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EXHIBIT 10(v)
(v) Consulting Agreement between the Company and
Girmon Investment Co. dated October 13, 1995.
CONSULTING AGREEMENT
THIS AGREEMENT entered into as of October 13, 1995 (the "Agreement") by and
between Viragen, Inc. (the "Company") and Girmon Investment Co., Limited, a
company incorporated in Ireland, Company No. 233671 ("Girmon"), acting solely
by and through its Chairman of the Board and Chief Executive Officer, Xx. Xxxx
Xxxxxx ("Xxxxxx") (collectively the "Consultant"), hereby agree to the
following:
1. Appointment of Consultant. The Company hereby engages
Consultant, on a non-exclusive basis, and Consultant hereby agrees to render
services to the Company through Hermon as an international financial and
business development consultant on a worldwide basis.
2. Duties. During the term of this Agreement, Consultant, solely
by and through Hermon, shall provide advice to, undertake for and consult with
the Company concerning international, financial and business development
matters, including but not limited to, financial and investor relations,
international marketing, strategic planning, and corporate organization and
structure. Hermon shall devote and spend a minimum of 50% of his business time
and effort, representing not less than eighty (80) hours per calendar month,
exclusively to perform services for the Company in accordance with this
Agreement, subject to an appropriate and proportional reduction for U.S. legal
holidays and equivalent of three (3) vacation weeks per twelve (12) month
period. Consultant shall use its best efforts to at all times promote the best
interests of the Company.
3. Term. Subject to the provisions of paragraph 8 herein, the
term of this Agreement shall be for a two (2) year period commencing on the
date hereof.
4. Compensation. For the services described herein, Consultant
shall receive as sole and aggregate compensation from the Company, including
its subsidiaries and affiliates, for all services rendered to and on behalf of
the Company, a Warrant, attached hereto as Exhibit A and made a part hereof,
for the purchase of up to 250,000 shares of the Company's Common Stock,
irrevocably exercisable for a period of five (5) years following the dates of
vesting as described herein. The purchase price of the shares underlying the
Warrant shall be $1.00 per share. The Warrant shall vest and become exercisable
by Consultant (a) as to 83,334 shares on the date hereof, (b) as to 83,333
shares on April 13, 1996, and (c) as to 83,333
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shares on October 13, 1996. The Company acknowledges that this compensation
shall be in addition to any compensation, including warrants, previously
received by Hermon for prior services performed for the Company.
5. Expenses. Consultant shall be promptly reimbursed by the
Company for reasonable, documented, out-of- pocket expenses it shall incur in
performing its services under this Agreement up to an aggregate of $20,000 per
12- month period of this Agreement. Travel and related expenses shall be
limited to those incurred by Hermon. Receipts for reimbursable expenses shall
be provided by Consultant in accordance with Company policy.
6. Registration. The Company agrees to provide Consultant with
certain registration rights as defined in Exhibit A attached hereto.
7. Confidentiality. Consultant agrees to execute the Company's
Confidentiality Agreement attached hereto as Exhibit B and made a part hereof.
In view of the Confidential Information to be obtained by or disclosed to
Consultant, because of the know-how acquired and to be acquired by Consultant,
and as a material inducement to the Company to enter into this Agreement and
continue to engage Consultant, Consultant covenants and agrees that, so long as
Consultant is engaged by the Company and for a period of two (2) years after
Consultant ceases for any reason to be engaged by the Company, Consultant shall
not, directly or indirectly (i) divert business from, (ii) solicit or transact
any business competitive with the Company or its affiliates with, or (iii) sell
any products or services sold or offered by the Company or its affiliates to,
any customer or former customer of the Company or its affiliates. In addition,
Consultant covenants and agrees that, so long as Consultant is engaged by the
Company and for a period of two (2) years after Consultant ceases for any
reason to be engaged by the Company, Consultant hereby agrees to refrain from,
anywhere in the world (the "Geographical Area"), directly or indirectly owning,
managing, operating, controlling or financing, or participating in the
ownership, management, control or financing, or participating in the ownership,
management, control or financing of, or being connected with or having an
interest in, or otherwise taking any part as a stockholder, director, officer,
employee, agent, consultant, partner or otherwise in, any business competitive
with that engaged in or being developed by the Company or its affiliates during
Consultant's term of engagement. The Company's business is acknowledged to
include, but not be limited to, the development, manufacture and distribution
of human leukocyte-derived interferon therapy products and other derivative
natural or recombinant technologies aimed at enhancing the human immune system,
including cosmetic applications. Consultant acknowledges that the Company's
business is international in scope, that a similar business could effectively
compete with the Company and its affiliates' businesses from any location in
the world, and that,
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therefore, the restricted Geographical Area is reasonable in scope to protect
the Company and its affiliates' trade secrets and legitimate business
interests. Any advice rendered by Consultant pursuant to this Agreement may
not be disclosed publicly in any manner without the prior written approval of
the Company. The provisions of this paragraph 7 shall survive the termination
and expiration of this Consulting Agreement.
