Consulting Agreement dated September 1 2009, between the Company and Mr. Christian Rochet
Exhibit 10.64
Consulting Agreement dated September 1 2009, between the Company and Xx. Xxxxxxxxx Xxxxxx
This Consulting Agreement (the “Agreement”) dated September 1, 2009, is entered into by
and between Mymetics Corporation, a Delaware corporation, with its principal place of business at
Xxxxx xx xx Xxxxxxxx 0, XX-0000 Xxxxxxxxx, Xxxxxxxxxxx (the “Company”), and Xxxxxxxxx X.-X.
Xxxxxx, whose principal address is Xxx-xx-xx-Xxxxx 00, XX-0000 Xxxxxxx, Xxxxxxxxxxx (“Consultant”).
1. Consulting Relationship. During the term of this Agreement, Consultant will provide
consulting services (the “Services”) to the Company as described on Exhibit A
attached to this Agreement. Consultant shall have the title of Senior Advisor to the President.
Consultant represents that Consultant has the qualifications, the experience and the ability to
properly perform the Services. Consultant shall use Consultant’s best efforts to perform the
Services such that the results are satisfactory to the Company at the Company’s sole discretion.
2. Fees and Expenses. As consideration for the Services to be provided by Consultant
and other obligations, the Company shall pay to Consultant the amounts specified in Exhibit
B attached to this Agreement at the times specified therein, and the Company shall reimburse
Consultant for all reasonable travel, entertainment and other expenses incurred or paid by
Consultant in connection with, or related to, the performance of Consultant’s responsibilities or
services under this Agreement, upon presentation by Consultant of documentation, expense
statements, vouchers, and such other supporting information as the Company may request, or as may
be consistent with standard company practices in accordance with Company’s Expense Policies as
attached to this Agreement as Exhibit C.
3. Term and Termination. Consultant shall serve as a consultant to the Company during
12 months, effective September 1, 2009 and terminating August 31, 2010. The parties agree to meet
prior to May 31, 2010 either to (i) renew this Agreement for an additional 12 months or (ii)
terminate this Agreement. In the event that this Agreement is terminated, Consultant shall receive
a lump sum payment of €54,000 if he has raised between €1 million and €3 million, €72,000 if he has
raised over €3 million and less than €5 million and €162,000 if he has raised €5 million or more.
4. Independent Contractor. Consultant’s relationship with the Company will be that of
an independent contractor and not that of an employee.
(a) Method of Provision of Services: Consultant shall be solely responsible for
determining the method, details and means of performing the Services, provided,
however, that Consultant shall have the use of the Company’s corporate office in Nyon and
the office equipment, including a computer and telephone, to assist in providing the Services, such
use to be subject to guidelines determined by the Company’s President. Consultant may, at
Consultant’s own expense, employ or engage the service of such employees or subcontractors as
Consultant deems necessary to perform the Services required by this Agreement (the “Assistants”).
Such Assistants are not the
employees of the Company and Consultant shall be wholly responsible for
the professional performance of the Services by his Assistants such that the results are
satisfactory to the Company. Consultant shall expressly advise the Assistants of the terms of this
Agreement, and ensure that any Assistants who have access to the Confidential Information (defined
below) are bound by a non-disclosure agreement in content substantially equivalent
to the provisions hereof prior to any disclosure of the Confidential Information to such persons.
(b) No Authority to Bind Company. Neither Consultant, nor any partner, agent or
employee of Consultant, has authority to enter into contracts that bind the Company or create
obligations on the part of the Company without the prior written authorization of the Company.
(c) No Benefits. Consultant acknowledges and agrees that Consultant (or Consultant’s
employees, if Consultant is an entity) will not be eligible for any Company employee benefits,
other than for stock options under the Company’s 2009 Stock Incentive Plan and, to the extent
Consultant (or Consultant’s employees, if Consultant is an entity) otherwise would be eligible for
any Company employee benefits but for the express terms of this Agreement, Consultant (on behalf of
itself and its employees) hereby expressly declines to participate in such Company employee
benefits.
