Consulting Agreement, dated as of August 12, 2008, by and among Omnimmune Holdings, Inc., Becker Advisors, Ltd. and Howard Becker

 

 

 

Authorized Signature: /s/ Howard Becker           

Printed Name:  Howard Becker 

Position: President/CEO

 

____________________________                  

Howard Becker, in his individual capacity

 

 

 

Address:

 

29 Old Short Hills Road

Millburn, NJ 07041

 

Telephone No.: (917) 553-7784

Facsimile No.: (212) 656-1752

Email: ***@***

(a)  

“Proprietary Information” shall mean any and all nonpublic proprietary technical and nontechnical data, information, agreements, documents, intellectual property and other property of Company or any affiliate thereof and any and all proprietary rights relating thereto, which is of tangible or intangible value to Company or any affiliate thereof and is not public information or is not generally known or available to Company's competitors, but is known only to Company or its affiliates and their employees, independent contractors or agents to whom it must be confided in order to apply it to the uses intended, including, without limitation, all business methods, practices and concepts; business and financial information and records, including, without limitation, accounting records, tax returns, financial statements, projections, forecasts or other budgets, other financial data or plans, business plans and strategies; product plans, customer lists and other customer-related information; vendor or supplier lists and other vendor or supplier-related information; computer or data base files; passwords or other access codes; software and operating code or source code relating thereto; any and all contractors, subcontractors; inventions and invention-related reports, analyses, notes, interpretations, formulae, processes, and patent applications, and the proprietary rights thereto; the terms of this Agreement and any other agreement between the Parties; and Work Product.

(b)  

“Trade Secrets” shall mean Proprietary Information (including, but not limited to a business information, technical or non-technical data, formulas, patterns compilations, programs, devices, methods, techniques, drawings, processes, financial data, financial plans, product plans, lists of actual or potential customers or suppliers) that:  (a) derives 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.  To the extent that applicable law mandates a definition of “trade secret” inconsistent with the foregoing definition, then the foregoing definition shall be construed in such a manner as to be consistent with the mandated definition under applicable law.

(c)  

“Work Product” shall mean all of Consultant's right, title, and interest in and to any and all Proprietary Information and Trade Secrets (and all proprietary rights with respect thereto), whether or not patentable or registrable under copyright or similar statutes, that was or is developed, made, conceived or reduced to practice or learned by Consultant, either alone or jointly with others, during the period of Services for engagement with Company or within twelve (12) months after termination of such Services or engagement.

(a)  

Nonuse and Nondisclosure.  Consultant acknowledges that it may be exposed to certain Proprietary Information and Trade Secrets and the proprietary rights thereto during the Term, and its unauthorized use or disclosure of such information, data or rights could cause immediate and irreparable harm to Company.  Accordingly, except to the extent that it is required to use such information or data to perform its obligations as a consultant of Omnimmune,  Consultant agrees that it shall not (and shall take full responsibility for ensuring that none of its agents), without the express and duly authorized written consent of Omnimmune, which consent may be withheld, delayed, denied or conditioned in Omnimmune’s sole and absolute discretion, use or modify for use, directly or indirectly, in any way for any Person, any Proprietary Information or Trade Secrets or the proprietary rights thereto, during the Term and following the termination of this Agreement.  Consultant agrees that any Proprietary Information or Trade Secrets or the proprietary rights thereto shall remain the exclusive property of Company, and Consultant shall not have any ownership interest therein. In addition, except to the extent it is required to use such information or data to perform its obligations as an independent contractor of Omnimmune, Consultant agrees that it shall not (and shall take full responsibility for ensuring that none of its agents), without the express and duly authorized written consent of Omnimmune, redistribute, market, publish, disclose or divulge to any other Person, (i) any of Company's Proprietary Information and proprietary rights thereto during the Term and for a period of three (3) years immediately thereafter; and (ii) any of Company's Trade Secrets and proprietary rights thereto at any time during which such information shall constitute a Trade Secret (whether before, during or after termination of this Agreement).

(b)  

Limitation on Solicitation of Customers and Personnel. During the Term and for a period of three (3) years immediately thereafter, Consultant shall not, directly or indirectly, alone or in conjunction with any other person, (i) solicit any actual or actively sought prospective client or customer of Company with whom or which Consultant had contact during the Term or with respect to whom or which Consultant was provided Proprietary Information by Company during the Term (an “Omnimmune Customer”) for the purpose of providing such Omnimmune Customer products or services that are substantially similar to or competitive with Company’s business, (ii) solicit any employee, other personnel or independent contractor of Company (a “Protected Person”) for the purpose of encouraging such Protected Person to sever an employment, contractual or other relationship with Company or (iii) hire or otherwise retain a Protected Person to perform services of a nature substantially similar to that which such Protected Person performed for Company within a three (3) year period prior to any such hiring or engagement.

