EXHIBIT 10(b)
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT made as of this 1st day of July, 2000 (the
"Agreement") by and between Alliance Pharmaceutical GmbH, a German corporation
(the "Company") and Xxxx Xxxxx, whose address is Xxx Xxxxxxx, 00000 Xxxxxxx,
Xxxxxx, ("Consultant").
W I T N E S S E T H:
WHEREAS, the Company desires to retain Consultant as an independent
contractor to provide international consulting services in the area of
pharmaceutical drug development and regulatory filing, especially in flurocarbon
derived pharmaceuticals and other services as requested from time to time
(collectively, the "Consulting Services"), and Consultant desires to serve in
such capacity, during the period and upon the terms and conditions hereinafter
set forth;
NOW, THEREFORE, in consideration of the foregoing and the mutual
promises herein contained, the parties hereto agree as follows:
1. TERM. The term of this Agreement shall commence on the date
hereof and continue until June 30, 2001, and can be extended by the mutual
agreement of the parties.
2. CONSULTING SERVICES. During the term of this Agreement,
Consultant shall devote adequate time and attention to performance of the
Consulting Services as reasonably necessary, or as requested by the Company. The
Consulting Services shall be conducted in accordance with all applicable laws,
rules and regulations and industry standards.
3. COMPENSATION. The Company shall pay the Consultant such
amounts as the parties will agree for Consulting Services rendered. Such fee
shall accrue and be payable promptly upon presentation of periodic invoices. All
reasonable out-of-pocket expenses incurred by Consultant in connection with the
Consulting Services hereunder shall be reimbursed by the Company.
4. TERMINATION. Either party shall have the right to terminate
this Agreement at any time upon ten (10) days written notice to the other party.
All obligations in Sections 5 and 6 herein shall survive any termination or
expiration of this Agreement. Consultant agrees to return all Confidential
Information and copies thereof upon termination. Notwithstanding anything to the
contrary contained herein, the obligations of the Company to pay the
compensation in Section 3 shall be terminated automatically upon the first to
occur of any of the following events:
(a) Consultant shall willfully breach any of the
provisions of this Agreement.
(b) Consultant shall commit any fraud, embezzlement or
other act of dishonesty against the Company.
5. CONFIDENTIALITY. Consultant recognizes that the Company and
its subsidiaries and affiliated corporations (herein collectively referred to as
the "Company") and its customers, corporate partners or others (herein
collectively referred to as "Related Parties"), own certain confidential
information, including but not limited to, secret or confidential data,
proprietary information, trade secrets, technology, formulae, processes,
procedures, scientific studies,
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regulatory submissions, business plans, information and the like, whether all of
the same be in writing or not (all of which is referred to as "Confidential
Information"). Consultant acknowledges that the Company has disclosed or may
disclose to Consultant portions of Confidential Information of the Company or
Related Parties, and agrees to maintain the confidential status of such
Confidential Information. Consultant further agrees not to use such Confidential
Information except in pursuit of Consultant's duties hereunder or to disclose
the same to persons not authorized in writing by the Company to receive such
Confidential Information. Consultant will not make and will take all reasonable
steps necessary to prevent unauthorized parties from making any copies,
abstracts or summaries of any of the Confidential Information except in pursuit
of Consultant's duties hereunder and for the sole use and account of the
Company.
6. INVENTIONS. Consultant will disclose promptly and in writing
to the Company, all ideas, concepts, formulae, processes, procedures,
inventions, software, devices or improvements, whether or not patentable or
copyrightable, related in any manner to the work or other activities carried on
by the Company ("Inventions") which Consultant, alone or with others, may
conceive or reduce to practice during the term of Consultant's provision of
Consulting Services to the Company. Consultant agrees to assign, transfer,
convey and deliver to the Company, and hereby does assign, transfer and convey
to the Company, all right, title and interest in and to all Inventions required
to be disclosed by Consultant to the Company under this Agreement and all
patents and patent applications (including continuations, continuations-in-part,
divisions, reissues, renewals and extensions) and all copyrights and copyright
applications for all countries relating to such Inventions. Consultant will,
during the term of this Agreement and at any time thereafter, execute all papers
and perform all acts and cooperate with the Company and its counsel in any other
way which, in the sole view of the Company, is necessary and proper to make this
provision effective. All reasonable expenses in connection with the obligations
of Consultant under this Section 6 shall be borne by the Company or its nominee.
7. RELATIONSHIP. The relationship between the Company and
Consultant in the performance of Consulting Services under this Agreement shall
be that of independent contractors, and nothing herein shall be construed to
create a relationship of principal and agent, employer and employee, joint
venturers, co-partners or any other similar relationship between the Company and
Consultant. Neither party hereto shall be liable in any way for any engagement,
obligation, liability, contract, representation or warranty of the other party
to or with any third party or purchasers whomsoever.
8. ASSIGNABILITY AND BINDING EFFECT. The obligations of
Consultant may not be delegated, and Consultant may not assign, transfer,
pledge, encumber, hypothecate or otherwise dispose of this Agreement, or any
rights hereunder, and any attempted delegation or disposition shall be null and
void and without effect.
9. GENERIC DRUG ENFORCEMENT ACT OF 1992. Consultant represents
that it has never been (i) debarred or (ii) convicted of a crime for which a
person can be debarred, under Section 306(a) or 306(b) of the Generic Drug
Enforcement Action of 1992. Consultant represents that it has never been and, to
the best of its knowledge after due inquiry, has ever been (a) threatened to be
debarred or (b) indicted for a crime or otherwise engaged in conduct for
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which a person can be debarred, under Section 306(a) or (b). Consultant agrees
that it will promptly notify each Client in the event of any such debarment,
conviction, threat or indictment.
10. HEADINGS. The headings set forth in this Agreement are for
convenience only and shall not be considered as part of this Agreement in any
respect nor shall they in any way affect the substance of the provisions
contained in this Agreement.
11. SEVERABILITY. The invalidity of all or any part of any
provision of this Agreement shall not invalidate the remainder of this Agreement
or the remainder of any section which can be given effect without such invalid
provision.
12. ENTIRE AGREEMENT. This Agreement constitutes the sole and
entire agreement between Consultant and the Company with respect to the
acceptance by the Company of the consulting and advisory services of Consultant
and supersedes all prior agreements, arrangements and understandings. This
Agreement may not be altered, modified or amended except by written instrument
signed by the party against whom such alteration, modification or amendment is
sought to be enforced.
13. GOVERNING LAW. This Agreement shall be governed by and
construed and interpreted in accordance with the laws of Germany. Consultant
acknowledges that improper disclosure of Confidential Information or breach of
other obligations herein could cause irreparable harm to the Company, and agrees
that the Company may seek injunctive relief to enforce the terms of this
Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement on the day
and year first above written.
ALLIANCE PHARMACEUTICAL GMBH CONSULTANT
By: By:
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H. Xxxxx Xxxxxx Xxxx Xxxxx
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