CONSULTING AGREEMENT
This Consulting Agreement is entered into this 6th day of November, 1995,
by and between ATHENA Medical Corporation (hereinafter ATHENA), a publicly-owned
corporation organized primarily to develop, manufacture and market female
healthcare products, and Xxxxx Xxxxxx (hereinafter CONSULTANT).
WITNESSETH:
WHEREAS, ATHENA has need for a consultant capable of providing consulting
services in the area of trade relations and sales and marketing support
according to the policies and directions directed by ATHENA; and
WHEREAS, CONSULTANT has considerable experience in the area of trade
relations and desires to enter into a consulting relationship with ATHENA;
NOW, THEREFORE, in consideration of the mutual promises more particularly
set forth hereinafter, the above parties have entered in this Consulting
Agreement, agreeing as follows:
1. CONSULTANT agrees to perform consulting services (including necessary
travel) over the next twelve-month period for ATHENA as ATHENA shall direct.
The services shall include but not be limited to the following:: development of
sales strategies to the trade; development of brokerage and wholesale network
and retail service companies for the initial and possibly subsequent rollout,
advertising and promotional materials development for the trade; various
packaging parameters (UPC, planograms, etc.); key account management with major
retail grocery and drug chains.
2. In consideration for the services performed by CONSULTANT, ATHENA
agrees to pay CONSULTANT a fee of $10,000 per month (payable on the 15th of each
calendar month) for time and efforts spent performing consulting services and in
necessary travel authorized by ATHENA. In addition, CONSULTANT shall receive
warrants to purchase shares (one warrant = one share) of Athena Common Stock
subject to, and as approved by, Athena's board of directors.
3. Whenever ATHENA has authorized travel by CONSULTANT, ATHENA will
reimburse CONSULTANT for the preapproved cost of such travel, including the
costs of reasonable hotel accommodations and subsistence and approved
entertainment. ATHENA reserves the right to direct the mode of travel and to
set reasonable limits on the amount of reimbursable hotel accommodations and
subsistence.
4. CONSULTANT understands that it is his responsibility to conform to the
appropriate IRS regulations as an independent contractor.
5. CONSULTANT may neither assign nor subcontract the work assigned to by
ATHENA.
6. CONSULTANT agrees to perform the services covered by this contract
according to the policies, directions, and requirements specified by ATHENA.
7. All written material or other properties, tangible or intangible
arising out of or resulting from the performance of this agreement, and all
proprietary rights, including copyrights, therein, shall belong to ATHENA.
CONSULTANT will not use or give to others any such property without Athena's
written permission. Except as otherwise provided herein, CONSULTANT shall keep
all data and information obtained in the course of this agreement concerning
ATHENA confidential and shall not disclose of otherwise use and such material
without the prior written consent of ATHENA. CONSULTANT shall not be restricted
in the use of any material which is publicly available, or which is already in
CONSULTANT's possession or known to CONSULTANT without restriction, or which is
rightfully obtained by CONSULTANT from sources other than ATHENA.
8. Any specifications, drawings, sketches, models, samples, data, computer
programs or documentation or other technical or business information (all of
which is hereinafter referred to in this paragraph as "information") furnishes
or disclosed to CONSULTANT here under shall be deemed the property of and, when
in tangible form, shall be returned to ATHENA by CONSULTANT. Unless such
information was previously known to the CONSULTANT free of any obligation to
keep it confidential, or has been -- or is subsequently -- made public by ATHENA
or a third party, it shall be held in confidence by CONSULTANT, shall be used
only for the purposes hereunder, and may be used for other purposes only under
such terms and conditions as may be consented to in written permission by
ATHENA.
9. CONSULTANT grants, and agrees to grant, to ATHENA an unrestricted,
nonexclusive, royalty-free license for all purposes on all inventions, and all
patents issued thereon, made, conceived or first reduced to practice by
CONSULTANT, in contemplation of, or in the course of, or as a result of, work
done hereunder. The license so granted to ATHENA shall continue for the lives
of such patents and shall include the right -- within the scope thereof -- to
grant sub-licenses to clients or representatives of ATHENA.
10. Promptly upon expiration or termination of this agreement, CONSULTANT
shall make complete disclosure to ATHENA of all discoveries and inventions or
other information within the scope of Paragraphs 7 through 9, which discoveries,
invention or other information has not been previously disclosed to ATHENA. In
addition, CONSULTANT shall certify in writing such disclosures are complete.
11. CONSULTANT shall not advertise, market or otherwise make known to
others any information relating to the services performed under this contract,
including mentioning or implying the name of ATHENA, or any of its personnel,
without prior written consent of ATHENA.
12. CONSULTANT recognizes that services performed under this contract will
be done for ATHENA and for clients of ATHENA and, thus, CONSULTANT will likely
have numerous contacts directly with said client. CONSULTANT agrees not to use
said contacts in any way to create an ability on CONSULTANT's part to contract
directly with said client without written permission from ATHENA. CONSULTANT
further agrees not to steal said client and not to interfere with, of cause
interference with, said client's contractual relations with ATHENA.
13. Either party to this agreement may terminate for any reason the
consultant relationship created by this contract by providing the other party
with 60 days written notice.
Termination does not relieve either party from obligations incurred prior to
termination, nor does it imply any obligation following termination, except as
otherwise noted herein.
14. The failure of either party hereto to enforce any rights under this
contract shall not be construed to be a waiver of that right, or of damages
caused thereby or of any other rights under this contract.
15. This contract encompasses the entire agreement of the parties and
there are no other agreements or understandings -- either written or oral.
16. This contract may not be modified or amended except in writing with
the same degree of formality with which this contract has been executed.
17. The construction, interpretation, and performance of this contract,
and all transaction under it, shall be governed by the laws of the State of
Florida.
IN WITNESS WHEREOF, the parties hereto have executed this CONSULTANT
AGREEMENT as of the day and year written above.
/s/ Xxxx Xxxxxx
------------------------------------
CONSULTANT
BY /s/ Xxxx Xxxxx
--------------------------------
Chairman, CEO
ATHENA MEDICAL CORPORATION
