EXHIBIT 10.3
CELL SCIENCE THERAPEUTICS, INC.
CONSULTING AGREEMENT
This Agreement (the "Agreement"), dated as of June 14, 2001, is between
Cell Science Therapeutics, Inc., a Delaware corporation (the "Company"), and
Xxxxxxxx Xxxxxxxx PhD, (the "Consultant").
1. SERVICES
1.1 POSITION: SERVICES. The Company hereby retains the Consultant to
perform advisory services in the area of Glycolipid Biochemistry/cell
biology (the "Field") as the Company may from time to time reasonably
request. Such consulting and advisory services are referred to herein as
the "Services."
1.2 COMMITMENT. Consultant agrees to make himself available to render the
Services from time to time as requested by the Company at such times and
locations as may be mutually agreed, not to exceed a total of 24 hours for
the duration of the term, unless increased by written mutual consent.
1.3 EXCLUSIVITY. Consultant agrees that during the term of this Agreement,
the Consultant will not, without the approval of the Company, which shall
not be unreasonably withheld or delayed, render advice or services (whether
as a director, scientific advisory board member, officer, employee,
consultant or otherwise) to any other for-profit enterprise or entity with
respect to the Field or in any other area in which the Consultant has
actually performed services for the Company.
2. TERM
Subject to Section 7.1, this Agreement will be for an initial term
beginning as of the date set forth in the first paragraph and ending twelve
months thereafter and may be extended by mutual agreement for additional one
year periods.
3. COMPENSATION AND EXPENSES
3.1 COMPENSATION. As full compensation for the Services during the initial
term, the Company shall pay Consultant at the rate of $ 3000(Canadian) per
month. Consultant shall xxxx the Company monthly for services performed and
shall include with each such xxxx records of hours worked on behalf of the
Company together with a reasonably detailed description of the work
performed. Compensation shall be payable, in full, no later than thirty
(30) days after the submission of each such xxxx unless otherwise agreed by
the parties in writing.
3.2 EXPENSES. The Consultant shall be entitled to reimbursement for
reasonable travel and other out-of-pocket expenses incurred by the
Consultant in the performance of the Services following submission of
written expense statements and other supporting documentation in accordance
with the policy and practice of the Company.
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Reimbursement shall be made no later than thirty (30) days after the
submission of such statements and/or documentation unless otherwise agreed
by the parties in writing.
4. THIRD PARTY RESTRICTIONS
4.1 ABSENCE OF RESTRICTIONS. Consultant represents that he is presently
under no contractual or other restriction or obligation which would be
materially breached by Consultant's execution of this Agreement or the
performance of the Services, and during the term of this Agreement, the
Consultant will not enter into any agreement, either written or oral, which
conflicts with this Agreement. Exhibit A hereto sets forth all other
consulting arrangements, written or oral, to which Consultant is party on
the date hereof.
5. OWNERSHIP OF INVENTIONS
5.1 "INVENTIONS" means all inventions, ideas, discoveries, developments,
methods, publications, data, computer software and animations, information,
improvements, other intellectual property and biological or chemical
materials, (whether or not reduced to practice and whether or not
protectible under state, federal or foreign patent, copyright, trade
secrecy or similar laws) conceived, created or developed by the Consultant
(whether alone or with others) in the course of providing Services or as a
direct result of Confidential Information (as hereinafter defined) acquired
by Consultant. The foregoing shall not preclude the Consultant from
developing Inventions for himself or others at any time, provided he does
not otherwise violate the terms of this Agreement.
5.2 OWNERSHIP BY COMPANY. All Inventions are and shall remain the exclusive
property of the Company, and the Company may use or pursue them without
restriction or additional compensation. The Consultant shall promptly and
fully disclose to the Company any and all Inventions. The Consultant shall
maintain reasonably complete written or electronic records of all
Inventions and work or investigations done or carried out by the Consultant
at all stages thereof, which records shall be the exclusive property of the
Company. Notwithstanding the foregoing, the Consultant may disclose to
others the fact that he participated in the creation of the Invention(s) to
the extent such disclosure is not in violation of Section 6 hereof.
5.3 ASSIGNMENT OF INVENTIONS BY CONSULTANT. Subject to the Consultant's
right to receive a license as described in Section 5.4 below, the
Consultant hereby assigns and agrees to assign to the Company all of the
Consultant's right, title and interest in and to any Inventions. Consultant
agrees to cooperate reasonably and at no cost or uncompensated time to
Consultant in the obtaining by the Consultant of any patent, copyright or
other proprietary protection of such Inventions, all in the name of the
Company and at the Company's cost and expense, and shall execute and
deliver all requested applications, assignments and other documents and
take such other measures as the Company shall reasonably request in order
to perfect and enforce the Company's rights in the Inventions (including
transfer of possession to the Company of all Inventions embodied in
tangible materials), and hereby appoints the Company its attorney to
execute and deliver any such
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documents on its behalf in the event the Consultant fails or refuses after
reasonable advance request to do so.
