Exhibit 10.1
EXECUTIVE CONSULTING AGREEMENT
This Executive Consulting Agreement is made and entered into this
29th day of August, 2005, by and between HUMAN BIOSYSTEMS, a California
corporation, having a place of business at 0000 Xxxxxx Xxxxxx, Xxxx
Xxxx, XX 00000 (the "Company"), and XX. XXXXX XXXXXX, an individual
("Consultant").
RECITALS
A. The Company is in the business of developing economical, non-toxic methods of
extending the shelf life and improving the quality of blood platelets, donor
organs and other biological material.
B. Consultant has certain skills, experience and abilities with respect to the
Company's business.
C. The Company desires to retain Consultant as an independent contractor to
perform certain services for the Company, including but not limited to serving
as the President, and Consultant desires to serve the Company in such capacity,
on the terms and conditions set forth herein.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual terms, covenants and conditions
hereinafter set forth, the parties hereto do hereby agree as follows:
1. Services. Consultant shall provide services to the Company as President,
subject to the supervision and direction of the Company's Chief Executive
Officer. Subject to the discretion of the Chief Executive Officer, Consultant
shall:
a. Oversee the Company's platelet and organ development programs;
b. Supervise negotiations with the Company's alliance partners, including but
not limited to determining potential alliance partners, and setting
strategy for and conducting negotiations with such partners;
c. Attend meetings (some of which may require international travel),
participate in conference calls and otherwise work with Company employees
and consultants to achieve the Company's goals; and
d. Such other duties as may be within Consultant's expertise, as determined
by the Chief Executive Officer.
2. Acceptance of Consultant. Consultant hereby accepts such engagement and
agrees to devote his best efforts to the service of the Company. Consultant
shall exercise exclusive control over the manner in which the services are
performed. Consultant shall use and employ his tools, instrumentalities and
facilities with, or in, which to perform the services.
3 Compensation.
a. Monthly Retainer. The Company agrees to pay Consultant a monthly retainer
of Three Thousand Dollars ($3,000) in consideration of the services to be
rendered hereunder.
b. Stock Options. The Company hereby grants Consultant an option to purchase
Ninety-Six Thousand (96,000) shares of the Company's common stock. The
exercise price for the options shall be the closing price of the Company's
common stock, as traded on the Over-the-Counter Bulletin Board ("OTCBB')
on the date this Agreement is signed by Consultant. The options shall
vest over a twelve (12) month period, at the rate of 8.000 shares per
month. The options shall be issued pursuant to the Company's nonqualified
stock option plan and Consultant shall execute the Company's standard
stock option agreement setting forth the terms of the options.
c. Performance Bonus. During the term of this Agreement, Consultant shall be
eligible to receive a performance bonus in the maximum amount of One
Hundred Thousand (100,000) shares of the Company's common stock upon
reaching the following performance targets established by the Board of
Directors:
(i) Thirty Thousand (30,000) shares upon the Company's signing a letter
of intent with a potential alliance partner or institutional
investor within 12 months from the date of this agreement;
(ii) Forty Thousand (40,000) shares upon the Company's signing a final
binding agreement with an alliance partner or institutional investor
within 18 months from the date of this agreement; and
(iii) Thirty Thousand (30,000) shares upon the Company's completion of the
human infusion studies in process at the commencement of this
Agreement, to be completed within 12 months from the date of his
agreement..
4. Reimbursement of Expenses. Consultant shall also be reimbursed for all
reasonable expenses incurred during the performance of the services, subject to
the prior approval of the Company. Compensation and expense reimbursement shall
be paid to Consultant in United States Dollars and within 30 days of receipt and
approval by the Company of Consultant's itemized monthly invoice for services
rendered and expenses incurred
5. Taxes. All taxes of every nature and kind levied on Consultant by any
government authority in relation to the services provided under this Agreement,
including without limitation franchise, net or gross income, license, occupation
or property taxes, shall be the responsibility of Consultant, and the Company
shall have no obligation to Consultant for the same. Consultant shall report
and pay, as an independent contractor, all taxes applicable to amounts received
form the Company.
