Exhibit 10.41
CONSULTING AGREEMENT
This Agreement (the Agreement) is dated for reference January 1st, 2004 between:
Mymetics Corporation, a company duly registered in the state of Delaware (USA),
having its seat at 00 Xxxxxxx Xxxxxx, 00000-0000 Xxxxxxxxx, XX (XXX) and its
European Executive Office at 00, xxxxx xx Xxxxxx, 0000 Xxxx (Xxxxxxxxxxx),
represented by its duly authorised officers, Xx. Xxxxxxxxx Xxxxxx, President and
Chief Executive Officer, and Xx. Xxxxx Xxxxx, Chief Financial Officer (the
"Company")
And
CHUV - Centre Hospitalier Universitaire Vaudois, a public university hospital
organised under the laws of the Canton of Vaud (Switzerland), having its seat at
Xxxxxx 00, 0000 Xxxxxxxx, represented by its duly authorised Xxxx. Xxxx
Xxxxxxxxx (the "Institution")
And
Xx. Xxxxxxx Xxxxxx, Ph.D., a Project Leader at the Institution's Experimental
Surgery Department (the "Consultant").
Hereafter collectively designated as the Parties.
WHEREAS
The Company is engaged in scientific research in view of developing vaccines,
therapeutic compounds and specific therapies for certain retroviral diseases or
diseases with a viral autoimmune content, and in particular AIDS (the "Field").
The Consultant has extensive experience in the Field, and the Company seeks to
benefit from the Consultant's expertise by retaining the Consultant as a
consultant. The Consultant wishes to perform consulting services in the Field
for the Company. The Institution acknowledges this wish and agrees to act as
executor of the Agreement, and in particular, to perform certain services in
connection with the collection of the fees charged by the Consultant to the
Company and the transfer of such to the Consultant net of various social
charges under Swiss Law.
Accordingly, the Parties agree as follows:
1. SERVICES
(a) Consultant shall provide consulting services which include (i)
serving as the Company's Chief Scientific Officer; (ii) attending scientific
advisory board meetings; (iii) providing scientific advice regarding the
Company's product lines, the general direction of its research program,
recruitment of scientific personnel, and techniques used in research in the
Field; and (iv) generally advising the Company in its efforts to produce,
develop, and market products in the Field, to the Company with respect to
matters related to the Field.
(b) The Institution agrees that such services be rendered by the
Consultant to the Company. In addition, the Institution agrees to (i) invoice
the Company on a regular basis (as defined under section 2 below) for said
services,
(ii) to credit such amounts to its internal departmental funds XXXX XXX/XXXX
00000, (xxx) to manage all required Swiss social charges (employer's and
employee's contribution) from such sums and transfer such deductions to the
relevant social security institutions (AVS, LPP, etc.) and (iv) to transfer the
net balance remaining to the Consultant.
(b) Upon request by the Company, and at times mutually agreed upon
by the Company and the Consultant, the Consultant shall devote up to 30% of his
time (computed as an annual average) to providing consulting services to the
Company pursuant to this Agreement.
(c) The Company acknowledges that the Consultant is an employee of
the Institution and is subject to the Institution's policies, including policies
concerning consulting, conflicts of interest, and intellectual property, and
that Consultant's obligations under the Institution's policies take priority
over any obligations the Consultant may have to the Company by reason of this
agreement.
2. COMPENSATION
As full consideration for the consulting services provided by the
Consultant, the Company shall pay to the Consultant the amount of CHF 96'000
annually, payable in monthly instalments of CHF 8'000, except for an initial
amount of CHF 48'000, representing six months of operations, to be made on or
before January 15, 2004. In addition to the foregoing amounts, the Company shall
promptly reimburse the Consultant for all reasonable expenses incurred by the
Consultant in providing consulting services under this Agreement. The Company
agrees to pay approved expense reports within 30 days of receipt.
