Exhibit 10.44 Consulting agreement with Xxxxxx X. Xxxxxxx
Magna-Lab Inc.
0000 Xxxxxxx Xxxxxxxx, Xxxxx 000X
Xxxxxxx, XX 00000
Xxxxxx X. Xxxxxxx
0 Xxxxxx Xxxx
Xxxxxxxxxx, XX 00000
Dear Xx. Xxxxxxx:
It is my pleasure to offer you the opportunity to serve as a consultant to, as
Chairman of the Board of Directors (the "Board") and Chief Executive Officer of
Magna-Lab, Inc. (the "Company") on the following terms and conditions which
shall constitute your agreement (the "Agreement") with the Company.
20. Start Date; Term: This Agreement shall reflect agreement reached in
November 1999 and become effective for services subsequent to that date
and shall be for a term shall that ends on the third anniversary of April
1, 2001 (the "Term"), subject to earlier termination as provided herein.
21. Duties: You shall serve as Chairman and Chief Executive officer to the
Company providing leadership and direction and overall management of all
of the business development and operation of the business. Given the stage
of the Company's development, you would be expected to spend up to 50% of
your consulting time on the business of the Company up to and until such
time as the Company determines to retain a full time CEO. You would be
expected to participate in the selection of such CEO and your role, upon
his/her retention would include transition support to ensure that xxxxx
individual can appropriately assume their responsibilities. Upon such
retention you would remain as Chairman of the Board of Directors and a
consultant to the Company.
During the term of this Agreement, you shall devote such time as is
reasonably necessary to perform the duties and responsibilities referred
to in this Section 1 and it is explessly understood that such time is
expected to approximate 50% of your business time and that the remaining
time will be spend on other business activities which are not competitive
with the actiities of the Company. You shall report to the Company's Board
of Directors.
22. Fees: In consideration for your consulting services, you shall receive
consulting fee as follows: from November 1999 through March 2001,
$1,700.00 per day for your services and for the services of any executive
associates you engage; from April 1, 2001 to June 30, 2001, $13,600 per
month; from July 1, 2001 to December 31, 2001, $6,800, from January 1,
2002 until December 31, 2003, $1,700 per month. Such fees from April 2001
onward are based upon 8 days per month, 4 days per month and 1 day per
month, respectively. If actual time incurred regularly exceeds this
projected level of effort, they
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will be billed based upon $1,700 per day or pro-rated amount for part
days. Such fees will be due on the first business day of the succeeding
month. Because you, and any executive associates you bring on, are
operating as an independent contractor to the Company, the Company will
not be required to withhold federal and state income, social security and
other taxes and you will be required to pay such taxes directly.
Additionally the company will pay you a monthly allowance for the cost of
your health insurance and will pay for your reasonable out of pocket
expenses including travel food and lodging expenses during such travels at
the appropriate level suitable to your position (i.e. Air Travel: Business
Class for flights, Hotels : Executive Business standard etc.).
23. Stock Option. You shall be granted an option, under the Company's Stock
Option Plan, to purchase 1,300,000 shares of the common stock of the
Company, subject to the terms of the Company's Option Plan and such other
terms as are set forth in the applicable option agreement (the "Option")
which has been provided to you.
In the event of a Change in Control (as defined below), notwithstanding
anything contained herein to the contrary, any portion of the Option that
has not yet vested shall immediately vest and be exercisable by you within
sixty days following the consummation of the Change in Control. For
purposes of this Agreement, a "Change in Control" of the Company shall be
deemed to have occurred if (i) there shall be consummated (x) any
consolidation or merger of the Company in which the Company is not the
continuing or surviving corporation or pursuant to which the shares of the
common stock of the Company would be converted into cash, securities or
other property, other than a merger of the Company in which the holders of
the common stock immediately prior to the merger have the same
proportionate ownership of common stock of the surviving corporation
immediately after the merger, or (y) any sale, lease, exchange or other
transfer of all, or substantially all, of the assets of the Company, or
(ii) the stockholders of the Company approve a plan for liquidation or
dissolution of the Company, or (iii) any person (as such term is defined
in Sections 13(d) and 14(d)(2) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act") who is not currently an affiliate of the
Company, shall become the beneficial owner (within the meaning of Rule
13d-3 under the Exchange Act) of 50% or more of the outstanding common
stock of the Company, in all cases excluding the financings contemplated
with Xxxxx Xxxxx and Xxxx. Notwithstanding the foregoing, in the event the
definition of Change in Control herein is inconsistent with the terms in
Option Plan then such definition shall be modified so that it is
consistent with the Option Plan.
