EXHIBIT 10.15
CONSULTING AGREEMENT
This Agreement, dated as of December 22, 2000, is made and entered into
by and between Nutraceutix, Inc., a Delaware corporation ("Nutraceutix") and Xx.
Xxxx Xxxxxxx ("Xx. Xxxxxxx").
1. Consulting. Nutraceutix hereby retains Xx. Xxxxxxx as a
consultant, and Xx. Xxxxxxx hereby agrees to furnish consulting services to
Nutraceutix, on the terms and conditions set forth herein. This Agreement and
the consulting arrangement set forth in this Agreement shall commence on January
1, 2001 and, subject to earlier termination as provided in this Agreement, shall
terminate on December 31, 2003 (the "Term").
2. The Services. During the Term, Xx. Xxxxxxx shall consult with
Nutraceutix concerning the technology covered by US Patent Number 6,090,411, US
Patent Applications 08/958,470 filed October 27, 1997 and 09/037,096 filed March
9, 1998 and Nutraceutix's license rights with respect to that technology (the
"Services"). If Nutraceutix wishes to consult with Xx. Xxxxxxx on other matters
and Xx. Xxxxxxx agrees thereto, the parties shall complete and execute a
document in the form attached hereto as Exhibit A (an "Additional Services
Agreement"), after which Xx. Xxxxxxx'x consultation regarding the topic(s)
described in such Additional Services Agreement(s) shall also constitute
"Services" for all purposes under and be governed by this Agreement.
3. Performance. Xx. Xxxxxxx shall devote one (1) day per week
plus ongoing supervision of projects as necessary in performing the Services.
Xx. Xxxxxxx shall devote his best efforts to the utmost of his skill in
performing the Services. Xx. Xxxxxxx shall perform the Services in accordance
with his own means, methods, schedules and guidelines. Xx. Xxxxxxx shall
personally perform or supervise performance of all of the Services.
4. Independent Contractor.
4.1 Consultant. In performing the Services Xx. Xxxxxxx
shall be strictly a consultant of Nutraceutix, and his legal status shall at all
times be an independent contractor and not an employee or agent of Nutraceutix.
Xx. Xxxxxxx shall not represent that he is, or hold himself out as, an employee,
agent or representative of Nutraceutix. Xx. Xxxxxxx is not authorized to enter
into any contract or commitment for, on behalf of or in the name of Nutraceutix
or to incur any obligation or liability of Nutraceutix. Xx. Xxxxxxx shall not be
treated as an employee of Nutraceutix for federal tax, workers' compensation or
any other purpose, and shall not be entitled to any benefits afforded to
employees of Nutraceutix. Without limiting the generality of the foregoing, Xx.
Xxxxxxx shall not be treated as an employee of Nutraceutix for federal tax,
workers' compensation or any other purpose. Further, Xx. Xxxxxxx shall not be
entitled to any pension, deferred compensation, welfare, insurance or other
benefits afforded to employees of Nutraceutix.
4.2 Temple University. Xx. Xxxxxxx is a member of the
staff of the Pharmaceutical Sciences Department of Temple University - of The
Commonwealth System of Higher Education ("Temple"). Xx. Xxxxxxx hereby
represents and warrants that he is available to perform the Services as a
consultant, and that his obligations under this Agreement are consistent
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with Temple's policies and do not conflict with his obligations to Temple. Xx.
Xxxxxxx shall not be acting as an employee or agent of Temple in performing the
Services.
5. Compensation. Nutraceutix shall pay Xx. Xxxxxxx a consulting
fee of one hundred dollars ($100) per hour for performing the Services, plus
reimbursement for related out-of-pocket expenses. Nutraceutix shall pay Xx.
Xxxxxxx a retainer in the amount of three thousand dollars ($3,000) per month on
or before the fifteenth (15th) day of each month during the Term, which
retainers shall be credited against Xx. Xxxxxxx'x invoices for Services
rendered. On or before the tenth (10th) day of each month during the Term, Xx.
Xxxxxxx shall submit to Nutraceutix an invoice detailing (i) the Services
provided and the number of hours worked in performing the Services during the
prior month, and (ii) any reasonable travel, lodging and other related expenses
incurred by Xx. Xxxxxxx directly in performing such Services, itemized for each
cost item and supported by receipts or similar documents. Within thirty (30)
days after Nutraceutix's receipt and verification of each such invoice, it shall
pay to Xx. Xxxxxxx the balance due on each such invoice after crediting retainer
payments previously paid by Nutraceutix. In addition, Nutraceutix shall pay Xx.
Xxxxxxx such bonuses, payable in cash, stock or stock options, as are described
in any Additional Services Agreements.
