Exhibit 10.31
CONSULTING AGREEMENT
THIS AGREEMENT (this "Agreement") is entered into as of ______, 2001 by and
between Endorex Corporation, a Delaware Corporation located at 00000 Xxxxxxx
Xxxxx, Xxxxx X, Xxxx Xxxxxx, XX 00000, (the "Company"), Xxxxxxxx Xxxxxxxxxxxxx
(the "Consultant"), an individual with an address at 0000 Xxxxxxxx Xxxxxx,
Xxxxxxxxx 0000 Xxxxx, Xxxxxxx 00000 and Corporate Technology Development, Inc.
("CTD"). In consideration of the mutual covenants contained herein, the parties
hereto agree as follows:
l. SERVICES
1.1 Consultant shall provide consulting services to the Company in
connection with the Company's ongoing product development and business
development activities and shall report to the President of the Company
or his designee.
1.2 During the term of this Agreement, Consultant shall provide such
advisory and counseling services to the Company as the Company may from
time to time request (the "Services") in writing. The Services shall
consist exclusively of consultation on: a) oral beclomethasone
("OrBec(R)") b) oral solution azathioprine ("Oraprine(TM)"); c)
opthlamic solution of metronidazole ("Metropt(TM)"); d) the Allergan
BoTox(R) program; e) the drug delivery technology under option from the
University Pharmaceuticals of Maryland ("UM Technology"); and e)
activities related to the business, products or services offered by CTD
and any of CTD's subsidiaries, prior to the date of this Agreement
including but not limited to intellectual property, manufacturing, and
regulatory/clinical issues.
1.3 Consultant shall make himself available to provide the Services on a
full-time basis during the consulting period, for an average of 40
hours per week.
1.4 Consultant shall provide the Company with a Summary Report of his
activities in connection with the services on the last day of each
month.
1.5 During those time that the Consultant is not performing Services, he is
at liberty to engage, either on his own or with other persons
(including Xxxxx X. Xxxxxx) or entities, in any pharmaceuticals-related
and other business activities that do not otherwise conflict with the
terms of this Agreement.
2. TERM
The term of this Agreement shall be six (6) months commencing
________, 2001. The term of this Agreement may be extended by the
execution of the parties hereto of an amendment to this Agreement
providing for such an extension.
3. COMPENSATION
3.1. For the Services and the Consultant's other obligations hereunder, the
Company shall pay or cause to be paid to Consultant during the term of
this Agreement a fee of $8,166.66 per calendar month, payable in
semi-monthly installments of
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Confidential
$4,083.33 each, prorated for any partial period at the beginning and
end of the term of this Agreement.
3. 2. The Company shall reimburse Consultant for reasonable out-of-pocket
expenses incurred on behalf of the Company in connection with the
performance of the Services upon presentation of all receipts and
consistent with Company's expense reimbursement policy. It is a
condition to reimbursement of any individual expense in excess of
$1000, including any individual expense incurred by the Consultant for
travel on the Company's behalf, that Consultant obtain the Company's
prior written approval for that expense. All travel shall be consistent
with the Company's travel policy.
3.3 In the event that a licensing or asset sale is consummated between
RxEyes and CibaVision or any affiliate of CibaVision for the licensing
or asset sale of Metropt(TM) due to the Consultant's efforts and during
the time period of the Consultant's agreement, the Company shall pay
Consultant a one percent (1%) transaction fee of any monies directly
received by the Company as a result of this transaction.
4. INDEPENDENT CONTRACTOR
4.1 Consultant shall act in the capacity of an independent contractor with
respect to the Company. Consultant shall not be, nor represent himself
as being an agent of the Company, and Consultant shall not have, or
represent himself as having the right or authority to enter into any
agreement or to make any promise of any nature whatsoever, whether oral
or written, on behalf of or in the name of the Company, without the
Company's prior written consent.
4.2 Consultant shall accept directions issued by the President of the
Company pertaining to the results to be achieved by Consultant, but
shall be solely responsible for the manner and working hours in which
he performs any Services.
4.3. As an independent contractor, Consultant shall not have the status of
an employee of the Company. Consultant shall not be eligible to
participate in any employee benefit group insurance or executive
compensation plans or programs maintained by the Company, and the
Company shall not provide social security, unemployment compensation,
disability insurance, workers' compensation or similar coverage, or any
other statutory benefit to Consultant.
6. SURVIVAL OF REPRESENTATIONS AND WARRANTIES
The parties hereto agree that the representations, warranties,
covenants and agreements of the parties contained in Sections 4, 7, 8
and 9 of this Agreement shall survive the termination hereof.
7. CONFIDENTIALITY AND INVENTIONS
7.1 Company and Consultant acknowledge that as a result of this consulting
relationship, Consultant will be in possession of confidential customer
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information, trade secrets, technical data and know-how relating to the
products, research, development, processes, methods, equipment ,
research and manufacturing agreements with third parties, license and
joint venture agreements with third partiesand intellectual property of
the Company and its subsidiaries ("Proprietary Information").