6. Assignment of Inventions.
a. Disclosure; ownership and assignment. Consultant agrees that he will
promptly make full written disclosure to the Company, will hold in trust
for the sole right and benefit of the Company, and hereby assigns to the
Company, or its designee, all his right, title, and interest in and to
any and all inventions, original works of authorship, developments,
concepts, improvements or trade secrets, whether or not patentable or
registrable under copyright of 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, during the period of time
Consultant is engaged by the Company (collectively the "Inventions"),
except as provided in Section 6(d) below. Consultant further
acknowledges that all original works of authorship which are made by him
(solely or jointly with others) within the scope of and during the period
of his engagement by the Company and which are protectable by copyright
are "works made for hire," as that term is defined in the United States
Copyright Act.
b. Maintenance of Records. Consultant agrees to keep and maintain adequate
and current written records of all Inventions made by him (solely or
jointly with others) within the scope of and during the term of his
engagement by the Company. The records will be in the form of notes,
sketches, specifications, drawings and any other format that may be
specified by the Company. The records will be available to and remain the
sole property of the Company at all times.
c. Patent and Copyright Registrations. Consultant agrees to assist the
Company, or its designee, at the Company's expense (including payment to
him of commercially reasonable consulting fees if Consultant is no longer
engaged with the Company), in every proper way to secure the Company's
rights in the Inventions and any copyrights, patents, mask work rights or
other intellectual property rights relating thereto in any and all
countries, including the disclosure to the Company of all pertinent
information and data with respect thereto, the execution of all
applications, specifications, oaths, assignments and all other
instruments which the Company shall deem necessary in order to apply for
and obtain such rights and in order to assign and convey to the Company,
its successors, assigns, and nominees the sole and exclusive rights,
title and interest in and to such Inventions, and any copyrights,
patents, mask work rights or other intellectual property rights relating
thereto. Consultant further agrees that his obligation to execute or
cause to be executed, when it is in his power to do so, any such
instrument or papers shall continue after the termination of this
Agreement. If the Company is unable because of his mental or physical
incapacity or for any other reason to secure his signature to apply for
or to pursue any application for any United States or foreign patents or
copyright registrations covering Inventions or original works of
authorship assigned to the Company as above, then Consultant hereby
irrevocably designates and appoints the Company and its duly authorized
officers and agents as his agent and attorney-in-fact, to act for and in
his behalf and stead to execute and file any such applications and to do
all other lawfully permitted acts to further the prosecution and issuance
of letters patent or copyright registrations thereon with the same legal
force and effect as if executed by him. Company agrees to identify
Consultant as a contributor to such Inventions.
d. Exception to Assignments. Consultant understands that the provisions of
this Agreement requiring assignment of Inventions to the Company do not
apply to any invention described as follows:
(i) an invention that Consultant developed entirely on his own time without
using the Company's equipment, supplies, facilities, or trade secret
information except for those inventions that either:
A. relate at the time of conception or reduction to practice of the
invention to the Company's business, or actual or demonstrably
anticipated research or development of the Company; or
B. result from any work performed by Consultant for Company.
(ii) to the extent an invention is used in an application other than those
provided by Company.
7. Confidentiality. Except as may be required by Consultant's engagement with
the Company, Consultant shall not, without the prior written consent of the
Company, disclose or use at any time, either during or subsequent to
Consultant's engagement by the Company, any secret or confidential
information (collectively referred to as "Confidential Information")
disclosed by the Company to him or which he learns during his employment
with the Company. Upon termination of this Agreement, Consultant shall
promptly deliver to the Company all correspondence, manuals, letters, notes,
notebooks, reports, flow-charts, programs, proposals or any other documents
concerning the Company's customers, products, processes or business
practices. However, this provision shall not apply to the information,
systems, processes, contacts or operating methodologies brought by
Consultant to the Company or general information and skills learned or
developed by Consultant, any information in the public domain, or disclosed
to third parties by the Company. For purposes of this Agreement,
"Confidential Information shall include but not be limited to customer
lists, contact lists, vendor lists, bidding procedures, designs,
specifications, source codes, mask works, products in development, technical
drawing, schematics, bills of materials, sales and manufacturing techniques,
developments, production processes, operational methodologies, financial
statements, marketing strategies, employee data and other information
related to such business and practices of the Company.
8. Non-Solicitation. During the term of this Agreement and for a period of one
(1) years following the termination or expiration of this Agreement for whatever
reason (or if this period of time shall be unenforceable by law, then for such
period as shall be enforceable), Consultant agrees not to contact, with a view
towards selling any product or service competitive with any product or service
purchased or sold by Company, or purchase or sell any such product or service
from or to any person, firm, association, corporation or other entity
whatsoever: (i) which Consultant solicited, contacted or otherwise dealt with
on behalf of the Company during the twelve (12) month period or any portion
thereof preceding termination or expiration of Consultant's employment with the
Company; or (ii) which is known by Consultant to have been a customer of the
Company during the twelve (12) month period or any portion thereof preceding the
termination or expiration of this Agreement. Furthermore, Consultant shall not
for a period of two (2) years after the termination of this Agreement, solicit
for hire, or hire any employee of the Company, or any person who was employed by
the Company at any time within six (6) months of the termination of this
Agreement, to work for Consultant or any other person or entity.
9. Covenant Not To Compete. Consultant agrees that, during the term of this
Agreement, Consultant shall not, directly or indirectly, engage in any
employment, occupation, consulting or other business activity directly related
to the business in which the Company is now involved or becomes involved during
the term of his engagement, nor will Contractor engage in any other activities
that conflict with his obligations to the Company.
