EXHIBIT 10.16
CONSULTING CONTRACT
Agreement made as of May 22, 1998, between CORGENIX MEDICAL CORPORATION,
a Nevada corporation ("Corgenix" or the "Company") and W. XXXXXX XXXXXXX, PH.D.
("XX. XXXXXXX"), and BOND BIO-TECH, LTD. ("BBT").
RECITALS
A. XX. XXXXXXX currently serves as Vice President, International Operations
of REAADS Medical Products, Inc. ("REAADS"), a wholly owned subsidiary
of the Company.
B. XX. XXXXXXX possesses intimate and valuable knowledge of the business
and affairs of REAADS and its policies, procedures, methods and
personnel.
C. The Company desires to assure XX. XXXXXXX'x continued services not
only to REAADS but also to the Company and the Company's other
affiliates (as defined in paragraph 1(a) below).
D. XX. XXXXXXX is willing to commit himself to serve the Company and its
affiliates on the terms provided herein.
TERMS AND CONDITIONS
In consideration of the preceding premises and of the respective
covenants and agreements of the parties contained herein, and other good and
valuable consideration, the receipt and adequacy of which is hereby
acknowledged, the parties agree as follows:
1. CONTRACT. The Company agrees to contract the services of
XX. XXXXXXX through BBT, and XX. XXXXXXX agrees to be contracted by the Company,
for the period beginning as of the date of this Consulting Contract (the
"Contract"), and ending upon termination pursuant to paragraph 1(c) hereof (the
"Contracted Period").
(a) SERVICES. During the Contracted Period, XX. XXXXXXX will
serve as Vice President, International Operations of the Company and will have
general supervision over, and responsibility for the Company's international
distribution, and shall perform such duties relative thereto and discharge such
other responsibilities as the Company or the Board of Directors shall assign to
him, from time to time. XX. XXXXXXX shall report directly to, be accountable to,
and be subject to the authority of, the Board. XX. XXXXXXX will devote his best
efforts and attention (except for vacation periods and reasonable periods of
illness or other incapacity) to the business of the Company and its affiliates.
The Board of Directors of the Company reserves to itself the right from time to
time to designate the officers of the Company and to assign the duties and
responsibilities of the employees and officers of the Company, including without
limitation, the office, if any, held by XX. XXXXXXX. In this regard, the Board
of Directors may from time to time assign additional duties to XX. XXXXXXX, and
may from
time to time assign to other employees or officers of the Company duties to be
discharged by XX. XXXXXXX. For purposes of this Contract, the term "affiliates"
means any corporation, partnership, joint venture, trust or unincorporated
association controlled by or under common control with the Company.
(b) COMPENSATION. During the Contracted Period, the Company will
pay BBT an annual fee of USD $60,000 (subject to periodic review). In addition,
BBT will be paid commissions on sales of Company products to international
customers under terms of a separate sales commission program (the "Commission
Program"). In addition to the fee and commissions payable to BBT pursuant to
this paragraph, BBT will be entitled to the following compensation during the
Contracted Period, unless otherwise altered by the Board:
(i) vacation, holiday, and sick and personal leave at the
discretion of the Board;
(ii) reimbursement for reasonable business expenses incurred
by XX. XXXXXXX upon submission of documentation in form
reasonably satisfactory to the Company; and
(iii) certain other benefits at the discretion of the Board.
(c) TERMINATION. The Contracted Period will continue until the
first to occur of (i) the third anniversary of the date of this Contract, (ii)
XX. XXXXXXX'x resignation, death or Disability (as defined below), (iii) a
determination by the Board in its good faith judgment that termination of XX.
XXXXXXX'x Contract is in the best interests of the Company under circumstances
which would not constitute termination for Cause (in which BBT will be entitled
to severance pay as described at paragraph 1(d) below and such severance
benefits shall be BBT's only remedy with respect to such termination), or (iv)
the date on which XX. XXXXXXX is terminated by the Board for Cause (as defined
below). For purposes of this Contract, the term "Cause" means (i) the commission
of an act by XX. XXXXXXX involving fraud, embezzlement or a felony, (ii) the
commission of any act by XX. XXXXXXX constituting financial dishonesty against
the Company or any of its affiliates, (iii) the commission by XX. XXXXXXX of any
other criminal act involving moral turpitude which (a) brings the Company or any
of its affiliates into public disrepute or disgrace or (b) causes, or in the
good faith determination of the Board of Directors of the Company, could cause
material harm to the customer relations, operations or business prospects of the
Company or any of its affiliates, (iv) the violation by XX. XXXXXXX of any
material provision of this Contract, (v) the commission by XX. XXXXXXX of any
other act which is contrary to the Company's interests for his personal benefit
(and the failure to remedy such act within 15 days following notification by the
Company to XX. XXXXXXX of the occurrence of such act), (vi) willful disobedience
to the lawful directives of the Company and/or the Board of Directors of the
Company, or (vii) failure to adequately perform, in the good faith
judgment of the Board of Directors, the services, duties and responsibilities
assigned to XX. XXXXXXX by the Company and/or the Board of Directors of the
Company, whether or not such failure is intentional. "Disability" shall mean the
inability of XX. XXXXXXX to perform his normal duties and functions under this
Contract for a continuous period of at least three months or a recurring illness
that is likely to prevent XX. XXXXXXX from performing his normal duties and
functions under this Contract for more than four months during any 12-month
period as determined in the good faith opinion by a physician selected by the
Board.
