Exhibit 10.26
CONSULTING AGREEMENT
This Agreement dated this 18th day of August 2000, is executed by and
between Advanced Pharma, Inc., a Delaware corporation ("COMPANY"), located at
00000 Xxxxx Xxxxx Xxxx, Xxxxx 000, Xxxxxxxxx, Xxxxxxxx 00000 and Jenefir
Isbister, Ph.D., ("CONSULTANT"), located at Xxxxxx Xxxxx University, Center for
Bioresource Development. Shared Research Instrumentation Facility, MS 4D7,
Xxxxxxx, Xxxxxxxx 00000-0000.
WHEREAS, Company seeks to engage Consultant to accomplish the
objectives described on Exhibit A hereto;
WHEREAS, Consultant possesses the requisite skills, training and
experience to perform the services called for under this Agreement, and wishes
to perform the services based on the terms and conditions herein; and
WHEREAS, based on the nature of the relationship that the parties intend
to establish, Company hereby engages Consultant as an independent Consultant.
NOW, THEREFORE, in consideration of the mutual promises and covenants of
the parties as herein contained, the parties hereto agree and contract as
follows:
1) Company hereby engages Consultant to accomplish the objectives described
in Exhibit A hereto, which can be amended from time to time in accordance
with Paragraph 16 hereof. Consultant shall perform such objectives in a
thorough, efficient, and workmanlike manner, promptly and with due
diligence and care, and in accordance with that standard of care and skill
ordinarily exercised by members of the profession performing similar
services. In addition, Consultant shall comply with all applicable
federal, state and local statutes, ordinances and regulations in the
course of performing such objectives.
2) The original term of this Agreement shall be the 12 month period
commencing on the 18th day of August 2000. This Agreement may be renewed
for additional 12 month periods by mutual agreement of the parties hereto.
3) Company enters in this Agreement based on Consultant's demonstrated
ability to accomplish the objectives described in Exhibit A hereto.
Consequently, Company will not provide Consultant with any training or
instructions with respect to the services to be provided hereunder.
Similarly, Consultant is responsible for providing any equipment,
materials or supplies that Consultant determines is necessary to
accomplish the objectives.
4) Consistent with the parties' intent that the relationship created by this
Agreement be that of service recipient and independent Consultant,
Consultant shall retain the exclusive right to control and direct all
details of the services that Consultant performs hereunder, including
where, when and how the services are to be performed. Consultant's failure
to accomplish an objective described on Exhibit A by the applicable
deadline, however, shall constitute a material breach of this Agreement,
unless Company agrees, in accordance with Paragraph 16 hereof, to an
extended deadline.
Consulting Agreement
between Advanced Pharma, Inc. and Jenefir Isbister, Ph.D.
dated August 18, 2000
Page 2 of 7
5) Consultant (and its employees, if any) shall not be eligible to
participate in any benefit programs that Company now or hereafter
maintains for its employees and, in the event Consultant (and its
employees, if any) for any reason were to become eligible to participate
in a Company-sponsored benefit program, Consultant hereby waives any such
right to participate in the program. This waiver of any right to
participate in Company-sponsored employee benefit programs represents a
material component of the terms of compensation agreed to by these parties
and is not in any way conditioned on any representation or assumption
concerning status of Consultant (and its employees, if any) with respect
to the Company as an employee or independent Consultant.
6) For all purposes, including but not limited to the Federal Insurance
Contributions Act ("FICA"), the Social Security Act, the Federal
Unemployment Tax Act ("FUTA"), income tax withholding and any and all
other federal, state and local laws, rules and regulations, Consultant
(and its employees, if any) shall be treated as an independent Consultant
and not as an employee with respect to Company.
7) Consultant acknowledges and agrees that Consultant shall be responsible
(as a self-employed individual) for filing all tax returns, tax
declarations and tax schedules, and for the payment of all taxes required,
when due, with respect to any and all compensation earned by Consultant
under this Agreement. Company will neither pay nor withhold any employment
taxes with respect to the compensation it pays Consultant. Rather, Company
will report the amounts it pays Consultant on IRS Forms 1099, to the
extent required to do so under applicable Internal Revenue Code
provisions.
8) Consultant's fees for services provided under this Agreement shall be
$1,500.00 per day, unless otherwise specified in Exhibit A hereto. Company
shall have no obligation to pay a fee prior to receipt of an invoice from
Consultant requesting payment of the same. Company will not reimburse
Consultant for any expenses incurred in connection with the performance of
services hereunder unless otherwise agreed by Company in accordance with
Paragraph 16 hereof.
9) Consultant shall have the right to engage others to assist in the
accomplishment of the objectives described in Exhibit A hereto. Consultant
shall be solely responsible for (a) complying with all applicable
employment and labor laws with respect to any assistants it engages, (b)
paying all compensation owed to such assistants, and (b) paying, and/or
withholding and remitting to the appropriate government agency, any
applicable employment taxes that might be owed with respect to such
compensation. Consultant also shall indemnify and hold Company harmless
against any and all liabilities attributable to the obligations imposed on
Consultant under this Paragraph 9. This Paragraph 9 shall survive the
termination of this Agreement.
