Consulting Agreement
Exhibit 10.1
This Consulting Agreement is made as of the date of execution by the last party to sign between
Eidetica Biopharma GmBH, a Swiss company whose registered address is Xxxxxx & Xxx Xxxxxxx 0,
XX-0000 Xxx (Eidetica), and Hans Xxxxx Xxxxxx, whose address is Küssnacht, SZ, Switzerland (the
Consultant).
AGREED TERMS
1. Appointment of Consultant.
Eidetica hereby retains the Consultant to provide services to Eidetica as described in Appendix A
(the “Services”). The Consultant agrees to provide the Services to Eidetica to the best of the
Consultant’s abilities.
2. Payments.
In consideration for the Services and of the rights granted to Eidetica by the Consultant
hereunder, Eidetica shall make payments to the Consultant in the amounts and at the times set forth
in Appendix A.
3. No Conflicting Obligations — Disclosure — Non-solicitation.
3.1 The Consultant confirms that he has the authority to execute this agreement in his own name and
that he is not subject to any obligation or commitment that is inconsistent with this Agreement.
The Consultant represents to Eidetica that his signature and his performance of this Agreement do
not and will not conflict with any other employment or any other agreement to which the Consultant
is a party.
3.2 The Consultant warrants that, for the term of this Agreement and any extension thereof agreed
by both parties, he shall remain free from any commitments that would impede the completion of his
obligations hereunder. Furthermore, the Consultant shall notify Eidetica of any consulting
agreements he has or enters into with third parties that relate in any way to the Services.
3.3 For the duration of the Agreement and for six months thereafter the Consultant undertakes not
to employ or solicit for employment any employee or consultant of Eidetica for a business operated
or represented by the Consultant, without the prior written approval of the Board of Eidetica.
4. Time Commitment. The Consultant agrees to dedicate appropriate and sufficient resources
to diligently prepare and perform the Services set forth in Appendix A. In connection therewith,
the Consultant shall make himself available to Eidetica from time to time at such locations as may
be designated by Eidetica and perform the Services in accordance with the instructions of Eidetica
and to the best of the Consultant’s abilities and in accordance with all applicable laws,
regulations and professional standards. The parties agree that, prior to the commencement of
employment of a new Chief Executive Officer, the Consultant would be available to provide the
Services to Eidetica on a 40% full-time equivalent basis (an annual vacation entitlement of 12
working days is assumed in the annual fee), working on as many days or partial days as Eidetica
reasonably deems necessary to secure adequate provision of the Services in accordance with the
provisions of Appendix A. The Consultant must give adequate
notice to his Eidetica board contact of his intention of to take vacation. Following appointment of
a new chief executive officer, to succeed Xxx Xxxxxxx, the time commitment of the Consultant shall
be reviewed and agreed by the Parties.
5. Intellectual Property and Other Property. The Consultant agrees to make available to
Eidetica and Eidetica shall own and be free to use all intellectual property created, invented or
conceived of by the Consultant in the performance of the Services (collectively, the “Intellectual
Property”). Consultant shall execute and deliver to Eidetica any assignments or other documents
relating to the Intellectual Property as Eidetica may request. Nothing herein shall be deemed to
grant the Consultant any rights or licenses under any patent applications or patents or any
know-how, technology or inventions of Eidetica.
6. Confidentiality. During the course of the performance of the Services, the Consultant
will have access to and may receive or create ideas, know-how, trade secrets, information, data,
processes, substances and the like of Eidetica (the Information).
The Consultant shall keep confidential the Information and shall limit access to the Information to
those persons who require it for the performance of the Services. The Consultant shall not reveal
or disclose the Information or any part thereof to any person, firm, corporation, or other entity
nor use (except as contemplated hereunder) the Information or any part thereof without first
obtaining the written consent of Eidetica.
The non-use and non-disclosure provisions shall apply during the term of this Agreement and,
notwithstanding anything in this Agreement to the contrary, shall continue in effect for a period
of ten (10) years following expiration or termination of this Agreement.
The Consultant shall be responsible and shall take all practicable steps to ensure that any person,
firm, corporation, or other entity to which it would disclose Information after Eidetica’s written
approval as well as all the Consultant’s directors, officers, employees or agents agree to abide by
the same obligations of confidentiality and non-use set forth in this Agreement.
At Eidetica’s request, the Consultant shall return to Eidetica all parts of the Information
provided by or on behalf of Eidetica in documentary form and shall return or destroy all copies
thereof made by the Consultant.