(d) SEVERANCE PAY. In the event that XX. XXXXXXX'x Contract is
terminated without Cause pursuant to paragraph 1 (c) (iii) above, the Company
will pay to BBT all amounts due to BBT as fees pursuant to paragraph 1 (b),
(such salary to be paid in monthly installments through such third anniversary
date) provided that XX. XXXXXXX should at all time honor and comply with the
provisions of paragraphs 2,3 and 5 of this Contract.
2. CONFIDENTIAL INFORMATION. XX. XXXXXXX acknowledges that the
information, observations, data, customer and supplier lists, processes,
formulae, product compositions, manufacturing techniques, standards, protocols,
drawings, research and related data, specifications, know-how and trade secrets
(collectively, "Confidential Information") obtained by him during the course of
his performance under this Contract concerning the business or affairs of the
Company and its affiliates are the property of the Company and its affiliates.
Therefore, XX. XXXXXXX agrees that he will not disclose to any unauthorized
person or entity (other than in the ordinary course of business) or use for his
own account or the account of a third party any of such Confidential Information
without the prior written consent of the Board, unless and to the extent that
the aforementioned matters (i) become generally known to and available for use
by the public other than as a result of XX. XXXXXXX'x acts or omissions to act
or the wrongful acts or omissions to act of another or (ii) such disclosure is
required by court order or force of law. XX. XXXXXXX agrees to deliver to the
Company at the termination of his Contract, or at any other time the Company may
request, all memoranda, notes, plans, records, reports and other documents (and
copies thereof) containing any Confidential Information or relating to the
business of the Company and its affiliates which he may then possess or have
under his control.
3. DISCLOSURE AND ASSIGNMENT OF INTELLECTUAL PROPERTY.
(a) XX. XXXXXXX agrees that any Intellectual Property (as hereinafter
defined) that he, alone or with others, may conceive, develop, make or perfect,
in whole or in part, during the term of the Contracted Period and for a period
of twelve (12) months after any termination of the Contracted Period, whichever
shall occur later, which relate to the Company's business, or that he alone or
with others, may conceive, develop, make or perfect, in whole or in part, in the
performance of the duties of his Contract by the Company, shall be promptly and
fully disclosed in writing by XX. XXXXXXX to the Company. All of the right,
title and interest in and to any Intellectual Property
shall be and hereby is assigned exclusively to the Company or its nominee
regardless of whether or not the conception, development, marketing or
perfection of such Intellectual Property involved the use of the Company's time,
facilities or materials and regardless of where such Intellectual Property may
be conceived, made or perfected, and shall become the sole property of the
Company or its nominee. For purposes hereof, the term "Intellectual Property"
shall mean inventions, discoveries, ideas, concepts, systems, works, trade
secrets, know-how, intellectual property, pharmacological research,
pharmacological protocols, pharmacological documentation, products, processes or
improvements or modifications of current products, processes or designs, or
methods of product development, manufacture, distribution, management or
otherwise (whether or not covered by or able to be covered by a patent or
copyright) which relate to the business of the Company and/or its affiliates.
(b) XX. XXXXXXX agrees to execute and deliver all documents and do all
acts which the Company shall deem necessary or desirable to secure to the
Company or its nominee the entire right, title and interest in and to
applications for any United States and/or Foreign Letters Patent or Certificates
of Copyright registration in the name of or for the benefit of the Company or,
in the discretion of the Company, in XX. XXXXXXX'x name, which patents and
copyrights shall then be assigned by XX. XXXXXXX to the Company. Any document
described above which is prepared and filed pursuant to this paragraph, shall be
so prepared and filed at the Company's expense. XX. XXXXXXX and the Company
agree that wherever and whenever possible, any such document shall be in the
name of and executed by the Company, but if it is necessary for such document to
be in the name of and executed by XX. XXXXXXX and XX. XXXXXXX is unwilling or
unable to execute such document, XX. XXXXXXX hereby irrevocably appoints the
President of the Company, or his successor, as his attorney-in-fact, with
authority to execute for him and on his behalf, any and all assignments, patent
or copyright applications, or other instruments an documents pursuant to this
paragraph 3(b).
(c) Company shall have no obligation to use, attempt to protect by
application for Letters Patent or Certificates of Copyright Registration or
promote any of said Intellectual Property; provided, however, that the Company,
in its sole discretion, may reward XX. XXXXXXX for any especially meritorious
contributions in any manner it deems appropriate or may provide XX. XXXXXXX with
full or partial releases as to any subject matter contributed by XX. XXXXXXX in
which the Company is not interested.