24. Cessation of Services: In the event you shall cease to provide consulting
services to the Company for any reason, then your compensation shall cease
on the date of such event, except as otherwise provided herein. All
amounts due and payable through the date of termination as defined below,
shall be paid to you by the company within seven days of the date of
termination.
25. Proprietary Rights and Confidentiality: As a condition of your retention
as a Undersigned, you shall execute, contemporaneously with the execution
of this agreement, the Proprietary Rights and Confidentiality Agreement
attached as Exhibit 1 and incorporated herein by reference.
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26. No Interference:. During the period that you are providing services for
the Company, you shall not engage in any activity which conflicts or
interferes with or derogates from the performance of your duties
hereunder.
27. Termination: The Company may terminate this Agreement for Cause (as
hereinafter defined), in the event of your Disability (as hereinafter
defined), or in the event of your retirement or death, in which case the
provisions of subsection 8.1 shall apply. The Company may also terminate
this Agreement for any other reason by 90 days' prior written notice to
you, in which case the provisions of subsection 8.2 shall apply. You may
terminate this Agreement by your voluntary resignation by 30 days' prior
written notice to the Company, in which case the provisions of subsection
8.1 shall apply.
27.1. Termination for Cause; Termination by Reason of Death or Retirement
or Voluntary Resignation:
In the event that your retention hereunder is terminated
during the Term by the Company for Cause (as hereinafter defined),
then the entire Option shall immediately terminate and be no longer
exercisable. In the event that your retention hereunder is
terminated during the Term by reason of your voluntary resignation,
then the portion of the Option that has not vested as of the date of
such termination shall be cancelled. In the event that your
retention hereunder is terminated during the Term by reason of your
death, disability or retirement, then the portion of the Option that
has not vested as of that date of such termination shall be
automatically vested, and your heir's right or your right , as the
case may be , to exercise the vested portion of the option shall
expire 12 months thereafter. Additionally, you shall receive the
fees that you have accrued under Section 4 through the date of
termination.
For purposes of this Agreement, "Cause" shall mean (i) conviction of any
crime (whether or not involving the Company) constituting a felony in the
jurisdiction involved; (ii) engaging in any substantiated act involving
moral turpitude; (iii) engaging in any act which subjects, or if generally
known would subject, the Company to public ridicule or embarrassment; (iv)
gross neglect or misconduct in the performance of your duties hereunder;
(v) willful or repeated failure or refusal to perform such duties as may
be delegated to you commensurate with your position; or (vi) breach of any
material provision of this Agreement by you.
27.2. Termination By Company For Any Other Reason: In the event that your
retention hereunder is terminated by the Company during the Term for
any reason other than as provided in Section 8.1 hereof, then the
entire Option shall accelerate and be exercisable according to their
terms. Additionally, you shall receive the fees that you have
accrued under Section 4 through the date of termination plus a
payment equal to the previous years fees plus health insurance for
such period[language on fees for Subs.].
27.3. Definition: The term "date" of termination as used throughout this
Agreement shall be deemed to include the entire notice period prior
to any termination.
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28. Insurance and Indemnification: For such period that you remain a director
of the Company, the Company shall maintain directors' liability insurance
in an amount not less than $1,000,000.