(d) Social Charges; Indemnification. The Company will pay the social charges associated
with Consultant’s fees received under this Agreement. Consultant shall have full responsibility
for applicable social charges for all compensation paid by Consultant to his partners, agents or
its employees under this Agreement, and for compliance with all other applicable labor and
employment requirements with respect to Consultant’s self-employment, sole proprietorship or other
form of business organization, and Consultant’s partners, agents and employees, including state
worker’s compensation insurance coverage requirements and any US immigration visa requirements for
U.S. partners, agents and employees. Consultant agrees to indemnify, defend and hold the Company
harmless from any liability for, or assessment of, any claims or penalties with respect to such
withholding taxes, labor or employment requirements, including any liability for, or assessment of,
social charges or withholding taxes imposed on the Company by the relevant taxing authorities with
respect to any compensation paid by Consultant to his partners, agents or employees.
5. Supervision of Consultant’s Services. All of the Services to be performed by
Consultant, including but not limited to the Services, will be as agreed between Consultant and the
Company’s President. Consultant will be required to report to the President concerning the
Services performed under this Agreement. The nature and frequency of these reports (oral or
written) will be left to the discretion of the President.
6. Consulting or Other Services for Competitors. Consultant represents and warrants
that Consultant does not presently perform or intend to perform, during the term of the Agreement,
consulting or other services for, or engage in or intend to engage in an employment relationship
with, companies whose businesses in any way involve products or services which are competitive with
the Company’s products or services, or those products or services currently proposed or in
development by the Company however, Consultant decides to do so, Consultant agrees that, in advance
of accepting such work, Consultant will promptly notify the Company in writing, specifying the
organization with which Consultant proposes to consult, provide services, or become employed by and
to provide information sufficient to allow the Company to determine if such work would conflict
with the terms of this
Agreement, including the terms of the Confidentiality Agreement, the
interests of the Company or further services which the Company might request of Consultant. If the
Company determines that such work conflicts with the terms of this Agreement, the Company reserves
the right to terminate this Agreement immediately.
7. Confidentiality Agreement. The Consultant may be afforded access to information
regarding the business and affairs of the Company and its products
during the course of the assignment (“Confidential Information”), except such information which (i)
is already in the party’s possession, without an obligation of confidentiality with respect
thereto, prior to disclosure under this Agreement, (ii) is or subsequently becomes part of the
public domain through no act or omission of the other party, (iii) is disclosed to the party by a
third party having no obligation of confidentiality thereto, provided the party did not have actual
or constructive notice that such information was wrongfully disclosed by such third party; or (iv)
is independently developed by the party without access to or use of the Confidential Information.
Notwithstanding the foregoing, each party shall be entitled to disclose such information: (a) to
its agents, employees and representatives who have a need to know such information, for the purpose
of performance under this Agreement and exercising the rights granted under this Agreement, or (b)
to the extent required by applicable law, or (c) during the course of or in connection with any
litigation, arbitration or other judicial proceeding based upon or in connection with the subject
matter of this Agreement. The Consultant agrees to guard this Confidential Information, to hold it
in strict confidence, and not to disclose it to others without the written permission of the
Company or until such information is otherwise publicly released by the Company. The Consultant
agrees that upon termination or completion of this Agreement, any notebook, data or information
acquired or developed by the Consultant in carrying out the terms of this Agreement will be turned
over to the Company. Except as otherwise specifically authorized by the Company in writing,
information, data and reports developed or acquired by Consultant in performance of this Agreement
and furnished to the Company (the “Deliverables”) shall be the exclusive property of the Company.
The Deliverables shall not be disclosed to any third party without the written consent of the
Company. The Consultant acknowledges that the breach of any of the covenants contained in this
Section 7 will result in irreparable harm and continuing damages to the Company and the Company’s
business, and that the Company’s remedy at law for any such breach or threatened breach would be
inadequate. Accordingly, in addition to such remedies as may be available to the Company at law or
in equity in the event of any such breach, any court of competent jurisdiction may issue an
injunction (both preliminary and permanent), without bond, enjoining and restricting the breach or
threatened breach of any such covenant, including, but not limited to, an injunction restraining
the Consultant from disclosing, in whole or in part, any Confidential Information. The Consultant
shall pay all of the Company’s costs and expenses, including reasonable attorneys’ fees and
accountants’ fees, incurred in enforcing such covenants.
8.
