MIRAVANT MEDICAL TECHNOLOGIES CONSULTING AGREEMENT
Exhibit 10.1
THIS
CONSULTING AGREEMENT (the “Agreement”)
is
made and entered into effective as of the 17th
day
of
August,
2005
(the
“Effective
Date”)
by and
between MIRAVANT
MEDICAL TECHNOLOGIES,
a
Delaware corporation (the
“Company”),
and
XXXXXX
X. XXXXXXXXX (the
“Consultant”).
The
Company desires to retain the Consultant as an independent contractor to perform
consulting services for the Company and the Consultant desires to perform such
services, on terms set forth more fully below. In consideration of the mutual
promises contained herein, the parties agree as follows:
1. SERVICES
AND COMPENSATION.
1.1 The
Consultant agrees to serve as a consultant (the “Services”)
as
requested, from time to time, by the Company for the period ending December
31,
2005, and will advise and assist the Company on its strategic initiatives,
including without limitation, fundraising and corporate partnering and licensing
activities. There is no specified level of effort by the Consultant.
1.2 The
Consultant will receive compensation in the amount of ONE HUNDRED AND TWENTY
FIVE THOUSAND DOLLARS ($125,000), payable in two (2) installments of SIXTY
TWO
THOUSAND FIVE HUNDRED DOLLARS ($62,500) on August 17, 2005 and October 17,
2005.
This arrangement is subject to renewal for periods beginning on January 1,
2006
at the option of the Board of Directors of the Company. There is no success
fee
payable.
1.3 The
Consultant will also be entitled to reimbursement for his reasonable
out-of-pocket expenses incurred in carrying out his duties and have been
approved by the other members of the Board of Directors, with the Consultant
abstaining.
1.4 The
Consultant is Chairman of the Board of Directors of the Company, and his duties
hereunder are in addition to his duties as Chairman of the Board of
Directors.
2. CONFIDENTIALITY.
2.1 Definition.
"Confidential Information" means any Company, Company affiliate or third party
proprietary information, technical data, trade secrets or know-how, including,
but not limited to, inventions, discoveries, improvements, products, trade
secrets, know-how, research, product plans, products, services, customers,
customer lists, markets, software, developments, inventions, processes,
formulas, technology, designs, drawings, engineering, hardware configuration
information, marketing, finances or other business information disclosed by
the
Company either directly or indirectly in writing, orally or by drawings or
inspection of parts or equipment owned or possessed by the Company.
2.2 Non-Use
and Non-Disclosure.
The
Consultant will not, during or subsequent to the term of this Agreement, use
the
Company’s Confidential Information for any purpose whatsoever other than the
performance of the Services on behalf of the Company or disclose the Company’s
Confidential Information to any third party. It is understood that said
Confidential Information shall remain the sole property of the Company. The
Consultant further agrees to take all reasonable precautions to prevent any
unauthorized disclosure of such Confidential Information including, but not
limited to, having each employee of the Consultant, if any, with access to
any
Confidential Information, execute a nondisclosure agreement containing
provisions in the Company’s favor identical to Sections
2,
3
and
4
of this
Agreement. Confidential Information does not include information which (i)
is
known to the Consultant at the time of disclosure to the Consultant by the
Company as evidenced by written records of the Consultant, (ii) has become
publicly known and made generally available through no wrongful act of the
Consultant, or (iii) has been rightfully received by the Consultant from a
third
party who is authorized to make such disclosure. Without the Company’s prior
written approval, the Consultant will not directly or indirectly disclose to
anyone the existence of this Agreement or the fact that the Consultant has
this
arrangement with the Company.
2.3 Third
Party Confidential Information.
2.3.1 The
Consultant recognizes that the Company has received and in the future will
receive from third parties their confidential or proprietary information subject
to a duty on the Company’s part to maintain the confidentiality of such
information and to use it only for certain limited purposes. The Consultant
agrees that the Consultant owes the Company and such third parties, during
the
term of this Agreement and thereafter, a duty to hold all such confidential
or
proprietary information in the strictest confidence and not to disclose it
to
any person, firm or corporation or to use it except as necessary in carrying
out
the Services for the Company consistent with the Company’s agreement with such
third party.
