INDEPENDENT CONSULTING SERVICES AGREEMENT
This
Agreement is between Protalex,
Inc., a Delaware corporation, and its successors or assignees (the “Company”)
located at 000 Xxxxx Xxxxxx Xxxxx, Xxx Xxxx, XX 00000 and the undersigned and
its authorized successors xxxx
xxxx (“Consultant”),
and entered into effective as of June 30, 2009 (the “Effective
Date”).
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1.
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Engagement
of Services.
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The
Company hereby retains Consultant as an independent Consultant for the Company
to perform the services described on Exhibit A attached hereto from
July 1, 2009, as well as such other services as may be reasonably requested from
time to time by the Company in writing with the mutual written agreement between
Consultant and the Company (the “Services”),
and Consultant hereby agrees to perform such Services for the
Company. Consultant shall perform the Services under this
Agreement in a timely and professional manner, using a degree of skill and care
consistent with industry standards. Consultant may not subcontract or
otherwise delegate its obligations under this Agreement or assign this Agreement
without the Company’s prior written consent.
2. Compensation.
The Company will pay Consultant a fee for the Services rendered from July
1, 2009 as set forth in Exhibit
A. In addition, for Consultant’s previous uncompensated
services to the Company since Consultant’s employment with the Company ceased on
April 15, 2009, so long as this Agreement has not been terminated on, or before,
August 31, 2009 by either party, the Company shall also pay Consultant a lump
sum of $10,000 on September 1, 2009. All such compensation under this Agreement
shall be in addition to the compensation paid or payable to Consultant pursuant
to Consultant’s April 15, 2009 Settlement with the Company. Consultant will also
be reimbursed for any reasonable expenses incurred in connection with the
performance of services under this Agreement provided Consultant obtains prior
written approval for expenses in excess of $500 and submits verification of any
expenses to be reimbursed by the Company. Upon termination of this
Agreement for any reason, Consultant will be paid fees and expenses on a
proportional basis for work which is then in progress, to and including the
effective date of such termination. The Company will reimburse
Consultant for previously approved expenses within thirty (30) days after
Consultant’s submission to the Company of its invoice.
3. Independent
Consultant. Consultant’s relationship with the Company under this
Agreement will be that of an independent Consultant and nothing in this
Agreement should be construed to create a partnership, joint venture, or
employer-employee relationship. Consultant is not an agent of the
Company and is not authorized to make any representation, contract, or
commitment on behalf of the Company under this Agreement. Consultant
will not be entitled under this Agreement to any of the benefits which the
Company may make available to its employees. Consultant will be
solely responsible for all tax returns and payments required to be filed with or
made to any federal, state or local tax authority with respect to Consultant’s
performance of services and receipt of fees under this
Agreement. Because Consultant is an independent
Consultant, the Company will not withhold or make payments for social security;
make unemployment insurance or disability insurance contributions; or obtain
worker’s compensation insurance on Consultant’s behalf. Consultant
agrees to accept exclusive liability for complying with all applicable state and
federal laws governing self-employed individuals, including obligations such as
payment of taxes, social security, disability and other contributions based on
fees paid to Consultant, its agents or employees under this
Agreement. Consultant hereby agrees to indemnify and defend the
Company against any and all such taxes or contributions, including penalties and
interest and attorneys fees incurred by the Company in connection
therewith. Consultant is free to enter any contract to provide
services to other business entities, except any contract which would induce
Consultant to violate this Agreement.
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4.
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Intellectual
Property Rights.
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4.1 Proprietary Information.
Consultant agrees during the term of this Agreement and thereafter that it will
take all steps reasonably necessary to hold the Company’s Proprietary
Information in trust and confidence, will not use Proprietary Information in any
manner or for any purpose not expressly set forth in this Agreement, and will
not disclose any such Proprietary Information to any third party without first
obtaining the Company’s express written consent on a case-by-case basis. The
term “Proprietary
Information” shall mean any and all confidential and/or proprietary
knowledge, data or information of the Company, whether in oral, written, graphic
or electronic form. By way of illustration, but not limitation
“Proprietary Information” includes (a) trade secrets, know-how, inventions,
ideas, tangible and intangible information such as antibodies and other
biological materials, cell lines, samples of assay components, media and/or cell
lines and procedures and formulations for producing any such assay components,
media and/or cell lines, formulations, compounds, products, processes, designs,
formulas, methods, techniques, programs, software models, algorithms,
developmental or experimental work, clinical or other data, compilations of
data, other works of authorship, improvements and discoveries (“collectively,
each referred to as an “Invention”) ; (b) information regarding plans for
research and development, new products, marketing and selling, business plans,
budgets and unpublished financial statements, licenses, prices and costs,
suppliers, customers, licensees and strategic partners, and the existence and
terms of any business discussions, negotiations or agreements to which the
Company is a party; and (c) information regarding the skills and
compensation of other employees or consultants of the Company. The
term “Proprietary Information” shall not
include information which the Consultant can demonstrate by competent written
proof: (1) is now, or hereafter becomes, through no act or
failure to act on the part of the Consultant, generally known or available;
(2) is known by the Consultant at the time of receiving such information,
as evidenced by its written records; (3) is hereafter furnished to the
Consultant by a third party, as a matter of right and without restriction on
disclosure; or (4) is the subject of a written permission to disclose
provided by the Company.