3. CONFIDENTIALITY
(a) The Consultant may disclose to the Company any information
that the Consultant would normally freely disclose to other members of the
scientific community at large, whether by publication, by presentation at
seminars, or in informal scientific discussions. However, the Consultant shall
not disclose to the Company information that is proprietary to the Institution
and is not generally available to the public other than through formal
technology transfer procedures.
(b) In providing consulting services to the Company pursuant to
this Agreement, the Consultant may acquire information that pertains to the
Company's products, processes, equipment, programs, developments, or plans and
that is both (i) disclosed or made known by the Company to the Consultant and
(ii) identified as "proprietary" by the Company at any time ("Proprietary
Information"). The Consultant agrees not to disclose any Proprietary Information
to third parties or to use any Proprietary Information for any purpose other
than performance of consulting services pursuant to this Agreement, without
prior written consent of the Company.
(c) Proprietary Information subject to paragraph 3(b) does not
include information that: (i) is or later becomes available to the public
through no breach of this Agreement by the Consultant; (ii) is obtained by the
Consultant from a third party who had the legal right to disclose the
information to the Consultant; (iii) is already in the possession of the
Consultant on the date this Agreement becomes effective; or (iv) is required to
be disclosed by law, government regulation, or court order. In addition,
Proprietary Information subject to paragraph 3(b) does not include information
generated by the Consultant unless the information (i) is generated as a direct
result of the performance of consulting services under this Agreement and (ii)
is not generated
in the course of the Consultant's activities as an Institution employee.
4. RETURN OF MATERIALS
The Consultant agrees to promptly return, following the termination of
this Agreement or upon earlier request by the Company, all drawings, tracings,
and written materials in the Consultant's possession and (i) supplied by the
Company in conjunction with the Consultant's consulting services under this
Agreement or (ii) generated by the Consultant in the performance of consulting
services under this Agreement and not generated in the course of the
Consultant's activities as an Institution employee.
5. INTELLECTUAL PROPERTY
(a) Subject to the terms of paragraph 5(b), below, the Consultant
hereby assigns to the Company any right, title, and interest he may have in any
invention, discovery, improvement, or other intellectual property which (i) the
Consultant develops solely as a direct result of performing consulting services
for the Company under this Agreement and (ii) is not generated in the course of
Consultant's activities as an Institution employee and is not owned by the
Institution. Any intellectual property assignable to the Company pursuant to the
preceding sentence is hereinafter referred to as ("Company Intellectual
Property"). Upon the request of the Company, the Consultant shall execute such
further assignments, documents, and other instruments as may be necessary to
assign Company Intellectual Property to the Company and to assist the Company in
applying for, obtaining and enforcing patents or other rights in Switzerland and
in any foreign country with respect to any Company Intellectual Property. The
Company will bear the cost of preparation of all patent or other applications
and assignments, and the cost of obtaining and enforcing all patents and other
rights to Company Intellectual Property.
(b) The Company shall have no rights by reason of this Agreement
in any publication, invention, discovery, improvement, or other intellectual
property whatsoever, whether or not publishable, patentable, or copyrightable,
which is developed as a result of a program of research financed, in whole or in
part, by funds provided by or under the control of the Institution.
6. DEFENSE AND INDEMNIFICATION
The Company agrees, at its sole expense, to defend the Consultant and
the Institution against, and to indemnify and hold the Consultant and
Institution harmless from, any claims or suits by a third party against the
Consultant or the Institution or any liabilities or judgments based thereon,
either arising from the Consultant's performance of services for the Company
under this Agreement or arising from any Company products which result from the
Consultant's performance of services under this Agreement.
7. TERM AND TERMINATION
(a) Unless terminated earlier under paragraph 7(b), below, this
Agreement shall be for a term of 3 years from the date it becomes effective,
i.e. until December 31, 2006.
(b) Without limiting any rights which either party to this
Agreement may have by reason of any default by the other party, each party
reserves the right to terminate this Agreement at its convenience by written
notice given to the other party. Such termination shall be effective upon the
date not earlier than
30 days following the date of such notice as shall be specified in said notice.
