ex10_8.htm


    Ex.
      10.8

     

    CONSULTING
      AGREEMENT

    


    


    THIS
      CONSULTING AGREEMENT (“Agreement”), effective as of 12:01 p.m., August 3, 2007
      (the “Effective Date”), is between XOMA (US) LLC (hereinafter referred to as
“XOMA”), a Delaware company with limited liability having an address of 2910
      Seventh Street, Berkeley, California 94710, and John L. Castello (hereinafter
      referred to as “MR. CASTELLO”), an individual having an address of 201 Oakridge
      Drive, Danville, California 94506, both of whom may be jointly referred to
      sometimes hereinafter as the “Parties”.  In consideration of the
      mutual promises, covenants, and conditions contained herein, the Parties hereby
      agree as follows:

     

    1.           Consulting
      Services:  MR. CASTELLO agrees to perform the consulting services
      described in Exhibit A to this Agreement (“Services”).  MR. CASTELLO
      warrants that he has the skills, ability and training necessary to and that
      he
      shall render the Services in a timely and professional manner consistent with
      industry standards in accordance with the terms of this Agreement including
      Exhibit A, and otherwise meeting the professional and/or services standards
      of
      XOMA.  Subject to the foregoing, the manner and means by which MR.
      CASTELLO chooses to complete the Services are in MR. CASTELLO’s sole discretion
      and control.

     

    2.           Compensation:  In
      consideration of the Services to be rendered hereunder, XOMA agrees to pay
      MR.
      CASTELLO the compensation set forth in Exhibit A to this Agreement.

     

    3.           Expenses:  XOMA
      will reimburse MR. CASTELLO for all reasonable travel, lodging and other
      expenses documented to the reasonable satisfaction of XOMA.

     

    4.           Other
      Services and Conflicts of Interest:  During the term of this
      Agreement, MR. CASTELLO may perform services for, or be employed by other
      persons, companies, or employers, so long as doing so does not create a conflict
      of interest or otherwise cause MR. CASTELLO to breach his obligations under
      this
      Agreement.

     

    5.           Term:  The
      term of this Agreement will begin on the Effective Date hereof and continue
      until the earlier of December 31, 2007, or termination by either Party in
      accordance with this Section 5.

     

      (a)           Either
      XOMA or MR. CASTELLO may terminate this Agreement immediately upon a material
      breach by the other Party by giving written notice to the breaching
      Party.

     

         
      (b)           This
      Agreement shall terminate automatically upon (i) the appointment of a receiver,
      liquidator or trustee for either Party by decree of competent authority in
      connection with any adjudication or determination by such authority that such
      Party is bankrupt or insolvent, (ii) the filing by either Party of a petition
      in
      voluntary bankruptcy, the making of an assignment for the benefit of either
      Party’s creditors or the entering into of a composition with either Party’s
      creditors, or (iii) any resolution by the Board of Directors of XOMA to
      terminate such Party’s/XOMA’s existence or otherwise cease operations or wind up
      XOMA’s affairs.

     


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    


    (c)           Unless
      MR. CASTELLO and XOMA otherwise agree in writing, the Agreement shall terminate
      automatically upon the sale of all or substantially all of XOMA’s assets or the
      acquisition of XOMA by way of merger or consolidation with another entity or
      the
      acquisition of outstanding capital stock of XOMA in any transaction in which
      the
      shareholders of XOMA immediately prior to such transaction do not own a majority
      of the outstanding equity interests of the resulting or surviving entity, unless
      in any such case the resulting or surviving entity affirmatively assumes in
      writing XOMA’s obligations hereunder.

     

    (d)           This
      Agreement shall terminate automatically upon the death of MR.
      CASTELLO.

     

    (e)           Without
      limiting the foregoing, either XOMA or MR. CASTELLO may terminate this
      Agreement, at its discretion, upon prior written notice to the other
      Party.

     

    6.           Confidential
      Information:

     

      (a)           MR.
      CASTELLO acknowledges that his association with XOMA under this Agreement
      creates a relationship of confidence and trust between MR. CASTELLO and XOMA
      with respect to information disclosed to MR. CASTELLO or known to MR. CASTELLO
      as a result of his relationship with XOMA, not generally known to the trade
      or
      industry in which XOMA is engaged, about XOMA’s products, processes, programs,
      methods, formulas, techniques, concepts, applications, calculations and
      services, including research, development, manufacturing, purchasing, finance,
      engineering, marketing, merchandising, and selling; and corresponding
      information about the products, processes, programs, methods, formulas,
      techniques, concepts, applications, calculations and services of XOMA’s
      affiliates acquired by MR. CASTELLO or developed or made known to XOMA by MR.
      CASTELLO in the scope of MR. CASTELLO’s relationship with XOMA (hereinafter
      referred to as “Confidential Information”).

     

      (b)           At
      all times during the term of this Agreement and thereafter, MR. CASTELLO will
      not disclose, use, disseminate, lecture upon or publish Confidential Information
      unless MR. CASTELLO first secures XOMA’s written consent.

