CONSULTING AGREEMENT
Exhibit 10.1
BIOPURE/XXXXXX AGREEMENT
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This AGREEMENT (hereinafter referred to as the “Agreement”), dated as of December 17, 2007,
between BIOPURE CORPORATION (hereinafter referred to as the “Company”) and Xxxxx X. Xxxxxx
(hereinafter referred to as the “Consultant”);
W
I T N E S S E T H:
WHEREAS, the Company’s Acting Chief Financial Officer has retired;
WHEREAS, the Company needs immediate assistance in the conduct of CFO duties and
responsibilities;
WHEREAS, the Consultant has experience enabling him to render services in these matters on a
temporary basis;
NOW, THEREFORE, in consideration of the mutual covenants herein set forth and of the promises
contained herein, the Company and the Consultant hereby agree as follows:
1. Engagement as Independent Contractor. The Company hereby engages the Consultant
as an independent contractor, and the Consultant hereby accepts said engagement under the terms and
conditions set forth herein.
2. Role of Consultant. The Consultant shall serve as Interim Chief Financial
Officer. The Company will make available to the Consultant an office for his use at such times as
the Consultant renders services at the Company’s headquarters and a Blackberry for his business
use.
3. Term. The primary term during which consulting services shall be required under
this Agreement shall be three months from the date of this Agreement, and this Agreement will
automatically renew for additional one month terms unless terminated by either party at least one
month prior to the last day of the primary term or any renewal term.
4. Consultant’s Fee. The Company shall pay the Consultant at the monthly rate of
$16,667, payable monthly in arrears.
5. Expenses. The Company will promptly reimburse the Consultant, upon submission by
the Consultant of an adequately detailed and documented listing of such expenses, the Consultant’s
reasonable out-of-pocket expenses incurred in travel at the Company’s request and otherwise in
rendering his services under this Agreement, provided such expenses are incurred at the request of
the Company.
6. Representation by the Consultant. The Consultant represents and warrants to the
Company that (i) he is not a party to, or bound by, any agreement or commitment, or subject to any
restriction, including but not limited to agreements related to previous consulting engagements or
employment containing confidentiality or non-compete covenants, which adversely affects or
conflicts with the
BIOPURE/XXXXXX AGREEMENT
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Consultant’s ability to enter into or render his services under this Agreement; and (ii) he is
not aware of any impediment to his being accessible and available, with reasonable notice and
consistent with the needs of his other clients, to the Company to render his services under this
Agreement.
6A. Representation by the Company: The Company represents and warrants to the
Consultant that during the period of performance of his duties under this Agreement and thereafter
on a “claims made” basis, the Consultant will be indemnified by the Company to the same extent as
if he were an officer and/or employee and covered by the Company’s directors and officers liability
insurance
7. Confidentiality.
(a) Company Information. The Consultant acknowledges that as a result of the
Consultant’s engagement with the Company, the Consultant will necessarily become informed of, and
have access to, certain non-public information about the Company and its subsidiaries, including,
without limitation, trade secrets, technical information, and preclinical and clinical information
(“Company Information”). The Consultant shall not at any time, either during or subsequent to the
term of this Agreement, use, reveal, report, publish, transfer or otherwise disclose to any person,
corporation or other entity without the prior written approval of the Board of Directors or the
Chief Executive Officer of the Company (which approval may be withheld in the sole discretion of
such Board or Officer), any of the Company Information (a) except to the responsible officers and
employees of the Consultant who have a need for such information for purposes in the best interests
of the Company; (b) except for such information that legally and legitimately is or becomes of
general public knowledge from authorized sources other than the Consultant; and (c) except, after
prior consultation with the Company, any legally required disclosure. Company Information shall
include information contributed, developed or acquired by the Consultant in the performance of
services hereunder. The Consultant shall be jointly and severally liable for any breach hereof by
him or any transferee of Company Information from the Consultant.
(b) Return of Company Information. Upon the termination of this Agreement, the
Consultant shall promptly deliver to the Company all tangible manifestations of Company
Information, including notes, notebooks, reports and all other materials, whether written or in
electronic form, and any copies thereof, whether or not of a secret or confidential nature,
relating to the Company’s business that are in the Consultant’s possession or control, including
computers owned or used by Consultant, wherever located.
(c) Ownership of Information. The Consultant acknowledges that the Company
Information, including all information contributed, developed or acquired by the Consultant and all
tangible manifestations thereof, is the exclusive property of the Company to be held by the
Consultant in trust and solely for the Company’s benefit. The Consultant will execute and deliver
all instruments, including assignments of copyrights or patents, that may be necessary or desirable
to vest in the Company title to and possession of the Company Information contributed, developed or
acquired by the Consultant.
8. Availability of Injunctive Relief. The parties agree that in the event of the
Consultant’s breach of Section 7 the Company would have no adequate relief at law and shall be
entitled, in addition to all other remedies which may be available to it, to injunctive relief in
any court of
BIOPURE/XXXXXX AGREEMENT
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competent jurisdiction to prevent or otherwise restrain or terminate any actual or threatened
breach of such section by the Consultant.
9. Miscellaneous.
(a) The failure of any provision of this Agreement shall in no manner affect the right to
enforce the remaining portions of this Agreement, and the waiver by any party of any breach of any
provision of this Agreement shall not be construed to be a waiver by such party of any succeeding
breach of such provision or a waiver by such party of any breach of any other provision. If any
court construes any of the covenants herein, or any part thereof, to be unenforceable because of
the duration of such provisions or the area covered thereby, such court shall have the power to
reduce the duration or area of such provision and, in its reduced form, such provision shall then
be enforceable and shall be enforced.
(b) The foregoing contains the entire agreement between the Company and the Consultant with
respect to the Consultant’s engagement as an independent contractor, and no modification therefore
shall be binding upon a party unless the same is in writing signed by such party thereto.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of the date herein
first set forth above.
/s/
Xxxxx X. Xxxxxx
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Date: December 17, 2007 | |||
BIOPURE CORPORATION |
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By:
/s/ Xxxxxxx X. Xxxxxxxxx
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Date: December 17, 2007 | |||
