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EXHIBIT 10.17
CONSULTING AGREEMENT
This Consulting Agreement (this "Agreement") is entered into by and
between X X Financial Enterprises, Inc., a Delaware corporation ("Consultant")
and Intron Therapeutics, Inc., a Delaware corporation ("Intron").
1. Term of Agreement. This Agreement shall commence on the effective
date hereof (the "Commencement Date"), and continue thereafter until the earlier
of the third anniversary of the Commencement Date or until termination by Intron
upon thirty (30) days written notice. This Agreement shall be automatically
renewed for an additional one year term upon the third anniversary and each
subsequent anniversary hereof, unless either party gives notice of termination
before such anniversary.
2. Duties and Responsibilities. During the term hereof, Consultant will
provide assistance to Intron in licensing, business development, and financial
services. Consultant agrees to make available to Intron the services of its
employee Xxxxxxxx Xxxx to assist with business development, license negotiation,
market analysis, and general corporate development. Consultant agrees to make
Xx. Xxxx available to serve as vice president of Intron, or in such other
capacity as may be designated by Intron's board of directors. Consultant further
agrees to make its employee Xxx Xxxxx available to provide accounting and
financial services to Intron, and to serve as the Chief Financial officer of
Intron, or in such other capacity as may be designated by Intron's board of
directors. Consultant understands and recognizes that Intron is a newly formed
corporation which could not afford the full time services of professionals such
as Xx. Xxxx and Xx. Xxxxx without Consultant's agreement as herein provided.
3. Compensation. Consultant shall receive and Intron shall pay to
Consultant during the term of this Agreement a fee of $150,000 per calendar
year, paid quarterly. Upon mutual agreement between Consultant and Intron, such
compensation may be paid all or in part in Intron stock or stock options, at
such valuation as may be agreed by the parties. Failure of the Intron to pay any
installment when due shall not be deemed a waiver of such amount, which will
accrue and continue as a liability of Intron to Consultant. Consultant agrees
that Xx. Xxxx and Xx. Xxxxx will be employees of Consultant and not of Intron,
and Intron will not withhold federal income taxes, federal or state unemployment
taxes, social security taxes, or other amounts from Consultant's fees, and
Consultant shall be solely responsible for Consultant's tax obligations. In the
event this Agreement is terminated on a date other than an anniversary,
compensation shall be pro-rated based upon the time in which it is in effect
during the year.
4. Business Expenses. Consultant shall be reimbursed for reasonable and
necessary business expenses incurred in the performance of services hereunder.
Consultant shall keep accurate records and receipts reflecting, expenses so
incurred and shall furnish Intron with any and all supporting documentation of
such expenses at the request of Intron.
5. Non-Disclosure Agreement. Consultant hereby expressly acknowledges
that pursuant to the relationship established by this Agreement, Consultant may
obtain or be given access to certain information, documents and records of a
confidential or proprietary nature with respect to Intron and/or its business,
prospects, customers, agents, competitors and suppliers. Consultant further
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acknowledges that the unauthorized use or disclosure of any such information
both during and after the term of this Agreement could seriously damage and
interfere with Intron's business and business prospects. Accordingly, Consultant
hereby expressly covenants and agrees with Intron that it is in a fiduciary
relationship with Intron, and as such, shall treat all information, records and
confidences, including but not limited to prospect and customer lists, computer
software and programs, patents, patent applications, contracts and all other
written documents pertaining to any business of Intron, and any other agreements
between Intron and its employees, agents or contractors, all support data
related to or used in conjunction with the business of Intron, and any other
information which Intron has provided to or which Consultant may obtain or
generate in fulfilling its services under this Agreement as CONFIDENTIAL AND
PROPRIETARY in nature. Consultant further covenants and agrees not to copy,
reproduce, disclose or distribute any such materials or information at any time
without Intron's prior written consent, which consent may be withdrawn at any
time. Consultant further agrees that upon termination of this Agreement it will
not at any time disclose to any third party any of the information described
above. Consultant agrees that all of the aforementioned information and
materials are the exclusive property of Intron and Consultant agrees not use or
disclose such confidential information at any time either prior to or after
termination of this Agreement except as specifically provided for herein.
Consultant agrees that Intron shall be entitled to an injunction to restrain
Consultant from the commission of any of the acts prohibited by this paragraph;
provided, however, that nothing herein shall be construed as prohibiting Intron
from pursuing any other remedies available to it for breach or any threatened
breach by Consultant of the provisions of this paragraph and the fiduciary
relationship described herein. This covenant shall be effective immediately upon
execution hereof, and shall be applicable to all such documents and information
given or disclosed to Consultant prior to or after the date of execution hereof.
6. Employees Bound. Consultant will cause each of its employees who has
access to confidential information of Intron to execute a written agreement for
the benefit of Intron containing the confidentiality and non-competitive
provisions of Paragraphs 5 and 6 hereof.
7. Conflicts of Interest. Intron recognizes that Consultant is involved
in many for-profit activities and that Xx. Xxxx and Xx. Xxxxx have many business
responsibilities other than those undertaken herein. Consultant shall be free to
continue all of such activities, subject to Paragraphs 5 and 6 hereof.
8. Entire Agreement. This Agreement supersedes any and all other
agreements, either oral or written, between the parties hereto with respect to
the subject matter hereof and contains all of the covenants and agreements
between the parties hereto with respect to the subject matter hereof and
contains all of the covenants and agreements between the parties with respect
hereto.
9. Modification. No change or modification of this Agreement shall be
valid or binding upon the parties hereto, nor shall any waiver of any term or
condition in the future be so binding, unless such change or modification or
waiver shall be in writing and signed by the parties hereto.
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10. Governing Law. This Agreement and the rights and obligations of the
parties hereto, shall be governed by and construed in accordance with the laws
of the State of Texas and shall be performable in Xxxxxx County, Texas.
11. Counterparts. This Agreement may be executed in counterparts, each
of which shall constitute an original, but all of which shall constitute one and
the same document.
12. Costs. If any action at law or in equity is necessary to enforce or
interpret the terms of this Agreement, the prevailing party shall be entitled to
reasonable attorneys' fees, costs and necessary disbursements in addition to any
other relief to which he or it may be entitled.
13. Estate. If Consultant dies prior to the expiration of the term of
this Agreement, any moneys that may be due him from the Intron under this
Agreement as of the date of his death shall be paid to his estate.
14. Assignment. Intron shall have the right to assign this Agreement to
its successors or assigns, provided that all covenants and agreements contained
herein shall be enforceable against Intron's successors or assigns. The terms
"successors" and "assigns" shall include any person, corporation, partnership or
other entity that buys all or substantially all of Intron's assets or all of its
stock, or with which Intron merges or consolidates. The rights, duties and
benefits to Consultant hereunder are personal to Consultant, and no such right
or benefit may be assigned by Consultant.
15. Binding Effect. This Agreement shall be binding upon the parties
hereto, together with their respective executors, administrators, successors,
personal representatives, heirs and assigns.
16. Waiver of Breach. The waiver by Consultant of a breach of any
provision of this Agreement by Consultant shall not operate or be construed as a
waiver of any subsequent breach by Consultant.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement to
be effective as of July 1, 1994.
CORPORATION:
INTRON THERAPEUTICS, INC.
/s/ XXXXX XXXXX
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Xxxxx Xxxxx, President
CONSULTANT:
X X FINANCIAL ENTERPRISES
By: /s/ XXXX X. XXXXXX
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Its: President
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