5.5 THIRD PARTY CLAIMS. Unless covered by an appropriate agreement between
any third party and the Company, the Consultant shall not engage in any
activities or use any facilities in the course of providing Services which
could result in claims of ownership to any Inventions being made by such
third party.
6. CONFIDENTIAL INFORMATION AND MATERIALS
6.1 "MATERIALS" means all tangible materials, computer data software and
other electronics media furnished to the Consultant by the company in
connection with performance of the Services, as well as any other materials
derived from such materials.
6.2 "CONFIDENTIAL INFORMATION" means any information relating to the
scientific or business affairs of the Company that is treated by the
Company as confidential or proprietary. Confidential Information is
contained in various media, including records of research data and
observations, records of clinical trials, patent applications, computer
programs, supply and customer lists, internal financial data and other
documents and records of the Company, whether or not labeled or identified
as "Confidential" or prepared in full or in part by the Consultant. Any
similar information obtained by or given to the Company about or belonging
to its suppliers, licensors, licensees, partners, affiliates, customers,
potential customers or others is referred to herein as "Third Party
Confidential Information" and is subject to the exclusions comparable to
those set forth in the next paragraph.
6.3 CONSULTANT ACKNOWLEDGMENT. During the course of performing the
Services, Consultant may become aware of or have access to Confidential
Information and/or Materials. Consultant acknowledges the Company is and
shall at all times remain the sole owner of the Confidential Information
and Materials.
6.4 NONDISCLOSURE AND NONUSE OF CONFIDENTIAL INFORMATION AND MATERIALS.
Unless requested by the Company, Consultant shall not directly publish,
disseminate or otherwise disclose or cause to be disclosed, deliver or make
available to any third party any Confidential Information, Materials or
Third Party Confidential Information, other than in furtherance of the
purposes of this Agreement, and only then with the prior written consent of
the Company; nor will the Consultant use such Confidential Information,
Materials or Third Party Confidential Information for the Consultant's own
benefit or for the benefit of any other third party. The provisions hereof
shall not apply to communication between the Consultant and his attorneys
and/or his accountants, provided they are advised of the restrictions
hereunder pertaining to the Confidential Information.
6.5 PUBLICATIONS. Consultant agrees to submit to the Company a copy of any
proposed manuscript or other materials to be published or otherwise
publicly disclosed which contains information relating to the Field or any
other area in which Consultant has
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actually performed Services for the Company in sufficient time to enable
the Company to determine if patentable Inventions or Confidential
Information of the Company would be disclosed. Consultant shall cooperate
with the Company in this respect and shall delete from the manuscript or
other disclosure any Confidential Information if requested by the Company.
The Company's approval of such manuscript or other materials shall not be
unreasonably withheld or delayed.
6.6 USE AND RETURN OF THE CONFIDENTIAL INFORMATION AND MATERIAL. The
Consultant shall exercise commercially reasonable precautions to protect
the integrity and confidentiality of the Confidential Information,
Materials and Third Party Confidential Information. The Consultant
acknowledges that the use of Materials is at the sole risk of the
Consultant, and agrees to use the Materials in accordance and compliance
with any and all appropriate guidelines or regulations established by any
governmental authority. The Consultant will not remove any Confidential
Information or copies thereof or physical samples of Materials from the
Company's premises except to the extent necessary to perform the Services,
and then only with the prior consent of the Company, such consent not to be
unreasonably withheld or delayed. Upon termination of this Agreement, and
in any case upon the Company's request, the Consultant shall return
immediately to the Company all copies and other tangible manifestations of
Confidential Information and all Materials then in the Consultant's
possession or control. The Consultant shall return any Third Party
Confidential Information upon request of the third party or the Company.
7. TERMINATION
7.1 EARLY TERMINATION. Either party may terminate this Agreement at any
time without cause by giving the other party thirty (30) days' written
notice. In the event of any material breach of this Agreement, which is not
cured within ten (10) days after written notice from the non-breaching
party, the non-breaching party may terminate this Agreement by giving
written notice to the breaching party.
7.2 EFFECT OF TERMINATION. Upon termination of this Agreement, neither the
Consultant nor the Company shall have any further obligations under this
Agreement, except that any liabilities accrued through the date of
termination (including under Section 3) and Sections 5, 6 and 7.2 shall
survive termination, provided that Consultant's obligations under Section
6.5 shall survive for only 3 months following termination.
