Exhibit 10.4
CONSULTING AGREEMENT
This Agreement is made as of August 31, 2001, to be effective September
1, 2001 between MYMETICS CORPORATION, a Delaware Corporation (the "COMPANY"),
and XXXXXXX XXXXX, an individual resident of Rhode Island (the "CONSULTANT").
PREAMBLE
The Company requires certain international management and marketing
assistance and advice, and the Consultant has valuable experience and contacts
and wishes to assist the Company in this regard. Therefore, the parties,
intending to be legally bound, agree as follows.
AGREEMENT
1. ENGAGEMENT. The Company hereby engages the Consultant to render the
following services, and other services reasonably requested by the Company,
through February 28, 2002:
(1) Assist the Company in establishing the scope of the business of the
Company and establishing and operating management team for the Company's
operations in France and the United States;
(2) Coordinating marketing matters with the Company's public relations
firm;
(3) Preparing a business plan for the Company;
(4) Proposing appropriate advisors and consultants to assist the
Company in its business operations;
(5) Address issues relating to the Company's patents and patent
applications;
(6) Explore strategic joint venture opportunities for the Company
world-wide;
(7) Manage the issuance of a secondary $20,000,000 equity offering with
respect to the Company's equity securities, including the preparation of
investor presentations; and
(8) Developing a viable market identity for the Company and its
products and services in the United States.
The Consultant hereby accepts such engagement and covenants that he will devote
his best efforts and skill to the performance of these services and such
additional services as may be mutually agreed upon by the Company and the
Consultant. The Company and the Consultant agree that the engagement shall
comprise approximately 7.5 days of full time work per month.
2. FEES & EXPENSES.
(a) RETAINER FEE AND EXPENSES. The Company agrees to pay the
Consultant for his services $12,000 per month, payable in arrears on or before
the 5th day of the month following the month during which the services were
rendered. The Company is obligated to pay the Consultant only for such time that
the Consultant is available to and works for the Company. The Company shall
reimburse the Consultant for his ordinary, necessary, and reasonable business
expenses incurred on Company business upon presentation of properly documented
expense reports to the Company's Chief Operating Officer. It is agreed that the
Consultant shall be entitled to air-travel in business class.
(b) STOCK OPTIONS. In addition to the compensation set forth
in (a) above, the Consultant shall be granted stock options to purchase up to
50,000 shares of the Company's common stock, $0.01 par value,
pursuant to the Company's 2001 Stock Option Plan (the "INITIAL STOCK OPTION").
The exercise price for the Initial Stock Option will be $2.50 per share of
commons stock, which represents the average of the bid and ask price of such
shares as of September 1, 2001. In addition, the Company agrees to grant the
Consultant stock options for an additional 100,000 shares of the Company's
common stock, $0.01 par value, pursuant to the Company's 2001 Stock Option Plan
upon the successful completion of the listing of the Company's common stock on
the Nasdaq Stock Exchange (the "LISTING STOCK OPTION" and, together with the
Initial Stock Option, the "STOCK OPTIONS"). The exercise price for the Listing
Stock Option will be the average of the bid and ask price of such shares on the
first day the Company's shares of stock are listed on the Nasdaq Stock Exchange.
The Consultant agrees to execute a Stock Option Agreement in substantially the
form of EXHIBIT A, attached hereto an incorporated by reference herein, upon the
grant of each of the Stock Options. Each of the Stock Options will vest upon
being granted.
3. TERM.
(a) This Agreement shall commence as of its effective date and
shall continue until February 28, 2002 unless earlier terminated as hereinafter
provided. Thereafter, the Agreement shall continue indefinitely unless
terminated by either party at any time and for any reason upon 15 days' prior
written notice given to the other party. Notwithstanding any other provisions of
this Agreement, this Agreement shall terminate automatically without notice at
any time upon the occurrence of any of the following events:
(i) The Consultant's death or Total and Permanent
Disability (as defined below);
(ii) A material breach of this Agreement by the
Consultant;
(iii) The Consultant's engaging in conduct materially
injurious to the Company or to himself, including but not limited to acts of
dishonesty or fraud, commission of a felony or a crime of moral turpitude, or
substance abuse; or
(iv) The Consultant's continuing and unreasonable refusal
to substantially perform his duties for the Company as specifically directed by
the Company.
(b) TOTAL AND PERMANENT DISABILITY. "TOTAL AND PERMANENT
DISABILITY" shall mean a mental or physical condition of the Consultant which,
in the reasonable opinion of the Company's Board of Directors, renders the
Consultant unable or incompetent, with or without reasonable accommodation, to
perform the essential functions of his job or devote his best efforts (measured
against prior performance) to the Company, or any of its successors, for more
than 60 days.
4. CONFIDENTIAL INFORMATION. The Consultant agrees that he will not
reveal (or permit to be revealed) to a third party or use for his own benefit,
either during or after the term of this Agreement, without the prior written
consent of the Company, any confidential information pertaining to the business
of the Company, its shareholders, subsidiaries or other affiliates
(collectively, "AFFILIATES") including but not limited to information about
customers, suppliers, employees, financial condition, operations, procedures,
know-how, production, distribution, experiments, patents, or other trade secrets
obtained while working with the Company or its Affiliates except for information
clearly established to be in the public record.
