CONSULTING AGREEMENT
THIS
CONSULTING AGREEMENT (the “Agreement”), effective as of August 1, 2004. is
entered into by Cleveland BioLabs, Inc., a Delaware corporation with its
principal place of business at 00000 Xxxxxxxx Xxx., Xxxxxxxxx, XX 00000, X.X.X.
(the “Company”), and Xx. Xxxxxx Xxxxxx, with an address at 0000 Xxxxxxxxxx Xxxx,
Xxxxx Xxxxx, XX 00000 (the “Consultant”).
The
Company desires to retain the services of the Consultant and the Consultant
desires to perform certain services for the Company. In consideration of the
mutual covenants and promises contained herein and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged
by
the parties hereto, the parties agree as follows:
1. Services.
The
Consultant agrees to provide such advice and consulting services concerning
matters of expansion of Company’s core business as the Company may from time to
time in its sole discretion request in writing (“Consulting Services”). During
the Consultation Period, the Consultant shall not engage in any activity that
has a conflict of interest with the Company, including any competitive
employment, business, or other activity, and he shall not assist any other
person or organization that competes, or intends to compete, with the
Company.
2. Term.
This
Agreement shall commence on the date hereof and shall continue for a thirty
six
months period (the “Consultation Period”), unless earlier terminated in
accordance with the provisions of Section 4.
3. Compensation.
3.1 Company
will pay to a consultant a monthly fee of $4,000 based on a work load of
approximately 25 hours per month.
3.2 Expenses.
Consultant shall be reimbursed for all of his expenses incurred in connection
with the performance by Consultant of the services as contemplated by this
Agreement, including air travel and accommodations when reasonably necessary,
in
each case subject to prior approval by the Company, including prior approval
as
to the class of travel and accommodations and maximum per diem
costs.
3.3 Benefits.
The
Consultant shall not be entitled to any benefits, coverages or privileges,
including, without limitation, social security, unemployment, medical or pension
payments, made available to employees of the Company.
4. Termination.
The
Company may terminate the Consultation Period, effective immediately upon
receipt of notice, but only if the Consultant (a) breaches or threatens to
breach any provision of Section 6, (b) engages in any malfeasance, misconduct
or
conduct likely to cause reputational harm to the Company, (c) enters into a
relationship with any third party which creates a conflict of interest with
his
Consulting Services for the Company, or (d) dies or becomes physically or
mentally disabled such that, in the Company’s reasonable judgment, he cannot
perform the duties contemplated hereunder, and any such termination under (a),
(b), (c) or (d) shall be deemed a “for cause” termination. Either party may
terminate the Agreement, without cause, upon 30 days notice in writing to the
other party. Following termination, the Company shall pay all fees owing for
services rendered prior to the termination date, as such fees become
payable.
5. Cooperation.
The
Consultant shall use his best reasonable efforts in the performance of his
obligations under this Agreement. The Company shall provide such access to
its
information and property as may be reasonably required in order to facilitate
the Consultant’s performance of his obligations hereunder. The Consultant shall
cooperate with the Company’s personnel, shall not interfere with the conduct of
the Company’s business, and shall observe all rules, regulations and security
requirements of the Company concerning the safety of persons and property,
to
the extent Consultant is apprised of same.
6. Inventions
and Proprietary Information.
6.1 Inventions.
(a) All
inventions, discoveries, computer programs, data, technology, designs,
innovations and improvements (whether or not patentable or copyrightable or
able
to be protected by trademark) (“Inventions”) related to the business of the
Company which are made, conceived, reduced to practice, created, written,
designed or developed by the Consultant, solely or jointly with others and
whether during normal business hours or otherwise, during the Consultation
Period or thereafter if resulting or directly derived from Proprietary
Information (as defined below), shall be the sole property of the Company.
Inventions shall also include, whether or not derived from Proprietary
information, mailing lists, databases, articles and other works prepared or
assembled on behalf of the Company or for use in the Company’s business. The
Consultant hereby assigns to the Company all Inventions and any and all related
patents, copyrights, trademarks, trade names, and other industrial and
intellectual property rights and applications therefor, in the United States
and
elsewhere and appoints any officer of the Company as his duly authorized
attorney to execute, file, prosecute and protect the same before any government
Consultant, court or authority. Upon the request of the Company and at the
Company’s expense, the Consultant shall execute such further assignments,
documents and other instruments as may be necessary or desirable to fully and
completely assign all Inventions to the Company and to assist the Company in
applying for, obtaining and enforcing patents or copyrights or other rights
in
the United States and in any foreign country with respect to any
Invention.
(b) The
Consultant shall promptly disclose to the Company all Inventions and will
maintain adequate and current written records in the form of notes, sketches,
drawings and as may be specified by the Company to document the conception
and/or first actual reduction to practice of any Invention. Such written records
shall be available to and remain the sole property of the Company at all
times.
6.2 Proprietary
Information.
(a) The
Consultant acknowledges that his relationship with the Company is one of high
trust and confidence and that in the course of his service to the Company he
will have access to and contact with Proprietary Information. The Consultant
agrees that he will not, during the Consultation Period or at any time
thereafter, disclose to others, or use for his benefit or the benefit of others,
any Proprietary Information or Invention.