To the extent permitted by New York law, the Company shall indemnify you
for any liability not covered by the Company's directors' insurance policy
for your acts or omissions performed in your capacity as a member of the
Board. It is anticipated that you will enter into an indemnification
agreement with the Company which, when entered into, will supercede the
provisions of this paragraph.
29. Independent Contractor Status: It is agreed that you are acting as an
independent contractor, and under no circumstances shall be deemed as an
employee of the Company for any purpose. This Agreement shall not be
construed as authority for either party to act for the other party in any
agency or other capacity or to make commitments of any kind for the
account of or on behalf of the other except to the extent and for the
purposes expressly provided for herein.
30. Arbitration: With the exception of an action for equitable relief arising
from a breach of the Proprietary Rights and Confidentiality Agreement, any
controversy between you and the Company or between you and any employee of
the Company arising out of or related to your employment with the Company,
including, but not limited to, claims of race, age, gender, religious, or
national origin discrimination under federal, state or local laws and
those involving the construction or application of any of the terms,
provisions or conditions of this Agreement, shall be settled by
arbitration in accordance with the then current employment dispute
resolution rules of the American Arbitration Association, and the
arbitrators shall be empowered to award any relief which could be awarded
by any court of competent jurisdiction for such dispute brought before
such court. Judgment on the award rendered by the arbitrator(s) may be
rendered by any court having jurisdiction thereof. The parties shall each
bear their own legal fees associated with this arbitration. The location
of the arbitration shall be in New York, New York.
In the event of a breach of the Proprietary Rights and Confidentiality
Agreement, you or the Company shall be entitled to institute proceedings
in any court of competent jurisdiction to obtain equitable relief,
including, but not limited to, specific performance or an injunction
against performance of any acts, without the posting of a bond. The rights
and remedies of the parties hereto are cumulative and shall not be
exclusive, and each such party shall be entitled to pursue all legal and
equitable rights and remedies and to secure performance of the obligations
and duties of the other under this Agreement, and the enforcement of one
or more of such rights and remedies by a party shall in no way preclude
such party from pursuing, at the same time or subsequently, any and all
other rights and remedies available to it.
31. Entire Agreement: This Agreement constitutes the entire agreement between
you and the Company pertaining to the subject matter hereof, and
supersedes all prior or contemporaneous written or oral agreements and
understandings with you in connection with the subject matter hereof.
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32. Governing Law; Jurisdiction: This Agreement and the rights and obligations
hereunder shall be governed by the laws of the State of New York (without
reference to its rules as to conflicts of laws), and you and the Company
specifically consent to the jurisdiction of the courts of the State of New
York or the United States District Courts for the Southern or Eastern
Districts of New York over any action or arbitration arising out of or
related to this Agreement and consent to the service of process in any
such action or proceeding by certified or registered mailing of the
summons and complaint therein directed to you at the address of your
residence (as reflected in the Company's records or otherwise designated
by you on 30 days prior written notice to the Company) and to the
Company's designated agent for service of process.
33. Amendment: This Agreement may be amended only by a writing which makes
express reference to this Agreement as the subject of such amendment and
which is signed by you and, on behalf of the Company, by a duly authorized
officer thereof.
34. Severability: If any term, provision, covenant or condition of this
Agreement or part thereof, or the application thereof to any person, place
or circumstance, shall be held to be invalid, unenforceable or void, the
remainder of this Agreement and such term, provision, covenant or
condition shall remain in full force and effect, and any such invalid,
unenforceable or void term, provision, covenant or condition shall be
deemed, without further action on the part of the parties hereto,
modified, amended and limited to the extent necessary to render the same
and the remainder of this Agreement valid, enforceable and lawful. In this
regard, you acknowledge that the provisions of the Proprietary Rights and
Confidentiality Agreement are reasonable and necessary for the protection
of the Company
35. Construction: The headings and captions of this Agreement are provided for
convenience only and are intended to have no effect in construing or
interpreting this Agreement. The language in all parts of this Agreement
shall be in all cases construed according to its fair meaning and not
strictly for or against the Company or you. The use herein of the word
"including," when following any general provision, sentence, clause,
statement, term or matter, shall be deemed to mean "including, without
limitation." As used herein, "Company" shall mean the Company and its
subsidiaries and any purchaser of, successor to or assignee (whether
direct or indirect, by purchase, merger, consolidation or otherwise) of
all or substantially all of the Company's business or assets which is
obligated to perform this Agreement by operation of law or otherwise. As
used herein, the words "day" or "days" shall mean a calendar day or days.
