Exhibit 10.5
CONSULTING AGREEMENT
This Consulting Agreement (this "Agreement") made as of June 1, 2000,
is by and between Quick-Med Technologies, Inc., a Delaware corporation, with its
principal place of business at 0000X Xxxxxxxxx Xxxx Xxxxxxxxx, Xxxxxx Xxxxx,
Xxxxxxx 00000 (the "Company"), and Xxxxxxx X. Xxxxxxx, Ph.D., having his
principal place of business at 0000 XX Xxxxxx Xxxx, Xxxxxxxxxx xx Xxxxxxx,
Xxxxxxxxxxx, Xxxxxxx 00000 (the "Consultant").
R E C I T A L S:
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A. The Company is engaged in the development of certain healthcare
products and desires to retain Consultant to provide certain consulting services
relating to such products.
B. Consultant desires to provide certain consulting services to the
Company in accordance with the terms and conditions contained hereinafter.
NOW, THEREFORE, in consideration of the mutual promises set forth
herein, the parties hereto hereby agree as follows:
1. Consulting Services. During the term of this Agreement, Consultant
is hereby retained by the Company to provide consulting services to the Company
on certain scientific matters. Consultant shall provide such consulting services
as reasonably requested by the Company during the term of this Agreement,
provided that nothing hereunder shall require Consultant to devote a minimum
number of hours per calendar month toward the performance of services hereunder.
Unless otherwise agreed to by Consultant, all services hereunder shall be
performed by Consultant, in its sole discretion, at his principal place of
business or other offices.
2. Term. The term of this Agreement shall commence as of the date first
written above and terminating on December 31, 2000.
3. Compensation. In consideration for the performance of services
hereunder, the Company hereby agrees to pay Consultant the aggregate sum of
$15,000 during the term of this Agreement. The Company hereby agrees to pay on a
pre-approval basis all out-of-pocket expenses incurred by Consultant in
connection with such services to be rendered hereunder.
4. Nondisclosure And Development.
(a) Except as may be required in connection with the operations of the
Company's business, Consultant will not at any time, whether during or after the
termination of employment with the Company, use or reveal to any person or
entity any of the Trade Secrets or Confidential Information (as defined below)
of the Company or of any third party which the Company is under an obligation to
keep confidential, except as may be required in the ordinary course of
performing the Duties. Consultant further agrees to keep secret all matters
entrusted to Consultant and shall not use or disclose or attempt to use or
disclose any such information in any manner which may be calculated to injure or
cause loss whether directly or indirectly to the Company.
(b) Further, Consultant agrees that during his or her term of
employment, Consultant shall not make, use or permit to be used any notes,
memoranda, reports, lists, records, drawings, sketches,
specifications, software programs, data, documentation or other material
containing the Trade Secrets or Confidential Information of or concerning any of
its dealings or affairs of the Company (collectively, the "Property") other than
for the Company's benefit.
(c) As used herein, "Trade Secrets" means information, without regard
to form, including without limitation a formula, pattern, compilation, program,
device, method, technique, or process that: (a) derives independent economic
value, actual or potential, from not being generally known to, and not being
readily ascertainable by proper means by, other persons who can obtain economic
value from its disclosure or use; and (b) is the subject of efforts that are
reasonable under the circumstances to maintain its secrecy. As used herein,
"Confidential Information" means information, other than Trade Secrets that is
of value to a company and is treated as confidential. Trade Secrets and
Confidential Information may include without limitation information respecting
the Company's organization, business, finances, inventions, products. designs,
methods, know-how techniques, systems, processes, software programs, works of
authorship, customer lists, projects, plans and proposals.
(d) Consultant's obligations with respect to (i) Trade Secrets will
survive for so long as such information constitutes a Trade Secret, and (ii)
Confidential Information will survive for two years following the termination of
Consultant's employment with the Company.
(e) If at any time during the term of employment, Consultant (either
alone or with others) makes, conceives, discovers or reduces to practice any
invention, modification, discovery, design, development improvement, process,
software program, work of authorship, documentation, formula, data, technique,
know-how, secret or intellectual property right whatsoever or any interest
therein (whether or not patentable or registerable under copyright or similar
statutes or subject to analogous protection) (herein called "Developments") that
(i) relates to the Company's business as conducted or proposed to be conducted
during the course of Consultant's retention (the "Business") or any of the
products or services being developed, manufactured or sold by the Company or
which may be used in relation therewith; (ii) results from tasks assigned to
Consultant by the Company, or (iii) results from the use of premises or personal
property (whether tangible or intangible) owned, leased or contracted for by the
Company, such Developments and the benefits thereof shall be considered work
made for hire and shall immediately become the sole and absolute property of the
Company and its assigns. Consultant agrees to disclose promptly to the Company
(or any persons designated by it) each such Development and agrees to
communicate, without cost or delay, and without publishing the same, all
available Information relating thereto (with all necessary plans and models) to
the Company. If any of the Developments may not, by operation of low or
otherwise, be considered work made for hire by Consultant for the Company, or if
ownership of all right, title, and Interest of the Intellectual property rights
therein shall not otherwise vest exclusively in the Company, Consultant hereby
assigns to the Company, and upon the future creation thereof automatically
assigns to the Company, without further consideration, the ownership of all
Developments, the Company shall have the eight to obtain and hold in its own
name copyrights, patents, registrations, and any other protection available in
the Developments. Upon disclosure of each Development to the Company, Consultant
agrees during the term of this Agreement and at any time thereafter, at the
Company's request and cost, to sign, execute, make and do all such deeds,
documents, acts and things as the Company and its duly authorized agents may
reasonably require.
