CONSULTING AGREEMENT
EXHIBIT 99.2
This Agreement is entered into by and between Aastrom Biosciences, Inc., a Michigan
corporation (“Company”) and R. Xxxxxxx Xxxxxxxxx, Ph.D., (“Xxxxxxxxx”).
Xxxxxxxxx currently serves as a Director and Chairman of the Board of Directors of Company.
Prior to July 17, 2006, Xxxxxxxxx was employed as Chief Executive Officer of Company, which
employment was pursuant to that certain Revised Employment Agreement, dated December 27, 2005 (the
“Employment Agreement”). Pursuant to Section 9.4 of the Employment Agreement, Xxxxxxxxx is to
cooperate generally to provide relevant historical information known to Xxxxxxxxx concerning
Company’s past business activities, without involving significant amounts of time (the “General
Cooperation Duties”). As a Director and Chairman of the Board, Xxxxxxxxx will perform normal
services as a Director (the “Director Services”). This Agreement is being entered into for the
purpose of Xxxxxxxxx rendering additional services (the “Services”) which are in addition to the
General Cooperation Services and the Director Services.
NOW, THEREFORE the parties agree as follows:
1. Engagement. Company hereby engages Xxxxxxxxx, and Xxxxxxxxx hereby accepts such
engagement, upon the terms and conditions set forth herein.
2. Services. Xxxxxxxxx is engaged as a consultant to perform the Services as may be
requested by Xx. Xxxxxx Xxxxxx, as Company’s Chief Executive Officer (the “CEO”), and acceptable to
Xxxxxxxxx. The Services shall be rendered initially for and during the ten business days from July
17 through July 28, 2006, for which Company shall pay to Xxxxxxxxx the per diem fee specified on
Exhibit A; and thereafter, the Services shall be rendered pursuant to such time schedules and
parameters as are mutually approved by both Xxxxxxxxx and the CEO. Xxxxxxxxx agrees to be
available to provide the Services for said initial ten business days; and thereafter, Xxxxxxxxx
will make good faith efforts to be reasonably available to provide the Services, subject to
reasonable advanced notice, but Company acknowledges and understands that Xxxxxxxxx will have other
business and personal time commitments, so that the timing for the Services after July 28, 2006,
will need to be coordinated to be compatible with Xxxxxxxxx’x other time commitments.
3. Reporting. Xxxxxxxxx shall report regularly to the CEO as to the plans,
activities, progress and status for Xxxxxxxxx’x performance of the Services.
4. Compensation. Company shall compensate Xxxxxxxxx as specified on Exhibit A
attached hereto.
5. Term. The term of this Agreement shall commence on July 17, 2006, and shall
continue until November 2, 2006, or until either party elects to terminate this Agreement in
accordance with the provisions hereof. The term of this Agreement may be extended and renewed by
mutual agreement in writing.
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6. Termination.
a. Termination for Death or Disability. The death of Xxxxxxxxx shall automatically
terminate this Agreement. If Xxxxxxxxx becomes disabled such that he can not reasonably perform
the Services for a period of more than three weeks, Company may terminate this Agreement.
b. Termination for Cause. The non-defaulting party shall have the right to terminate
this Agreement upon the occurrence of any of the following events, and the expiration of any
applicable period of cure: (a) the failure of Company to make any required payment within five (5)
days after the date when payment is due; (b) the failure of Xxxxxxxxx to perform the Services to
the reasonable satisfaction of Company; and (c) the failure of a party to comply with any other
term or condition of this Agreement, and the expiration of ten (10) days after written notice
thereof, specifying the nature of such default, without cure.
c. Survival Upon Termination. Xxxxxxxxx’x obligations under Sections 7, 8, 9 and 10
hereof shall survive for a period of five years following the termination of this Agreement.