2.3.2 The
Consultant agrees that the Consultant will not, during the term of this
Agreement, improperly use or disclose any proprietary information, trade secrets
or other intellectual property of any former or current employer or other person
or entity with which the Consultant has an agreement or duty to keep in
confidence information acquired by the Consultant, if any, and that the
Consultant will not bring onto the premises of the Company any unpublished
document or proprietary information belonging to such employer, person or entity
unless consented to in writing by such employer, person or entity. The
Consultant agrees that the Consultant will not incorporate any proprietary
information, trade secrets or other intellectual property not developed solely
by the Consultant into the work product produced by the Consultant in
Consultant’s performance of the Services pursuant to this Agreement. The
Consultant will indemnify the Company and hold it harmless from and against
all
claims, liabilities, damages and expenses, including reasonable attorneys fees
and costs of suit, arising out of or in connection with any violation or claimed
violation of a third party’s rights resulting in whole or in part from the
Company’s use of the work product of the Consultant under this
Agreement.
2.4 Return
of Materials.
Upon
the termination of this Agreement, or upon the Company’s earlier request, the
Consultant will deliver to the Company all of the Company’s property or
Confidential Information that the Consultant may have in the Consultant’s
possession or control.
3. OWNERSHIP.
3.1 Assignment.
The
Consultant agrees that all copyrightable material, notes, records, drawings,
designs, inventions, improvements, developments, discoveries and trade secrets
(collectively, “Works”)
conceived, made or discovered by the Consultant, solely or in collaboration
with
others, during the period of this Agreement or in connection with the services
provided by the Consultant to the Company prior to the date of this Agreement,
which relate in any manner to the business of the Company that the Consultant
may be directed to undertake, investigate or experiment with, or which the
Consultant may become associated with in work, investigation or experimentation
in the line of business of Company in performing the Services hereunder, are
“works made for hire” and are the sole property of the Company. The Consultant
further agrees to assign (or cause to be assigned) and does hereby assign fully
to the Company all Works and any copyrights, patents, mask work rights or other
intellectual property rights relating thereto resulting from the Consultant’s
performance of the Services during the term of this Agreement, or in connection
with services provided by the Consultant to the Company prior to the date of
this Agreement. The Consultant agrees and acknowledges that the Company’s rights
in and to any Works produced pursuant to the Consultant’s performance of the
Services shall be exclusive as to all parties including the
Consultant.
3.2 Further
Assurances.
The
Consultant agrees to assist Company, or its designee, at the Company’s expense,
in every proper way to secure the Company’s rights in the Works and any
copyrights, patents, mask work rights or other intellectual property rights
relating thereto in any and all countries, including the disclosure to the
Company of all pertinent information and data with respect thereto, the
execution of all applications, specifications, oaths, assignments and all other
instruments which the Company shall deem necessary in order to apply for and
obtain such rights and in order to assign and convey to the Company, its
successors, assigns and nominees the sole and exclusive right, title and
interest in and to such Works, and any copyrights, patents, mask work rights
or
other intellectual property rights relating thereto. The Consultant further
agrees that the Consultant’s obligation to execute or cause to be executed, when
it is in the Consultant’s power to do so, any such instrument or papers shall
continue after the termination of this Agreement.
3.3 Pre-Existing
Materials.
The
Consultant agrees that if in the course of performing the Services, the
Consultant incorporates into any Work developed hereunder any invention,
improvement, development, concept, discovery or other proprietary information
owned by the Consultant or in which the Consultant has an interest, (i) the
Consultant shall inform Company, in writing before incorporating such invention,
improvement, development, concept, discovery or other proprietary information
into any Work; and (ii) the Company is hereby granted and shall have an
exclusive, royalty-free, perpetual, irrevocable, worldwide license to make,
have
made, modify, use and sell such item as part of or in connection with such
Work.
The Consultant shall not incorporate any invention, improvement, development,
concept, discovery proprietary information or other intellectual property right
owned by any third party into any Work without Company’s prior written
permission.
3.4 Attorney
in Fact.
The
Consultant agrees that if the Company is unable because of the Consultant’s
unavailability, dissolution, mental or physical incapacity, or for any other
reason, to secure the Consultant’s signature to apply for or to pursue any
application for any United States or foreign patents or mask work or copyright
registrations covering the Works assigned to the Company above, then the
Consultant hereby irrevocably designates and appoints the Company and its duly
authorized officers and agents as the Consultant’s agent and attorney in fact,
to act for and in the Consultant’s behalf and stead to execute and file any such
applications and to do all other lawfully permitted acts to further the
prosecution and issuance of patents, copyright and mask work registrations
thereon with the same legal force and effect as if executed by the
Consultant.