     

      (c)           (i)  MR.
      CASTELLO will disclose promptly to XOMA, in confidence, all formulas, processes,
      techniques, test data, discoveries, improvements, innovations, concepts and
      ideas, whether patentable or not, conceived or made by MR. CASTELLO in the
      course of the Services performed hereunder, solely or jointly with another
      or
      others, which are made or conceived with the use of XOMA’s facilities,
      materials, equipment, trade secrets, personnel, or time, or are suggested by
      or
      result from, any task assigned to MR. CASTELLO or work performed by MR. CASTELLO
      for, or on behalf of XOMA which relate to the Services performed hereunder
      (hereinafter collectively referred to as “Inventions”) and all such Inventions
      will be owned by and will be the sole and exclusive property of
      XOMA.  MR. CASTELLO hereby agrees to assign to XOMA any and all rights
      MR. CASTELLO may have in any Inventions.

     


    
      
        
        

      

      
        2

        
          

        

      

      
        
        

      

    


      (ii)  Pursuant
      to Sections
      2870-2872 of the California Labor Code, the term “Invention” as used herein will
      not apply to any invention for which no equipment, supplies, facility or trade
      secret information of XOMA was used and which was developed entirely on MR.
      CASTELLO’s own time or on MR. CASTELLO’s employees’ own time, and (a) which does
      not relate (1) to the business of XOMA or (2) to XOMA’s actual or demonstrably
      anticipated research or development, or (b) which does not result from any
      work
      performed by MR. CASTELLO for XOMA.  Pursuant hereto, the term
“Invention” as used herein will not include any invention which will arise
      outside the scope of the Services performed hereunder.

     

      (d)           MR.
      CASTELLO will not disclose to XOMA or induce XOMA to use any secret or
      confidential information or material which MR. CASTELLO has reason to believe
      is
      owned by others.

     

      (e)           MR.
      CASTELLO will, whenever requested to do so by XOMA, execute any applications,
      assignments, or other instruments which XOMA will consider necessary to apply
      for and obtain Letters Patent in the United States, or any foreign country,
      or
      to otherwise protect XOMA’s interests therein with respect to Inventions. These
      obligations will continue beyond the termination of Services hereunder with
      respect to Inventions conceived or made by MR. CASTELLO, pertaining to the
      Services performed hereunder, during the period MR. CASTELLO renders Services
      to
      XOMA hereunder, and will be binding upon MR. CASTELLO’s successors, assigns, or
      other legal representatives.  MR. CASTELLO will also disclose to XOMA
      all patent applications filed by MR. CASTELLO within one year after termination
      of Services hereunder.  MR. CASTELLO acknowledges that any such
      application which relates to the subject matter of the Services performed
      hereunder will be presumed to relate to an Invention which was made before
      termination of the Services hereunder.

     

      (f)           Upon
      termination of this Agreement, MR. CASTELLO will turn over to a designated
      individual employed by XOMA all property then in MR. CASTELLO’s possession or
      custody and belonging to XOMA.  MR. CASTELLO will not retain any
      copies or reproductions of correspondence, memoranda, reports, specifications,
      computations, notebooks, drawings, photographs or other documents relating
      in
      any way to the Services performed hereunder which are entrusted to MR. CASTELLO
      at any time during the term of this Agreement.

     

    7.           Patents:  MR.
      CASTELLO will not assert any rights under any Inventions as having been made
      or
      acquired by MR. CASTELLO prior to the effective date of this
      Agreement.

     

    8.           Representations
      and Warranties:  MR. CASTELLO represents and warrants that
      performance of this Agreement will not breach any agreement or other contractual
      commitment or obligation by which MR. CASTELLO is bound.

     


    
      
        
        

      

      
        3

        
          

        

      

      
        
        

      

    


    9.           Employment
      Taxes, Payments and Records:  MR. CASTELLO agrees (a) to pay
      and/or withhold any and all fees, charges, payments and taxes required to be
      paid or withheld pursuant to any and all applicable federal, state and local
      laws, statutes, rules and regulations (collectively, the “Laws”), including,
      without limitation, any and all federal and state income tax, social security,
      unemployment and disability insurance laws, statutes, rules and regulations,
      in
      connection with this Agreement; (b) to maintain any and all records and
      documents required by the Laws in connection with this Agreement and to file
      such records and documents as required by the Laws; and (c) to reimburse and
      indemnify XOMA in the event that MR. CASTELLO fails fully and in a timely
      fashion to perform any of the obligations set forth in this Section 9 and XOMA,
      at its option which is hereby granted, performs or discharges any and all of
      such obligations in MR. CASTELLO’s name or on MR. CASTELLO’s behalf or
      otherwise.

     

    10.           Independent
      Contractor Status:  In performing the Services, MR. CASTELLO will
      be deemed to be for all purposes an independent contractor (and not an employee
      or agent of XOMA) under any and all laws, whether existing or future, including
      without limitation Social Security laws, unemployment insurance laws, and
      withholding and other employment taxation laws.  MR. CASTELLO will not
      be entitled to participate in any employee benefits accruing to employees of
      XOMA.  MR. CASTELLO will not be authorized to make any representation,
      contract or commitment on behalf of XOMA unless MR. CASTELLO is specifically
      requested or authorized to do so in writing by an authorized representative
      of
      XOMA.