4.2 Third Party
Information. Consultant understands that the Company has
received and will in the future receive confidential or proprietary information
from third parties (“Third Party
Information”) subject to a duty on the Company’s part to maintain the
confidentiality of such information and use it only for certain limited
purposes. Consultant agrees to hold Third Party Information in
confidence and not to disclose to anyone (other than personnel of the Company
who need to know such information in connection with their work for the Company)
or to use, except in connection with Consultant’s work for the Company, Third
Party Information unless expressly authorized in writing by an officer of the
Company.
4.3 Company Work Product
Assignments. Consultant will not incorporate any
invention, improvement, development, concept, discovery or other proprietary
information owned by any third party into any “Company Work Product” without the
Company's prior written consent. “Company Work Product” under this Agreement
shall mean any Inventions or any other work product whether or not patentable
and all directly related know-how thereto developed by Consultant as part of the
Services. Consultant hereby assigns to the Company all of the Consultant’s
right, title and interest in and to all Company Work Product and hereby agrees,
upon the Company’s request, to execute, verify, and deliver to the Company all
documents including, but not limited to, assignments and applications for
Letters of Patent, trademark or copyright registrations, or any other form or
method of government protection provided by any local, state, or federal laws of
the United States or any other country or political subdivision thereof, and
whether such protection is now known or subsequently derived, and to perform
such other acts, including, but not limited to, appearing as a witness in any
action brought in connection with this Agreement, that is deemed reasonably
necessary or appropriate by the Company to allow it to obtain the sole right,
title, interest and benefit of all such Company Work Product. Consultant agrees
to cooperate with the Company or its designee(s), both during and after the term
of this Agreement, in the procurement and maintenance of the Company’s rights in
Company Work Product and to execute, when requested, any other documents deemed
necessary by the Company to carry out the purpose of this
Agreement.
5. Representations
and Warranties. If
Consultant develops Company Work Product as part of the
Services Consultant hereby represents and warrants that (a) the
Company Work Product will be an original work of Consultant and any third
parties will have executed assignment of rights reasonably acceptable to
Company; (b) neither the Company Work Product nor any element thereof will
infringe the Intellectual Property Rights of any third party; (c) neither
the Company Work Product nor any element thereof will be subject to any
restrictions or to any liens, pledges, security interests, or other
encumbrances; and (d) Consultant will not grant, directly or indirectly,
any rights or interest whatsoever in the Company Work Product to third parties.
Consultant further warrants and represents that (a) it has full right and
power to enter into and perform this Agreement without the consent of any third
party; (b) Consultant will take all necessary precautions to prevent injury
to any persons (including employees of Company) or damage to property (including
Company’s property) during the term of this Agreement; and (c) should
Company permit Consultant to use any of Company’s equipment, tools, or
facilities during the term of this Agreement, such permission shall be
gratuitous and Consultant shall be responsible for any injury to any person
(including death) or damage to property (including Company's property) arising
out of use of such equipment, tools or facilities, whether or not such claim is
based upon its condition or on the alleged negligence of Company in permitting
its use.
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6.
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Termination.
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6.1 Term. The term of
this Agreement will begin on the date of this Agreement and will continue until
the earlier of (i) final completion of the Services but in no event beyond
December 31, 2009 or (ii) termination as provided in this Section 6 (the “Term”).
6.2 Termination by the
Company. The Company may terminate this Agreement at its
convenience for any reason or no reason and without any breach by Consultant
immediately upon written notice to Consultant.
6.3 Termination by
Consultant. Consultant may terminate this Agreement at any
time upon written notice to the Company.
6.4 Noninterference with
Business. During and for a period of two (2) years immediately
following termination of this Agreement by either party, Consultant agrees not
to solicit or induce any employee or independent consultant to terminate or
breach an employment, contractual or other relationship with the
Company. Consultant further agrees not to induce or attempt to induce
any supplier, customer, licensee or strategic partner of the Company to cease
doing business with the Company, or in any other manner interfere with the
Company’s business relationships, contractual or otherwise.
6.5 Return of Company
Property. Upon termination of the Agreement or earlier as
requested by the Company, Consultant will immediately deliver to the Company at
its principal place of business any and all equipment, drawings, notes,
memoranda, specifications, devices, formulas, and documents, together with all
copies thereof, and any other material containing or disclosing any Company Work
Product, Third Party Information or Proprietary Information of the
Company. Consultant further agrees that any property situated on the
Company’s premises and owned by the Company, including disks and other storage
media, filing cabinets or other work areas, is subject to inspection by the
Company personnel at any time with or without notice.
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7.
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General
Provisions.
