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EXHIBIT 10(vi)
(vi) Consulting Agreement between the Company and
Chesterbrook Partners, Inc. dated October 13, 1995.
CONFIDENTIALITY AGREEMENT
BETWEEN: VIRAGEN, INC.
0000 XXXX 00XX XXXXXX
XXXXXXX, XXXXXXX 00000
(HEREIN REFERRED TO AS THE "COMPANY")
and
XXX X. XXXXXX
PRESIDENT
CHESTERBROOK PARTNERS INC.
0000 X. XXXXXXXX XXXX XXXX
XXXXX 000
XXXX XXXXX, XX 00000
(HEREIN REFERRED TO AS "RECIPIENT")
WHEREAS, the Company is engaged in the business of researching,
developing, manufacturing, and marketing commercial applications of
biotechnology and genetically engineered systems and/or products, including
human leukocyte interferon; and
WHEREAS, Recipient and the Company propose to engage in discussions
regarding the Company's business activities and other issues under an
consulting arrangement; and
WHEREAS, it is desirable that the parties set forth their
understanding as to any information of a confidential nature which may be
disclosed by the Company to Recipient during the course of the proposed
discussions, and for any agreement or arrangement that develops therefrom;
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, each party to the other and other good and valuable consideration, the
Company and Recipient hereby covenant and agree as follows:
1. Recipient acknowledges that the proposed discussions and any
agreement or arrangement that develops therefrom with the Company may involve
disclosure by the Company to Recipient of confidential or secret information
belonging to the Company and relating to its business, finances, operations,
manufacturing, production, processes, marketing or to other
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matters (including, for example, scientific principles, ideas, inventions,
trade-secrets, know-how, and business plans or other commercial information),
whether or not written, in verbal form or otherwise, all of which would be of
interest and of value to Recipient or third parties (the "Confidential
Information").
2. Recipient shall treat as confidential and, for greater
certainty, but not so as to restrict the generality of the foregoing, shall not
disclose or cause to be disclosed or publish or cause to be published, any of
the Confidential Information and Recipient agrees to use the same degree of
care to protect the Confidential Information he would employ with respect to
his own information of like importance which it does not desire to have
published or disseminated. Notwithstanding any of the foregoing, no
restrictions shall be afforded to the Confidential Information if the
Confidential Information:
(a) Is, at the time of disclosure to Recipient, known to
him as evidenced by written documentation dated prior
to such disclosure in the records of Recipient and
Recipient promptly notifies the Company in writing of
such written documented knowledge;
(b) Is or becomes publicly available through no wrongful
or negligent act of Recipient;
(c) Is approved for release by prior written
authorization of the Company.
(d) Is required to be disclosed by a United States or
Federal or State Regulatory agency or by court order.
If in the event Confidential Information is required to be disclosed
under Section 2(d) of this Agreement, then the Recipient shall be obligated to
give the Company the greater of 30 days (or the maximum allowable time as
deemed by the agency or court) prior written notice of such disclosure
requirement prior to the disclosure of any of the Confidential Information. If
it is determined that one of the exceptions is available to certain of the
Confidential Information, nevertheless the remainder of the Confidential
Information shall continue to be subject to the requirements of this Agreement
If Recipient believes that any portion of any Confidential Information
falls within any of the above exceptions, Recipient will immediately give the
Company written notice of such belief with substantiating evidence, at such
time as it becomes known to Recipient. If it is determined that one
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of the exceptions is available to certain of the Confidential Information,
nevertheless the remainder of the Confidential Information shall continue to be
subject to the requirements of this Agreement.
3. Recipient hereby acknowledges and agrees (i) that all
Confidential Information contemplated by this Agreement is and shall remain
notwithstanding its disclosure to Recipient the sole and exclusive property of
the Company, and (ii) that the Company is disclosing the Confidential
Information to Recipient SOLELY for the purpose of and with respect to the
consulting arrangement described above. For greater certainty, in
consideration of the disclosure to him of the Confidential Information,
Recipient hereby agrees on his own behalf and on behalf of all other persons
who may gain access through Recipient to such Confidential Information, not to
make any use whatsoever of the Confidential Information except as stated in the
immediately preceding sentence.
