Consulting Agreement
This Consulting Agreement, effective as of the 18th day of October, 2010, is made by and between Cellular Dynamics International, Inc. (the “Company”) and Xx. Xxxxxxx X. Xxxx (“Consultant”).
Whereas, the Company and Consultant desire to set forth the terms and conditions upon which the Company has engaged Consultant to provide consulting services as hereinafter described and Consultant will provide such services.
Now, therefore, for good and valuable consideration the sufficiency of which is hereby acknowledged, the parties agree as follows:
1) | Consulting Services. Consultant shall perform the Services listed on Exhibit A attached hereto (the “Services”). |
2) | Compensation. The Company shall compensate Consultant for the Services as described on Exhibit A. The Company shall be obligated to reimburse Consultant for Consultant’s out-of-pocket expenses reasonably incurred in connection with the performance of the Services only to the extent specifically provided for in Exhibit A. |
3) | Covenants of Consultant regarding Services. Consultant represents, warrants and agrees that Consultant will devote such time, up to but not to exceed Consultant’s business time specified in Exhibit A, and resources as are necessary to provide the Services and that Consultant will use Consultant’s best efforts, skill and judgment in Consultant’s performance of the Services. |
4) | Term. This Agreement shall be effective as of the date first written above and will continue indefinitely until terminated by either party for any (or no) reason upon written notice to the other (the “Term”). |
5) | Confidentiality. Consultant recognizes that the Company will disclose to Consultant pursuant to this Agreement Confidential Information (as defined below). Consultant agrees that Consultant will not in any manner whatsoever, either directly or indirectly, use or disclose any Confidential Information either during the Term or for a period of two years after the termination of this Agreement, except as is required in the performance of the Services and, in the case of any such disclosure, as is expressly authorized in writing in advance by the Company’s Chief Executive Officer or President. For purposes of this Agreement, “Confidential Information” shall mean all information of the Company that, although such information does not qualify as a trade secret under applicable law, such information is not known to the public or the Company’s competitors, generally. Confidential Information includes, but is not limited to, information constituting or relating to (i) research or development techniques, plans, programs or results, discoveries and inventions, including without limitation relating to the reprogramming, differentiation or maintenance of stem cells, (ii) know‑how, scientific, engineering, or other technical information relating to research and/or developmental efforts, existing, new or envisioned products or services of the Company, and its source and object code, (iii) existing, new or envisioned products or services of the Company or product or service features, specifications, designs, development, performance attributes and/or methods or processes for their manufacture or provision, (iv) business or financial information relating to the Company or its products or services, research or development efforts, intellectual property assets including licenses, manufacturing or other operations, suppliers, purchasing, inventories, marketing, sales, distribution, collaborators, customers, pricing, costs, quotations, personnel and/or relationships or discussions with any third party, (v) information determined by the Company to be confidential and proprietary and that is identified as such prior to or at the time of its disclosure to Consultant, and (vi) information received by the Company from others that the Company has an obligation to treat as confidential or is restricted as to the use thereof. |
The term “Confidential Information” shall not include information that: (i) is or later becomes generally available to or known by the public though no breach of this Agreement by Consultant; (ii) is obtained by Consultant from a third party who had the legal right to disclose the information to Consultant; or (iii) is required to be disclosed by law, government regulation, or court order (to the extent of disclosure thereof by Consultant after written notice of such required disclosure to afford the Company the opportunity to prevent or narrow such disclosure and/or to obtain confidential treatment of the information to be so disclosed).
