Exhibit 10.1


     

    Exhibit 10.1


    MIRAVANT
      MEDICAL TECHNOLOGIES

    CONSULTING
      AGREEMENT

     

    THIS
      CONSULTING AGREEMENT (the “Agreement”)
      is
      made and entered into effective as of the 17th
      day
      of
August,
      2005
      (the
“Effective
      Date”)
      by and
      between MIRAVANT
      MEDICAL TECHNOLOGIES,
      a
      Delaware corporation (the
      “Company”),
      and
ROBERT
      J. SUTCLIFFE (the
      “Consultant”).
      The
      Company desires to retain the Consultant as an independent contractor to perform
      consulting services for the Company and the Consultant desires to perform such
      services, on terms set forth more fully below. In consideration of the mutual
      promises contained herein, the parties agree as follows:

     

    1.  SERVICES
      AND COMPENSATION.

     

    1.1  The
      Consultant agrees to serve as a consultant (the “Services”)
      as
      requested, from time to time, by the Company for the period ending December
      31,
      2005, and will advise and assist the Company on its strategic initiatives,
      including without limitation, fundraising and corporate partnering and licensing
      activities. There is no specified level of effort by the Consultant.


     

    1.2  The
      Consultant will receive compensation in the amount of ONE HUNDRED AND TWENTY
      FIVE THOUSAND DOLLARS ($125,000), payable in two (2) installments of SIXTY
      TWO
      THOUSAND FIVE HUNDRED DOLLARS ($62,500) on August 17, 2005 and October 17,
      2005.
      This arrangement is subject to renewal for periods beginning on January 1,
      2006
      at the option of the Board of Directors of the Company. There is no success
      fee
      payable.

     

    1.3  The
      Consultant will also be entitled to reimbursement for his reasonable
      out-of-pocket expenses incurred in carrying out his duties and have been
      approved by the other members of the Board of Directors, with the Consultant
      abstaining.

     

    1.4  The
      Consultant is Chairman of the Board of Directors of the Company, and his duties
      hereunder are in addition to his duties as Chairman of the Board of
      Directors.

     

    2.  CONFIDENTIALITY.

     

    2.1  Definition.
      "Confidential Information" means any Company, Company affiliate or third party
      proprietary information, technical data, trade secrets or know-how, including,
      but not limited to, inventions, discoveries, improvements, products, trade
      secrets, know-how, research, product plans, products, services, customers,
      customer lists, markets, software, developments, inventions, processes,
      formulas, technology, designs, drawings, engineering, hardware configuration
      information, marketing, finances or other business information disclosed by
      the
      Company either directly or indirectly in writing, orally or by drawings or
      inspection of parts or equipment owned or possessed by the Company.

     

    2.2  Non-Use
      and Non-Disclosure.
      The
      Consultant will not, during or subsequent to the term of this Agreement, use
      the
      Company’s Confidential Information for any purpose whatsoever other than the
      performance of the Services on behalf of the Company or disclose the Company’s
      Confidential Information to any third party. It is understood that said
      Confidential Information shall remain the sole property of the Company. The
      Consultant further agrees to take all reasonable precautions to prevent any
      unauthorized disclosure of such Confidential Information including, but not
      limited to, having each employee of the Consultant, if any, with access to
      any
      Confidential Information, execute a nondisclosure agreement containing
      provisions in the Company’s favor identical to Sections
      2,
      3
      and
4
      of this
      Agreement. Confidential Information does not include information which (i)
      is
      known to the Consultant at the time of disclosure to the Consultant by the
      Company as evidenced by written records of the Consultant, (ii) has become
      publicly known and made generally available through no wrongful act of the
      Consultant, or (iii) has been rightfully received by the Consultant from a
      third
      party who is authorized to make such disclosure. Without the Company’s prior
      written approval, the Consultant will not directly or indirectly disclose to
      anyone the existence of this Agreement or the fact that the Consultant has
      this
      arrangement with the Company. 

     

    2.3  Third
      Party Confidential Information.

     

    2.3.1  The
      Consultant recognizes that the Company has received and in the future will
      receive from third parties their confidential or proprietary information subject
      to a duty on the Company’s part to maintain the confidentiality of such
      information and to use it only for certain limited purposes. The Consultant
      agrees that the Consultant owes the Company and such third parties, during
      the
      term of this Agreement and thereafter, a duty to hold all such confidential
      or
      proprietary information in the strictest confidence and not to disclose it
      to
      any person, firm or corporation or to use it except as necessary in carrying
      out
      the Services for the Company consistent with the Company’s agreement with such
      third party.