6. Inventions. Nutraceutix shall own all right, title and
interest in and to any and all inventions, technology and technical or business
innovations developed or conceived during the Term which (i) relate to or are in
any way connected with the business, work or investigations of Nutraceutix, (ii)
result from or are suggested by any work associated with the Services or
information developed or received by Xx. Xxxxxxx during the course of performing
the Services, or (iii) are otherwise made through the use of Nutraceutix's
facilities, funds, materials or other resources ("Nutraceutix Innovations"). Xx.
Xxxxxxx hereby assigns and conveys to Nutraceutix Xx. Xxxxxxx'x entire right,
title and interest in and to any and all Nutraceutix Innovations as well as any
and all resulting copyrights and patents. Xx. Xxxxxxx shall maintain an adequate
and accurate written record of the status, development and other relevant facts
regarding any and all actual or potential Nutraceutix Innovations as necessary
or appropriate to facilitate protection of Nutraceutix's proprietary rights in
all Nutraceutix Innovations. Xx. Xxxxxxx shall, promptly upon Nutraceutix's
request, both during the Term and thereafter, execute and deliver any and all
documents, and furnish any other information or assistance (at Nutraceutix's
expense), necessary or appropriate for Nutraceutix to obtain for itself or its
nominees patents, copyrights or other intellectual property or proprietary
rights in any Nutraceutix Innovations in any country or jurisdiction. Xx.
Xxxxxxx shall make no charge or claim for additional compensation or any other
consideration for signing and delivering such documents or rights. Xx. Xxxxxxx
hereby represents and warrants that Xx. Xxxxxxx is not subject to any agreement
or requirement which conflicts with Xx. Xxxxxxx'x obligations under this
Agreement, and shall disclose the same to Nutraceutix promptly and without prior
request.
7. Non-Disclosure. During the Term and thereafter, Xx. Xxxxxxx
shall not, for profit or otherwise, copy, disclose or use any trade secret or
confidential business information of Nutraceutix (as that term is defined below
in this paragraph 7), whether or not developed by Xx. Xxxxxxx, except as
required for performance of the Services. Trade secrets or confidential business
information of Nutraceutix are hereby defined for all purposes under this
Agreement as any document, concept, idea or other item treated or otherwise
identified by Nutraceutix as a trade secret, including but not limited to: (i)
any and all unique ideas, formulations, methods,
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techniques or technology that have been developed by or on behalf of Nutraceutix
for use in connection with its business, including but not limited to
Nutraceutix Innovations, (ii) products, compounds or technology that are used or
have been developed in connection with Nutraceutix's business, (iii) customer
and supplier lists; (iv) price lists, pricing strategies and other pricing
information of Nutraceutix, (v) financial information of Nutraceutix, (vi)
business plans of Nutraceutix and (vii) any other confidential information or
data relating to Nutraceutix's business. Trade secret or confidential business
information of Nutraceutix shall not include information which (a) is or later
becomes public domain through no fault or action of Xx. Xxxxxxx, (b) was already
known to Xx. Xxxxxxx at the time he obtained it from Nutraceutix, or (c) is
lawfully disclosed to Xx. Xxxxxxx by a third party free of restrictions on
disclosure.
8. Ownership. All trade secrets or confidential business
information of Nutraceutix, and all notes, records and other documents made,
compiled or used by Xx. Xxxxxxx in connection with Nutraceutix's business,
including but not limited to development of Nutraceutix Innovations, are the
sole property of Nutraceutix and shall be delivered by Xx. Xxxxxxx to
Nutraceutix immediately upon termination of the Term, or at any earlier time
upon the request of Nutraceutix. Xx. Xxxxxxx acknowledges that the items
referred to in the preceding sentence constitute valuable property of the
Nutraceutix. Xx. Xxxxxxx shall not infringe or violate Nutraceutix's rights in
those items, and shall not own, apply for or otherwise attempt to obtain on
behalf of Xx. Xxxxxxx or others any proprietary right in any such item.
9. Employees; Suppliers. During the Term and for a period of two
(2) years after the termination of the Term, regardless of the reason for such
termination, Xx. Xxxxxxx shall not, directly or indirectly, suggest, request,
encourage or otherwise induce any employee, officer, agent, consultant,
independent contractor or supplier of Nutraceutix to leave employment of
Nutraceutix, cease providing products or services to Nutraceutix or otherwise
curtail, reduce or cancel his/her/its business relationship with the
Nutraceutix.
10. Noncompetition. During the Term Xx. Xxxxxxx shall not compete
with Nutraceutix with respect to US Patent Number 6,090,411 or such other
matters as are described in any Additional Services Agreement, directly or
indirectly, by conducting research, consulting or otherwise, as advisor,
consultant, independent contractor, principal, agent, partner, officer,
director, shareholder, employee, member of any association or otherwise;
provided that this paragraph 10 shall not prohibit Xx. Xxxxxxx from continuing
his current employment with Temple University.