6) | Inventions. The Company shall own, and Consultant hereby assigns to the Company, all of Consultant’s right, title and interest in or to all Inventions (as defined herein). All Inventions which are or form the basis for copyrightable works shall be considered “works for hire” as that term is defined by U.S. Copyright Law. Consultant acknowledges that all original works of authorship which are made by Consultant (solely or jointly with others) in the course of rendering the Services that are protectable by copyright are “works made for hire,” as that term is defined in the United States Copyright Act. Any works that are not found to be “works for hire” are hereby assigned to the Company. Consultant will promptly disclose all Inventions to the Company and from time to time assist the Company in obtaining and enforcing United States and foreign patent, copyright and other intellectual property rights relating to the Inventions including without limitation by executing, verifying and delivering such documents and performing such other acts (including appearances as a witness) to assist the Company in applying for, obtaining, perfecting, evidencing, sustaining and enforcing such rights and the assignment thereof, as the Comany from time to time may reasonably request. The term “Inventions” as used in this Agreement means all ideas, designs, modifications, formulations, concepts, know-how, trade secrets, discoveries, inventions, data, software, developments and copyrightable works, whether or not patentable or registrable, which Consultant originates, discovers or develops, either alone or jointly with others while Consultant has provided or hereafter during the Term provides consulting services to the Company which are (i) originated, discovered or developed in connection with Consultant’s performance of the Services, or (ii) originated, discovered or developed in whole or in part using materials, labor, facilities, Confidential Information, trade secrets, or equipment furnished by the Company. |
7) | Trade Secrets. Consultant shall not disclose or use the Company’s trade secrets during the Term or anytime thereafter, except such use as is necessary to perform the Services hereunder. The term “trade secrets” shall at all times have that meaning as set forth in the statutory law of the State of Wisconsin, as of the date hereof and any amendments thereto (currently Section 134.90, Wis. Stats.). Nothing herein shall be construed to limit the protection afforded to the Company’s trade secrets under Wisconsin Uniform Trade Secret Act. |
8) | Survival. For avoidance of doubt, Sections 5, 6, 7, 9 and 14 shall survive and remain in full force and effect for the time periods contained therein after the termination of this Agreement. |
9) | Return of Records. Upon termination of this Agreement, Consultant shall: (i) immediately return to the Company all property, records, notes, data, memoranda, models and equipment of any nature (and all copies thereof) that are in Consultant's possession or under Consultant's control and that are the Company’s property or relate to the Company’s business, and all copies of all such materials; (ii) delete or destroy such electronic documents, records, and materials placed or maintained by Consultant on Consultant’s own computer equipment or other electronic storage devices; and (iii) certify as to the same to the Company. |
10) | No Implied License Grants. Nothing in this Agreement shall be construed as granting, or obligating the Company to grant, a license to Consultant under any present or future Confidential Information or intellectual property of the Company. |
11) | Independent Contractor. Consultant’s relationship to the Company in the performance of this Agreement is that of an independent contractor, and not of an employee of the Company. Consultant is not entitled to any employee benefits or insurance coverage from the Company. Consultant acknowledges that the Company has no responsibility to Consultant for federal and state withholding taxes, social security taxes, worker’s compensation, unemployment taxes or any other similar coverages or taxes regarding Consultant. Consultant acknowledges and agrees that Consultant shall report as income all compensation that Consultant receives pursuant to this Agreement and shall pay all self-employment, social security, Medicare and other applicable taxes thereon. Consultant acknowledges that Consultant is solely responsible for Consultant’s compliance with all laws and regulations applicable to the performance of the Services and to obtain and maintain any federal, state, and/or local licenses or registrations necessary to perform the Services. |
12) | Original Work. Consultant warrants and represents that the Services performed for the Company will be original and will not knowingly infringe on any copyright, invade any right of privacy, contain any libelous material or infringe or violate any other right of any other person or entity. |
13) | No Conflict. Consultant represents and warrants that Consultant has the right to enter into this Agreement, to make the foregoing commitments, and is not subject to any restrictive obligations (including without limitation |
confidentiality obligations) imposed by any third party which would impair the Consultant’s ability to consult with the Company or in any way provide the services requested of Consultant under this Agreement, or which would prevent Consultant from maintaining the confidentiality and secrecy of information as provided in Sections 5 and 7 above. Consultant represents and warrants that Consultant has not taken any action or omitted to take any action during period commencing when consulting services first were provided to the Company and ending on the date of this Agreement first written above that would be in violation of any of Sections 5 through 7 and 14 were this Agreement then in effect and there are no Inventions existing as of the date of this Agreement that Consultant is required to disclose under Section 6 and has failed to disclose to the Company.
