Exhibit 10.1
AMENDED AND RESTATED CONSULTING AGREEMENT
THIS AMENDED AND RESTATED CONSULTING AGREEMENT (the "Agreement"),
dated as of April 25, 2005, (the "Effective Date") by and between XX. XXXXXXX
X. XXXXXXX (hereinafter, the "Consultant"), and NEUROLOGIX RESEARCH, INC., a
Delaware corporation (the "Company").
WHEREAS, the Consultant is currently engaged by the Company pursuant
to the terms of a Consulting Agreement, dated October 1, 1999, as amended on
October 8, 2003 (the "Prior Agreement"); and
WHEREAS, the parties hereto desire to modify the contractual
arrangements between them and replace them with this Agreement effective as of
the Effective Date; and
WHEREAS, Company is engaged in scientific research on human gene
therapy using adenovirus and adeno-associated virus vectors in the nervous
system (the "Field"); and
WHEREAS, the Consultant is one of the Company's scientific
co-founders and has extensive experience in the Field; and
WHEREAS, the Company has benefited from the Consultant's services
under the Prior Agreement and wants to provide for his continued consultation
under the terms set forth herein for a period of five years from the Effective
Date; and
WHEREAS, the expertise of the Company's scientific consultants is an
important factor in the Company's ability to accomplish its objectives and to
raise financing; and
WHEREAS, the Consultant is willing to extend the term of his
exclusive consulting arrangement with the Company, within the Field, as
provided for in this Agreement:
NOW, THEREFORE, in consideration of the premises and the mutual
covenants set forth herein and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Company and the
Consultant hereby agree as follows:
1. Relationship. Subject to the provisions hereof, the Company does
hereby engage the Consultant (i) to provide scientific advice and consulting
services to the Company on an exclusive basis within the Field as specified
below, (ii) to assist the Company in seeking financing, including meeting with
prospective investors and (iii) to serve on the Company's Scientific Advisory
Board. The Consultant shall not be, and shall not represent himself to anyone
as, an employee of the Company or entitled to any employment rights or
benefits from the Company.
2. Exclusive Consulting.
(a) The Consultant shall provide such advice and perform such
consulting services as are requested from time to time by the Company in the
Field. The Consultant shall not consult with any other person or entity with
respect to the Field, except on behalf of and for the benefit of the Company,
under appropriate confidentiality and non-disclosure arrangements. In
addition, the Consultant shall be generally available for telephonic advice
and consulting at reasonable frequencies and of reasonable duration in
connection with, or in lieu of, any of these visits. The Consultant shall, as
appropriate, provide the Company with brief written summary reports on the
Consultant's work relating to the consulting services hereunder.
(b) The Consultant shall (i) meet with prospective investors or other
persons who have, or are considering, business relationships with the Company
or Neurologix, Inc. ("Neurologix"), its parent corporation, and (ii)
communicate with such parties by letter, telephone or otherwise in connection
with Neurologix's financing efforts and/or other business activities of the
Company and/or Neurologix, all as requested from time to time by the Company.
(c) The Consultant shall serve as a member of the Company's
Scientific Advisory Board.
3. Compensation.
(a) The Consultant hereby acknowledges and agrees that as of the
Effective Date no compensation is due and owing to him under or by reason of
the Prior Agreement.
(b) At such time as the Consultant determines that his receipt of
cash compensation from the Company would not be considered to be in conflict
with his role in any clinical trial which the Company is sponsoring or with
his employment, he shall be paid an annual retainer at the rate of $100,000
payable in quarterly installments on the last day of each calendar quarter.
(c) As an inducement to enter into this Agreement, simultaneously
with the execution hereof, Neurologix is granting the Consultant a
nonqualified stock option (the "Option") to purchase 160,000 shares of
Neurologix's unregistered and restricted common stock at a price equal to the
fair market value on the date preceding the signing of this Agreement. The
Option shall be evidenced by an agreement substantially in the form attached
hereto as Exhibit "A".
(d) The Company shall reimburse the Consultant for all reasonable
travel and related expenses required for the performance of the Consultant's
consulting hereunder if approved in advance and upon presentation of
satisfactory invoices and receipts therefor.
(e) The Consultant shall be solely responsible for all reporting and
paying of any and all federal, state and local taxes, contributions and
withholding and any other claim to or arising out of any compensation paid by
the Company to the Consultant hereunder or upon exercise of the Option.
