CONSULTING AGREEMENT
AGREEMENT made as of the 1st day January, 1995, by and
between BIOTECHNICA INTERNATIONAL, INC., a Delaware corporation
(the "Corporation"), having its office at 4001 War Memorial
Drive, Suite 200, Peoria, Illinois, 61614, and WILLIAM C.
HITTINGER, an individual resident of 52 Pippin's Way, Morristown,
New Jersey (the "Consultant").
W I T N E S S E T H
WHEREAS, the Consultant desires to consult for the
Corporation and the Corporation desires to retain the Consultant;
WHEREAS, the Consultant and the Corporation agree that
certain information and technological expertise that the
Consultant may obtain during the course of his consultancy with
the Corporation should be used exclusively for the benefit of the
Corporation.
NOW, THEREFORE, in consideration of the premises and the
mutual covenants and conditions herein contained, the parties
hereto do agree as follows:
1. Employment and Duties.
The Corporation hereby retains the Consultant and
the Consultant hereby agrees to perform consulting services, upon
the terms and conditions set forth in this Agreement. The
Consultant shall advise the Corporation and its subsidiaries from
time to time on various financial and operational matters. The
Consultant shall serve as a director of the Corporation, or any
subsidiary or affiliate of the Corporation, if he is elected to
such position. The Consultant may participate in investment and
other activities unrelated to consulting under this Agreement to
the extent that such activities do not preclude or conflict with
his service under this Agreement. In furnishing his services,
the Consultant shall not be an employee of the Corporation but
shall be an independent contractor.
2. Term; Payment Upon Termination.
(a) The term of this Agreement shall commence on
January 1, 1995, and shall terminate on the earlier of the death
of the Consultant or on December 31, 1995 (the "Expiration
Date").
(b) The Corporation, in the sole discretion of
its Board of Directors, may terminate the Consultant prior to the
Expiration Date without prior notice at any time for cause.
Cause shall include, but shall not be limited to, neglect of
duty, dishonesty, conviction of a felony, inability to render
services under this Agreement for any period in excess of 180
days out of any twelve-month period (whether due to ill health or
otherwise), breach of this Agreement or repeated or serious
violations of Corporation rules.
(c) Either the Corporation or the Consultant may
terminate the services of the Consultant under this Agreement
prior to the Expiration Date at any time upon sixty days' written
notice.
(d) If a party notifies the other of his or its
intent to terminate the Consultant's service hereunder, the
Corporation in its sole discretion may require the Consultant to
cease the exercise of his responsibilities and performance of his
services for the Corporation at any time prior to the effective
date of the notice of termination. If the Corporation terminates
the services of the Consultant pursuant to the previous sentence
for reasons other than cause prior to the effective date of the
notice of termination, the Corporation shall continue to pay the
Consultant his fee plus the other benefits provided in this
Agreement until the effective date of the notice of termination.
3. Compensation and Expenses.
(a) For all services to be rendered to the
Corporation or any subsidiary or affiliate of the Corporation, in
any capacity, including services as a Director or member of any
committee or otherwise, during the term of this Agreement, the
Corporation shall pay the Consultant a fee of $15,000 per year
for a minimum of 45 days per year to be devoted to the
Corporation's business. For services rendered to the Corporation
through the Expiration Date, such fee shall be payable quarterly,
in arrears, on the 15th day of the month following the end of
each calendar quarter.
(b) The Corporation shall reimburse the
Consultant for all reasonable and necessary expenses incurred by
the Consultant in connection with the Corporation's business,
provided that such expenses (i) are approved in writing by an
officer of the Corporation, (ii) are deductible by the
Corporation, and (iii) are properly documented and accounted for
in accordance with the policy of the Corporation and with the
requirements of the Internal Revenue Service.
4. Restrictions on the Disclosure of Proprietary
Information and Techniques.
(a) As used in this Agreement, "Proprietary
Information" means information disclosed to or obtained by the
Consultant as a result of or related to his relationship with the
Corporation, whether or not acquired during business hours,
concerning the Corporation's business, research activities,
operations, products, manufacturing or other processes, services,
customers, vendors and costs and pricing policies, including, but
not limited to, information relating to research, development,
formulae, specifications, methods, expertise, techniques,
inventions, equipment, purchasing, merchandising and selling.
Notwithstanding the foregoing sentence, Proprietary Information
does not include (i) information acquired by the Consultant
before he became a Consultant, (ii) information which is or
becomes public knowledge (except as may be disclosed by the
Consultant in violation of this Agreement) or (iii) information
acquired by the Consultant from a source, other than the
Corporation or a party providing such information to the
Corporation.
