EXHIBIT 10.44
CONSULTANT AGREEMENT
This Consultant Agreement made and entered as of December 4, 1995, by
and between MOLECULAR BIOSYSTEMS, INC., a Delaware corporation ("the
COMPANY") and RICHARD M. STERN, an individual ("CONSULTANT").
WHEREAS, COMPANY desires to retain CONSULTANT to perform certain
services, and CONSULTANT is agreeable to doing so;
NOW, THEREFORE, in consideration of the mutual promises set forth below,
the parties agree as follows:
1. SERVICES. The COMPANY hereby engages CONSULTANT as an independent
contractor to do work for COMPANY relative to (1) product marketing, (2)
marketing partnership relations, (3) business development, (4) industry
conditions, and (5) such other projects and subjects as may be reasonably
requested by the COMPANY. CONSULTANT shall report to the COMPANY'S
President. It is anticipated that this engagement will not occupy the
greater part of CONSULTANT's customary work week.
2. TERM. The initial term of this Consultant Agreement shall commence
on December 4, 1995, and continue up to and including December 4, 1996. The
term of this Agreement may be extended beyond the initial term for periods
not exceeding six (6) months upon the written agreement of both parties.
CONSULTANT's services shall be rendered as requested by COMPANY. This
Consultant Agreement, or any extended term thereof, may be terminated by
either party with or without cause with thirty (30) days' written notice,
provided that COMPANY cannot terminate this Consultant Agreement without
making severance payment to CONSULTANT in the full amount of the remaining
payments upon termination unless CONSULTANT is in material breach of this
Consultant Agreement or the Letter Agreement.
3. COMPENSATION.
(a) The COMPANY shall pay CONSULTANT $114,000 for services rendered
under this Agreement. Payment shall be made every two weeks in accordance
with the COMPANY's established business procedures. Unless otherwise agreed
between the parties, the COMPANY shall withhold customary payroll taxes.
(b) In the event that the COMPANY is purchased or experiences a
substantial change in control and CONSULTANT is terminated as a result, the
COMPANY shall make a severance payment to CONSULTANT in the full amount of
the remaining payments upon termination.
4. EXPENSES. Expenses incurred by CONSULTANT in performance under
this Consultant Agreement, including those for travel, if any, shall be paid
by COMPANY, subject to COMPANY having approved the proposed expenses in
accordance with current COMPANY policies. Payment of expenses or
reimbursement of CONSULTANT shall be made in accordance with COMPANY's
established business procedures.
5. INDEPENDENT CONTRACTOR. CONSULTANT's relationship with COMPANY is
and shall be that of an independent contractor and not of an employee of
COMPANY and neither party is authorized to nor shall act as the agent of the
other without the prior approval of both parties.
6. NOTICES. Any notice permitted or required under this Consultant
Agreement shall be in writing and mailed or delivered to the receiving party
at their respective last known addresses or any other changed address of
which the sending party has been notified or of which it has actual
knowledge.
7. PROHIBITION AGAINST ASSIGNMENT. This Consultant Agreement and the
rights, interests and benefits hereunder shall not be assigned by the
CONSULTANT. However, you may provide for the assignment, gift, bequest, or
transfer of such benefits under this Consultant Agreement to your
survivor(s), or to a trust for their benefit, on your death, or in the event
that you suffer a major disability.
8. ENTIRE AGREEMENT. This Consultant Agreement, along with the Letter
Agreement between the parties captioned "Terms of Separation from MBI,"
constitutes the entire agreement between the parties hereto and contains all
of the agreements between the parties hereto with respect to the subject
matter hereof.
9. BINDING EFFECT. This Consultant Agreement shall be binding upon
and inure to the benefit of the COMPANY and the CONSULTANT and their
respective heirs, legal representatives, executors, administrators, and
successors.
10. GOVERNING LAW. This Consultant Agreement shall be subject to and
governed by the laws of the State of California irrespective of the fact that
the CONSULTANT is or may become a resident of a different state.
11. AMENDMENT OF CONSULTANT AGREEMENT. No change or modification of
this Consultant Agreement shall be valid unless the same be in writing and
signed by the CONSULTANT and the COMPANY. No waiver of any provision of this
Consultant Agreement shall be valid unless in writing and signed by the
person or party to be charged.
12. SEVERABILITY. If any portion or portions of this Consultant
Agreement shall be, for any reason, deemed to be invalid or unenforceable, the
remaining portion or portions shall nevertheless be valid, enforceable and
carried into effect.
13. HEADINGS. The headings of this Consultant Agreement are inserted
for conve-nience only and are not to be considered in construction of the
provisions hereof.
14. WAIVER OF BREACH. The waiver by either of the parties hereto of
any breach of any provision hereof shall not be construed to be a waiver of
any succeeding breach of that provision or a waiver of any other provision of
this Consultant Agreement.
IN WITNESS WHEREOF, the COMPANY has caused this Consultant Agreement to
be signed by its duly authorized officer and the CONSULTANT has signed this
Consultant Agreement on the day and year appearing in the preamble.
MOLECULAR BIOSYSTEMS, INC.
/s/ Bobba Venkatadri
By: ---------------------------------------
Bobba Venkatadri
President and Chief Operating Officer
CONSULTANT:
/s/ Richard M. Stern
- -------------------------------------------
Richard M. Stern
Date: December 2, 1995