XXXXXX
------------------------- ---------------------
Name: XXXXXXXXX XXXXXX Professor XXXX XXXXXX
Title: President and CEO
By: /s/ XXXXX XXXXX
-------------------------
Name: XXXXX XXXXX
Title: CFO
