CONSULTING AGREEMENT
Ex.
10.8
THIS
CONSULTING AGREEMENT (“Agreement”), effective as of 12:01 p.m., August 3, 2007
(the “Effective Date”), is between XOMA (US) LLC (hereinafter referred to as
“XOMA”), a Delaware company with limited liability having an address of 0000
Xxxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxx 00000, and Xxxx X. Xxxxxxxx (hereinafter
referred to as “XX. XXXXXXXX”), an individual having an address of 000 Xxxxxxxx
Xxxxx, Xxxxxxxx, Xxxxxxxxxx 00000, both of whom may be jointly referred to
sometimes hereinafter as the “Parties”. In consideration of the
mutual promises, covenants, and conditions contained herein, the Parties hereby
agree as follows:
1. Consulting
Services: XX. XXXXXXXX agrees to perform the consulting services
described in Exhibit A to this Agreement (“Services”). XX. XXXXXXXX
warrants that he has the skills, ability and training necessary to and that
he
shall render the Services in a timely and professional manner consistent with
industry standards in accordance with the terms of this Agreement including
Exhibit A, and otherwise meeting the professional and/or services standards
of
XOMA. Subject to the foregoing, the manner and means by which XX.
XXXXXXXX chooses to complete the Services are in XX. XXXXXXXX’x sole discretion
and control.
2. Compensation: In
consideration of the Services to be rendered hereunder, XOMA agrees to pay
XX.
XXXXXXXX the compensation set forth in Exhibit A to this Agreement.
3. Expenses: XOMA
will reimburse XX. XXXXXXXX for all reasonable travel, lodging and other
expenses documented to the reasonable satisfaction of XOMA.
4. Other
Services and Conflicts of Interest: During the term of this
Agreement, XX. XXXXXXXX may perform services for, or be employed by other
persons, companies, or employers, so long as doing so does not create a conflict
of interest or otherwise cause XX. XXXXXXXX to breach his obligations under
this
Agreement.
5. Term: The
term of this Agreement will begin on the Effective Date hereof and continue
until the earlier of December 31, 2007, or termination by either Party in
accordance with this Section 5.
(a) Either
XOMA or XX. XXXXXXXX may terminate this Agreement immediately upon a material
breach by the other Party by giving written notice to the breaching
Party.
(b) This
Agreement shall terminate automatically upon (i) the appointment of a receiver,
liquidator or trustee for either Party by decree of competent authority in
connection with any adjudication or determination by such authority that such
Party is bankrupt or insolvent, (ii) the filing by either Party of a petition
in
voluntary bankruptcy, the making of an assignment for the benefit of either
Party’s creditors or the entering into of a composition with either Party’s
creditors, or (iii) any resolution by the Board of Directors of XOMA to
terminate such Party’s/XOMA’s existence or otherwise cease operations or wind up
XOMA’s affairs.
(c) Unless
XX. XXXXXXXX and XOMA otherwise agree in writing, the Agreement shall terminate
automatically upon the sale of all or substantially all of XOMA’s assets or the
acquisition of XOMA by way of merger or consolidation with another entity or
the
acquisition of outstanding capital stock of XOMA in any transaction in which
the
shareholders of XOMA immediately prior to such transaction do not own a majority
of the outstanding equity interests of the resulting or surviving entity, unless
in any such case the resulting or surviving entity affirmatively assumes in
writing XOMA’s obligations hereunder.
(d) This
Agreement shall terminate automatically upon the death of XX.
XXXXXXXX.
(e) Without
limiting the foregoing, either XOMA or XX. XXXXXXXX may terminate this
Agreement, at its discretion, upon prior written notice to the other
Party.
6. Confidential
Information:
(a) XX.
XXXXXXXX acknowledges that his association with XOMA under this Agreement
creates a relationship of confidence and trust between XX. XXXXXXXX and XOMA
with respect to information disclosed to XX. XXXXXXXX or known to XX. XXXXXXXX
as a result of his relationship with XOMA, not generally known to the trade
or
industry in which XOMA is engaged, about XOMA’s products, processes, programs,
methods, formulas, techniques, concepts, applications, calculations and
services, including research, development, manufacturing, purchasing, finance,
engineering, marketing, merchandising, and selling; and corresponding
information about the products, processes, programs, methods, formulas,
techniques, concepts, applications, calculations and services of XOMA’s
affiliates acquired by XX. XXXXXXXX or developed or made known to XOMA by XX.
XXXXXXXX in the scope of XX. XXXXXXXX’x relationship with XOMA (hereinafter
referred to as “Confidential Information”).
(b) At
all times during the term of this Agreement and thereafter, XX. XXXXXXXX will
not disclose, use, disseminate, lecture upon or publish Confidential Information
unless XX. XXXXXXXX first secures XOMA’s written consent.
