CONSULTING AGREEMENT
This Consulting Agreement (the "Agreement") is made this 1st day of
October 1996 between Xxxxx X. Xxxx ("Consultant") and Meris
Laboratories, Inc. ("Client").
1. Consulting Services and Period.
1.1 Services. Client hereby retains Consultant and Consultant
agrees to render to Client from time to time and at Client's
written request legal services relating to Client's business
as specified in Exhibit A. Subject to the Termination
Provision of Paragraph 3, consultant agrees to serve as the
Client's General Counsel.
1.2 Consulting Period. Unless sooner terminated pursuant to
Section 3 below, this term of this Agreement shall be the
period set forth in Exhibit A (the "Consulting Period").
2. Compensation; Expenses.
2.1 Compensation. In consideration of the services to be rendered
hereunder, Client shall pay Consultant at the rate set forth
in Exhibit A for each hour of consulting services provided
during the Consulting Period.
2.2 Expenses. Client shall reimburse Consultant for reasonable
travel and other business expenses incurred by Consultant in
the performance of his duties hereunder, provided that Client
is notified in advance of Consultant's need to incur such
expenses and such expenses are approved by Client.
2.3 Payments. Payments shall be made upon receipt of
invoice. Consultant shall submit semi-monthly invoices
to Client.
3. Termination of Consulting Period.
This Agreement may be terminated by either party if the other party
shall breach any material term or provision of this Agreement and shall
fail or refuse, within thirty (30) days after receipt of written notice
from the non-breaching party regarding such breach, to take such action
as may be necessary to cure or remedy such breach.
4. Proprietary Information.
4.1 Defined. "Proprietary Information" is all proprietary and
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confidential information of Client which pertains to the
business or products of Client, or its customers, consultants
or business associates, which was or is obtained by Consultant
from Client. Notwithstanding the foregoing, Proprietary
Information shall not include: (i) information which is or
becomes publicly known through lawful means; (ii) information
that was rightfully in Consultant's possession or part of his
general knowledge, in either case other than as an employee of
Meris or as the result of such employment, prior to the
Consulting Period; (iii) information which is disclosed to
Consultant without confidential or proprietary restrictions by
a third party; or (iv) information which is independently
developed or discovered by Consultant.
4.2 Nondisclosure of Proprietary Information. Consultant
agrees to protect the confidentiality of the Proprietary
Information and not publish, disclose or otherwise make
the same available to any person without Client's prior
written consent.
4.3 Reports. All reports and other written information furnished
by Consultant hereunder shall be the property of Client and
Client shall have the unrestricted right to use the same as
Client determines appropriate without obligation to a third
person.
5. Stock Options.
As of the date hereof, Consultant holds options to purchase 45,746
shares of Client's common stock. It is the intent of the parties that
as a consequence of this Agreement such options shall continue to vest
under the Option Plan as if Consultant were an employee of Client
through the Consulting Period.
6. Adverse Interests.
During the term of this Agreement, Consultant shall not enter to any
agreement, or perform any work or services for another or participate
in any activities which may be adverse to the interests of Client. In
addition, during such period, Consultant agrees not to undertake or
participate in any activity which is directly or indirectly in
competition with Client or its business.
7. Assignment; Successors and Assigns.
Consultant shall not assign any of his obligations under this
Agreement, or subcontract any work to be performed hereunder, without
the prior written consent of Client. Subject to the foregoing, this
Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective heirs, legal representatives, successors
and permitted assigns, and shall not benefit any person or entity other
than the parties hereto.
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8. Notices.
All notices or other communications required or permitted hereunder
shall be made in writing and shall be deemed to have been duly given if
delivered by hand or mailed, postage prepaid, by certified or
registered mail, return receipt requested, and addressed to Client at
0000 Xxxxxx Xxxx, Xxx Xxxx, XX 00000 and Consultant at the address set
forth in Exhibit A. Notice of change of address shall be effective only
when done in accordance with this Section 8.
9. Entire Agreement.
The terms of this Agreement are intended by the parties to be in the
final expression of their agreement with respect to the matters set
forth herein and may not be contradicted by evidence of any prior or
contemporaneous agreement. The parties further intend that this
Agreement shall constitute the complete and exclusive statement of its
terms and that no extrinsic evidence whatsoever may be introduced in
any judicial, administrative, or other legal proceeding involving this
Agreement.
10. Amendments; Waivers.
This Agreement may not be modified or amended except by an instrument
in writing, signed by Consultant and Client. By an instrument in
writing similarly executed, either party may waive compliance by the
other party with any provision of this Agreement that such other party
was or is obligated to comply with or perform, provided, however, that
such waiver shall not operate as a waiver of, or estoppel with respect
to, any other or subsequent failure. No failure to exercise and no
delay in exercising any right, remedy, or power hereunder shall operate
as a waiver thereof, nor shall any single or partial exercise of any
right, remedy, or power hereunder preclude any other or further
exercise thereof or the exercise of any other right, remedy, or power
provided herein or by law or in equity.
11. Governing Law.
The validity, interpretation, enforceability, and performance of this
Agreement shall be governed by and construed in accordance with the
laws of the State of California as such laws are applied to contracts
entered into and to be performed therein by residents thereof.
12. Independent Contractor.
Consultant shall operate at all times as an independent contractor of
Client, and is in no way considered an employee of the Client.
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IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the date
first written above.
CONSULTANT MERIS LABORATORIES, INC.
/S/ Xxxxx X. Xxxx By: /s/ Xxxxxxx Xxxxxx, M.D.
........................... ..............................
Xxxxx X. Xxxx
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EXHIBIT A
1. Consulting Services to be Provided.
Consultant shall provide legal consulting services with respect to
Client's business, including legal services with respect to ongoing
litigation matters.
2. Term.
October 1, 1996 through September 30, 1997
3. Consulting Fee Rate.
$150 per hour.
4. Address of Consultant.
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 000, Xxx Xxxx, XX 00000
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