     

    2.3.2  The
      Consultant agrees that the Consultant will not, during the term of this
      Agreement, improperly use or disclose any proprietary information, trade secrets
      or other intellectual property of any former or current employer or other person
      or entity with which the Consultant has an agreement or duty to keep in
      confidence information acquired by the Consultant, if any, and that the
      Consultant will not bring onto the premises of the Company any unpublished
      document or proprietary information belonging to such employer, person or entity
      unless consented to in writing by such employer, person or entity. The
      Consultant agrees that the Consultant will not incorporate any proprietary
      information, trade secrets or other intellectual property not developed solely
      by the Consultant into the work product produced by the Consultant in
      Consultant’s performance of the Services pursuant to this Agreement. The
      Consultant will indemnify the Company and hold it harmless from and against
      all
      claims, liabilities, damages and expenses, including reasonable attorneys fees
      and costs of suit, arising out of or in connection with any violation or claimed
      violation of a third party’s rights resulting in whole or in part from the
      Company’s use of the work product of the Consultant under this
      Agreement.

     

    2.4  Return
      of Materials.
      Upon
      the termination of this Agreement, or upon the Company’s earlier request, the
      Consultant will deliver to the Company all of the Company’s property or
      Confidential Information that the Consultant may have in the Consultant’s
      possession or control.

     

    


     

    3.  OWNERSHIP.

     

    3.1  Assignment.
      The
      Consultant agrees that all copyrightable material, notes, records, drawings,
      designs, inventions, improvements, developments, discoveries and trade secrets
      (collectively, “Works”)
      conceived, made or discovered by the Consultant, solely or in collaboration
      with
      others, during the period of this Agreement or in connection with the services
      provided by the Consultant to the Company prior to the date of this Agreement,
      which relate in any manner to the business of the Company that the Consultant
      may be directed to undertake, investigate or experiment with, or which the
      Consultant may become associated with in work, investigation or experimentation
      in the line of business of Company in performing the Services hereunder, are
      “works made for hire” and are the sole property of the Company. The Consultant
      further agrees to assign (or cause to be assigned) and does hereby assign fully
      to the Company all Works and any copyrights, patents, mask work rights or other
      intellectual property rights relating thereto resulting from the Consultant’s
      performance of the Services during the term of this Agreement, or in connection
      with services provided by the Consultant to the Company prior to the date of
      this Agreement. The Consultant agrees and acknowledges that the Company’s rights
      in and to any Works produced pursuant to the Consultant’s performance of the
      Services shall be exclusive as to all parties including the
      Consultant.

     

    3.2  Further
      Assurances.
      The
      Consultant agrees to assist Company, or its designee, at the Company’s expense,
      in every proper way to secure the Company’s rights in the Works and any
      copyrights, patents, mask work rights or other intellectual property rights
      relating thereto in any and all countries, including the disclosure to the
      Company of all pertinent information and data with respect thereto, the
      execution of all applications, specifications, oaths, assignments and all other
      instruments which the Company shall deem necessary in order to apply for and
      obtain such rights and in order to assign and convey to the Company, its
      successors, assigns and nominees the sole and exclusive right, title and
      interest in and to such Works, and any copyrights, patents, mask work rights
      or
      other intellectual property rights relating thereto. The Consultant further
      agrees that the Consultant’s obligation to execute or cause to be executed, when
      it is in the Consultant’s power to do so, any such instrument or papers shall
      continue after the termination of this Agreement.

     

    3.3  Pre-Existing
      Materials.
      The
      Consultant agrees that if in the course of performing the Services, the
      Consultant incorporates into any Work developed hereunder any invention,
      improvement, development, concept, discovery or other proprietary information
      owned by the Consultant or in which the Consultant has an interest, (i) the
      Consultant shall inform Company, in writing before incorporating such invention,
      improvement, development, concept, discovery or other proprietary information
      into any Work; and (ii) the Company is hereby granted and shall have an
      exclusive, royalty-free, perpetual, irrevocable, worldwide license to make,
      have
      made, modify, use and sell such item as part of or in connection with such
      Work.
      The Consultant shall not incorporate any invention, improvement, development,
      concept, discovery proprietary information or other intellectual property right
      owned by any third party into any Work without Company’s prior written
      permission.

     

    3.4  Attorney
      in Fact.
      The
      Consultant agrees that if the Company is unable because of the Consultant’s
      unavailability, dissolution, mental or physical incapacity, or for any other
      reason, to secure the Consultant’s signature to apply for or to pursue any
      application for any United States or foreign patents or mask work or copyright
      registrations covering the Works assigned to the Company above, then the
      Consultant hereby irrevocably designates and appoints the Company and its duly
      authorized officers and agents as the Consultant’s agent and attorney in fact,
      to act for and in the Consultant’s behalf and stead to execute and file any such
      applications and to do all other lawfully permitted acts to further the
      prosecution and issuance of patents, copyright and mask work registrations
      thereon with the same legal force and effect as if executed by the
      Consultant.