14) | Non-Solicitation of Company Employees. During the Term and for a period of one year thereafter, Consultant shall not directly or indirectly encourage any Company employee to terminate his employment with the Company or solicit such an individual for employment outside the Company such as to end or diminish that employee’s services to the Company. |
15) | Remedies. Consultant acknowledges and agrees that a violation of this Agreement would cause irreparable harm to the Company, and that the Company's remedy at law for any such violation would be inadequate. In recognition of the foregoing, Consultant agrees that, in addition to any other relief afforded by law, including damages sustained by a breach of this Agreement, the Company will have the right to enforce this Agreement by specific remedies, which will include, among other things, temporary and permanent injunctions, it being the understanding of the undersigned parties hereto that both damages and injunctions will be proper modes of relief and are not to be considered as alternative remedies. If the Company is awarded an injunction or other remedy in connection with the enforcement of such obligations, Consultant agrees to pay all costs and expenses, including attorneys’ fees, reasonably incurred by the Company in such enforcement effort. |
16) | Choice of Law. This Agreement shall be governed by, controlled and construed in accordance with the substantive and procedural laws of the State of Wisconsin without regard to the laws of any other jurisdiction that otherwise would govern under applicable law, and the parties consent to the jurisdiction of the courts of the State of Wisconsin with venue in Dane County. |
17) | Entire Agreement; Amendment and Waiver. This Agreement represents the entire understanding between the Company and Consultant and supersedes all prior agreements, written or oral, between the parties regarding the subject matter hereof. This agreement shall not be modified except by a writing duly executed by both parties The waiver by the Company of a breach of any provision of this Agreement shall not operate or be construed as a waiver of any subsequent breach of the same or any other provision hereof. |
18) | Binding Effect; Assignment. This Agreement shall be binding upon and inure to the benefit of the parties and their respective permitted successors and assigns. This Agreement may be assigned by the Company to a corporation or other legal entity controlled by, or under common control with, the Company, without the consent of Consultant. In addition, this Agreement may be assigned by the Company to any successor upon a sale of its business or assets. Consultant may not assign this Agreement. |
19) | Severability. If any provision of this Agreement shall be held to be invalid or unenforceable for any reason, the remaining provisions shall continue to be valid and enforceable. The obligations imposed by this Agreement are severable and should be construed independently of each other. |
20) | Counterparts; Facsimile. This Agreement may be executed in counterparts, each of which shall be deemed an original, but such counterparts shall together constitute but one and the same Agreement and facsimile or pdf signatures shall be deemed true and legally binding signatures. |
With the intent to be legally bound, the parties have caused this Consulting Agreement to be duly executed.
CELLULAR DYNAMICS INTERNATIONAL, INC.
By: /s/ Xxxxxx X. Xxxxx
Xxxxxx X. Xxxxx, Chairman of the Board of Directors and Chief Executive Officer
CONSULTANT
/s/ Xxxxxxx X. Xxxx
Xxxxxxx X. Xxxx
EXHIBIT A
SERVICES TO BE PERFORMED AND FEES PAID
Services:
Consultant will render to the Company the following “Services”:
• | provide such advice and assistance to the Company regarding its product and business development activities as the Chief Executive Officer of the Company from time to time may reasonably request; and |
• | such additional services as the Chief Executive Officer of the Company and Consultant may mutually agree. |
Specified Percentage of Consultant’s Business Time:
Consultant will devote up to one full day (8 hours) per week on average of Consultant’s business time as is necessary to provide the Services.
Compensation:
Consultant will be provided the following compensation:
• | a fee at the rate per day (8 hours) of $1,500; and |
• | an option for the purchase of 200,000 shares of common stock of the Company to be granted to Consultant under the Company’s 2008 Equity Incentive Plan, as amended. |
Consultant shall submit to the Company for each calendar month a statement setting forth his hours of Services hereunder provided during the month. The Company shall pay to Consultant his fee for such month in cash not later than on the tenth (10th) business day after receipt of Consultant’s statement therefor.
Reimbursement of Expenses
The Company shall reimburse Consultant for all reasonable travel and out-of-pocket expenses incurred by Consultant in performing Services pursuant to this Agreement, provided Consultant receives prior consent from an authorized agent of the Company prior to incurring such expenses.
Consultant shall submit all statements for expenses in a form prescribed by the Company and such statement shall be approved by the contact person listed above. Approved statements will be paid within thirty (30) days of receipt.
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