(c) (i) XX.
XXXXXXXX will disclose promptly to XOMA, in confidence, all formulas, processes,
techniques, test data, discoveries, improvements, innovations, concepts and
ideas, whether patentable or not, conceived or made by XX. XXXXXXXX in the
course of the Services performed hereunder, solely or jointly with another
or
others, which are made or conceived with the use of XOMA’s facilities,
materials, equipment, trade secrets, personnel, or time, or are suggested by
or
result from, any task assigned to XX. XXXXXXXX or work performed by XX. XXXXXXXX
for, or on behalf of XOMA which relate to the Services performed hereunder
(hereinafter collectively referred to as “Inventions”) and all such Inventions
will be owned by and will be the sole and exclusive property of
XOMA. XX. XXXXXXXX hereby agrees to assign to XOMA any and all rights
XX. XXXXXXXX may have in any Inventions.
2
(ii) Pursuant
to Sections
2870-2872 of the California Labor Code, the term “Invention” as used herein will
not apply to any invention for which no equipment, supplies, facility or trade
secret information of XOMA was used and which was developed entirely on XX.
XXXXXXXX’x own time or on XX. XXXXXXXX’x employees’ own time, and (a) which does
not relate (1) to the business of XOMA or (2) to XOMA’s actual or demonstrably
anticipated research or development, or (b) which does not result from any
work
performed by XX. XXXXXXXX for XOMA. Pursuant hereto, the term
“Invention” as used herein will not include any invention which will arise
outside the scope of the Services performed hereunder.
(d) XX.
XXXXXXXX will not disclose to XOMA or induce XOMA to use any secret or
confidential information or material which XX. XXXXXXXX has reason to believe
is
owned by others.
(e) XX.
XXXXXXXX will, whenever requested to do so by XOMA, execute any applications,
assignments, or other instruments which XOMA will consider necessary to apply
for and obtain Letters Patent in the United States, or any foreign country,
or
to otherwise protect XOMA’s interests therein with respect to Inventions. These
obligations will continue beyond the termination of Services hereunder with
respect to Inventions conceived or made by XX. XXXXXXXX, pertaining to the
Services performed hereunder, during the period XX. XXXXXXXX renders Services
to
XOMA hereunder, and will be binding upon XX. XXXXXXXX’x successors, assigns, or
other legal representatives. XX. XXXXXXXX will also disclose to XOMA
all patent applications filed by XX. XXXXXXXX within one year after termination
of Services hereunder. XX. XXXXXXXX acknowledges that any such
application which relates to the subject matter of the Services performed
hereunder will be presumed to relate to an Invention which was made before
termination of the Services hereunder.
(f) Upon
termination of this Agreement, XX. XXXXXXXX will turn over to a designated
individual employed by XOMA all property then in XX. XXXXXXXX’x possession or
custody and belonging to XOMA. XX. XXXXXXXX will not retain any
copies or reproductions of correspondence, memoranda, reports, specifications,
computations, notebooks, drawings, photographs or other documents relating
in
any way to the Services performed hereunder which are entrusted to XX. XXXXXXXX
at any time during the term of this Agreement.
7. Patents: XX.
XXXXXXXX will not assert any rights under any Inventions as having been made
or
acquired by XX. XXXXXXXX prior to the effective date of this
Agreement.
8. Representations
and Warranties: XX. XXXXXXXX represents and warrants that
performance of this Agreement will not breach any agreement or other contractual
commitment or obligation by which XX. XXXXXXXX is bound.
3
9. Employment
Taxes, Payments and Records: XX. XXXXXXXX agrees (a) to pay
and/or withhold any and all fees, charges, payments and taxes required to be
paid or withheld pursuant to any and all applicable federal, state and local
laws, statutes, rules and regulations (collectively, the “Laws”), including,
without limitation, any and all federal and state income tax, social security,
unemployment and disability insurance laws, statutes, rules and regulations,
in
connection with this Agreement; (b) to maintain any and all records and
documents required by the Laws in connection with this Agreement and to file
such records and documents as required by the Laws; and (c) to reimburse and
indemnify XOMA in the event that XX. XXXXXXXX fails fully and in a timely
fashion to perform any of the obligations set forth in this Section 9 and XOMA,
at its option which is hereby granted, performs or discharges any and all of
such obligations in XX. XXXXXXXX’x name or on XX. XXXXXXXX’x behalf or
otherwise.