10. Equitable Relief. Both parties recognize that Consultant's obligations
under the Agreement are special, unique, and of extraordinary character, for
which monetary damages would not be adequate in the event of a breach. In the
event of a breach or threatened breach by Consultant of any provision of the
Agreement, the Company shall be entitled in addition to any other remedies
available, to injunctive or other equitable relief to prevent such breach.
Resort by the Company to equitable relief shall not be construed as a waiver by
it of any other rights it may have for damages or otherwise.
11. Term. Unless this Agreement is earlier terminated as set forth herein, this
Agreement shall continue in full force and effect for a period of one (1) year
from the date hereof. This Agreement may be renewed for successive periods of
one (1) year by the mutual agreement of the Company and Consultant.
12. Termination of Agreement Prior to End of Term.
Either party may terminate this Agreement prior to the end of the term upon not
less than thirty (30) days prior written notice.
13. Relationship of the Parties. The parties expressly agree that for all
purposes hereunder Consultant will be acting as an Independent Contractor and
not as an employee, partner or joint venturer of the Company, including for
purposes of withholding, social security, unemployment insurance, and any other
U.S. or foreign federal, state, provincial or local statute or regulation
governing the relationship between an employer and its employees. Neither party
is the legal representative or agent of the other, nor shall either party have
the right or authority to assume, create, or incur any liability or any
obligation of any kind, expressed or implied, against, or in the name of or on
behalf of the other party. Consultant agrees that he shall make no
representations or warranties on behalf of Company.
14. Miscellaneous.
(a) Attorney's Fees. In the event that any legal action is brought to
enforce or interpret any part of this Agreement, the prevailing party
shall be entitled to recover reasonable attorney's fees and other costs
incurred in that action, in addition to any other relief to which that
party may be entitled.
(b) Successors. Any successor to the Company (whether direct or indirect
and whether by purchase, lease, merger, consolidation, liquidation or
otherwise) to all of the Company's business and or assets shall assume
the obligations under this Agreement and agree expressly to perform the
obligations under this Agreement in the same manner and to the same
extent as the Company would be required to perform such obligations in
the absence of a succession. The terms of this Agreement and all of
Consultant's rights hereunder shall inure to the benefit of, and be
enforceable by, Consultant's personal or legal representatives,
executors, administrators, successors, heirs, distributees, devisees,
and legatees.
(c) Governing Law. This Agreement shall in all respects be construed,
interpreted, and enforced in accordance with, and governed by the laws
of the State of California. The exclusive venue for the resolution of
any dispute hereunder shall be the Superior Court of the State of
California, County of Santa Xxxxx, and the parties each consent to the
jurisdiction of such courts, agree to accept service of process by mail,
and hereby waive any jurisdictional or venue defenses otherwise
available to the party.
(d) Severability. If any term or provision of this Agreement shall be held
invalid or unenforceable to any extent, the remainder of this Agreement
shall not be affected and each other term and provision of this
Agreement shall be valid to the fullest extent permitted by law.
(e) Counterparts. This Agreement may be executed in counterparts, each of
which shall constitute an original and all of which shall be one and the
same instrument.
(f) Modification. Any amendment, change or modification of this Agreement
shall be effective only if it is in writing and signed by the parties
hereto.
(g) Waiver. The failure of either party to insist upon strict compliance
with any of the terms, covenants or conditions of this Agreement by the
other party shall not be deemed a waiver of that term, covenant or
condition, nor shall any waiver or relinquishment of any right or power
at any one time be deemed a waiver or relinquishment of that right or
power for all or any other time.
(h) Notices. Any notices required or permitted hereunder shall be given to
the appropriate party at the address specified in this Agreement or at
such other address as the party shall specify in writing and shall be by
personal delivery, facsimile transmission or certified or registered
mail. Such notice shall be deemed given upon personal delivery to the
appropriate address or upon receipt of electronic transmission or, if
sent by certified or registered mail, three (3) days after the date of
the mailing.
(j) Entire Agreement. This Agreement represents the entire agreement
between the Company and Consultant with respect to the subject matter
hereof, and all prior agreements relating to the subject matter hereof
are nullified and superseded hereby.
IN WITNESS WHEREOF, the parties have executed this Agreement on the date first
written above.
THE COMPANY: HUMAN BIOSYSTEMS.,
a California corporation
By: /s/ Xxxxx Xxxxxx
--------------------
Xxxxx Xxxxxx
Chief Executive Officer
CONSULTANT:
By:/s/ Xx. Xxxxx Xxxxxx
----------------------
Xx. Xxxxx Xxxxxx
Address:XXXXXXXXXXXX
Xxxxxx, XX 00000