5. ARBITRATION. Any disagreement or claim (other than a claim for
injunctive relief for violation of Sections 4 or 5 hereof) arising out of or
relating to this Agreement, or the breach thereof, or its termination shall be
submitted to arbitration pursuant to the provisions of the Uniform Arbitration
Act, 42 Pa. C.S.A. ss.7301 ET SEQ. in Pittsburgh, Pennsylvania in accordance
with the Commercial Arbitration Rules of the American Arbitration Association,
and judgment upon the award rendered by the Arbitrator(s) may be entered in any
court having jurisdiction thereof. The disputants shall promptly endeavor by
mutual agreement to designate one person to serve as the Impartial Arbitrator
within 30 days after written request for arbitration by any party hereto. If the
disputants cannot agree on a single arbitrator, then each of the disputants
shall promptly designate one person to serve as an arbitrator, and the
arbitrators so designated shall within 10 days select another person (or two
persons where necessary to ensure that the total number of arbitrators is an odd
number) as Impartial Chairman of the Board of Arbitration (and where necessary,
Impartial Vice Chairman) by
-2-
agreement, or if they are unable to agree, then the Impartial Arbitrator shall
be selected through the facilities of the Pittsburgh Regional Office of the
American Arbitration Association and in accordance with the rules thereof. The
Award of the Impartial Arbitrator or the Board of Arbitration (as the case may
be) shall be final and binding upon the disputants, subject only to such rights
of appeal as are provided by the said Act. The costs of the arbitration
proceeding, including the fees of the Impartial Arbitrator or the Board of
Arbitration (as the case may be) shall be borne equally by the disputants.
6. INDEPENDENT CONTRACTOR. The Consultant, in entering into this
Agreement and carrying out his obligations hereunder, is an independent
contractor, is not and shall not be deemed to be an agent or Consultant of the
Company, and shall have no power to bind the Company to any contract or warranty
or in any respect whatever, whether by written or oral statements, by any course
of conduct, or in any other manner, without the express written consent of the
Company, which consent may not be general but must specifically refer to each
particular instance as to which the Company consents to be so bound. The
Consultant shall indemnify the Company against and hold it harmless from all
damages, costs, and expenses (including attorneys' fees) which the Company may
suffer or incur should it be held bound by any writing, speech, action or
inaction of the Consultant other than those consented to by the Company.
9. MISCELLANEOUS. The invalidity or unenforceability of any provision
hereof shall in no way affect the validity or enforceability of any other
provision. This Agreement embodies the entire Agreement between the parties
hereto and supersedes any and all prior or contemporaneous, oral or written
understandings, negotiations, or communications on behalf of such parties. This
Agreement may be executed in several counterparts, each of which shall be deemed
original, but all of which together shall constitute one and the same
instrument. The waiver by either party of any breach or violation of any
provision of this Agreement shall not operate or be construed as a waiver of any
subsequent breach or violation hereof. This Agreement is executed in and shall
be governed by and construed in accordance with the laws of the Commonwealth of
Pennsylvania. This Agreement shall be changed, waived, discharged, or terminated
only by written agreement of both parties hereto. This Agreement shall inure to
the benefit of the Company, its successors and assigns.
[SIGNATURE PAGE FOLLOWS]
-3-
[SIGNATURE PAGE TO CONSULTING AGREEMENT]
ATTEST: MYMETICS CORPORATION
By: /s/ Xx. Xxxxx X. Xxxxxx
--------------------------------- -----------------------
Name: Xxxxx X. XxXxxx
Title: President and CEO
WITNESS:
/s/ Xxxxxxx Xxxxx
--------------------------------- -----------------
Xxxxxxx Xxxxx, Grantee
-4-
EXHIBIT A
FORM OF
STOCK OPTION AGREEMENT
This Agreement is made as of _____________, 2001, between MYMETICS
CORPORATION, a Delaware corporation (the "COMPANY"), and _________________ (the
"GRANTEE").
1. GRANT OF OPTION. The Company hereby grants to the Grantee the right
and option (the "OPTION") to purchase _________ full shares of authorized but
unissued or repurchased shares of Common Stock of the Company (the "OPTION
SHARES") according to the vesting schedule and the other terms and conditions of
this Agreement.
2. SUBJECT TO TERMS OF PLAN. This grant is being made to the Grantee
pursuant to ______________________________________ Plan (the "PLAN") and is
subject to all terms and conditions contained in the Plan. Unless expressly
stated herein, if there is any inconsistency between this Agreement and the
Plan, the terms and conditions of the Plan will control. All capitalized terms
not defined herein shall have the meanings assigned to such terms in the Plan.
3. PRICE. The option price of the Option Shares will be _________
($___) per share.
4. DATE OF GRANT. The Option is granted as of September 1, 2001 (the
"DATE OF GRANT").