4. CONFLICTING
OBLIGATIONS.
The
Consultant certifies that the Consultant has no outstanding agreement or
obligation that is in conflict with any of the provisions of this Agreement,
or
that would preclude the Consultant from complying with the provisions hereof,
and further certifies that the Consultant will not enter into any such
conflicting agreement during the term of this Agreement.
5. TERM
AND TERMINATION.
5.1 Term.
This
Agreement will commence on the Effective Date.
5.2 Termination.
Either
party may immediately terminate this Agreement with cause, for gross negligence
of the other party, upon written notice to the other.
5.3 Survival.
Upon
such termination all rights and duties of the parties toward each other shall
cease except:
(i) that
the
Company shall be obliged to pay, within thirty (30) days of the effective date
of termination, all amounts owing to the Consultant for Services provided by
the
Consultant prior to the termination date in accordance with the provisions
of
Section
1
(Services and Compensation) hereof;
(ii) Sections
3
(Ownership) and 7
(Independent Contractor) shall survive termination of this Agreement;
and
(iii) Section
2
(Confidentiality) shall survive for a period of three years after the Effective
Date.
6. ASSIGNMENT.
Neither
this Agreement nor any right hereunder or interest herein may be assigned or
transferred by the Consultant without the express written consent of the
Company.
7. INDEPENDENT
CONTRACTOR.
It is
the express intention of the parties that the Consultant is an independent
contractor. Nothing in this Agreement shall in any way be construed to
constitute the Consultant as an agent, employee or representative of the
Company, but the Consultant shall perform the Services hereunder as an
independent contractor. The Consultant agrees to furnish all tools and materials
necessary to perform the Services, and shall incur all expenses associated
with
performance of the Services. The Consultant acknowledges and agrees that the
Consultant is obligated to report as income all compensation received by the
Consultant pursuant to this Agreement, and the Consultant agrees to and
acknowledges the obligation to pay all self-employment and other taxes thereon.
The Consultant further agrees to indemnify and hold harmless the Company and
its
directors, officers, managers and employees from and against all taxes, losses,
damages, liabilities, costs and expenses, including attorney’s fees and other
legal expenses, arising directly or indirectly from (i) any negligent, reckless
or intentionally wrongful act of the Consultant or the Consultant’s assistants,
employees or agents, (ii) a determination by a court or agency that the
Consultant is not an independent contractor, or (iii) any breach by the
Consultant or the Consultant’s assistants, employees or agents of any of the
covenants contained in this Agreement.
8. BENEFITS.
The
Consultant acknowledges and agrees and it is the intent of the parties hereto
that the Consultant receive no Company-sponsored benefits from the Company
either as a the Consultant or employee. Such benefits include, but are not
limited to, paid vacation, sick leave, medical insurance, and 401(k)
participation. If the Consultant is reclassified by a state or federal agency
or
court as an employee, the Consultant will become a reclassified employee and
will receive no benefits except those mandated by state or federal law, even
if
by the terms of the Company’s benefit plans in effect at the time of such
reclassification the Consultant would otherwise be eligible for such
benefits.
9. ARBITRATION
AND EQUITABLE RELIEF.
9.1 Disputes.
Except
as provided in Section
9.4
below,
the Company and the Consultant agree that any dispute or controversy arising
out
of, relating to or in connection with the interpretation, validity,
construction, performance, breach or termination of this Agreement shall be
settled by binding arbitration to be held in Santa Barbara, California, in
accordance with the Commercial Arbitration Rules of the American Arbitration
Association as then in effect. The arbitrator may grant injunctions or other
relief in such dispute or controversy. The decision of the arbitrator shall
be
final, conclusive and binding on the parties to the arbitration. Judgment may
be
entered on the arbitrator’s decision in any court of competent
jurisdiction.
9.2 Consent
to Personal Jurisdiction.
The
arbitrator(s) shall apply California law to the merits of any dispute or claim,
without reference to conflicts of law rules. Consultant hereby consents to
the
personal jurisdiction of the state and federal courts located in California
for
any action or proceeding arising from or relating to this Agreement or relating
to any arbitration in which the parties are participants.