(c) Termination of this Agreement under paragraph 7(a) or 7(b),
above, shall not affect (a) the Company's obligation to pay for services
previously performed by the Consultant or expenses reasonably incurred by the
Consultant for which the Consultant is entitled to reimbursement under paragraph
2 above, (b) the Company's obligations to recognize the priority of Institution
intellectual property rights under paragraph 5(b) above, (c) the Company's
obligations to defend and indemnify the Consultant and the Institution under
paragraph 6 above, or (d) the Consultant's continuing obligations to the Company
under paragraphs 3(b) and 5(a) above.
8. MISCELLANEOUS
(a) This Agreement shall inure to the benefit of and be binding
upon the respective heirs, executors, successors, representatives, and assigns
of the parties, as the case may be; provided, however, the obligations hereunder
of each party to the other are personal and may not be assigned without the
express written consent of such other party.
(b) The relationship created by this Agreement shall be that of
independent contractor, and the Consultant shall have no authority to bind or
act as agent for the Company or its employees for any purpose.
(c) The Company will not use the Consultant's or the Institution's
name in any commercial advertisement or similar material that is used to promote
or sell products, unless the Company obtains in advance the written consent of
both the Consultant and the Institution to such use.
(d) Notice or payments given by one party to the other hereunder
shall be in writing and deemed to have been properly given or paid if deposited
with the Swiss Postal Service, registered or certified mail, addressed as
follows:
Company:
Mymetics Corporation
European Executive Office
00, xxxxx xx Xxxxxx
0000 Xxxx
Institution:
CHUV
M. Xxxx-Xxxx Xxxxxxxx
Directeur Xxxxxxxxxxxxx
Xxxx-Xxxxxxxx 00
Xxxxxx 00
Xxxxxxxx 0000-XX
Consultant:
Xx. Xxxxxxx Xxxxxx, Ph.D.
Xxxxxx xx Xxxxxxxxx 0
0000 Xxxxxxxx
(e) This Agreement replaces all previous agreements and the
discussions relating to the subject matters hereof and constitutes the entire
agreement between the Company, the Institution and the Consultant with respect
to the subject matters
of this Agreement. This Agreement may not be modified in any respect by any
verbal statement, representation, or agreement made by any employee, officer, or
representative of the Company or the Institution, or by any written documents
unless it is signed by an officer of the Company, an officer of the Institution
and by the Consultant. The Parties acknowledge that any amendment of this
Agreement (including, without limitation, any extension of this Agreement or any
change from the terms of paragraph 2 in the consideration to be provided to
Consultant with respect to services to be provided hereunder) or any departure
from the terms or conditions hereof with respect to Consultant's consulting
services for the Company is subject to the Institution's prior written approval.
(f) The parties hereby represent, warrant, acknowledge and agree
that: (i) they have agreed that this Agreement be drawn up in the English
language; and (ii) the English version of this Agreement shall govern for all
purposes.
(g) Should a provision of this Agreement be or become invalid, the
validity of the remaining provisions of this Agreement shall not be affected.
The parties hereto undertake to replace any such invalid provision without delay
with a valid provision which as nearly as possible duplicates the economic
intent of the invalid provision.
(h) This Agreement shall be construed and enforced in accordance
with, and the rights and obligations of the parties shall be governed by, the
laws of Switzerland.
(i) Each of the parties irrevocably attorns to the exclusive
jurisdiction of the Canton of Vaud (Switzerland).
IN WITNESS WHEREOF, the parties have executed this Agreement effective the
reference date first stated above.
/Rochet/
Mymetics Corporation
By: Xxxxxxxxx Xxxxxx, president and Chief Executive Officer
/Xxxxxx/
Mymetics Corporation
By: Xxxxx Xxxxxx, Chief Financial Officer
/Barrandon/
CHUV - Centre Hospitalier Universitaire Vaudois
By : Xxxx. Xxxx Xxxxxxxxx
/Xxxxxx/
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Xx. Xxxxxxx Xxxxxx, Ph.D.