(a)  

Tolling.  Consultant hereby expressly acknowledges and agrees that in the event the enforceability of any of the terms of this Agreement shall be challenged in court or pursuant to arbitration and Consultant is not enjoined (either temporarily or permanently) from breaching any of the restraints set forth in this Agreement, then if a court of competent jurisdiction or arbitration panel finds subsequently that the challenged restraint is enforceable, the time period of the restraint shall be deemed tolled upon the filing of the lawsuit challenging the enforceability of the restraint until the dispute is finally resolved and all periods of appeal have expired.

(b)  

Ancillary Provisions.  Sections 3 and 7 of this Agreement shall be construed as an agreement ancillary to the other provisions of this Agreement, and the existence of any claim or cause of action of Consultant against Company, whether predicated on this Agreement or otherwise, shall not constitute a defense to the enforcement by Omnimmune of such Sections.

(1)  

All work will be performed under the direction of Omnimmune’s President.

(2)  

This Agreement shall be effective as of close of business, August 12, 2008 and shall continue through and including July 31, 2009.  This Agreement shall be automatically renewed thereafter for successive one year periods unless terminated in writing by either party on no less than 30 days advance written notice.

(3)  

Consultant shall perform the Services under the general direction of the President, but Consultant shall determine, in Consultant's sole discretion, the manner and means by which the Services are accomplished.  Consultant is an independent contractor and is not an agent or employee of Company and has no authority under this contract to bind Company by contract or otherwise.  Insomuch as Consultant is not an employee of Company, and therefore Omnimmune will not retain any withholding or other employee taxes and Omnimmune will not provide any employee benefits, including but not limited to medical or dental insurance, vacation pay, or sick pay.

(1)  

Consultant agrees to provide services to Omnimmune, as more fully described in Schedule A, at the direction of Omnimmune’s President.  In exchange, Omnimmune will pay Contractor Seven Thousand Five Hundred Dollars ($7,500) on a monthly basis (the “Monthly Fee”), with one-half of such amount being paid in advance on the first and fifteenth of each calendar month.  For purposes of this Agreement, the first installment to be paid under this agreement shall due and payable on August 15, 2008, covering the days from August 13, 2008, to and including August 31st, totaling $4,500.  In addition to the forgoing, Company shall pay Contractor a signing bonus in the amount of $3,000, with the amount due on August 15th, being a total of $7,500. The next payment due under this Agreement shall be on September 1st, covering the period from September 1st through September 15th.  .  Notwithstanding the foregoing, each of the Parties acknowledge that Company has advanced Contractor the amount of $7,500, which shall be credited against the amounts due hereunder.

(2)  

It is contemplated that Consultant shall provide between 50 and 80 hours per month in the performance of the Services.

(3)  

The parties acknowledge the possibility that the services which Omnimmune desires Consultant to perform hereunder may necessitate the expenditure of more time per month than the 50 to 80 hours per month currently contemplated.  In the event that Consultant is called upon to perform more than the above range during any month hereof, Company shall pay Consultant on a pro rata basis for the time expended in excess of 80 hours, calculated based upon a 40 hour week at an annual rate of $180,000.   (By way of example, if Consultant expends 120 hours in one month in the rendition of services for Omnimmune, Consultant shall receive total consulting fees of $11,250 for that month rather than $7,500).   Any such excess payments shall be made within 15 days of receipt of an appropriate invoice therefore.

(4)  

Consultant agrees to submit an activity report describing work performed to Omnimmune’s President upon request.

(5)  

Simultaneously with the execution hereof, Becker and Omnimmune shall enter into a Nonqualified Stock Option Agreement, substantially in the form attached hereto as Exhibit A (the “Option Agreement”).  Pursuant to the terms of the Option Agreement, Becker shall have the right to purchase 100,000 shares of Omnimmune Common Stock at a strike price of  $2.50 per share.

(6)  

Contractor or Becker, as applicable, shall be eligible for bonuses, in cash or stock, during the Term hereof, as determined by Company’s Board of Directors in its sole and absolute discretion.

(1)  

Omnimmune shall reimburse Contractor for all of its reasonable, out-of-pocket expenses incurred in the rendition of the services hereunder, provided, however, that Contractor shall have submitted an expense report in form satisfactory to the Company with such receipts or other substantiation as reasonably required by the Company.

(2)  

Omnimmune shall provide Contractor with a rental allowance of $1,100 per month during the term of this Agreement for the rental of office space to be utilized by Consultant to perform services for Omnimmune hereunder.  This allowance shall be paid, at Contractor’s direction, either to Contractor or to the particular landlord.