7. Independent Contractor. The parties expressly intend and agree that Xxxxxxxxx is
acting as an independent contractor and not as an employee of Company. Xxxxxxxxx retains
sole and absolute discretion, control, and judgment in the manner and means of performing the
Services, except as to the policies and procedures set forth herein. Xxxxxxxxx understands and
agrees that Xxxxxxxxx shall not be entitled to any of the rights and privileges established for
Company’s employees (if any), including but not limited to the following: retirement benefits
(other than as is specified in the Employment Agreement), medical insurance coverage (other than as
is specified in the Employment Agreement), life insurance coverage, disability insurance coverage,
severance pay benefits (other than as is specified in the Employment Agreement), paid vacation and
sick pay, overtime pay, or any of them. Xxxxxxxxx understands and agrees that Company will not pay
or withhold from the compensation paid to Xxxxxxxxx pursuant to this Agreement any sums customarily
paid or withheld for or on behalf of employees for income tax, unemployment insurance, social
security, worker’s compensation or any other withholding tax, insurance, or payment pursuant to any
law or governmental requirement, and all such payments as may be required by law are the sole
responsibility of Xxxxxxxxx. Xxxxxxxxx agrees to hold Company harmless against and indemnify
Company for any of such payments of liabilities for which Company may become liable with respect to
such matters. Xxxxxxxxx shall not have authority to make any commitments to third parties which
are binding on Company. Company shall have no responsibility for any of Xxxxxxxxx’x debts,
liabilities or other obligations, or for any wrongful, reckless or negligent acts or omissions of
Xxxxxxxxx.
8. Confidentiality.
a. Acknowledgment of Proprietary Interest. Xxxxxxxxx recognizes the proprietary
interest of Company in any Trade Secrets of Company. As used herein, the term “Trade Secrets”
includes all of Company’s confidential or proprietary information, including without limitation any
confidential information of Company encompassed in any software specifications, software designs,
business plans, reports, investigations, experiments, research or
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developmental work, experimental
work, work in progress, drawings, designs, plans, proposals, codes, marketing and sales programs,
financial projections, cost summaries, pricing formula, and all concepts or ideas, materials or
information related to the business, products or sales of the Company or the Company’s customers
which has not previously been released to the public at large by duly authorized representatives of
the Company, whether or not such information would be enforceable as a trade secret or the copying
of which would be enjoined or restrained by a court as constituting unfair competition. Xxxxxxxxx
acknowledges and agrees that any and all Trade Secrets of Company, learned by Xxxxxxxxx during the
course of the engagement by Company or otherwise, whether developed by Xxxxxxxxx alone or in
conjunction with others or otherwise, shall be and is the property of Company.
b. Exclusions. Notwithstanding anything to the contrary set forth herein, “Trade
Secrets” shall not include, and nothing in this Agreement shall in any way restrict the right of
Xxxxxxxxx to use, disclose or otherwise deal with, any information which (i) shall be generally
available to the public on the effective date of this Agreement or thereafter and shall become so
available through no wrongful act of Xxxxxxxxx; or (ii) shall have been acquired by Xxxxxxxxx from
any person entitled to make disclosure to Xxxxxxxxx other than the Company.
c. Covenant Not to Divulge Trade Secrets. Xxxxxxxxx acknowledges and agrees that
Company is entitled to prevent the disclosure of Trade Secrets of Company. As a portion of the
consideration for the appointment of Xxxxxxxxx and for the compensation being paid to Xxxxxxxxx by
Company, Xxxxxxxxx agrees at all times during the term of the engagement with Company and
thereafter to hold in strictest confidence, and not to disclose or allow to be disclosed to any
person, firm, or corporation, other than to persons engaged by Company to further the business of
Company, and not to use except in the pursuit of the business of Company, Trade Secrets of Company,
without the prior written consent of Company, including Trade Secrets developed by Xxxxxxxxx.
d. Return of Materials at Termination. In the event of any termination of Xxxxxxxxx’x
appointment, with or without cause, Xxxxxxxxx will promptly deliver to Company all materials,
property, documents, data, and other information belonging to Company or pertaining to Trade
Secrets. Xxxxxxxxx shall not take any materials, property, documents or other information, or any
reproduction or excerpt thereof, belonging to Company or containing or pertaining to any Trade
Secrets.