     

    4.  CONFLICTING
      OBLIGATIONS.
      The
      Consultant certifies that the Consultant has no outstanding agreement or
      obligation that is in conflict with any of the provisions of this Agreement,
      or
      that would preclude the Consultant from complying with the provisions hereof,
      and further certifies that the Consultant will not enter into any such
      conflicting agreement during the term of this Agreement.

     

    5.  TERM
      AND TERMINATION.
      

     

    5.1  Term.
      This
      Agreement will commence on the Effective Date.

     

    5.2  Termination.
      Either
      party may immediately terminate this Agreement with cause, for gross negligence
      of the other party, upon written notice to the other. 

     

    5.3  Survival.
      Upon
      such termination all rights and duties of the parties toward each other shall
      cease except:

     

    (i)  that
      the
      Company shall be obliged to pay, within thirty (30) days of the effective date
      of termination, all amounts owing to the Consultant for Services provided by
      the
      Consultant prior to the termination date in accordance with the provisions
      of
Section
      1
      (Services and Compensation) hereof; 

     

    (ii)  Sections
      3
      (Ownership) and 7
      (Independent Contractor) shall survive termination of this Agreement;
      and

     

    (iii)  Section
      2
      (Confidentiality) shall survive for a period of three years after the Effective
      Date.

     

    6.  ASSIGNMENT.
      Neither
      this Agreement nor any right hereunder or interest herein may be assigned or
      transferred by the Consultant without the express written consent of the
      Company.

     

    7.  INDEPENDENT
      CONTRACTOR.
      It is
      the express intention of the parties that the Consultant is an independent
      contractor. Nothing in this Agreement shall in any way be construed to
      constitute the Consultant as an agent, employee or representative of the
      Company, but the Consultant shall perform the Services hereunder as an
      independent contractor. The Consultant agrees to furnish all tools and materials
      necessary to perform the Services, and shall incur all expenses associated
      with
      performance of the Services. The Consultant acknowledges and agrees that the
      Consultant is obligated to report as income all compensation received by the
      Consultant pursuant to this Agreement, and the Consultant agrees to and
      acknowledges the obligation to pay all self-employment and other taxes thereon.
      The Consultant further agrees to indemnify and hold harmless the Company and
      its
      directors, officers, managers and employees from and against all taxes, losses,
      damages, liabilities, costs and expenses, including attorney’s fees and other
      legal expenses, arising directly or indirectly from (i) any negligent, reckless
      or intentionally wrongful act of the Consultant or the Consultant’s assistants,
      employees or agents, (ii) a determination by a court or agency that the
      Consultant is not an independent contractor, or (iii) any breach by the
      Consultant or the Consultant’s assistants, employees or agents of any of the
      covenants contained in this Agreement.

     

    8.  BENEFITS.
      The
      Consultant acknowledges and agrees and it is the intent of the parties hereto
      that the Consultant receive no Company-sponsored benefits from the Company
      either as a the Consultant or employee. Such benefits include, but are not
      limited to, paid vacation, sick leave, medical insurance, and 401(k)
      participation. If the Consultant is reclassified by a state or federal agency
      or
      court as an employee, the Consultant will become a reclassified employee and
      will receive no benefits except those mandated by state or federal law, even
      if
      by the terms of the Company’s benefit plans in effect at the time of such
      reclassification the Consultant would otherwise be eligible for such
      benefits.

     

    9.  ARBITRATION
      AND EQUITABLE RELIEF. 

     

    9.1  Disputes.
      Except
      as provided in Section
      9.4
      below,
      the Company and the Consultant agree that any dispute or controversy arising
      out
      of, relating to or in connection with the interpretation, validity,
      construction, performance, breach or termination of this Agreement shall be
      settled by binding arbitration to be held in Santa Barbara, California, in
      accordance with the Commercial Arbitration Rules of the American Arbitration
      Association as then in effect. The arbitrator may grant injunctions or other
      relief in such dispute or controversy. The decision of the arbitrator shall
      be
      final, conclusive and binding on the parties to the arbitration. Judgment may
      be
      entered on the arbitrator’s decision in any court of competent
      jurisdiction.

     

    9.2  Consent
      to Personal Jurisdiction.
      The
      arbitrator(s) shall apply California law to the merits of any dispute or claim,
      without reference to conflicts of law rules. Consultant hereby consents to
      the
      personal jurisdiction of the state and federal courts located in California
      for
      any action or proceeding arising from or relating to this Agreement or relating
      to any arbitration in which the parties are participants.

