CONSULTANCY AGREEMENT
CONSULTANCY AGREEMENT (the "Agreement") dated as of July 31, 1996 (the
"Effective Date") by and between Atlantic Pharmaceuticals, Inc., a Delaware
corporation (the "Company"), and Xx. Xxxxxx Xxxxx, M.D., Ph.D. ("Consultant").
WHEREAS the Company desires that it be able to call upon the experience and
knowledge of Consultant for consultation services and advice;
WHEREAS Consultant is willing to render such services to the Company on the
terms and conditions hereinafter set forth in this Agreement;
NOW, THEREFORE, in consideration of the promises and mutual covenants
contained herein and for other good and valuable consideration, the parties
agree as follows:
1. Term of Agreement. Commencing on the Effective Date (as defined
above), Consultant shall be retained by the Company for a period of three years,
which shall be renewable upon agreement of the parties for additional one year
periods. The initial period and any extensions or renewals thereof shall
constitute the "Consulting Term."
2. Position and Responsibilities. Consultant hereby agrees to serve as a
consultant to the Company and to render such advice and services to the Company
as may be reasonably required by the Company including, without limitation,
advising the Company with respect to the direction of the Company's research and
product development and business development activities. During the Consulting
Term, Consultant shall report directly to the President and/or Chief Executive
Officer of the Company.
3. Compensation. The Company shall pay Consultant at a rate of $2,500 per
month payable on the last day of each calendar month.
4. Expenses. Consultant shall be reimbursed in accordance with the
policies of the Company for necessary and reasonable business expenses incurred
by Consultant in connection with performance of his duties hereunder.
5. Termination. This Agreement and Consultant's retention hereunder may
be terminated prior to the end of the Consulting Term for any reason upon thirty
days' written notice by either party.
6. Confidentiality. Consultant recognizes and acknowledges that in the
course of his duties Consultant may receive confidential or proprietary
information owned by the Company, or other third parties with whom the Company
has an obligation of confidentiality. Therefore, during and after the Consulting
Term, Consultant agrees to
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keep confidential and not disclose or use (except in connection with the
fulfillment of his consulting duties to the Company under this Agreement) all
confidential or proprietary information owned by, or received by or on behalf of
the Company. "Confidential Information" shall include, but shall not be limited
to, confidential or proprietary scientific or technical information or data,
business plans, trade secrets, or other confidential information relating to
customers, development programs, costs, marketing, trading, investment, sales
activities, promotion, credit and financial data, manufacturing processes,
financing methods, plans or the business and affairs of the Company generally,
or of any subsidiary or affiliate of the Company. "Confidential Information"
shall not include, however, information in the public domain, information
disclosed to Consultant by a third party entitled to disclose it without any
obligation of confidentiality, or information already known to Consultant prior
to its receipt.
7. Non-Solicitation. During the term of this Agreement and for a period
of one year thereafter, Consultant shall not directly or indirectly employ,
solicit for employment, or advise or recommend to any other person that they
employ or solicit for employment, any person whom he knows to be an employee of
the Company or any parent, subsidiary or affiliate of the Company.
8. Ownership of Inventions. In consideration for the compensation paid to
the Consultant by the Company in paragraph 3 of this Agreement, Consultant
hereby assigns to the Company all his right, title and interest in all
inventions and intellectual property that arise from his consulting activities
for the Company hereunder, and agrees to cooperate fully in the prosecution of
any patent application resulting from any such invention, at the expense of the
Company, which cooperation shall include executing any necessary documents in
connection therewith.
9. Specific Performance. Consultant acknowledges and agrees that the
Company's remedies at law for a breach or threatened breach of any of the
provisions of paragraphs 6 through 8 would be inadequate and, in recognition of
this fact, Consultant agrees that, in the event of such a breach or threatened
breach, in addition to any remedies at law, the Company, without posting any
bond, shall be entitled to obtain equitable relief in the form of specific
performance, temporary restraining order, temporary or permanent injunction or
any other equitable remedy which may then be available.
10. Representation of Consultant; Use of Name. Consultant hereby
represents that his current principal place of employment has received
disclosure as to Consultant's acting as a Chairman of the Scientific Advisory
Board of the Company and of the duties required of Consultant under this
Agreement, and that such employer consents fully to Consultant's execution of
this Agreement and the position that he will hold. Consultant further represents
that there are no binding agreements to which he is a party or by which he is
bound forbidding or restricting his activities herein. In addition, Consultant
and his current employer consent to the use of their names in various reports,
brochures or other documents produced by or on behalf of the Company, including
any and all documents filed with the Securities and Exchange Commission.
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11. Consultant Not an Employee. The Company and Consultant hereby
acknowledge and agree that Consultant shall perform the services hereunder as an
independent contractor and not as an employee of the Company. Consultant agrees
that he will file his own tax returns on the basis of his status as an
independent contractor for the reporting of all income, social security,
employment and other taxes due and owing on the consideration received by him
under this Agreement and that he is responsible for the payment of such taxes.
Similarly, Consultant shall not be entitled to benefits specifically associated
with employment status, such as medical, dental and life insurance, stock or
stock options of the Company and shall not be entitled to participate in any
other employer benefit programs. As an independent contractor, Consultant
acknowledges, understands and agrees that he is not, and shall not represent
himself to third parties as being, the agent or representative of the Company
nor does he have, and shall not represent himself to third parties as having,
power or authority to do or take any action for or on behalf of the Company, as
its agent, representative or otherwise, except as specifically herein set forth.
Consultant agrees to defend, indemnify and hold Company harmless from any and
all claims made by any entity on account of an alleged failure by Consultant to
satisfy any tax or withholding obligations.
12. Miscellaneous.
(a) Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of California, without regard to
principles of conflicts of laws.
(b) Entire Agreement; Amendment. This Agreement contains the entire
understanding of the parties with respect to the retention of Consultant by the
Company. There are no restrictions, agreements, promises, warranties, covenants
or undertakings between the parties with respect to the subject matter herein
other than those expressly set forth herein. This Agreement may not be altered,
modified, or amended except by written instrument signed by the parties hereto.
(c) No Waiver. The failure of a party to insist upon strict adherence
to any term of this Agreement on any occasion shall not be considered a waiver
of such party's rights or deprive such party of the right thereafter to insist
upon strict adherence to that term or any other term of this Agreement.
(d) Severability. In the event that any one or more of the provisions
of this Agreement shall be or become invalid, illegal or unenforceable in any
respect, the validity, legality and enforceability of the remaining provisions
of this Agreement shall not be affected thereby.
(e) Successors; Binding Agreement. This Agreement shall inure to the
benefit of and be binding upon the parties hereto and their respective heirs,
representatives, successors and assigns.
(f) Counterparts; Effectiveness. This Agreement may be signed
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in counterparts, each of which shall be an original, with the same effect as if
the signatures thereto and hereto were upon the same instrument. This Agreement
shall become effective when each party hereto shall have received a counterpart
hereof signed by the other party hereto.
13. Entire Agreement. This Agreement constitutes the entire understanding
between the parties.
IN WITNESS THEREOF, the undersigned have duly executed this Agreement as of
the date first written below:
ATLANTIC PHARMACEUTICALS, INC.
July __, 1996 _______________________________
X.X. Xxxxxxxx
President and Chief Executive Officer
"CONSULTANT"
July __, 1996
________________________________
Xxxxxx Xxxxx, M.D., Ph.D.
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