e. Remedies Upon Breach. In the event of any breach of this Agreement by Xxxxxxxxx,
Company shall be entitled, if it so elects, to institute and prosecute proceedings in any court of
competent jurisdiction, either in law or in equity, to enjoin Xxxxxxxxx from violating any of the
terms of this Agreement, to enforce the specific performance by Xxxxxxxxx of any of the terms of
this Agreement, and to obtain damages, or any of them, but nothing herein contained shall be
construed to prevent such remedy or combination of remedies as Company may elect to invoke. The
failure of Company to promptly institute legal action upon any breach of this Agreement shall not
constitute a waiver of that or any other breach hereof.
9. Ownership of Work Product. Inventions, patents, discoveries, copyrights, software,
source codes, reports and ideas first made, conceived or reduced to practice by Xxxxxxxxx, alone or
with others, which result from, or are first conceived or reduced to practice
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in the course of, the
Services provided by Xxxxxxxxx to the Company hereunder, or which are funded by the Company or
result from the use of Company’s Trade Secrets or resources are the sole property of the Company
and shall be treated as “the Company Inventions.” Any copyrightable work so resulting from
Xxxxxxxxx’x work hereunder shall be treated as a “work for hire” and as part of the Company
Inventions. Xxxxxxxxx agrees to assign and hereby assigns to the Company, its successors or
assigns, all of Xxxxxxxxx’x right, title and interest in and to the Company Inventions and any
copyrights, patent application or letters patent thereon. Xxxxxxxxx agrees to reasonably cooperate
with the Company, at the Company’s expense, to effect such ownership rights. Xxxxxxxxx hereby
irrevocable appoints the Company and its officers as his agent and attorney-in-fact to execute and
file any copyrights, patent applications and related documents pertaining to the Company Inventions
if he is deemed to be an “inventor” or “author” of an invention or copyrightable work.
10. General Provisions.
a. Governing Law. This Agreement shall be interpreted, construed, governed and
enforced according to the laws of the State of Michigan.
b. Amendments. No amendment or modification of the terms or conditions of this
Agreement shall be valid unless in writing and signed by both parties.
c. Successors and Assigns. The rights and obligations of Company under this Agreement
shall inure to the benefit of and shall be binding upon the successors and assigns of Company.
Xxxxxxxxx shall not be entitled to assign any of Xxxxxxxxx’x rights or obligations under this
Agreement.
d. Entire Agreement. This Agreement constitutes the entire agreement between the
parties with respect to the appointment of Xxxxxxxxx as a consultant. Nothing in this Agreement
changes the terms of the Employment Agreement, or any other existing agreements between Company and
Xxxxxxxxx.
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IN
WITNESS WHEREOF, the parties have executed this Agreement as of July
17, 2006.
| COMPANY: | ||||||
| Aastrom Biosciences, Inc. | ||||||
| By: | /s/ Xxxxxx X. Xxxxxxx, Xx. | |||||
| CONSULTANT: | ||||||
| /s/ R. Xxxxxxx Xxxxxxxxx | ||||||
| R. Xxxxxxx Xxxxxxxxx, Ph.D. | ||||||
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EXHIBIT A
COMPENSATION
| 1. | Retainer Fee: $5,000 payable by July 20, August 15, September 15, and October 17, 2006, for an aggregate retainer of $20,000. |
| 2. | Per Diem Fee: $2,000 per day when Xxxxxxxxx is rendering the Services. Xxxxxxxxx shall submit an invoice to Company, approximately every two weeks, listing in general the Services rendered and the days devoted for rendering the Services, and the aggregate of the per diem fee payable for the Services. Subject to Company’s review and approval, Company shall pay such invoiced fees within two weeks after receipt of the invoice. |
| 3. | Reimbursement of Business Expenses: Company shall reimburse reasonable business expenses of Xxxxxxxxx incurred to perform the Services (such as, by way of example, travel expenses) in accordance with Company’s customary policies and practices for reimbursing business expenses, subject to any limits or parameters as may be specified by the CEO. |
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