8. Termination.
A. Events. Notwithstanding any provisions of this
Agreement (and its Exhibits) to the contrary, Consultant's engagement may be
terminated by the Company with Cause (as hereinafter defined), effective upon
the delivery of written notice to Consultant. In addition, Consultant's
engagement shall automatically terminate (i) upon Consultant filing for
protection of any kind under bankruptcy law in any jurisdiction (ii) upon
Hermon leaving the post of Chairman or CEO of Girmon, leaving the employ of
Girmon or directly or indirectly disassociating himself in any way with Girmon
(iii) upon a change of control of Girmon from Hermon to any other person or
entity (iv) upon Hermon's death or (v) upon Hermon becoming Disabled (as
hereinafter defined).
B. Definition of Cause. For purposes of this Agreement,
"Cause" shall include, but not be limited to: (a) conviction for fraud or
criminal conduct (other than conviction of, or a plea of guilty to, a non-DUI
related traffic violation) (b) habitual drunkenness or drug addiction; (c)
embezzlement; (d) sanctions against Consultant in its capacity as a advisor to
the Company by regulatory agencies governing the Company or against Consultant
because of wrongful acts or misconduct of Consultant (e) breach or default by
Consultant of any of the terms or conditions of Section 7 of this Agreement,
(f) material breach or default by Consultant of any of the terms or conditions
of the Confidentiality Agreement attached as Exhibit B hereto or (g)
resignation by Consultant prior to the end of the term of this Agreement (in
this last event, Consultant's engagement is deemed terminated with Cause on the
date that it resigns).
C. Definition of Disabled. For purposes of this
Agreement, Hermon shall be deemed to be "Disabled" when, by reason of physical
or mental illness or of injury, he is unable to perform substantially all of
the duties and responsibilities required of him in connection with his
employment hereunder. No disability shall be deemed to exist until after
Hermon shall be unable to perform his duties hereunder for ninety (90)
consecutive days (the "Disability Period"). If Hermon shall have been under a
disability but shall have returned to work prior to the end of the Disability
Period, any new disability commencing within thirty (30) days of the
termination of the prior disability shall be a continuation of the prior
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disability, and the period of all such disabilities shall be added together to
determine whether, or how much of, the Disability Period has elapsed.
9. Irrevocability of Warrants Following Vesting. Consultant and
the Company agree that, subject to termination pursuant to Section 8 of the
Warrant attached as Exhibit A hereto, upon the vesting of the Warrant pursuant
to its terms, such Warrant shall be irrevocable for a period of five (5) years.
10. Independent Contractor. Consultant and the Company hereby
acknowledge that Consultant is an independent contractor. Unless directed by
the Company in writing, Consultant shall not hold itself out as, nor shall it
take any action from which others might infer, that it is an agent of or a
joint venture of the Company. Consultant and the Company hereby acknowledge
that Consultant is acting solely as an independent contractor and as an
independent advisor.
11. Miscellaneous. This Agreement sets forth the entire
understanding of the parties relating to the subject matter hereof, and
supersedes and cancels any prior communications, understandings and agreements
between the parties, except for any warrant agreements existing prior to the
date hereof between Hermon and the Company. This Agreement cannot be modified
or changed, nor can any of its provisions be waived, except by written
agreement signed by all parties. This Agreement shall be governed by the laws
of the State of Florida. In the event of any dispute as to the terms of this
Agreement, the prevailing party in any litigation shall be entitled to
reasonable attorney's fees.
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12. Notices. Any notices or communications with respect to this
Agreement shall be delivered to the following addresses:
As to the Company: Viragen, Inc.
Attn: Xxxxxx Xxxxx, President
0000 Xxxx 00xx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
As to Consultant: Girmon Investment Co., Limited
Attn: Xxxx Xxxxxx, Chairman of the Board
and Chief Executive Officer
c/o Xx. Xxxx Xxxxxxxxx
Xxxxxxxxx, Xxxxxxx & Co.
Chartered Accountants
0 Xxxxx Xxxxxx, Xxxxxxx Xxxxxx
Xxxxxx XX, Xxxxxx Xxxxxxx
IN WITNESS WHEREOF, the parties and their duly authorized representatives have
executed this Agreement as of the day and year first above written.
VIRAGEN, INC.
By:
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Xxxxxx Xxxxx, President
GIRMON INVESTMENT CO., LIMITED,
a company incorporated in Ireland
By:
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Xxxx Xxxxxx, Individually and as
Chairman of the Board and Chief
Executive Officer
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