(d) XX. XXXXXXX agrees that the covenants made in this paragraph 3 shall
be construed as an agreement independent of any other provision of this
Contract, and shall survive the termination of this Contract. Moreover, the
existence of any claim or cause of action of XX. XXXXXXX against the Company, or
an affiliate of the Company, whether or not predicated upon the terms of this
Contract, shall not constitute a defense to the enforcement of this covenant.
4. OTHER BUSINESSES. During the Contracted Period, XX. XXXXXXX
agrees that he will inform the Board in writing of the identities and
specific business of any and all other companies with which BBT has an existing
relationship , and will not, except with the prior written consent of the Board,
become engaged in, render services for, or permit his name to be used in
connection with, any additional business other than the business of the Company
and its affiliates and those previously disclosed to the Board.
5. RESTRICTIONS ON RIGHT TO COMPETE. XX. XXXXXXX agrees that during
the term of the Contracted Period (as defined in paragraph 1(c)) and until the
first anniversary of the termination of the contracted period, he will not,
except with the prior written consent of the Board, directly or indirectly,
either for himself or for any other person, partnership, corporation, joint
venture, business trust, cooperative, limited partnership or other entity,
participate in any enterprise involving the same or similar business or research
and development in which the Company is engaged at any time during XX. XXXXXXX'x
Contract or upon termination. For purposes of this Contract, the term
"participate" includes any direct or indirect interest in any enterprise,
whether as an officer, director, employee, partner, sole proprietor, agent,
representative, independent contractor, consultant, creditor, owner (other than
by ownership of less than one percent of the stock of a publicly-held
corporation whose stock is traded on a national securities exchange or in the
over-the-counter market) or otherwise. The geographical area covered by this
covenant is worldwide. XX. XXXXXXX agrees that this covenant is reasonable with
respect to its duration, geographical area and scope.
6. NOTICES. Any notice provided for in this Contract must be in
writing and will be deemed to have been given (i) when personally delivered,
(ii) one business day after being sent by Federal Express or other similar
overnight delivery service or (iii) seven business days after being mailed by
first class mail, to the recipient at the address below indicated:
To the Company:
CORGENIX MEDICAL CORPORATION
00000 Xxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000
Attention: President
To BOND BIO-TECH, LTD:
BOND BIO-TECH, LTD.
0 Xxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxx, XXXXX XX00 0XX
Xxxxxx Xxxxxxx
or such other address or to the attention of such person as the recipient party
shall have specified by prior written notice to the sending party.
7. SEVERABILITY. Whenever possible, each provision of this Contract will
be interpreted in such manner as to be effective and valid
under applicable law, but if any provision of this Contract is held to be
invalid, illegal or unenforceable in any respect under any applicable law or
rule in any jurisdiction, such invalidity, illegality or unenforceability will
not affect any other provision or any other jurisdiction, but this Contract will
be reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision had never been contained herein.
8. BLUE LINING. If any court of competent jurisdiction determines
that any of the restrictive covenants in this Contract, or any part thereof, is
invalid or unenforceable because of the geographic or temporal scope of such
provision, it is the intention and agreement of the parties that such court
shall have the power to reduce the geographic or temporal scope of such
provision, as the case may be, and, in its reduced form, such provision shall
then be enforceable.
9. Complete Agreement. This Contract embodies the complete agreement
and understanding among the parties with respect to the subject matter of this
Agreement and supersedes and preempts any prior negotiations, understandings,
agreements or representations by or among the parties, written or oral, which
may have related to the subject matter hereof in any way.
10. COUNTERPARTS. This Contract may be executed on separate
counterparts, each of which is deemed to be an original and all of which taken
together constitute one and the same agreement.
11. SUCCESSORS AND ASSIGNS. This Contract is intended to bind and
inure to the benefit of and by enforceable by BBT and the Company and their
respective successors and assigns, except that XX. XXXXXXX may not assign any of
his rights or obligations under paragraphs 1,2,3,4 and 5.
12. CHOICE OF LAW. All questions concerning the construction,
validity and interpretation of this Contract will be governed by the internal
law, and not the law of conflicts, of the State of Colorado.
13. REMEDIES. Each of the parties to this Contract will be entitled
to enforce its rights under this Contract specifically, to recover damages by
reason of breach of any provision of this Contract and to exercise all other
rights existing in its favor. The parties hereto agree and acknowledge that
money damages may not be an adequate remedy for any breach of the provisions of
this Contract and that any party may in its sole discretion apply to any court
of law or equity of competent jurisdiction for specific performance and/or
injunctive relief in order to enforce or prevent any violations of the
provisions of this Contract.
14. AMENDMENTS AND WAIVERS. Any provision of this Contract may be
amended or waived only with the prior written consent of the Company, XX.
XXXXXXX and BBT.
IN WITNESS WHEREOF, the parties have executed this Contract on the day
and year first above written.
CORGENIX MEDICAL CORPORATION
By: /S/ XXXXXXXX X. XXXXXXX
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Its: PRESIDENT
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W. XXXXXX XXXXXXX
/S/ W. XXXXXX XXXXXXX
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BOND BIO-TECH, LTD.
/S/ W. XXXXXX XXXXXXX
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