Conflicts with this Agreement. Consultant represents and warrants that neither
Consultant nor any of Consultant’s partners, employees or agents is under any pre-existing
obligation in conflict or in any way inconsistent with the provisions of this Agreement. Consultant
represents and warrants that Consultant’s performance of all the terms of this Agreement will not
breach any agreement to keep in confidence proprietary information acquired by Consultant in
confidence or in trust prior to commencement of this Agreement. Consultant warrants that Consultant
has the right to disclose and/or or use all ideas, processes, techniques and other information, if
any, which Consultant has gained from third parties, and which Consultant has disclosed to the
Company or which is necessary for the performance of the Services under this Agreement, without
liability to such third parties. Notwithstanding the foregoing, Consultant agrees that Consultant
shall not bundle with or incorporate into any deliveries provided to the Company herewith any third
party products, ideas, processes, or
other techniques, without the express, written prior approval
of the Company. Consultant represents and warrants that Consultant has not granted and will not
grant any rights or licenses to any intellectual property or technology that would conflict with
Consultant’s obligations under this Agreement. Consultant will not knowingly infringe upon any
copyright, patent, trade secret or other property right of any former client, employer or third
party in the performance of the Services required by this Agreement.
9. Miscellaneous.
(a) Amendments and Waivers. Any term of this Agreement may be amended or waived only
with the written consent of the parties.
(b) Sole Agreement. This Agreement, including the exhibits hereto, constitutes the sole
agreement of the parties and supersedes all oral negotiations and prior writings with respect to
the subject matter hereof.
(c) Notices. Any notice required or permitted by this Agreement shall be in writing and
shall be deemed sufficient upon receipt, when delivered personally or by courier, overnight
delivery service or confirmed facsimile, 48 hours after being deposited in the regular mail as
certified or registered mail (airmail if sent internationally) with postage prepaid, if such notice
is addressed to the party to be notified at such party’s address or facsimile number as set forth
below, or as subsequently modified by written notice.
(d) Choice of Law. The validity, interpretation, construction and performance of this
Agreement shall be governed by the laws of Switzerland, without giving effect to the principles of
conflict of laws.
(e) Severability. If one or more provisions of this Agreement are held to be
unenforceable under applicable law, the parties agree to renegotiate such provision in good faith.
In the event that the parties cannot reach a mutually agreeable and enforceable replacement for
such provision, then (i) such provision shall be excluded from this Agreement, (ii) the balance of
the Agreement shall be interpreted as if such provision were so excluded and (iii) the balance of
the Agreement shall be enforceable in accordance with its terms.
(f) Counterparts. This Agreement may be executed in counterparts, each of which shall
be deemed an original, but all of which together will constitute one and the same instrument.
(g) Advice of Counsel. EACH PARTY ACKNOWLEDGES THAT, IN EXECUTING THIS AGREEMENT, SUCH
PARTY HAS HAD THE OPPORTUNITY TO SEEK THE ADVICE OF INDEPENDENT LEGAL COUNSEL, AND HAS READ AND
UNDERSTOOD ALL OF THE TERMS AND PROVISIONS OF THIS AGREEMENT. THIS AGREEMENT SHALL NOT BE
CONSTRUED AGAINST ANY PARTY BY REASON OF THE DRAFTING OR PREPARATION HEREOF.
[Signature Page Follows]
The parties have executed this Agreement on the respective dates set forth below.
MYMETICS CORPORATION
| By: | /s/ Xxxxxxx-Xxxxxxxx Xxxxxx | ||
| Xxxxxxx-Xxxxxxxx Xxxxxx | |||
| Title: President & CEO | |||
| Date: | |||
| CONSULTANT |
|||
| By: | /s/ Xxxxxxxxx X.-X. Xxxxxx | ||
| Xxxxxxxxx X.-X. Xxxxxx | |||
| Date: | |||
EXHIBIT A
DESCRIPTION OF CONSULTING SERVICES
The Company wishes to employ Consultant to raise financing of €5,000,000 or more.
EXHIBIT B
COMPENSATION
Monthly retainer of €9,000 in addition to further compensation of (i) 3% of any equity financing
from investors not residents of the United States and for sales outside the United States payable
in cash for all amounts raised up to € 5 million and (ii) an additional 2% of any equity financing
above € 5 million. from investors not residents of the United States and for sales outside the
United States payable in shares of Mymetics common stock at the average of the bid and ask price of
such shares at the date of payment. Consultant also shall be eligible for stock option grants under
the Company’s 2009 Stock Incentive Plan.