(f) In the event the Company is unable, after reasonable effort, to
secure Consultant's signature on any letters patent, copyright or other
analogous protection relating to a Development, whether because of Consultant's
physical or mental incapacity or for any other reason whatsoever, Consultant
hereby irrevocably designates and appoints the Company and its duly authorized
officers and agents as Consultant's agent and attorney-in-fact, to act for and
in Consultant's behalf and stead to
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execute and file any such application or applications and to do all other
lawfully permitted acts to further the prosecution and issuance of letters
patent, copyright or other analogous protection thereon with the same legal
force and effect as if executed by Consultant.
5. Non-Compete Restriction. The term of this Section 5 shall be for a
period commencing on the date hereof and ending on the first anniversary of the
date an which Consultant's relationship with the Company terminates for any
reason (the "Restrictive Period"). During the Restrictive Period, Consultant
will not, without the Company's prior written consent, directly or indirectly,
alone or as a partner, joint venturer, officer, director, Consultant,
consultant, agent, independent contractor or stockholder of any company or
business, perform his Duties for any person or entity which competes directly
with the Business during such Restrictive Period. The parties agree and
acknowledge that (i) the definition of the Restrictive Period reasonably and
fairly limit this non-compete restriction and are reasonably required for the
Company's protection; and (ii) by having access to information concerning
Consultants and the Company's customers, Consultant shall obtain a competitive
advantage as to such parties in any business that competes with the Business.
6. Indemnification. The Company hereby agrees to indemnify, defend and
hold harmless Consultant from and against any and all claims, damages, losses,
liability, deficiencies, actions, suits, proceedings, costs or legal expenses
(collectively the "Losses") arising out of or resulting from (i) any activities
or services performed hereunder by Consultant, unless such Losses were the
result of the intentional misconduct or gross misconduct of Consultant; or (ii)
any and all costs and expenses (including reasonable attorneys' and paralegals'
fees) related to the foregoing, and as more fully described below.
7. Amendment. No modification, waiver, amendment, discharge or change
of this Agreement shall be valid unless the same is evidenced by a written
instrument, executed by the party against which such modification, waiver,
amendment, discharge, or change is sought.
8. Notices. All notices, demands or other communications given
hereunder shall be in writing and shall be deemed to have been duly given when
delivered in person or transmitted by facsimile transmission or the third
calendar day after being mailed by United States registered or certified mail,
return receipt requested, postage prepaid, to the addresses herein above first
mentioned or to such other address as any party hereto shall designate to the
other for such purpose in the manner hereinafter set forth.
9. Equitable Relief. The parties to this Agreement acknowledge that a
breach by Consultant of any terms or conditions of this Agreement will result in
irrevocable harm to the Company and that the remedies at law for such breach may
not adequately compensate the Company for damages suffered. Accordingly,
Consultant agrees that in the event of such breach, the Company shall be
entitled to injunctive relief or such other equitable remedy as a court of
competent jurisdiction may provide. Nothing contained herein will be construed
to limit the Company's right to any remedies at law, including the recovery of
damages for breach of this Agreement.
10. Entire Agreement. This Agreement contains all of the understandings
and agreements of the parties with respect to the subject matter discussed
herein. All prior agreements, whether written or oral, are merged herein and
shall be of no force or effect.
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11. Severability. The invalidity, illegality or unenforceability of any
provision or provisions of this Agreement will not affect any other provision of
this Agreement, which will remain in full force and effect, nor will the
invalidity, illegality or unenforceability of a portion of any provision of this
Agreement affect the balance of such provision. In the event that any one or
more of the provisions contained in this Agreement or any portion thereof shall
for any reason be held to be invalid, illegal or unenforceable in any respect,
this Agreement shall be reformed, construed and enforced as if such invalid,
illegal or unenforceable provision had never been contained herein.
12. Construction and Enforcement. This Agreement shall be construed in
accordance with the laws of the State of Florida, without application of the
principles of conflicts of laws. If it becomes necessary for any party to
institute legal action to enforce the terms and conditions of this Agreement,
the successful party will be awarded reasonable attorneys' fees at all trial and
appellate levels, expenses and costs. Any suit, action or proceeding with
respect to this Agreement shall be brought in the state or federal courts
located in Palm Beach County in the State of Florida.
13. Binding Nature. The terms and provisions of this Agreement shall be
binding upon and inure to the benefit of the parties, and their respective
successors and assigns.
14. Counterparts. This Agreement may be executed in any number of
counterparts, including facsimile signatures which shall be deemed as original
signatures. All executed counterparts shall constitute one Agreement,
notwithstanding that all signatories are not signatories to the original or the
same counterpart.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
QUICK-MED TECHNOLOGIES, INC.
By:/s/ Xxxxx Xxxxxx
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Xxxxx Xxxxxx, President
CONSULTANT
/s/ Xxxxxxx X. Xxxxxxx
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