11. Third Party Proprietary Rights. Xx. Xxxxxxx shall perform all
of the Services, including but not limited to development of Nutraceutix
Innovations, (i) without violating any third party's proprietary rights, (ii)
without utilizing confidential or proprietary information belonging to a third
party unless Nutraceutix has the right to use the same pursuant to an
appropriate license or similar agreement, and (iii) in strict compliance with
all confidentiality and other agreements binding Xx. Xxxxxxx and/or Nutraceutix.
Xx. Xxxxxxx shall not disclose to Nutraceutix, or use in connection with the
Services, including but not limited to development of Nutraceutix Innovations,
any confidential or proprietary information belonging to a third party,
regardless of whether such information is the subject of a confidentiality
agreement binding Xx. Xxxxxxx, unless Nutraceutix has the right to use the same
pursuant to an appropriate license or similar agreement.
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12. Business Reputation. From time to time as requested by
Nutraceutix, Xx. Xxxxxxx shall (i) attend scientific or industry meetings to
support Nutraceutix's business, (ii) publish articles regarding original
research done on behalf of Nutraceutix, provided that Xx. Xxxxxxx shall not
publish anything which could negatively impact obtaining patent rights therein,
and (iii) meet with clients, potential clients, investors, trade publications
and industry analysts to support Nutraceutix's business. Xx. Xxxxxxx shall use
his best efforts to enhance the business relationship between Nutraceutix and
Temple University. Xx. Xxxxxxx shall not intentionally diminish or harm the
business reputation of Nutraceutix or its products. To assist in facilitating
the foregoing, Xx. Xxxxxxx shall not publish any work relating to the Services
or information obtained in connection with performing the Services (i) unless he
has given Nutraceutix sixty (60) days advanced written notice thereof and (ii)
which violate any of Xx. Xxxxxxx'x obligations under this Agreement. Nutraceutix
shall fully disclose this Agreement to the public in accordance with applicable
securities law requirements.
13. Enforcement. The parties hereby acknowledge and agree that it
would be difficult if not impossible to measure in money the damages that shall
accrue to Nutraceutix, or that monetary damages may not adequately compensate
Nutraceutix, if the obligations of Xx. Xxxxxxx set forth in this Agreement are
violated. Therefore, in the event of such violation, Xx. Xxxxxxx hereby consents
to Nutraceutix being granted injunctive relief, without bond (but upon due
notice), in addition to such other relief as may exist in equity, at law or
otherwise under this Agreement. Moreover, Xx. Xxxxxxx represents and warrants
that, in the event the restrictions set forth in this Agreement are specifically
enforced or otherwise become operative, Xx. Xxxxxxx will be able to engage in a
business or pursuit for purposes of earning a livelihood which does not
necessitate breach of or other failure to comply with this Agreement.
14. Termination. The Term may be terminated at any time by either
party for any reason or no reason by giving the other party thirty (30) days
advance written notice of such termination.
15. Assignment. Nutraceutix may assign this Agreement to a
division, subsidiary or other affiliated entity of Nutraceutix. This Agreement
and Xx. Xxxxxxx'x duties pursuant to this Agreement may not be assigned or
otherwise delegated by Xx. Xxxxxxx. Subject to the foregoing, this Agreement
shall be binding upon and inure to the benefit of Nutraceutix and its
successors, assigns and legal representatives and on Xx. Xxxxxxx and Xx.
Xxxxxxx'x heirs, administrators, and personal representatives.
16. Miscellaneous. This Agreement shall be governed by and
construed in accordance with the laws of the State of Washington. No amendment,
modification or waiver of this Agreement shall be valid unless evidenced by a
written instrument signed by the party to be bound thereby. The provisions of
paragraphs 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13 and 15, and all other provisions
of this Agreement which may reasonably be interpreted or construed as surviving
the expiration or termination of the Term, shall survive the expiration or
termination of the Term. This Agreement constitutes the entire agreement between
the parties with respect to the subject matter hereof and supersedes any and all
prior and contemporaneous agreements, negotiations, correspondence, undertakings
and communications of the parties, oral or written, with respect to that subject
matter.
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17. Facsimile Signatures. Each party (i) has agreed to permit the
use, from time to time and where appropriate, of telecopied signatures in order
to expedite the transaction contemplated by this Agreement, (ii) intends to be
bound by its respective telecopied signature, (iii) is aware that the other will
rely on the telecopied signature, and (iv) acknowledges such reliance and waives
any defenses to the enforcement of the documents effecting the transaction
contemplated by this Agreement based on the fact that a signature was sent by
telecopy.
Nutraceutix: Xx. Xxxxxxx:
Nutraceutix, Inc.
/s/ /s/
----------------------------------- ------------------
By: Xxxxx X. Xxxxxx Xx. Xxxx Xxxxxxx
Title: President & CEO 0 Xxx Xxxx
Address: 0000 000xx Xxx. X.X. Xxxxxx, XX 00000
Xxxxxxx, XX 00000
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