The obligations of confidential treatment under this Section shall not apply to any information,
which the Consultant can demonstrate by documented evidence:
(a) Was known to the Consultant prior to receipt thereof from Eidetica;
(b) Was or becomes a matter of public information or publicly available through no act or failure
to act on the part of the Consultant; or
(c) Was lawfully acquired by the Consultant from a third party entitled to freely disclose such
information to the Consultant.
The Consultant acknowledges that disclosure of the Information or use of the Information contrary
to the provisions of this Agreement shall cause irreparable harm for which damages at law will not
be an adequate remedy, and the Consultant agrees that the provisions of this Agreement prohibiting
disclosure of the Information or use contrary to the provisions hereof may be specifically enforced
by a court of competent jurisdiction. Notwithstanding, but not in limitation of the foregoing, the
Consultant shall be responsible to Eidetica for any damages arising from the breach by the
Consultant of its covenants and obligations in this Section, in addition to any and all other
remedies available to Eidetica at law or in equity.
Except as required by law, neither party shall use the name of the other party in connection with
any publicity without the prior written approval of the other party.
7. Term and Termination. The Consultant’s appointment shall begin on the commencement date
set forth in Appendix A (the “Commencement Date”) and shall remain in force (a) for an initial term
that ends on 31 December 2009 (the “Initial Term”) and (b), thereafter, indefinitely, subject to
earlier termination as provided in this clause 7. Either party may terminate this Agreement, with
termination effective upon expiry of the Initial Term or, at any time thereafter, by giving six (6)
months’ notice, in writing and sent by registered mail, to the other party. Either party may
terminate the agreement forthwith in the event of material breach by the other party.
Notwithstanding the foregoing, the parties acknowledge the mandatory right of each party according
to article 404 of the Swiss Code of Obligations to terminate this Agreement with immediate effect
and any time.
The termination of this Agreement shall not relieve either party of its obligation to the other in
respect of:
| • | Intellectual Property and other property (clause 5) | ||
| • | Confidentiality (clause 6) |
8. Assignment. This Agreement is to engage the personal services of the Consultant only.
The Consultant shall not assign any of his rights or delegate any of his obligations under this
Agreement without the prior written consent of Eidetica, except that, if at any time during the
continuance of this Agreement, the Consultant establishes a company of which he is the sole equity
holder for the purpose of providing the Services, the Consultant may assign his rights and
obligations hereunder to such company by giving prior written notice of such assignment to
Eidetica.
9. Law of the Contract. This Agreement shall be governed by and construed in accordance
with the laws of the Canton of Zug, Switzerland. In case of controversies that cannot be settled
amicably, the matter shall be brought before the courts of the canton of Zug.
10. Independent Contractor. The Consultant shall act as an independent contractor and
nothing in this Agreement should be construed as creating any other relationship. The Consultant
shall not be entitled to any benefits provided by Eidetica to its employees. The Consultant shall
be solely responsible for payment of all service-related and compensation-related charges and taxes
associated with the Consultant’s performance of the Services.
11. Severance. If any one or more provisions of this Agreement shall be found to be
illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired and shall remain in full force and effect,
provided the surviving agreement reflects the parties’ original intent.
12. Notices. Any notice required or permitted to be given by either party shall be in
writing and shall be deemed given on the date received if delivered personally or by facsimile or
five
days after the date postmarked if sent by. mail, return receipt requested, to Eidetica’s address
above or to the Consultant’s address set forth on Appendix A.
13. Entire Agreement. This Agreement including Appendix A sets forth the entire agreement
between the parties with respect to the subject matter contained herein, and may not be modified or
amended except by a written agreement executed by the parties.
In witness whereof, the parties hereto have executed this Agreement.
| Eidetica Biopharma GmBH. | Consultant | |||||||||
Signature:
|
/s/ Xxxxxx X. Xxxxxxx
|
Signature: | /s/ H. P. Xxxxxx
|
|||||||
Name:
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Xxxxxx X. Xxxxxxx | Name: | H. P. Xxxxxx | |||||||
Title:
|
President | Title: | ||||||||
Date:
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28 April 09 | Date: | April 30, 2009 | |||||||
Signature:
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/s/ Xxxxxx Xxxxxxx
|
|||||||||
Name:
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Xxxxxx Xxxxxxx | |||||||||
Title:
|
CFO | |||||||||
Date:
|
29.4.09 | |||||||||
