exv10w5






Exhibit
10.5




IMARX THERAPEUTICS, INC.

CONFIDENTIAL




	 	 	 	 	 	 	 
	Consultant:	 	Company’s Representative:
	 

	 	Kevin Ontiveros
	 	 	 	Bradford Zakes, President & CEO
	 

	 	9990 E. Wild Javelina Pl.
	 	 	 	ImaRx Therapeutics, Inc.
	 

	 	Tucson, AZ 85749


	 	 	 	1730 E. River Rd., Ste. 200
Tucson, AZ 85718
	Social Security Number or Employer I.D. #:	 	 	 	 






CONSULTANT SERVICES AGREEMENT




Effective Date: June 12, 2008



This Consultant Services Agreement (hereinafter “Agreement”) is entered into by the
above-referenced party (hereinafter “Consultant”) whose address is as shown above, and IMARX
THERAPEUTICS, INC., a Delaware corporation (hereinafter the “Company”). Consultant and the Company
are collectively designated herein as the “Parties” and the term “Party” shall mean either one of
the Parties as the text may require.



The “Effective Date” of this Agreement is as shown above.



WHEREAS, Company requires a party such as Consultant to perform services as defined in Exhibit “A”
hereto (the “Services”);



WHEREAS, Consultant represents that it is qualified to perform said Services and desires to perform
said Services for and on behalf of the Company on the terms and conditions set forth herein;



NOW THEREFORE, for and in consideration of the foregoing and the promises, covenants, terms,
conditions, and obligations hereinafter set forth, the Parties agree as follows:





	I.	 	REPRESENTATIVE AND NOTICE. The Company’s Representative for the purposes of this
Agreement shall be as shown above. All notices from Consultant to the Company shall be
directed to the attention of the Company Representative at the Company’s address shown above.
	 
	II.	 	SCOPE OF SERVICES. The Services to be performed by Consultant
pursuant to the terms and conditions of this Agreement shall
include, but are not limited to, the work, activities and services
set forth in Exhibit “A,” which Exhibit may be amended from
time-to-time by written agreement of the Parties hereto.
	 
	III.	 	ASSIGNMENT AND DELEGATION. The Parties agree that the Services as
defined herein are unique personal services that are to be performed
only by Consultant.
	 
	IV.	 	COMPENSATION AND EXPENSES. Compensation for Services shall be as
set forth in Exhibit “B,” which Exhibit may be amended from
time-to-time by written agreement of the Parties hereto.




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IMARX THERAPEUTICS, INC.

CONFIDENTIAL





	V.	 	DURATION OF SERVICES.






	 	1.	 	Consultant shall perform Services for the benefit of the Company from time to
time or for such other period as shall be stated on Exhibit “A” hereto.
	 
	 	2.	 	The Parties, by their mutual written consent, may extend the period for
performing Services under this Agreement.
	 
	 	3.	 	Unless otherwise provided for in the terms of any Exhibit attached hereto,
either Party may terminate Consultant’s performance of Services by giving fifteen (15)
days advance written notice to the other Party.
	 
	 	4.	 	The Company’s obligations under Section IV. COMPENSATION AND EXPENSES
shall terminate upon expiration of the period stated in Exhibit A or upon termination
by either Party of Consultant’s performance of the Services as provided in this Section
V.
	 
	 	5.	 	Except for Consultant’s obligation to perform Services, Consultant’s and
Company’s obligations under sections III, X, XI, XII, and XIII shall survive expiration
and/or termination of Consultant’s performance of Services.






	VI.	 	COMPLIANCE WITH STATE AND FEDERAL LAWS. Consultant shall comply
with all requirements of any applicable federal, national, state,
or local law, rule or regulation. Consultant represents that it
has all licenses or other authorizations required to enable it to
perform Services hereunder in the jurisdiction where the Services
are to be performed.
	 
	VII.	 	INDEPENDENT CONTRACTOR. Consultant is and shall be in the
performance of Services hereunder an independent contractor.
	 
	VIII.	 	PROFESSIONAL RESPONSIBILITY.






	 	1.	 	Consultant agrees to provide, in connection with performance of all Services
under this Agreement, the standards of care, skill, and diligence normally provided by
competent professionals in the performance of services similar to that contemplated by
this Agreement.
	 
	 	2.	 	Consultant represents that it has no conflicts of interest in rendering
professional services to the Company.
	 
	 	3.	 	Consultant hereby certifies that he/she has not been debarred under Section
306(a) or Section 306(b) of the Federal Food, Drug and Cosmetic Act in connection with
the Services to be performed for Company. If at any time after execution of this
Agreement, Consultant is, or is in the process of being debarred, or is on any of the
three (3) FDA restricted lists (Disqualified/Totally Restricted List for Clinical
Investigators, Restricted List for Clinical Investigators, Adequate Assurances List for
Clinical Investigators), Consultant hereby certifies that it will notify Company at
once.
	 
	 	4.	 	Consultant further certifies that within five (5) years preceding the Effective
Date, Consultant has not been convicted of any offense required to be listed under
Section 306(k)(2) of the Federal Food, Drug and Cosmetic Act.