Proprietary Information does not, however, include information that is
or becomes generally available in the pharmaceuticals industry other
than by breach of this Agreement by Consultant.
7.2 Consultant agrees that Consultant will not, during or after two years
from the date of this Agreement, directly or indirectly, use or
disclose to any person, firm or corporation, any Proprietary
Information, without the prior written consent of Company.
Consultant agrees that in the event of termination of this Agreement
for any reason, Consultant will deliver to the Company all documents
and data of any nature pertaining to Consultant's work with the Company
and will not retain any documents or data of any description or any
reproduction, in whole or in part, thereof containing or pertaining to
any Proprietary Information.
7.3 Consultant agrees that any and all inventions, discoveries,
improvements, processes, compounds, or formulae (collectively
"Inventions"), whether or not patentable or registerable under patent,
copyright, or similar statutes, that are made, conceived, discovered or
acquired by Consultant pursuant to this Agreement, solely or jointly
with others or otherwise or which result from services performed by
Consultant hereunder or which result from use of premises owned,
leased, or contracted for by the Company and its subsidiaries and which
may be used or useful in or relate to the business of the Company and
its subsidiaries, shall be the property of the Company. Consultant
hereby assigns to the Company all of the Consultant's right, title and
interest in and to any such Inventions, including without limitation
all Inventions discovered or acquired by Consultant during and in
connection with his employment with Corporate Technology Development,
Inc. and/or any of its subsidiaries. Without limiting the foregoing,
Consultant further acknowledges that all original works of authorship
by Consultant, whether created alone or jointly with others, in
performing the Services and which are protectable by copyright, are
"works made for hire" within the meaning of the United States Copyright
Act, 17 U.S.C. ss. 101, as amended, and the copyright of which shall be
owned solely, completely and exclusively by the Company. If any
Invention is considered to be work not included in the categories of
work covered by the United States Copyright Act, 17 U.S.C. ss. 101, as
amended, such work is hereby assigned or transferred completely and
exclusively to the Company. Any assignment of copyright hereunder
includes all rights of paternity, integrity, disclosure and withdrawal
and any other rights that may be known as or referred to as "moral
rights" (collectively "Moral Rights"). To the extent such Moral Rights
cannot be assigned under applicable law and to the extent the following
is allowed by the laws in the various countries where Moral Rights
exist, Consultant hereby waives such Moral Rights and consents to any
action of the Company that would violate such Moral Rights in the
absence of such consent. Consultant agrees to confirm any such waivers
and consents from time to time as requested by the Company.
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Consultant shall, as requested by the Company at any time and from time
to time, whether prior to or after the expiration of the term of this
Agreement, execute and deliver to the Company any instruments deemed
necessary by the Company to effect disclosure and assignment of the
Inventions to it or to persons designated by it and shall cooperate
with the Company as may be reasonably required with regard to, and
shall execute and deliver to the Company, any patent, copyright or
trademark applications (United States or foreign) and renewals with
respect thereto, including any other instruments deemed necessary by
the Company for the prosecution of such patent, copyright or trademark
application or the acquisition of letters patent. Consultant's
obligation to assist the Company in obtaining and enforcing patents,
copyrights or trademarks for such Inventions in any and all countries
shall continue beyond the termination of this Agreement, but the
Company shall compensate Consultant at a reasonable rate after such
termination for time actually spent at the Company's request on such
assistance. In the event the Company is unable, after reasonable
effort, to secure the signature of Consultant on any document or
documents needed to apply for or prosecute any patent, copyright or to
other right or protection relating to an Invention, whether because of
physical or mental incapacity or for any other reason whatsoever,
Consultant hereby irrevocably designates and appoints the Company and
its duly authorized agents as agent and attorney-in-fact, to act for
and on behalf of Consultant to execute and file any such application or
applications and to do all other lawfully permitted acts to further
prosecution and issuance of patents, copyrights or other similar
protection thereon with the same legal force and effect as if executed
by Consultant.
8. RESTRICTIVE COVENANTS
8.1 During the period in which Consultant provides the Services to the
Company, and for a period of two (2) years after termination of this
Agreement for any reason, Consultant will not anywhere in the world (i)
engage in; (ii) have any interest in any person, firm, or corporation
that engages in; or (iii) perform any services for any person, firm, or
corporation that engages in the development of, research relating to,
manufacture, processing, marketing, distribution, or sale of (a) orally
delivered corticosteroids for the treatment of Graft Versus Host
Disease, Crohns Disease, ulcerative colitis, or any other related
gastrointestinal disorder(s), (b) orally delivered solutions of
Azathioprine, or analogs thereof for the supression of the immune
system or any part thereof, including the uses that as of the date
hereof are approved by the U.S. Food and Drug Administration, (c)
imidazole-like compounds or analogs thereof for the treatment of dry
eye syndrome or blepharitis, (d) the Allergan BoTox(R) program, or (e)
polymer based drug delivery technologies for the rapid dissolution into
suspension of normal and controlled release drugs in tablet form,
including the UM Technology.