(b) If at any time during the course of his
consultancy, the Consultant conceives, develops, participates in
the development of or causes to be developed any products,
methods, techniques, inventions, improvements or any other
processes or formulae (all of such products, methods, techniques,
inventions, improvements, processes or formulae being referred to
hereinafter as "Proprietary Techniques"), whether or not
patentable relating to the business of the Corporation or any
part thereof, such Proprietary Techniques shall be and remain the
property of the Corporation, and the Consultant shall promptly
communicate and disclose and deliver to the Corporation any
instruments deemed necessary by the Corporation to effect the
disclosure and assignment thereof to the Corporation. If the
Corporation shall request, such Consultant shall execute patent
applications based on such Proprietary Techniques and execute any
instruments in connection therewith or relating thereto, execute
a copyright on such copyrightable matter and execute any other
instruments deemed necessary by the Corporation for the
processing of such patent applications or the acquisition of
letters of patent or the securing of copyrights in the United
States or in any other country and for the assignment to the
Corporation of any patents which may be issued any copyrights
claimed, provided that the Corporation shall pay the costs and
other expenses of such applications, and shall testify on behalf
of the Corporation in connection with any legal or other action
arising out of or relating to any such patent or copyright.
(c) During the course of the Consultant's tenure
and forever thereafter:
(i) The Consultant shall not, without the
prior written consent of the Corporation, record, photograph,
photocopy or by any other means copy or cause to be copied any
document, list, drawing, writing, photograph, sketch, sound
recording or other material that embodies Proprietary Information
except as may be necessary in the ordinary course of the
Corporation's business.
(ii) The Consultant shall not, without the
prior written consent of the Corporation, directly or indirectly
use, or disclose or divulge to any person, firm or corporation,
any Proprietary Information or Proprietary Techniques except in
the ordinary course of the Corporation's business.
(d) The Consultant shall not disclose or use any
Proprietary Information or Proprietary Techniques which are
patented or for which a patent application is pending except as
allowed by the Corporation or in the ordinary course of the
Corporation's business.
(e) The Consultant represents and warrants that
he is not at the time of the execution of this Agreement subject
to restrictions regarding Proprietary Techniques in conflict with
those provided for in this Section 4, whether such restriction
are imposed by a university, a previous or current employer or by
any other entity or individual. If any entity or individual
requests that the Consultant agree to any similar restrictions
regarding Proprietary Techniques after the date of this
Agreement, the nature of such restrictions shall be disclosed to
the Corporation, and the Corporation's written approval shall be
obtained prior to the Consultant's agreeing to such additional
restrictions.
5. Restrictions on Competition With the Corporation.
From the date of the Agreement until one year
after leaving the service of the Corporation, the Consultant
shall not engage in any research, development, production,
manufacturing, consulting, marketing or any other activity
(whether as an employee, partner, sole proprietor, agent,
independent contractor or otherwise) regarding any and all
products under research, development, developed, produced,
manufactured or marketed by the Corporation with respect to which
the Consultant was actively engaged during this consultancy with
the Corporation, but does not include anything under development
after time of termination. "Product" is defined for the purpose
of this Section 5 and Section 4(b) hereof as any specific
marketable physical entity, including, but not limited to, an
organism.
6. Restriction on Solicitation.
From the date of this Agreement until one year
after leaving the employ of the Corporation, the Consultant shall
not solicit or discuss with any person who was an employee of the
Corporation or any subsidiary or affiliate of the Corporation at
any time during the Consultant's tenure with the Corporation (a
"Corporation Employee") the employment of a Corporation Employee
by any business, firm, or corporation, or any other entity (other
than an accredited college, university, secondary school or
non-profit basic research institute) that conducts research with
respect to, develops, produces or manufactures any products or
techniques or provides services similar to those developed,
produced, manufactured or provided by the Corporation, or be an
employer, directly or indirectly, of a Corporation Employee or be
an officer, director, partner, sole proprietor, the holder of
outstanding securities (except the holder of not more than 5% of
the securities of any corporation listed on the New York or
American Stock Exchanges or the securities of which are quoted on
the Automated Quotation System of the National Association of
Securities Dealers, Inc.), or principal of any business, firm,
corporation, or other entity that employs a Corporation Employee.