36. Nonwaiver: Neither any course of dealing nor any failure or neglect of
either party hereto in any instance to exercise any right, power or
privilege hereunder or under law shall constitute a waiver of any other
right, power or privilege or of the same right, power or privilege in any
other instance. All waivers by either party hereto must be contained in a
written instrument signed by the party to be charged and, in the case of
the Company, by its duly authorized officer
37. Notices: Any notice, request, consent or approval required or permitted to
be given under this Agreement or pursuant to law shall be sufficient if in
writing, and if and when sent
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by certified or registered mail, return receipt requested, with postage
prepaid, to your residence (as reflected in the Company's records or as
otherwise designated by you on thirty (30) days' prior written notice to
the Company) or to the Company's principal executive office, attention:
Chief Executive Officer or Secretary, as the case may be. All such
notices, requests, consents and approvals shall be effective five (5)
business days after being deposited in the United States mail. However,
the time period in which a response thereto must be given shall commence
to run from the date of receipt on the return receipt of the notice,
request, consent or approval by the addressee thereof. Rejection or other
refusal to accept, or the inability to deliver because of changed address
of which no notice was given as provided herein, shall be deemed to be
receipt of the notice, request, consent or approval sent.
If you wish to accept this offer, please sign in the space provided below.
By so signing, you acknowledge that you have received no inducements or
representations other than
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those set forth in this letter which caused you to accept this offer of
employment. We look forward to having you join us.
Very truly yours,
Magna-Lab Inc.
By
-----------------------------
Name:
Title:
Offer Accepted:
Full Name:
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[Please Print]
Signature:
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Date:
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PROPRIETARY RIGHTS AND CONFIDENTIALITY AGREEMENT
In return for new or continued service to Magna-Lab Inc. (the "Company"), the
undersigned acknowledges and agrees as follows:
11. For the purposes of this Agreement:
a) "Information" shall mean any and all discoveries, ideas,
facts, or any other information relating, directly or
indirectly, to the operation of the Company's business, of
whatever type and in whatever form, which is disclosed or
otherwise made available to the undersigned by the Company in
confidence, including, but not limited to, all information
relating to personnel, sales, customers and financial and
scientific matters of the Company, and any other discoveries,
ideas, business plans, or facts relating to any of the
foregoing, whether developed by the undersigned or by others;
b) "Trade Secret" shall mean any and all Information that derives
independent economic value, actual or potential, from not
being generally known to persons who can obtain economic value
from its disclosure or use, and that is the subject of
reasonable efforts by Company to maintain its secrecy.
c) "Inventions" shall mean Information, Trade Secrets and, to the
extent they relate, directly or indirectly, to the Company's
business, designs, trademarks, discoveries, formulae,
processes, manufacturing techniques, Trade Secrets,
Information, improvements, ideas, inventions and copyrightable
works.
12. The undersigned understands that any and all Information and Trade
Secrets are received or developed by him/her and are disclosed to
him/her in confidence, and are to be used only for the purposes for
which they are provided. During the term of his agreement with
Company and thereafter, The undersigned shall not, directly or
indirectly, except as required by the normal business of the Company
or expressly consented to in writing by the Board of Directors of
the Company:
a) Disclose, publish or make available any Information or Trade
Secrets, other than to an employee, officer or director of the
Company who, in the reasonable exercise of Undersigned's
judgment, needs to know such Information or Trade Secrets in
order to perform his or her duties to the Company;
b) Sell, transfer or otherwise use or exploit or permit the sale,
transfer, use or exploitation of the Information or Trade
Secrets for any purposes other than those for which they were
provided;
c) Remove from the Company's premises or retain upon termination
any Information or Trade Secrets, any copies thereof or any
tangible or retrievable materials containing or constituting
Information or Trade Secrets.
