EXHIBIT 10.5
CONSULTING AGREEMENT
This Agreement, dated as of 19 JAN 2004 IS between CyGene, Inc (hereinafter
CyGene), having a principal place of business at: 0000 Xxxxx Xxxx, Xxxxx
Xxxxxxx, XX 00000 and Xxxxx Xxxxxxxx and Associates Inc. with an address of 0000
Xxxxx Xxxx Xxxxx, Xxxxx, Xxxxxxx, 00000 (hereinafter referred to as the
"Consultant").
CyGene desires to retain the services of Consultant with respect to certain
activities as described in this Agreement, and Consultant is willing to so act.
NOW, THEREFORE, Consultant and CyGene agree as follows:
1. Description of Services. CyGene hereby retains Consultant to act as
CyGene's Vice President of Drug Development and to perform the following
services for CyGene:
a) An estimated twenty-seven months consultation with CyGene's other
scientists or management or as otherwise designated by CyGene, in the
form of formal meetings or scientific consultation. This agreement will
renew automatically for an additional 12 month period unless either
party notifies the other in writing that it does not intend to renew,
such notification to be given at least thirty (30) days prior to the
expiration of this Agreement. Either party can terminate this Agreement
at any time upon three (3) months' prior written notice of such
termination to the other.
b) Consultant may from time to time be unavailable to attend formal
meetings or perform other consulting duties that are not in conflict
with or competitive to the business activities of CyGene, and such
unavailability shall not be considered a breach of this AGREEMENT.
c) Consultant's duties will involve, but are not limited to, the
specialized field of drug development and preparation for regulatory
application and approval and requires the application of the unique,
special and extraordinary skills and knowledge that Consultant
possesses in this area.
2. Terms and Expiration. This Agreement shall become effective retroactively
to 01 NOV 2003 and remain in effect through 31 December 2005. In rendering
services to CyGene, Consultant shall act as an independent contractor and
not as an employee or agent of CyGene.
3. Compensation.
CyGene will pay Consultant for consulting services at the rate of
$200.00 per hour for the period November 1, 2003 through December 31, 2003.
Commencing on January 1, 2004 CyGene will pay Consultant at the rate of $160.00
per hour, based on an estimated 100 - 125 hour month. Payment will be made to
Consultant within thirty (30) days of receipt of an invoice from Consultant.
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In addition, both parties agree to the following warrant grant terms:
Total Number of Warrants Granted: 400,000
Vesting Schedule: 50,000 warrants will vest every three (3)
months for the duration of this agreement.
Strike Price: Twenty-two and one-half cents ($0.225) per
share.
Warrant Term Agreement: January 1, 2004 through December 31,
2005.
Exercise Period upon Expiration
of This Agreement: Five (5) years.
4. Expenses. CyGene will reimburse Consultant for any pre-authorized expenses
incurred by Consultant while rendering services under this Agreement. Such
expenses shall include reasonable and necessary travel, lodging and meals
in connection with services performed under this Agreement. Reimbursement
of expenses shall be made by CyGene upon receipt of an itemized statement
from Consultant with, whenever possible, receipts or other evidence of
expenses.
5. Proprietary Information and Patents. Consultant understands and agrees that
CyGene possesses and will continue to possess information that has been
created, discovered, or developed, or has otherwise become known to CyGene,
including information made known to or created, discovered, or developed by
Consultant, arising out of his retention as a consultant by CyGene, which
information has commercial value in the business in which CyGene is
engaged. All of the aforementioned information is hereinafter called
"Proprietary Information." By way of illustration, but not limitation,
Proprietary Information includes trade secrets, processes, formulae, data
and know-how, improvements, inventions, techniques, planned products,
research and development, marketing plans, business plans, strategies,
forecasts, customer lists, confidential information about finances,
marketing, pricing, costs or compensation.
a) All Proprietary Information shall be the sole property of CyGene and
its assigns, and CyGene and its assigns shall be the sole owner of all
patents and other rights in connection therewith. At all times during
retention as a consultant for CyGene and at all times after termination
of such retention as a consultant, Consultant will keep in confidence
and trust all Proprietary Information, and will not use for his own
account (or for the benefit of any person or entity), or disclose any
Proprietary Information or anything relating to it without the written
consent of CyGene, except as may be necessary in the ordinary course of
performing his duties as a consultant of CyGene.
b) All documents, data, records, apparatus, equipment and other physical
property, whether or not pertaining to Proprietary Information,
furnished to Consultant by CyGene or produced by Consultant or others
in connection with Consultant retention shall be and remain the sole
property of CyGene and shall be returned promptly to CyGene as and when
requested by CyGene. Should CyGene not so request, Consultant shall
return and deliver all such property upon termination of his retention
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as a consultant for any reason, Consultant will not retain any such
property or reproduction of such property upon such termination.
c) Subject to the provisions of Article 7 Consultant will promptly
disclose and assign to CyGene, or any persons designated by it, all
improvements, inventions, formulae, processes, techniques, know-how and
data, whether or not patentable, (collectively hereinafter called
"INVENTIONS") made or conceived or reduced to practice by Consultant,
either alone or jointly with others, during the period of his retention
as a consultant which (i) result from tasks assigned to Consultant by
CyGene, or (ii) result from use of premises owned, leased or contracted
for by CyGene . Such disclosures shall continue for one year after
termination of this Agreement. All INVENTIONS shall be the sole
property of CyGene and its assigns, including all patents and other
proprietary rights in connection therewith. Consultant agrees to
execute all documents and take all actions necessary to assign and
transfer the foregoing to CyGene.
d) Consultant may freely publish any results of his work covered under the
Agreement, provided that prior U.S. patent application is made on any
potentially patentable aspects of his work. Consultant agrees to
provide CyGene with sufficient disclosure not less than 120 days prior
to publication, to allow CyGene to have patent applications prepared on
inventions or other information made or acquired under this agreement
of potential commercial value. CyGene agrees to keep all such
disclosures confidential prior to publication.
e) Nothing in this Agreement shall transfer to CyGene any rights to
INVENTIONS that are owned or are provided to Consultant by third
parties for research purposes.
6. Governing Law. This Agreement shall be governed and construed in accordance
with the laws of the State of Florida.
7. No Conflict. Consultant represents that performance of all the terms of
this Agreement and that retention as an advisor to CyGene does not and will
not breach any agreement to keep in confidence proprietary information
acquired by Consultant in confidence or in trust prior to retention as an
advisor by CyGene. Consultant has not entered into, and agrees will not
enter into, any agreement, either written or oral, in conflict herewith.
Consultant understands as part of the consideration for the offer to be
retained as an advisor, and retention as an advisor by CyGene, that
Consultant has not brought and will not bring to CyGene or use in the
performance of Consultant's responsibility at CyGene any equipment,
supplies, facility or trade secret information of any current or former
employer which are not generally available to the public, unless Consultant
has obtained written authorization for their possession and use. Consultant
also understands that, in retention as an advisor of CyGene, Consultant is
not to breach any obligation of confidentiality that Consultant has to
others, and Consultant agrees that he shall fulfill all obligations during
retention as an advisor with CyGene.
8. Assignment. This Agreement shall be binding upon and shall inure to the
benefit of CyGene's successors, transferees, and assigns.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
day and year written below.
For CyGene, Inc.:
/s/ Xxxxxx Xxxxxx 2/5/04
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Xxxxxx Xxxxxx Date
President and CEO
For Consultant:
/s/ Xxxxx Xxxxxxxx 2/5/04
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Xxxxx Xxxxxxxx, Ph.D., FCP Date
President
Xxxxx Xxxxxxxx and Associates, Inc.
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