7. Arbitration.
The Consultant and the Corporation shall submit to
binding arbitration in any controversy or claim arising out of or
relating to this Agreement or any breach thereof, provided,
however, that the Corporation retains its rights to, and shall
not be prohibited, limited or in any other way restricted from
seeking or obtaining equitable relief from a court having
jurisdiction of the parties against violations of Sections 4, 5
or 6 of this Agreement. Such arbitration shall be conducted in
accordance with the rules of the American Arbitration Association
in effect at that time, and judgment upon the determination or
award rendered by the arbitrators may be entered in any court
having jurisdiction thereof. The arbitrators are hereby
authorized to award to the winning party the costs (including
reasonable attorney's fees and expenses) or any such arbitration
and shall make their findings of fact and law in writing.
8. Enforceability.
If any provision of this Agreement shall be found
by any arbitration panel or court of competent jurisdiction to be
invalid or unenforceable, the parties hereby waive such provision
to the extent that it is found to be invalid or unenforceable,
the parties hereby waive such provision to the extent that it is
found to be invalid or unenforceable. Such provision shall, to
the extent allowable by law, be modified by such panel or court
so that it becomes enforceable and, as modified, shall be
enforced as any other provision hereof, all the other provisions
continuing in full force and effect.
9. Equitable Remedies; Burden of Proof
The Consultant acknowledges that because of the
nature of the business of the Corporation and the subject matter
of this Agreement, a breach of Sections 4, 5 or 6 of this
Agreement will cause irreparable injury to the Corporation for
which money damages will not provide an adequate remedy, and he
agrees that the Corporation shall have the right to have the
provisions of such Sections specifically enforced by a court
having equity jurisdiction, in addition to, and not in limitation
of, any remedies at law that the Corporation may have.
10. No Waiver.
The failure by either party at any time to require
performance or compliance by the other of any of its obligations
or agreements shall in no way affect the right to require such
performance or compliance at any time thereafter. The waiver by
either party of a breach of any provision hereof shall not be
taken or held to be a waiver of any preceding or succeeding
breach of such provision or as a waiver of the provision itself.
No waiver of any kind shall be effective or binding, unless it is
in writing and is signed by the party against which such waiver
is sought to be enforced.
11. Assignment.
This Agreement and all rights hereunder are
personal to the Consultant and may not be transferred or assigned
by the Consultant at any time. The Corporation may assign its
rights, or its obligations hereunder, to any other entity, except
that the Corporation may make such an assignment to be a
wholly-owned subsidiary of the Corporation. Any such assignee of
the Corporation shall assume the obligations of the Corporation
under this Agreement. The Consultant may terminate his services
pursuant to this Agreement prior to the Expiration Date following
any acquisition of greater than 50% of the Corporation's issued
and outstanding common stock or following the merger of the
Corporation into another corporation, upon 60 days written
notice.
12. Entire Agreement.
This Agreement constitutes the entire and only
Agreement between the parties relating to the consultancy of the
Consultant for the Corporation, and this Agreement supersedes and
cancels any and all previous contracts, arrangements or
understandings with respect thereto.
13. Amendment.
This Agreement may be amended, modified,
superseded, canceled, renewed or extended only by a written
instrument executed by both of the parties hereto.
14. Notices.
All notices, requests, demands and other
communications hereunder shall be in writing and shall be deemed
to have been duly given when delivered personally or mailed by
certified mail, return receipt requested, postage prepaid to the
address of the applicable party as set forth above or as may be
changed by notice given in accordance with the provisions of this
Section 14, except that a notice of change of address shall not
be deemed to have been duly given until actually received by the
addressee.
15. Binding Nature.
This Agreement shall be binding upon and inure to
the benefit of the personal representatives and successors of the
respective parties hereto.
16. Headings.
The headings contained in this Agreement are for
reference purposes only and shall in no way affect the meaning or
interpretation of the Agreement. In this Agreement, the singular
includes the plural, the plural the singular, the masculine
gender includes both male and female referents, and the work "or"
is used in the inclusive sense.
17. Survival.
The provisions of Sections 4 through 9, Section
19, and this Section 17, shall survive the termination or
expiration of this Agreement as a continuing agreement of the
Corporation and the Consultant except as provided in Section 11
hereof.
18. Counterparts.
This Agreement may be executed in duplicate
counterparts, each of which shall be deemed to be an original.
19. Governing Law.
This Agreement and the rights and obligations of
the parties hereto shall be construed in accordance with the laws
of the State of Illinois.
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the day and year first above written.
CONSULTANT BIOTECHNICA INTERNATIONAL, INC.
William C. Hittinger J. C. Gouache
President and Chief
Operating Officer