Exhibit 1
1
13. Upon termination of Undersigned's services or upon request by the
Company, Undersigned shall return to the Company all tangible forms
of Information and Trade Secrets.
14. Consultant agrees to cooperate with the Company both during and
after the Undersigned has ceased to provide services to the Company
in obtaining and enforcing patents, copyrights, and other protection
of the Company's rights in Inventions. This section does not apply
to any Inventions:
a) For which no equipment, supplies, facility, or Trade Secrets
of the Company were used;
b) Which were developed entirely on 's own time; and
c) Which do not relate at the time of conception or reduction to
practice to the Company's current business or its actual or
demonstrably anticipated research or development, or which do
not result from any work performed by for the Company.
15. Undersigned certifies that he has no continuing obligations to third
parties with respect to the assignment of Inventions or rights to
Inventions, nor does claim any previous, unpublished Inventions
within the scope of this Agreement as 's own, except for the
Inventions, if any, which has listed in Appendix A to this
Agreement.
16. Undersigned certifies that there is no other contract or duty on
Undersigned's part that would interfere with Undersigned's ability
to provide services to the Company. Undersigned agrees that, in
performing work for the Company, Undersigned will not knowingly use
any patented inventions, trade secrets, confidential information or
proprietary information obtained from third parties, including any
prior employer or any other organization or individual. Undersigned
will not bring onto the premises of the Company any unpublished
document or other property containing proprietary information or
trade secrets belonging to Undersigned's former or concurrent
employers or companies, unless consented to in writing by said
employers or companies.
17. The restrictions against competition and disclosure set forth above
are considered by the parties to be reasonable for the purposes of
protecting the business of the Company, its subsidiaries and its
affiliates. However, if any such restriction is found by any court
of competent jurisdiction to be unenforceable because it extends for
too long a period of time or over too great a range of activities or
in too broad a geographic area, it shall be interpreted to extend
only over the maximum period of time, range of activities or
geographic area as to which it may be enforceable.
18. The parties hereto understand and intend that each restriction
agreed to by Undersigned herein shall be construed as separable and
divisible from every other restriction, and the un enforceability,
in whole or in part, of any such restriction,
Exhibit 1
2
in any jurisdiction, shall not affect the enforceability of such
restriction in any other jurisdiction or of the remaining
restrictions in any jurisdiction, and that one or more or all of
such restrictions may be enforced in whole or in part as the
circumstances warrant.
19. Undersigned acknowledges that the Company is relying upon the
representations and covenants contained in this Agreement as an
inducement to permit Undersigned to provide services in connection
therewith to permit Undersigned to have continued access to
Information and Trade Secrets.
20. This Agreement shall be governed by the laws of the State of New
York (without reference to its rules as to conflicts of laws).
Undersigned and the Company specifically consent to the jurisdiction
of the courts of the State of New York or the United States District
Courts for the Southern or Eastern Districts of New York over any
action or arbitration arising out of or related to this Agreement
and consent to the service of process in any such action or
proceeding by certified or registered mailing of the summons and
complaint therein directed to Undersigned at the address of
Undersigned's residence (as reflected in the Company's records or
otherwise designated by Undersigned on 30 days' prior written notice
to the Company) and to the Company's designated agent for service of
process.
Dated
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Xxxxxx X. Xxxxxxx
Exhibit 1
3
APPENDIX A
I have made or improved the following Inventions and claim sole right to
them. I include below the names of co-inventors or employers to whom I owe a
continuing obligation with respect to these Inventions.
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Dated
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Xxxxxx X. Xxxxxxx
Exhibit 1
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