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IMARX THERAPEUTICS, INC.

CONFIDENTIAL









	IX.	 	DEFINITION OF “CONFIDENTIAL INFORMATION” AND “INTELLECTUAL PROPERTY.”






	 	1.	 	“Confidential Information” shall mean:






	 	(a)	 	any and all Intellectual Property or information
whether business, financial, technical or otherwise, of any type
whatsoever, in any form whatsoever, which is (i) proprietary to the
Company; or (ii) submitted or disclosed to the Company by a third
party.
	 
	 	(b)	 	Confidential Information (whether or not reduced to writing and
in any and all stages of development) includes, but is not limited to:
discoveries, ideas, inventions, designs, formulas, test results, test
procedures, protocols, concepts, drawings, specifications, techniques,
models, data, software, research, processes, procedures, works of
authorship, formulas, improvements, trade secrets, know-how, marketing
plans and supplies, product plans, customer names (and other
information relating to customers), supplier names (and other
information relating to suppliers), and financial information.
	 
	 	(c)	 	Confidential Information shall not include anything
that is publicly known or generally employed by the trade at or after
the Effective Date of this Agreement.






	 	2.	 	“Intellectual Property” shall mean, without limitation, all copyrights,
discoveries, inventions, improvements (whether or not patentable), patents, patent
applications, trademarks, service marks, trade secrets, know-how, and all other
Intellectual Property rights of any type whatsoever.
	 
	 	3.	 	Services rendered by Consultant hereunder shall constitute “work made for hire”
by an independent contractor under the provisions of U.S. Copyright law. Accordingly,
ownership to works covered by a copyright, belong to and shall be the sole and
exclusive property of Company. If for any reason the work would not be considered a
work made for hire under applicable law, Consultant does hereby sell, assign, and
transfer to Company, its successors and assigns, the entire right, title and interest
in and to the copyright in the work and any registrations and copyright applications
relating thereto and any renewals and extensions thereof, and in and to all works based
upon such work.




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IMARX THERAPEUTICS, INC.

CONFIDENTIAL










	X.	 	ASSIGNMENT OF RIGHTS IN “INTELLECTUAL PROPERTY.”






	 	1.	 	Consultant hereby assigns to the Company all of Consultant’s rights in all
Intellectual Property rights which are made, discovered, developed, assembled, created,
or conceived, in whole or in part, by Consultant: (a) during the course of and within
the scope of Services; or (b) for the period ending one (1) year after termination of
Services with the material aid or inclusion of Confidential Information.
	 
	 	2.	 	Services rendered by Consultant hereunder shall constitute “work made for hire”
by an independent contractor under the provisions of U.S. Copyright law. Accordingly,
ownership to works covered by copyright belongs to and shall be the sole and exclusive
property of Company. If for any reason the work would not be considered a work made
for hire under applicable law, Consultant does hereby sell, assign, and transfer to
Company, its successors and assigns, the entire right, title and interest in and to the
copyright in the work and any registrations and copyright applications relating thereto
and any renewals and extensions thereof, and in and to all works based upon such work.
	 
	 	3.	 	All of Consultant’s Intellectual Property assigned to the Company hereunder
shall be deemed Confidential Information except for anything that is publicly known or
generally employed by the trade, without the fault of Consultant, at or after the
Effective Date of this Agreement.
	 
	 	4.	 	Consultant hereby agrees to disclose promptly and fully to the Company anything
which qualifies as Intellectual Property and/or Confidential Information hereunder.
	 
	 	5.	 	Consultant shall, upon the Company’s reasonable request, execute all documents
and take such other action as may be necessary or desirable, to protect, enhance,
exploit or vest in the Company any and all of Consultant’s Intellectual Property rights
assigned to Company hereunder.






	XI.	 	CONFIDENTIALITY.






	 	1.	 	Consultant understands that Confidential Information is confidential and secret
and agrees to respect the confidentiality and secrecy of the same. Consultant also
understands that all Confidential Information is the property of the Company or of a
third party which has submitted the same to the Company. Consultant agrees to treat
Confidential Information submitted to the Company by third parties as if confidential
and proprietary to the Company. Consultant further understands and agrees that the
relationship between Consultant and the Company is of a confidential nature and imposes
an affirmative obligation upon Consultant to protect, foster and respect the
confidentiality of Confidential Information.
	 
	 	2.	 	Except as lawfully authorized or as may be required in the performance of
Consultant’s responsibilities for the Company, Consultant agrees:






	 	(a)	 	not to directly or indirectly disclose, reveal, report,
publish, or transfer possession of, or access to, any Confidential
Information to any person or entity;




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IMARX THERAPEUTICS, INC.

CONFIDENTIAL




	 	(b)	 	at the expense of the Company, promptly at all times hereafter
to execute and deliver any and all acts and instruments as may be
necessary or desirable to perfect and protect the Company’s interest
in the Confidential Information; and
	 
	 	(c)	 	not to directly or indirectly use the Confidential
Information except for the benefit of the Company in the performance of
Consultant’s Services for the Company and the discharge of Consultant’s
obligations herein.