     

    9.3  Costs.
      The
      Company and the Consultant shall each pay one-half of the costs and expenses
      of
      such arbitration, and the prevailing party shall be paid by the other party
      for
      the prevailing party's counsel fees and expenses, unless otherwise required
      by
      law.

     

    9.4  Equitable
      Relief.
      The
      parties may apply to any court of competent jurisdiction for a temporary
      restraining order, preliminary injunction, or other interim or conservatory
      relief, as necessary, without breach of this arbitration agreement and without
      abridgment of the powers of the arbitrator.

     

    9.5  Acknowledgement.
      THE
      CONSULTANT HAS READ AND UNDERSTANDS SECTION
      9,
      WHICH
      DISCUSSES ARBITRATION. CONSULTANT UNDERSTANDS THAT BY SIGNING THIS AGREEMENT,
      CONSULTANT AGREES TO SUBMIT ANY CLAIMS ARISING OUT OF, RELATING TO, OR IN
      CONNECTION WITH THIS AGREEMENT, OR THE INTERPRETATION, VALIDITY, CONSTRUCTION,
      PERFORMANCE, BREACH OR TERMINATION THEREOF, TO BINDING ARBITRATION, EXCEPT
      AS
      PROVIDED IN SECTION 9.4, AND THAT THIS ARBITRATION CLAUSE CONSTITUTES A WAIVER
      OF CONSULTANT’S RIGHT TO A JURY TRIAL AND RELATES TO THE RESOLUTION OF ALL
      DISPUTES RELATING TO ALL ASPECTS OF THE RELATIONSHIP BETWEEN THE
      PARTIES.

     

    10.  MISCELLANEOUS.
      

     

    10.1  Governing
      Law.
      This
      Agreement shall be governed by the internal substantive laws, but not the choice
      of law rules, of the State of California.

     

    10.2  Amendment.
      No
      waiver, alteration, or modification of any of the provisions of this Agreement
      shall be binding unless in writing and signed by duly authorized representatives
      of the parties hereto. This Agreement constitutes the full and complete
      understanding and agreement of the parties and supercedes all prior
      understandings and agreements regarding the subject matter hereof.

     

    10.3  Notices.
      All
      notices required or given herewith shall be addressed to the Company or the
      Consultant at the designated addresses set forth on the signature page attached
      hereto by facsimile with confirmation, registered mail, special delivery, or
      by
      certified courier service.

     

    10.4  Attorneys
      Fees.
      In any
      court action at law or equity which is brought by one of the parties to enforce
      or interpret the provisions of this Agreement, the prevailing party will be
      entitled to reasonable attorney’s fees, in addition to any other relief to which
      that party may be entitled.

     

    10.5  Time
      of the Essence.
      Time is
      of the essence of this Agreement.

     

    10.6  Counterparts.
      This
      Agreement may be executed in one or more counterparts, each of which shall
      be
      deemed an original, but all of which shall constitute one and the same
      instrument.

     

    10.7  Titles;
      Interpretation.
      Title
      and section headings herein are for purposes of reference only and shall in
      no
      way limit, define or otherwise affect the meaning or interpretation of any
      of
      the provisions of this Agreement. Whenever required by the context, the singular
      number shall include the plural, and vice versa; the masculine gender shall
      include the feminine and neuter genders; and the neuter gender shall include
      the
      masculine and feminine genders. Any rule of construction to the effect that
      ambiguities are to be resolved against the drafting party shall not be applied
      in the construction or interpretation of this Agreement. As used in this
      Agreement the words “include” and “including,” and variations thereof, shall not
      be deemed to be terms of limitation, and shall be deemed to be followed by
      the
      words “without limitation.”

     

    10.8  Severability.
      The
      invalidity or unenforceability of any provision of this Agreement, or any terms
      thereof, shall not affect the validity of this Agreement as a whole, which
      shall
      at all times remain in full force and effect.

     

    


     


    
      
        
          
            	 	
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    IN
      WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
      day
      and year first above written.

     

    
      	
              COMPANY:

               

              MIRAVANT
                MEDICAL TECHNOLOGIES 

               

               

              /s/
                John M. Philpott

              ___________________________

              John
                M. Philpott,

              Chief
                Financial Officer

               

              Address:

              7408
                Hollister Avenue

              Santa
                Barbara, CA 93117

               

              Fax: 805-685-1901

            	 	
              CONSULTANT:

               

              /s/
                Robert J. Sutcliffe

              ___________________________

              ROBERT
                J. SUTCLIFFE

               

               

              Address:

              One
                Bunker Hill

              601
                W. Fifth Street, #1111

              Los
                Angeles, CA 90071

               

              Fax:
                213-624-6864

            


    

    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


     

    [Signature
      Page to Consulting Agreement]