4. Term. The term of this Agreement shall commence on the Effective
Date shall continue until April 30, 2010.
5. Confidentiality, Ownership of Discoveries and Information.
(a) The parties entered into a Confidentiality, Proprietary
Information and Inventions Agreement (the "Confidentiality Agreement"), dated
October 1 1999 in connection with the Prior Agreement, a copy of which is
attached hereto as Exhibit "B". The parties agree that such Confidentiality
Agreement has not been amended and remains in full force and effect.
(b) To the fullest extent not prohibited by any agreement in place on
the date hereof between the Consultant and any educational institution, the
Consultant hereby assigns to the Company all right, title and interest in and
to any existing or future technology, know-how or other intellectual property
he now or in the future may own related to the Field that arises from research
or consulting services performed prior to or during the term of this
Agreement.
6. Consultant's Representations and Warranties. The Consultant
represents and warrants to the Company as follows:
(a) The Consultant is not under any legal obligation, including any
obligation of confidentiality or non-competition, which prevents the
Consultant from executing or fully performing this Agreement, or which would
render such execution or performance a breach of contract with any third
party; and
(b) The Consultant's performance hereunder will not give rise to any
right or claim by any third party, including, but not limited to, any of the
Consultant's employers or any person to whom the Consultant has provided or
currently provides consulting services, to any intellectual or other property
or rights of the Company.
7. Indemnification. The Consultant agrees to indemnify the Company,
Neurologix and their respective directors, officers and controlling
stockholders (each, an "Indemnified Person") against, and to hold each
Indemnified Person harmless from, any claims or suits by a third party against
the Company or any liabilities or judgments based thereon, either arising from
the Consultant's performance of services for the Company under this Agreement
or arising from any use by the Company of information or products which result
from the Consultant's performance of services under this Agreement.
8. Notices. Any notification required or permitted hereunder shall be
addressed to the Company, to the attention of the Secretary at Xxx Xxxxxx
Xxxxx, Xxxx Xxx, Xxx Xxxxxx 00000 and to the Consultant at 000 Xxxx 00xx Xx.,
Xxx. 00X, Xxx Xxxx, XX 00000 and deposited, postage prepaid, in the United
States mail. Either party may, by notification to the other given in the
manner aforesaid, change the address for future notices.
9. Severability. In the event any provision of this Agreement is
determined by a court of competent jurisdiction to be unenforceable, the
parties will negotiate in good faith to restore the unenforceable provision to
an enforceable state and to provide reasonable additions or adjustments to the
terms of the other provisions of this Agreement so as to render the whole
Agreement valid and binding to the fullest extent possible, and in any event,
this Agreement shall be interpreted to be valid and binding to the fullest
extent possible.
10. Miscellaneous.
(a) Failure or delay by either party to enforce any right which it
may have hereunder shall not be deemed to waive any right which it may have in
that or any other instance.
(b) This Agreement shall be governed by, and construed pursuant to,
the laws of the State of New York applicable to agreements made and performed
wholly within such State.
(c) The Company may use the Consultant's name or make reference to
the Consultant's writings and professional affiliations in promotional,
advertising, marketing or securities offering literature without further
consent from the Consultant.
(d) This Agreement may not be changed orally, but may be changed only
in a writing executed by the party to be charged with enforcement.
(e) The headings of the various sections of this Agreement are for
convenience of reference only and shall not be deemed to be part of this
Agreement.
(f) This Agreement may be executed in two counterparts, each of which
shall constitute an original, and both of which together shall constitute one
and the same instrument. In the event that any signature is delivered via
facsimile transmission, such signature shall create a valid and binding
obligation of the party executing (or on whose behalf such signature is
executed) the same with the same force and effect as if such facsimile
signature page were an original hereof.
(g) This Agreement contains the entire understanding of the parties
with respect to the matters covered herein and supersedes all prior agreements
(including, but not limited to the Prior Agreement) and understandings with
respect to such matters. Except as specifically set forth herein or therein,
neither the Company nor the Purchaser makes any representation, warranty,
covenant or undertaking with respect to such matters.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
NEUROLOGIX RESEARCH, INC.
By: /s/ Xxxxxxx Xxxxxx
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Xxxxxxx Xxxxxx, President
/s/ Xxxxxxx X. Xxxxxxx
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Xxxxxxx X. Xxxxxxx, M.D.
