STRATEGIC CONSULTING SERVICES AGREEMENT
Exhibit 10.2
THIS STRATEGIC CONSULTING SERVICES AGREEMENT (the “Agreement”) is entered into and effective
as of June 19, 2009 (the “Effective Date”) by and between Echo Therapeutics, Inc., a Delaware
corporation with a principal place of business at 00 Xxxxx Xxxxxxx, Xxxxxxxx, Xxxxxxxxxxxxx 00000
(“Echo”), and Xxxxx Xxxxx, an individual residing at 0000 Xxxxxxxxx Xxxxxx, Xxx Xxxxxx, Xxxxxxxxxx
00000 (“Consultant”).
RECITAL
This Agreement sets forth the understanding of the parties with respect to strategic
consulting services to be provided by Consultant to Echo.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants contained herein,
and other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
1. Description of Services. Consultant shall provide strategic business consulting services
and advice to Echo as requested by Echo’s President and Chief Executive Officer from time to time
(the “Services”).
2. Compensation. Consultant shall be paid the equivalent of fifty thousand dollars ($50,000)
per year for the Services, which compensation shall be paid in equal installments on the
1st and 15th calendar day of each month.
3. Expenses. Consultant shall be reimbursed for all reasonable expenses incurred in
connection with the performance of the Services..
4. Term. The initial term of this Agreement shall begin on the Effective Date and shall end
on June 30, 2010. The Agreement shall automatically renew for additional one (1) year terms.
Either party may terminate this Agreement at any time after expiration of the initial term upon
ninety (90) days prior written notice to the other party of its intent to terminate.
Notwithstanding the foregoing, Echo may terminate this Agreement at any time based on Consultant’s
material breach of this Agreement, if such breach is not cured within five (5) calendar days of a
notice of the breach.
5. Ownership of Work Product. Consultant acknowledges that all work products produced
hereunder shall be a work made for hire within the meaning of Title 17 of the United States Code
and shall be owned solely by Echo. To the extent that any such work product is deemed not to be a
work made for hire, Consultant hereby assigns all right, title, and interest in and to such work to
Echo including, but not limited to, any copyright(s), patent rights, inventions, and other
embodiments of any work product prepared by Consultant pursuant to this Agreement (collectively,
the “Intellectual Property”). Consultant agrees to maintain such records of his work relating to
Intellectual Property as shall be reasonably required by Echo and to deliver to Echo all
embodiments of the work product produced under this Agreement.
Consultant hereby waives all claims to moral rights in any Intellectual Property. During and
after the term of this Agreement, Consultant agrees to execute any and all assignments and other
instruments, documents, and papers, and to cooperate fully with Echo to the extent necessary or
desirable to enable Echo to assign, transfer, secure, maintain, defend and enforce rights in any of
the Intellectual Property. All rights granted to Echo by this Agreement shall be applicable in all
media including, without limitation, all electronic media.
6. Rights of Others. To the best of his knowledge, Consultant will not infringe upon or
misappropriate the intellectual property rights of, or breach an obligation of confidentiality to,
any third party while performing his obligations under this Agreement.
7. Confidential Information. Consultant shall hold in confidence and shall not, except in the
course of performing Consultant’s obligations under this Agreement or pursuant to written
authorization from Echo, (a) directly or indirectly reveal, report, publish, disclose or transfer
Confidential Information to any person or entity; (b) use any Confidential Information for any
purpose other than for the benefit of Echo; or (c) assist any person or entity other than Echo in
securing any benefit from Confidential Information.
For the purposes of this Agreement, “Confidential Information” includes, but is not limited to: (a)
information or material proprietary to Echo or designated as confidential either orally or in
writing by Echo; (b) information not generally known by non-Echo personnel (other than those
subject to confidentiality obligations); (c) information which Consultant should know Echo does not
wish to have revealed to others or used in competition with Echo; and (d) information that
Consultant made or makes, conceived or conceives, developed or develops or obtained or obtains
through or has access to as a result of Consultant’s relationship with Echo (including information
received, originated, discovered or developed in whole or in part by Consultant). Confidential
Information also includes any information which Echo obtains from a third party and treats as
proprietary or designates as Confidential Information, whether or not owned or developed by Echo.
Echo’s failure to xxxx any of the above information as proprietary, confidential, or secret shall
not affect its status as Confidential Information protected by this Agreement. Confidential
Information does not include information that: (a) is or becomes publicly available through no
fault of Consultant; (b) is generally employed by the drug development or medical device industry;
(c) is disclosed to Consultant by a third party entitled to disclose it; or (d) Consultant learned
in performing work elsewhere in the drug development or medical device industry, provided that such
information was not directly related to Echo.
8. Independent Contractor. Consultant shall perform services hereunder as an independent
contractor. Consultant shall have no authority to enter into any contract on behalf of Echo or
otherwise cause Echo to be liable under any contract or other agreement. Consultant shall not be
considered an employee, agent, or representative of Echo, nor shall Consultant be entitled to
participate in any Echo plans, arrangements or distributions pertaining to any benefits provided to
regular employees of Echo; provided, however, that Consultant shall abide by all applicable
provisions of Echo’s employee handbook.
9. Taxes. Consultant shall pay all applicable taxes on his compensation under this Agreement
including, but not limited to, income taxes, employment and unemployment taxes,
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Medicare and social security taxes. At Consultant’s request, Echo shall withhold and make
estimated payments of federal and state taxes on Consultant’s behalf in connection with
compensation paid to Consultant under this Agreement. Consultant agrees to file all required forms
and make all required payments (other than those made by Echo at Consultant’s direction)
appropriate to his tax status when and as they become due. Consultant shall indemnify Echo and its
officers, directors and employees from and against all payments, losses, costs, liability,
expenses, damages, fines, penalties or judgments (including, without limitation, attorneys fees and
expenses) incurred as a result of Consultant’s failure to (a) pay any taxes or fees related to
compensation received under this Agreement; (b) respond to any administrative inquiry concerning
the payment of such taxes and fees; or (c) defend against any administrative or judicial proceeding
with respect to the payment of such taxes.
10. Successors and Assigns. The rights and obligations of each party under this Agreement
shall inure to the benefit of and shall be binding upon the successors and assigns of such party.
Neither party hereto may assign any of its rights or obligations under this Agreement without the
prior written consent of the other party.
11. Waiver; Severability. The waiver by either party of a breach of any provision of this
Agreement by the other party shall not operate or be construed as a waiver of any subsequent breach
by such party. If any provision of this Agreement is held to be invalid, such provision shall not
be construed to impair any other provisions of this Agreement.
12. Governing Law. This Agreement shall be governed by the laws of Delaware, without regard
to its choice of law rules.
13. Entire Agreement; Amendment. This Agreement sets forth the entire understanding of the
parties with respect to its subject matter and supersedes all prior understandings between them.
The agreement may not be modified except by the written agreement of both parties.
In witness whereof, the parties hereto have executed this Strategic Consulting Services
Agreement as of the date set forth above.
By:
|
Xxxxxxx Xxxxxx | /s/ Xxxxx Xxxxx | ||||
| Title: Chief Executive Officer |
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