5. STATUS OF OPTION. The Option is not intended to qualify as an
incentive stock option as defined in Section 422 of the Internal Revenue Code of
1986, as amended from time to time (the "CODE").
6. VESTING OF OPTION. Subject to Section 11 hereof, the Option will
vest immediately upon being granted.
7. TERM OF OPTION. Except as provided in Section 10, the portion of the
Option which has vested according to the terms set forth in Section 6 above may
be exercised in full, or in part, at any time after vesting and prior to
_______, 2011.
8. HOW EXERCISABLE. The Grantee may exercise the Option only by giving
written notice to the Company, which notice must specify the number of vested
Option Shares to be purchased and must be accompanied by payment in full as
provided in Section ____ of the Plan. Until full payment of the option price is
received by the Company, the Grantee will have no right to receive the Option
Shares.
The Company may require that the Grantee furnish to the Company, prior
to the issuance of any Option Shares, an agreement (in such form as the Company
may specify) that all shares purchased by him/her under the Option will be
acquired for investment only and not for purposes of distribution or resale.
9. TRANSFER. The Option is not transferable by the Grantee other than
by will, by the laws of descent and distribution or pursuant to a "qualified
domestic relations order" as defined by the Code or Title 1 of the Employee
Retirement Income Security Act or the rules thereunder. Except as set forth in
the preceding sentence, during the lifetime of the Grantee the Option is
exercisable only by the Grantee; provided, however, that the Grantee may in a
manner specified by the Board and to the extent provided in the Plan (a)
designate in writing a beneficiary to exercise the Option after [HIS/HER] death
and (b) transfer the option to a revocable, inter vivos trust as to which the
Grantee is both the settlor and trustee.
10. Termination of Option.
(a) FOR CAUSE. If the Grantee's service to the Company is terminated (a
"TERMINATION") for Cause, any unexercised portion of the Option shall thereupon
terminate.
(b) ON ACCOUNT OF DEATH OR DISABILITY. If the Grantee's Termination is
on account of [HIS/HER] death or permanent disability, then any unexercised
portion of the Option which has vested according to the terms set forth in
Section 6 above as of the date of such Termination, may be exercised, in whole
or in part, at any time within one year after such Termination by the Grantee,
or after the Grantee's death, by (A) [his/her] personal representative or by the
person to whom the option is transferred by will or the applicable laws of
descent and distribution, (B) the Grantee's beneficiary designated in accordance
with Section 9 above, or (C) the then-acting trustee of the trust described in
Section 9 above.
(c) IN ALL OTHER CASES. Except as provided in subsections (a) and (b)
above or as otherwise provided in the Plan, any unexercised portion of the
Option which has vested according to the terms set forth in section 6 above may
be exercised at any time within ninety (90) days following the date of
Termination.
11. CHANGE OF CONTROL. Notwithstanding any provision set forth in the
Plan, upon a Change of Control (as defined in the Plan), any and all unvested
Option Shares shall automatically vest in their entirety and shall be
immediately exercisable by the Grantee.
12. NO EMPLOYMENT RIGHTS. Neither the establishment of the Plan nor the
granting of the Option shall be construed to (a) give the Grantee the right (i)
to remain employed or retained by the Company or (ii) to any benefits not
specifically provided by the Plan or (b) in any manner modify the right of the
Company to modify, amend, or terminate any of its employee benefit plans.
13. RESTRICTIONS OF TRANSFERABILITY. In connection with the exercise of
all or any portion of the Option, the Grantee shall comply with all Federal and
State securities laws and regulations.
14. NOTICE OF DISPOSITION OF SHARES. Option shares acquired upon
exercise of the Option by a person then subject to the provisions of Section 16
of the Securities Exchange Act or 1934, as amended, may not be sold or otherwise
transferred prior to (i) the expiration of six months after the Date of Grant of
such option or (ii) the death of the optionee, whichever may first occur.
15. RECEIPT OF PLAN. The Grantee acknowledges [HIS/HER] receipt of the
Plan and agrees to accept the Option subject to all terms and conditions
contained herein and therein. The Grantee agrees to accept as binding all
decisions or interpretations of the Board upon any questions arising under the
Plan.
16. ENTIRE AGREEMENT. This Agreement, along with the Plan, contains the
entire agreement of the parties with respect to the subject matter hereof and
supersedes all prior written and oral agreements, and all contemporaneous oral
agreements, relating to such matters
17. GOVERNING LAW. All questions concerning the construction, validity
and interpretation of this Agreement will be governed by the laws of the State
of Delaware, except that the construction and interpretation of the Agreement as
it relates to the service relationship between the Company and the Grantee shall
be governed by the laws of the Commonwealth of Pennsylvania, in either case
without regard to the conflict of law provisions of the laws of Delaware or
Pennsylvania.
[SIGNATURE PAGE FOLLOWS]
-2-
[SIGNATURE PAGE TO STOCK OPTION AGREEMENT]
IN WITNESS WHEREOF, the parties have signed this Agreement or caused
the Agreement to be executed on the day and year first above written.
MYMETICS CORPORATION
By:
---------------------------------
---------------------------------
-3-