10. Independent
Contractor Status: In performing the Services, XX. XXXXXXXX will
be deemed to be for all purposes an independent contractor (and not an employee
or agent of XOMA) under any and all laws, whether existing or future, including
without limitation Social Security laws, unemployment insurance laws, and
withholding and other employment taxation laws. XX. XXXXXXXX will not
be entitled to participate in any employee benefits accruing to employees of
XOMA. XX. XXXXXXXX will not be authorized to make any representation,
contract or commitment on behalf of XOMA unless XX. XXXXXXXX is specifically
requested or authorized to do so in writing by an authorized representative
of
XOMA.
11. Performance
of Services: In performing the Services, XX. XXXXXXXX agrees to
provide his own equipment, tools and other materials at his own
expense. Notwithstanding the preceding sentence, XOMA shall make its
facilities and equipment available to XX. XXXXXXXX as reasonably necessary
in
connection with the Services. For any work performed on XOMA’s
premises, XX. XXXXXXXX shall comply with all security, confidentiality, safety
and health policies of XOMA. XX. XXXXXXXX shall take all necessary
precautions to prevent, and shall be responsible for, any injury to any persons
(including, without limitation, employees of XOMA) or damage to property
(including, without limitation, XOMA’s property) arising from or relating to XX.
XXXXXXXX’x performance of the Services or the use by XX. XXXXXXXX of any XOMA
equipment, tools, facility or other property, whether or not such claim is
based
upon its condition or on the alleged negligence of XOMA in permitting its
use.
12. Injunctive
Relief: XOMA and XX. XXXXXXXX reaffirm, recognize and agree that
the Services to be performed by XX. XXXXXXXX hereunder are of a special, unique,
extraordinary and intellectual character; that those Services are of particular
value to XOMA and that the breach of any or all obligations undertaken by XX.
XXXXXXXX hereunder, including, without limiting the generality of the foregoing,
XX. XXXXXXXX’x obligation of non-competition, could not be reasonably or
adequately compensated by damages in an action at law, and that an appropriate
remedy for XOMA for any such breach or threat to commit a breach will be,
without limitation, an injunction restraining XX. XXXXXXXX from committing
such
breach and granting specific performance hereunder.
13. Arbitration: Any
controversy, dispute or claim arising out of or relating to this Agreement
or
any alleged breach hereof, will be settled by arbitration before three neutral
arbitrators in accordance with the Commercial Arbitration Rules of the American
Arbitration Association then in effect, and judgment upon the award rendered
by
the arbitrators may be entered in any court of competent
jurisdiction.
14. Legal
Fees: If any action or proceeding in arbitration or law is
commenced to enforce any of the provisions or rights under this Agreement,
the
unsuccessful party to such action or proceeding, as determined by arbitration
or
by the court in a final judgment or decree, will pay the successful party all
costs, expenses, and reasonable attorney’s fees incurred therein by such party
(including, without limitation, such costs, expenses and fees on any appeal),
and if such successful party will recover judgment in any such action or
proceedings, such costs, expenses and attorneys’ fees will be included as part
of such judgment.
15. Severability: If
any provision of this Agreement is held to be inoperative, unenforceable or
otherwise invalid, the remaining provisions hereof will be carried into effect
without regard to such inoperative, unenforceable or otherwise invalid
provision.
16. Governing
Law: This Agreement will be construed in accordance with, and
governed by, the laws of the State of California.
17. Assignment: Since
this Agreement requires the performance of personal services by XX. XXXXXXXX,
XX. XXXXXXXX may not assign any right or delegate any duty described in this
Agreement without XOMA’s prior written approval.
18. Entire
Agreement: This instrument constitutes the entire Agreement
between the Parties hereto and supersedes any and all prior agreements
concerning the engagement of XX. XXXXXXXX by XOMA, whether written or
oral. This Agreement will not be amended, altered or changed except
by written agreement signed by both Parties hereto.
IN
WITNESS WHEREOF, the Parties have executed this Agreement on the date(s) set
forth below.
XOMA
(US)
LLC
_____________________________________
______________________________
Xxxxxxx
X.
Xxxxx Xxxx
X. Xxxxxxxx
Vice
President, Human Resources and
Information
Technology
_____________________________________ __________________________________
Date
Date4
EXHIBIT
A
Statement
of Work
|
I.
|
DESCRIPTION
OF THE SERVICES TO BE
PERFORMED:
|
Xx.
Xxxxxxxx will be available to provide consulting services for up to two (2)
days
a week as requested by, and shall provide such services exclusively to, the
Chief Executive Officer and President of XOMA Ltd.
II. COMPENSATION
XOMA
will
pay XX. XXXXXXXX, in monthly installments, an aggregate amount equal to 40%
of
the base salary he would have received had he remained an employee of XOMA
for
the term of this agreement, based on his annual salary as in effect immediately prior to his entry into
this agreement ($500,000
per year), for consulting services rendered by XX. XXXXXXXX during the term
of
this Agreement.
[Social
Security/Tax I.D. #__________]
A-1