8.2 Consultant will not, directly or indirectly, employ, solicit for
employment, or advise or recommend to any other person that they employ
or solicit for employment, any employee of the Company while Consultant
is providing the Services to the Company and for a period of two (2)
years thereafter.
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8.3 Consultant represents that his experience and capabilities are such
that the provisions of this Section 8 will not prevent him from earning
a livelihood.
8.4 On condition that he otherwise complies with the terms of this
Agreement, including without limitation the restrictive covenants
contained within this Section 8, the Consultant may at any time contact
and do business with any person or entity that the Consultant had
dealings with in his capacity as an employee of CTD and while
performing the Services.
9. NO CONFLICT WITH OR BREACH OF OTHER AGREEMENTS
9.1 In order to induce the Company to enter into this Agreement, Consultant
hereby represents, warrants and covenants that (a) Consultant is not
party to any agreement, contract, arrangement or understanding that
prohibits or purports to prohibit Consultant from entering into this
Agreement and performing duties hereunder, (b) the execution, delivery
and performance by Consultant of this Agreement will not constitute a
breach of or default under any agreement, contract, arrangement or
understanding to which Consultant is a party or which is or purports to
be binding upon Consultant, (c) performance of all the terms of the
Agreement does not, and will not breach any agreement or duty to keep
in confidence proprietary information acquired by Consultant in
confidence or in trust prior to employment by the Company, (d)
Consultant will not during performance of the Services breach any
obligation of confidentiality or duty owed current or former employers,
and further agrees that all such obligations will continue to be
fulfilled during such consulting relationship with the Company, and (e)
Consultant has not brought and will not bring to the Company or use in
performing the Services any materials or documents of a current or
former employer that are not generally available to the public, unless
written authorization from the current or former employer for their
possession and use is obtained.
10. MISCELLANEOUS
10.1 This Agreement shall be binding upon and for the benefit of the parties
hereto and their respective heirs, executors, administrators,
successors, devisees and assigns; provided, however, that Consultant
may not assign rights or delegate duties under this Agreement without
the prior written consent of the Company and that any attempt by
Consultant to do so without such consent shall be void. Except as
provided for in Section 1.6 (g) of the Merger Agreement, the parties
hereto hereby agree and acknowledge that the Employment Agreement by
and among Consultant and CTD, dated as June 28, 1998 (the "CTD
Employment Agreement") is terminated as of the date hereof and
Consultant hereby specifically waives the provisions and rights set
forth in Section 3 of the CTD Employment Agreement, including but not
limited to, any bonuses, milestone payments or carried interests in
licenses, technologies or acquisitions by CTD or any subsidiaries of
CTD. Consultant hereby resigns from any and all positions held by the
Consultant within CTD or any subsidiaries of CTD and acknowledges and
agrees that no obligations or amounts are owed to Consultant ( whether
in cash, equity or otherwise) under the CTD Employment Agreement or
pursuant to any other agreement, understanding or arrangement under
which
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CTD or any of its subsidiaries would be so obligated, unless such
exception is expressly stated in this agreement.
10.2 This Agreement contains the entire understanding and agreement of the
parties with respect to the relationship between the Company and
Consultant (other than as a security holder of the Company), and it may
not be altered, amended, modified or otherwise changed in any respect
whatsoever except by a writing duly executed by the parties hereto.
10.3 This document may be executed in any number of counterparts, each of
which shall be deemed to be an original and shall fully bind each party
who has executed it, but all such counterparts together shall
constitute one and the same agreement.
10.4 No failure or delay on the part of any party hereto in exercising any
right, power or remedy hereunder shall operate as a waiver thereof. The
Company shall have the right to enforce this Agreement and any of its
provisions by injunction, specific performance or other equitable
relief, without bond and without prejudice to any other rights and
remedies that the Company may have for the breach of this Agreement.
10.5 Should any provision of this Agreement be held invalid or illegal, such
illegality shall not invalidate the whole of this Agreement, but
rather, the Agreement shall be construed as if it did not contain the
illegal part and the rights and obligations of the parties shall be
construed and enforced accordingly.
10.6 This Agreement shall be construed and enforced pursuant to the laws of
the State of Illinois, without giving effect to conflict of law
principals.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
day and year first above written.
ENDOREX CORPORATION
By:
------------------------
Xxxxxxx X. Xxxxx
President and COO
CONSULTANT
----------------------------
Xxxxxxxx Xxxxxxxxxxxxx
IN WITNESS WHEREOF, CTD has executed this Agreement for the purposes of Section
10.1 hereof as of the day and year first above written.
CORPORATE TECHNOLOGY DEVELOPMENT, INC.
By:
------------------------
Name:
Title:
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