9.3 Costs.
The
Company and the Consultant shall each pay one-half of the costs and expenses
of
such arbitration, and the prevailing party shall be paid by the other party
for
the prevailing party's counsel fees and expenses, unless otherwise required
by
law.
9.4 Equitable
Relief.
The
parties may apply to any court of competent jurisdiction for a temporary
restraining order, preliminary injunction, or other interim or conservatory
relief, as necessary, without breach of this arbitration agreement and without
abridgment of the powers of the arbitrator.
9.5 Acknowledgement.
THE
CONSULTANT HAS READ AND UNDERSTANDS SECTION
9,
WHICH
DISCUSSES ARBITRATION. CONSULTANT UNDERSTANDS THAT BY SIGNING THIS AGREEMENT,
CONSULTANT AGREES TO SUBMIT ANY CLAIMS ARISING OUT OF, RELATING TO, OR IN
CONNECTION WITH THIS AGREEMENT, OR THE INTERPRETATION, VALIDITY, CONSTRUCTION,
PERFORMANCE, BREACH OR TERMINATION THEREOF, TO BINDING ARBITRATION, EXCEPT
AS
PROVIDED IN SECTION 9.4, AND THAT THIS ARBITRATION CLAUSE CONSTITUTES A WAIVER
OF CONSULTANT’S RIGHT TO A JURY TRIAL AND RELATES TO THE RESOLUTION OF ALL
DISPUTES RELATING TO ALL ASPECTS OF THE RELATIONSHIP BETWEEN THE
PARTIES.
10. MISCELLANEOUS.
10.1 Governing
Law.
This
Agreement shall be governed by the internal substantive laws, but not the choice
of law rules, of the State of California.
10.2 Amendment.
No
waiver, alteration, or modification of any of the provisions of this Agreement
shall be binding unless in writing and signed by duly authorized representatives
of the parties hereto. This Agreement constitutes the full and complete
understanding and agreement of the parties and supercedes all prior
understandings and agreements regarding the subject matter hereof.
10.3 Notices.
All
notices required or given herewith shall be addressed to the Company or the
Consultant at the designated addresses set forth on the signature page attached
hereto by facsimile with confirmation, registered mail, special delivery, or
by
certified courier service.
10.4 Attorneys
Fees.
In any
court action at law or equity which is brought by one of the parties to enforce
or interpret the provisions of this Agreement, the prevailing party will be
entitled to reasonable attorney’s fees, in addition to any other relief to which
that party may be entitled.
10.5 Time
of the Essence.
Time is
of the essence of this Agreement.
10.6 Counterparts.
This
Agreement may be executed in one or more counterparts, each of which shall
be
deemed an original, but all of which shall constitute one and the same
instrument.
10.7 Titles;
Interpretation.
Title
and section headings herein are for purposes of reference only and shall in
no
way limit, define or otherwise affect the meaning or interpretation of any
of
the provisions of this Agreement. Whenever required by the context, the singular
number shall include the plural, and vice versa; the masculine gender shall
include the feminine and neuter genders; and the neuter gender shall include
the
masculine and feminine genders. Any rule of construction to the effect that
ambiguities are to be resolved against the drafting party shall not be applied
in the construction or interpretation of this Agreement. As used in this
Agreement the words “include” and “including,” and variations thereof, shall not
be deemed to be terms of limitation, and shall be deemed to be followed by
the
words “without limitation.”
10.8 Severability.
The
invalidity or unenforceability of any provision of this Agreement, or any terms
thereof, shall not affect the validity of this Agreement as a whole, which
shall
at all times remain in full force and effect.
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IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
day
and year first above written.
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COMPANY:
/s/
Xxxx X. Xxxxxxxx
___________________________
Xxxx
X. Xxxxxxxx,
Chief
Financial Officer
Address:
0000
Xxxxxxxxx Xxxxxx
Xxxxx
Xxxxxxx, XX 00000
Fax: 000-000-0000
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CONSULTANT:
/s/
Xxxxxx X. Xxxxxxxxx
___________________________
XXXXXX
X. XXXXXXXXX
Address:
One
Bunker Hill
000
X. Xxxxx Xxxxxx, #0000
Xxx
Xxxxxxx, XX 00000
Fax:
000-000-0000
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[Signature
Page to Consulting Agreement]