(b) For
purposes of this Agreement, “Proprietary Information” shall mean, by way of
illustration and not limitation, all information (whether or not patentable
or
copyrightable or able to be protected by trademark) owned, possessed or used
by
the Company, including, without limitation, any Invention, formula, vendor
information, customer information, apparatus, equipment, trade secret, process,
research, report, technical data, know-how, computer program, software, software
documentation, hardware design, Internet domain name, technology, marketing
or
business plan, forecast, unpublished financial statement, budget, license,
price, cost and employee list that is communicated to, learned of, developed
or
otherwise acquired by the Consultant in the course of his service to the
Company.
(c) The
Consultant’s obligations under this Section 6.2 shall not apply to any
information that (i) is or becomes known to the general public under
circumstances involving no breach by the Consultant or others of the terms
of
this Section 6.2, (ii) is generally disclosed to third parties by the Company
without restriction on such third parties, or (iii) is approved for release
by
written authorization of the President or Chief Executive Officer of the
Company.
(d) Upon
termination of this Agreement or at any other time upon request by the Company,
the Consultant shall promptly deliver to the Company all records, files, a
computer-readable version of all mailing lists and databases, memoranda, notes,
designs, data, reports, price lists, customer lists, drawings, plans, computer
programs, software, software documentation, sketches, laboratory and research
notebooks and other documents (and all copies or reproductions of such
materials) relating to the business of the Company.
(e) The
Consultant represents that his retention by the Company and his performance
under this Agreement does not, and shall not, breach any agreement that
obligates him to keep in confidence any trade secrets or confidential or
proprietary information of his or of any other party or to refrain from
competing, directly or indirectly, with the business of any other party. The
Consultant shall not disclose to the Company any trade secrets or confidential
or proprietary information of any other party.
6.3 Remedies.
The
Consultant acknowledges that any breach of the provisions of this Section 6
shall result in serious and irreparable injury to the Company for which the
Company cannot be adequately compensated by monetary damages alone. The
Consultant agrees, therefore, that, in addition to any other remedy it may
have,
the Company shall be entitled to enforce the specific performance of this
Agreement by the Consultant and to seek both temporary and permanent injunctive
relief (to the extent permitted by law) without the necessity of proving actual
damages.
7. Independent
Contractor Status.
The
Consultant shall perform all services under this Agreement as an “independent
contractor” and not as an employee or agent of the Company. The Consultant is
not authorized to assume or create any obligation or responsibility, express
or
implied, on behalf of or in the name of, the Company or to bind the Company
in
any manner.
8. Notices.
All
notices required or permitted under this Agreement shall be in writing and
shall
be deemed effective upon personal delivery or upon deposit in the United States
Post Office, by registered or certified mail, postage prepaid, addressed to
the
other party at the address shown above or at such other address or addresses
as
either party shall designate to the other in accordance with this Section
8.
9. Pronouns.
Whenever the context may require, any pronouns used in this Agreement shall
include the corresponding masculine, feminine or newer forms, and the singular
forms of nouns and pronouns shall include the plural, and vice
versa.
10. Entire
Agreement.
This
Agreement constitutes the entire agreement between the parties and supersedes
all prior agreements and understandings, whether written or oral, relating
the
subject matter of this Agreement.
11. Amendment.
This
Agreement may be amended or modified only by a written instrument executed
by
both the Company and the Consultant.
12. Governing
Law.
This
Agreement shall be construed, interpreted and enforced in accordance with the
laws of the State of Ohio.
13. Successors
and Assigns.
This
Agreement shall be binding upon, and inure to the benefit of, both parties
and
their respective permitted successors and assigns, including any corporation
with which, or into which, the Company may be merged or which may succeed to
its
assets or business; provided, however, that the obligations of the Consultant
are personal and shall not be assigned by him, but the fees and other sums
accruing to, and the related rights and benefits of Consultant hereunder shall
be freely assignable and shall inure to the benefit of Consultant’s successors
and assigns including, without limitation, the representatives of his estate
and
his heirs.
14. Miscellaneous.
14.1 No
delay
or omission by the Company in exercising any right under this Agreement shall
operate as a waiver of that or any other right. A waiver or consent given by
the
Company on any one occasion shall be effective only in that instance and shall
not be construed as a bar or waiver of any right on any other
occasion.
14.2 The
captions of the sections of this Agreement are for convenience of reference
only
and in no way define, limit or affect the scope or substance of any section
of
this Agreement.
14.3 In
the
event that any provision of this Agreement shall be invalid, illegal or
otherwise unenforceable, the validity, legality and enforceability of the
remaining provisions shall in no way be affected or impaired
thereby.
14.4 This
Agreement may be executed in multiple counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the
same
instrument.
14.5 The
Company agrees to defend, indemnify and hold harmless the Consultant against
all
claims, demands and actions concerning, or in any way relating to, the Company’s
performance or alleged breach of any contracts with customers procured by
Consultant, or the Consultant’s activities on behalf of the Company except in
the event of Consultant’s breach of this Agreement, negligence or willful
misconduct.
IN
WITNESS WHEREOF. the parties hereto have executed this Agreement as of the
day
and year set forth above.
| Cleveland Biolabs, Inc. | |||
| /s/ Xxxxxxx Xxxxxxxx, Ph.D. | |||
|
By: Xxxxxxx Xxxxxxxx, Ph.D. |
|||
| Title: CEO |
| CONSULTANT: | |||
| /s/ Xxxxxx Xxxxxx | |||
|
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