With respect to all Confidential Information, and all prototypes, samples,
written materials, drawings and descriptions received by Recipient from the
Company, at the discretion of the Company, Recipient agrees to (i) return all
such Confidential Information promptly upon request from the Company or (ii)
properly destroy the same at the request of the Company, together with all
copies made thereof by Recipient. Upon request, Recipient shall send the
Company a destruction certificate.
4. No license under any patents or otherwise is granted or
conveyed by the Company transmitting Confidential Information or other
information to Recipient; nor shall such transmission constitute any
representation, warranty, assurance, guaranty or inducement by the Company to
Recipient with respect to infringement of patents or other rights of others.
In addition, Recipient agrees on his own behalf and that of those persons
described in Section 3 of this Agreement, that he will promptly disclose in
writing to the Company any and all inventions, discoveries, and improvements
conceived or made by Recipient or other such persons stated above developed as
a result of Recipient's receipt of Confidential Information or while providing
his services and agrees to assign all interests therein to the Company whenever
requested to do so by the Company and will execute or cause to be executed any
and all applications, assignments, or other instruments and give testimony
which the Company shall deem necessary to apply for and obtain copyrights
and/or Letters of Patent of the United States or of any foreign country or to
otherwise protect the Company's interests therein.
5. Recipient covenants and agrees to indemnify the Company, its
successors and assigns, from and against any and all losses, damages and
expenses, including attorney's fees, which the Company may sustain or suffer
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by reason of the failure of Recipient to perform and observe the terms and
provisions of this Agreement.
6. The restriction contained in this Agreement shall continue for
a period of ten (10) years from the date of the disclosure of the Confidential
Information by the Company to Recipient.
7. Any provision of either paragraph 2 or 3 hereof which is
determined to be void and unenforceable shall be severable from all other
provisions thereof and shall not be deemed to affect or impair the
enforceability of any such other provisions.
8. Recipient hereby agrees that all covenants contained herein on
his part to be complied with are reasonable and valid and waives all defenses
to the strict enforcement thereof by the Company.
9. Recipient acknowledges that any violation of any of the
provisions hereof may result in immediate and irreparable damage to the Company
and agrees that in the event of such violation the Company shall, in addition
to any other right, relief or remedy available at law, be entitled to any
equitable relief including injunction that any court of competent jurisdiction
may deem just and proper. Resort to such equitable remedies are cumulative to
other remedies that may be sought.
10. The provisions hereof shall inure to the benefit of the
successors of the parties hereto. This Agreement shall not be assignable, in
whole or in part, by Recipient.
11. Recipient hereby acknowledges having read and understood the
foregoing and the implications thereof and agrees to indemnify and hold the
Company harmless for any liability or claim imposed upon or made against the
Company arising from or out of Recipient's failure to comply with the terms and
conditions of the Agreement. Recipient acknowledges receipt of a duly executed
copy of this Agreement.
12. All notices herein shall be deemed to have been duly given
upon the certified or registered mailing thereof, post-paid, to the party
entitled thereto at the following addresses, unless such addresses are changed
by written notice.
VIRAGEN, INC.
0000 Xxxx 00xx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxx Xxxxx, President
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Copy to:
Xxxxx Xxxxxxxxx, Esq.
ATLAS, XXXXXXXX, TROP AND BORKSON P.A.
0000 Xxxxx Xxxxxxxx Xxxxx, Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
Copy to:
Xxx X. Xxxxxx
President
Chesterbrook Partners Inc.
0000 X. Xxxxxxxx Xxxx Xxxx
Xxxxx 000
Xxxx Xxxxx, XX 00000
13. This Agreement shall be a continuing agreement between the
parties with respect to any particular item of Confidential Information.
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14. This Agreement shall be governed by and interpreted in
accordance with the laws of the State of Florida.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of this 13th day of October, 1995.
VIRAGEN, INC.
By:
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XXXXXX XXXXX
President
CHESTERBROOK PARTNERS INC.
By:
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XXX X. XXXXXX
Individually, and as President
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