8. MISCELLANEOUS
8.1 STATUS. The Company and the Consultant agree that the Consultant will
be an independent contractor for all purposes, including but not limited to
payroll and tax purposes. Accordingly, the Consultant shall have sole and
exclusive responsibility for the payment of all federal, state and local
income taxes and for all employment and disability insurance, social
security and other similar taxes with respect to any compensation provided
by the Company hereunder.
8.2 PUBLICITY. During the term, and for the period of up to one year after
any termination of this Agreement other than by the Consultant for cause,
Consultant consents to the use
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by the Company of his name and likeness in written materials or oral
presentations to current or prospective customers, investors or others,
provided that such materials or presentations accurately describe the
nature of Consultant's relationship with or contribution to the Company,
and further provided that the Company shall have provided Consultant a
reasonable prior opportunity to review and comment thereon.
8.3 NOTICE. All notices hereunder shall be in writing and shall be given to
the other at the address or facsimile number set forth below, or at such
other address or facsimile number as either may specify in writing to the
other. All notices shall be effective when deposited in the United States
mail with proper postage for first class registered or certified mail,
return receipt requested, or when delivered personally or dispatched by
facsimile, (if set forth below) addressed:
If to the Company: Cell Science Therapeutics, Inc.
00 Xxxxxxxx Xxxx
Xxxxxx, XX 00000
Telephone Number: (000) 000-0000
Facsimile Number: (000) 000-0000
If to the Consultant: Research Institute
Hospital for Sick Children
Xxxxxxx, Xxxxxxx X0X 0X0
Xxxxxx
Telephone Number: 000 000 0000
Facsimile Number: 000 000 0000
8.4 ASSIGNMENT. This Agreement, and the rights and obligations hereunder,
may not be assigned or transferred by either party without the prior
written consent of the other party, except that the Company may assign its
rights under this Agreement in connection with the merger, consolidation or
sales of all or substantially all assets of the Company and the Company may
assign its rights under this Agreement to a controlled subsidiary of the
Company.
8.5 ENTIRE AGREEMENT. This Agreement, constitutes the entire agreement of
the parties with regard to the subject matter hereof, and supersedes all
previous written or oral representations, agreements and understandings
between the Company and the Consultant. This Agreement may be amended or
extended or by a writing signed by both parties.
8.6 APPLICABLE LAW. This Agreement shall be governed by, and construed in
accordance with, the law of The Commonwealth of Massachusetts without
regard to any choice of law principle that would dictate the application of
the law of another jurisdiction.
8.7 CONSENT TO JURISDICTION. The parties to this Agreement hereby
irrevocably consent and submit to the exclusive jurisdiction of any
Commonwealth of Massachusetts or Federal court sitting in Boston in any
action or proceeding of any type whatsoever arising out of or relating to
this Agreement.
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8.8 UNITED STATES GOVERNMENT OR OTHER OBLIGATIONS. The Consultant
acknowledges that the Company from time to time may have agreements with
other persons or with the United States government, or agencies thereof,
which impose obligations or restrictions on the Company regarding
inventions made during the course of work under such agreements or
regarding the confidential nature of such work. The Consultant agrees to be
bound by all such obligations and restrictions and to take all actions
reasonably necessary to discharge the obligations of the Company under such
Agreement, at no cost to consultant and provided (a) Consultant is
compensated in accordance with the terms of this Agreement with respect to
any such actions, and (b) his rights hereunder are not deemed to be
modified or waived without his prior approval under the terms of any such
agreement between the Company and the government.
8.9 EMPLOYMENT. The Consultant understands that this Agreement does not
constitute a contract of employment as a consultant and does not imply that
the Consultant's employment will continue for any period of time except as
explicitly set forth herein.
8.10 ENFORCEMENT. The Consultant acknowledges that the restrictions set
forth in this Agreement are necessary for the protection of the business
and goodwill of the Company and the Consultant considers them to be
reasonable for such purposes. The Consultant agrees that any breach of this
Agreement by the Consultant may cause the Company substantial and
irrevocable damage and therefore in the event of such breach, in addition
to such other remedies as may be available, the Consultant agrees that the
Company shall have the right to seek specific performance and injunctive
relief against the Consultant with respect to any such breach. The
invalidity or unenforceability of any provision of this Agreement shall not
affect the validity or enforceability of any other provision of this
Agreement.
8.11 CONFLICT. The terms and conditions of employment/appointment at The
Hospital for Sick Children and the provisions of any agreement between The
Hospital for Sick Children and external sponsors of projects on which the
consultant works as part of his/her hospital duties shall prevail in the
event of any conflict with the provisions of this agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first written above.
CELL SCIENCE THERAPEUTICS, INC.
By: /s/ Xxxxxxx Xxxxxxxxxx
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Its: Chief Scientific Officer
CONSULTANT
/s/ Xxxxxxxx Xxxxxxxx
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EXHIBIT A
Other Consulting Arrangements to which Consultant is a Party
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