     

    11.           Performance
      of Services:  In performing the Services, MR. CASTELLO agrees to
      provide his own equipment, tools and other materials at his own
      expense.  Notwithstanding the preceding sentence, XOMA shall make its
      facilities and equipment available to MR. CASTELLO as reasonably necessary
      in
      connection with the Services.  For any work performed on XOMA’s
      premises, MR. CASTELLO shall comply with all security, confidentiality, safety
      and health policies of XOMA.  MR. CASTELLO shall take all necessary
      precautions to prevent, and shall be responsible for, any injury to any persons
      (including, without limitation, employees of XOMA) or damage to property
      (including, without limitation, XOMA’s property) arising from or relating to MR.
      CASTELLO’s performance of the Services or the use by MR. CASTELLO of any XOMA
      equipment, tools, facility or other property, whether or not such claim is
      based
      upon its condition or on the alleged negligence of XOMA in permitting its
      use.

     

    12.           Injunctive
      Relief:  XOMA and MR. CASTELLO reaffirm, recognize and agree that
      the Services to be performed by MR. CASTELLO hereunder are of a special, unique,
      extraordinary and intellectual character; that those Services are of particular
      value to XOMA and that the breach of any or all obligations undertaken by MR.
      CASTELLO hereunder, including, without limiting the generality of the foregoing,
      MR. CASTELLO’s obligation of non-competition, could not be reasonably or
      adequately compensated by damages in an action at law, and that an appropriate
      remedy for XOMA for any such breach or threat to commit a breach will be,
      without limitation, an injunction restraining MR. CASTELLO from committing
      such
      breach and granting specific performance hereunder.

     

    13.           Arbitration:  Any
      controversy, dispute or claim arising out of or relating to this Agreement
      or
      any alleged breach hereof, will be settled by arbitration before three neutral
      arbitrators in accordance with the Commercial Arbitration Rules of the American
      Arbitration Association then in effect, and judgment upon the award rendered
      by
      the arbitrators may be entered in any court of competent
      jurisdiction.

     

    14.           Legal
      Fees:  If any action or proceeding in arbitration or law is
      commenced to enforce any of the provisions or rights under this Agreement,
      the
      unsuccessful party to such action or proceeding, as determined by arbitration
      or
      by the court in a final judgment or decree, will pay the successful party all
      costs, expenses, and reasonable attorney’s fees incurred therein by such party
      (including, without limitation, such costs, expenses and fees on any appeal),
      and if such successful party will recover judgment in any such action or
      proceedings, such costs, expenses and attorneys’ fees will be included as part
      of such judgment.

     

    15.           Severability:                                If
      any provision of this Agreement is held to be inoperative, unenforceable or
      otherwise invalid, the remaining provisions hereof will be carried into effect
      without regard to such inoperative, unenforceable or otherwise invalid
      provision.

     

    16.           Governing
      Law:  This Agreement will be construed in accordance with, and
      governed by, the laws of the State of California.

     

    17.           Assignment:  Since
      this Agreement requires the performance of personal services by MR. CASTELLO,
      MR. CASTELLO may not assign any right or delegate any duty described in this
      Agreement without XOMA’s prior written approval.

     

    18.           Entire
      Agreement:  This instrument constitutes the entire Agreement
      between the Parties hereto and supersedes any and all prior agreements
      concerning the engagement of MR. CASTELLO by XOMA, whether written or
      oral.  This Agreement will not be amended, altered or changed except
      by written agreement signed by both Parties hereto.

     

    IN
      WITNESS WHEREOF, the Parties have executed this Agreement on the date(s) set
      forth below.

     

    XOMA
      (US)
      LLC

    


    _____________________________________          
______________________________


    


    Charles
      C.
      Wells                                                                                     John
      L. Castello

    Vice
      President, Human Resources and

    Information
      Technology

    


    


    


    
      _____________________________________                           __________________________________

Date                                                                                                        
 Date

    



    
      
        
        

      

      
        4

        
          

        

      

      
        
        

      

    


    EXHIBIT
      A

    


    Statement
      of Work

    


    


    
      	
              I.  

            	
              DESCRIPTION
                OF THE SERVICES TO BE
                PERFORMED:

            


    

    


    Mr.
      Castello will be available to provide consulting services for up to two (2)
      days
      a week as requested by, and shall provide such services exclusively to, the
      Chief Executive Officer and President of XOMA Ltd.

    


    


    


    II.           COMPENSATION

    


    XOMA
      will
      pay MR. CASTELLO, in monthly installments, an aggregate amount equal to 40%
      of
      the base salary he would have received had he remained an employee of XOMA
      for
      the term of this agreement, based on his annual salary as in effect immediately prior to his entry into
      this agreement ($500,000
      per year), for consulting services rendered by MR. CASTELLO during the term
      of
      this Agreement.

    


    


    


    [Social
      Security/Tax I.D. #__________]

     

     

     

     

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