	 	3.	 	Upon and in accordance with the Company’s instructions, Consultant shall return
or dispose of all Confidential Information received or generated hereunder. Consultant
shall, whenever requested by the Company, give a prompt and full accounting of all
Confidential Information given to Consultant and all copies or reproductions thereof.
Confidential Information shall remain the property of the Company even if Consultant is
in possession thereof.
	 
	 	4.	 	Consultant’s obligations with respect to Confidential Information hereunder
shall remain in effect for five (5) years from the date of termination of this
Agreement.






	XII.	 	PREVIOUS WORK OR SERVICES.






	 	1.	 	If Consultant has previously been exposed to proprietary information of the
Company, such disclosure is deemed incorporated herein and controlled by the terms
hereof, and if Consultant has executed an agreement regarding non-disclosure and
non-competition, such agreement is continued and deemed incorporated herein by
reference, except that any such agreement shall be deemed amended hereby to the extent
the Company’s rights hereunder extend beyond the Company’s rights as specified therein.
	 
	 	2.	 	Consultant represents to the Company that Consultant has not brought and has
not used, and agrees not to bring to the Company and will not use in the performance of
any Services for the Company, any information, materials or the like which are
confidential and are proprietary to a third party without written authorization from
said third party.






	XIII.	 	MISCELLANEOUS.






	 	1.	 	This Agreement may only be amended in writing, signed by each Party hereto. The
terms of this Agreement shall be interpreted under the laws of the State of Arizona.
This Agreement constitutes the entire Agreement between the Parties with respect to the
subject matter hereof.
	 
	 	2.	 	Consultant agrees to execute such additional documents and do such further acts
and deeds as may be necessary or desirable to effectuate the purposes hereof or the
perfection of the rights and interests of the Company expressed herein.
	 
	 	3.	 	Consultant agrees that any breach of this contract or threatened breach hereof
could subject the Company to substantial, immediate and irreparable damages and
consents that the Company would be entitled to equitable relief in the event thereof.
Consultant agrees that Arizona law applies and that any adjudication of interests
hereunder be proved in Arizona courts.




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IMARX THERAPEUTICS, INC.

CONFIDENTIAL




	 	4.	 	In the event any one or more of the provisions of this Agreement shall for any
reason be held to be invalid, void, illegal, or unenforceable by any court, arbitrator,
or governmental agency, the remaining provisions of this Agreement shall remain in full
force and effect, and the invalid, void, illegal, and/or unenforceable provision(s)
shall survive to the extent not so held. To the extent reasonable possible and
practicable, the invalid, void, illegal, or unenforceable provision(s) shall be
replaced by a mutually acceptable valid, legal, and enforceable provision(s) which best
reflects the parties’ intentions underlying the replaced invalid, void, illegal, or
unenforceable provision(s).




IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the date first above
written.




	 	 	 	 	 	 	 
	Kevin Ontiveros	 	ImaRx Therapeutics, Inc.
	 
	 	 	 	 	 	 
	By:
	 	/s/ Kevin Ontiveros 	 	By:	 	/s/ Bradford Zakes 
	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	Date:
	 	June 11, 2008 	 	Its:	 	President & CEO 
	 
	 	 	 	 	 	 
	 
	 	 	 	Date:	 	June 11, 2008 
	 

	 	 	 	 	 	 





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IMARX THERAPEUTICS, INC.

CONFIDENTIAL




Exhibit “A”




SERVICES



Consultant shall perform for the benefit of the Company the following work, activities and services
(“Services”) for the period of time specified:



Services. Consultant will serve as Company’s general counsel and corporate secretary and
shall serve as an executive officer of the Company with the title Vice President, Legal Affairs and
General Counsel, and shall be responsible for all legal and corporate secretary matters of the
Company. See attached Proposal date 9 June 2008 for more complete description of the services.



Term. Nine (9) months.




Exhibit “B”




COMPENSATION AND EXPENSES



Compensation and Payment Schedule. Beginning June 12, 2008 through August 31, 2008,
Consultant shall be paid at the fixed bi-weekly rate of $12,913.00 for Services rendered hereunder.
Payment shall be made every two weeks, with the first payment being made on June 27, 2008 and
final pro-rated payment for Services rendered through August 31, 2008 being made on or before
September 5, 2008.



Beginning September 1, 2008 Consultant shall be paid a bi-weekly rate equal to $6,500 for Services
rendered hereunder. Such Services shall be provided until December 31, 2008 or the closing of a
strategic transaction. Payment for services shall be made every two weeks
starting on September 12, 2008.



Consultant shall also be reimbursed for all reasonable out-of-pocket expenses incurred by
Consultant, including all travel, food and lodging, in connection with the Services provided
hereunder, provided, however, that such expenses have been approved in advance by an authorized
representative of the Company. Consultant shall submit appropriate vouchers and receipts as may be
reasonably necessary to substantiate Consultant’s out-of-pocket expenses.





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