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7.1 Notices. Any notices required
or permitted hereunder shall be given to the appropriate party at the address
specified below or at such other address as the party shall specify in writing
in accordance with the notice provisions set forth in this
Section. Such notice shall be in writing and shall be deemed given
(i) upon personal delivery to the appropriate address, (ii) upon
delivery by facsimile transmission with receipt confirmed, (iii) if sent by
certified or registered mail, postage prepaid, five (5) days after the date
of mailing, or (iv) if sent by overnight courier, the next business day
such courier regularly makes deliveries.
7.2 Governing
Law/Venue. This Agreement will be governed by and construed
according to the laws of the State of Delaware, without regard to the conflicts
of law principles thereof. Venue for all purposes herein shall be in the state
and federal courts within the State of Delaware.
7.3 Injunctive Relief for
Breach. Because Consultant’s services are personal and unique
and because Consultant may have access to and become acquainted with the
Proprietary Information of the Company, Consultant acknowledges and agrees that,
if Consultant were to breach this Agreement, the Company would suffer an
irreparable injury such that no remedy at law would adequately protect or
appropriately compensate the Company for such injury. Accordingly,
Consultant agrees that the Company shall have the right to enforce this
Agreement and any of its provisions by seeking an injunction or other equitable
relief, without bond and without prejudice to any other rights and remedies that
the Company may have for a breach of this Agreement.
7.4 Amendment/Governing
Terms. The terms of this Agreement will govern all services
undertaken by Consultant for the Company pursuant to Exhibit A. All
services rendered by Consultant hereunder shall be deemed undertaken by
Consultant in his capacity as the Chief Financial Officer of the Company so long
as he remains the Company’s CFO, with all such acts covered by any
indemnification and D&O insurance policy coverage afforded the officers of
the Company. This Agreement may not be changed, modified, amended or
supplemented except by a written instrument signed by both parties.
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7.5 Severability. If any provision
of this Agreement shall be declared invalid, illegal or unenforceable, such
provision shall be severed and all remaining provisions shall continue in full
force and effect.
7.6 Successors and
Assigns. The parties’ rights and obligations under this
Agreement will bind and inure to the benefit of their respective successors,
heirs, executors and administrators and permitted assigns. Consultant
shall not assign or delegate its obligations under this Agreement either in
whole or in part without the prior written consent of the Company.
7.7 Waiver. No waiver
shall be effective unless in writing executed by the waiving
party. The waiver from time to time by either the Company or
Consultant of any of their respective rights or their failure to exercise any
remedy shall not operate or be construed as a continuing waiver of same or of
any other of such party’s rights or remedies provided in this
Agreement.
7.8 Counterparts. This
Agreement may be executed in any number of counterparts, each of which, when
executed, shall be deemed to be an original and all of which together shall
constitute one and the same document.
7.9 Legal Fees. If any
dispute arises between the parties with respect to the matters covered by this
Agreement which leads to a proceeding to resolve such dispute, the prevailing
party in such proceeding shall be entitled to receive its reasonable attorneys’
fees, expert witness fees and out-of-pocket costs incurred in connection with
such proceeding, in addition to any other relief it may be awarded.
7.10 Export. Consultant
agrees not to export, directly or indirectly, any U.S. source technical data
acquired from the Company or any products utilizing such data to countries
outside of the United States, which export may be in violation of United States
export laws or regulations.
7.11 Survival. The
following provisions shall survive termination of this Agreement:
Sections 4, 5, 6, 7 and 8.
7.12 Voluntary
Agreement. Consultant acknowledges and agrees that Consultant
is executing this Agreement voluntarily and without any duress or undue
influence by the Company or anyone else. Consultant further acknowledges and
agrees that Consultant has carefully read this Agreement and has asked any
questions needed to understand the terms, consequences and binding effect of
this Agreement and fully understand it, including that Consultant agrees to
waive its right to a jury trial if such waiver is requested by the Company.
Finally, Consultant agrees that Consultant has been provided an opportunity to
seek the advice of an attorney of its choice before signing this
Agreement.
In Witness
Whereof, the parties have caused this Independent Consulting Services
Agreement to be executed by their duly authorized representative.
The
Company:
Protalex,
Inc.
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By:
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Name:
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Title:
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Address:
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Consultant:
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(Printed
Name)
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By:
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Title:
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(if
applicable)
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Address:
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Tax ID #:
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5
Exhibit
A
SERVICES
Consultant
agrees to consult with the Company in the specific areas of Accounting, Finance
and Operations assignments as requested by the Company’s CEO (or in his absence,
the Company’s Chairman). The Company would expect Consultant to
perform the following specific activities under this Agreement: (List all
activities)
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Accounting,
Finance, Operational and Administrative duties as deemed necessary and
agreed to with Company’s CEO or in his absence, the Company’s
Chairman.
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Change of
scope must be provided in writing and signed by both parties.
Payment
of Fees
A fixed
monthly rate of $5,000 period beginning July 1, 2009 (and prorated for any
partial 30 day period). Payments shall be made in arrears on a
bi-monthly basis.
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