10) Consultant reserves the right to, and intends to, perform services for
others, so long as the performance of such services does not interfere
with the performance of services hereunder.
11) Consultant acknowledges and agrees that in the course of the performance
of services pursuant to this Agreement, Consultant will be given access
to, or come into possession of,
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Consulting Agreement
between Advanced Pharma, Inc. and Jenefir Isbister, Ph.D.
dated August 18, 2000
Page 3 of 7
confidential information of the Company, which information includes trade
secrets, proprietary data or other confidential information. Consultant
acknowledges and agrees that he will not use, duplicate or divulge to
others any such confidential information of the Company except in
connection with the performance of services under this Agreement.
Consultant agrees and covenants that Consultant shall not remove or copy
any data, research, memoranda, reports, records, documents, publications,
journals, diaries, computer programs, files, information contained in
files, or other information or material pertaining to the business,
research, or technology of Company without the express written consent of
Company, which in all events shall be considered to be the owner and
possessor of all such data, research, memoranda, reports, records,
documents, publications, journals, diaries, computer programs, files,
information contained in files, or other information or material.
Consultant covenants and agrees that Consultant shall in no way utilize
any such information in Consultant's possession for the gain or advantage
of Consultant (other than in Consultant's performances of services
hereunder) and/or to the detriment of Company. Upon a termination of this
Agreement, or at such earlier date as Company may request, Consultant
shall deliver forthwith to Company all such data, research, memoranda,
reports, records, documents, publications, journals, diaries, computer
programs, files, information contained in files, or other information or
material (including all extracts, abstracts, copies, or portions thereof)
which are then in Consultant's possession or control. The obligations of
this Paragraph 11 shall survive the termination of this Agreement.
12) (a) Consultant acknowledges and agrees that, as part of his engagement
with the Company, he is expected to make new contributions of value to the
Company and agrees to promptly disclose to the Company any and all ideas,
discoveries, works of authorship, writings, computer software programs,
know-how, processes, formulas, improvements or revisions (collectively,
"Works"), whether subject to copyright, patent, registration or other
protection as intellectual property or not, which he may make, devise,
conceive, create, design, invent, develop or discover, either solely or
jointly with another or others, during his engagement by the Company,
whether at the request or upon the suggestion of the Company or otherwise,
which (i) stem from his work for the Company; (ii) were created using
Company facilities, equipment, or resources, Company personnel, or during
any time he is performing services for the Company; (iii) come about as a
result of Consultant's access to confidential, proprietary, or trade
secret information belonging to the Company; or (iv) relate to, or are
capable of use in connection with any business of the Company, or any
services, programs or products offered, used, sold or being developed by
the Company at the time he creates or develops such Works, of which
Consultant became aware through his consulting relationship with the
Company or otherwise through Consultant's provision of services hereunder.
Any and all of the foregoing shall belong exclusively to the Company and,
to the extent it is copyrightable material, shall be deemed to be "Works
Made for Hire," and the Company shall be deemed the author or creator
thereof.
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Consulting Agreement
between Advanced Pharma, Inc. and Jenefir Isbister, Ph.D.
dated August 18, 2000
Page 4 of 7
(b) Consultant shall assign to the Company, and hereby does so assign, all
Works disclosed, or required to be disclosed, in accordance with this
Section and assigns the right to obtain patents or copyright registrations
on any and all such Works in any or all countries in his name or
otherwise.
13) Upon the request of Company, whether or not made during the period of his
engagement with Company, Consultant shall assist Company in any way
necessary, including, but not limited to executing documents, to
accomplish the following, in any or all countries, with respect to any and
all Works disclosed, or required to be disclosed, in accordance with
Paragraph 12: (a) to perfect in Company all right, title and interest in
and to the Work; (b) to file for and/or obtain a patent or patents,
copyright registration or copyright registrations, trademark, trade name,
domain name or similar registration, or other means established for the
protection of intellectual property on the Work, in the United States or
any other country; and (c) to protect and enforce Company's rights in the
Work. The provisions of Paragraphs 11, 12 and 13 shall survive the
termination of this Agreement.
14) Neither party hereto may terminate this Agreement unless the party first
provides the other party with 30 days advance written notice. In the case
of a material breach of this Agreement by one party, however, the other
party shall have the right to terminate this Agreement immediately by
providing the breaching party with a notice of termination. The
termination shall be effective at the time the notice is received by the
breaching party.
15) This Agreement shall be governed by and construed and enforced in
accordance with the laws of the State of Delaware. Any and all disputes
arising out of, relating to the performance of services contracted for
under, this Agreement, shall be settled by arbitration in accordance with
the Commercial Arbitration Rules of the American Arbitration Association,
or any successor thereto then prevailing. Such arbitration shall be final
and binding upon the parties, and shall be the sole and exclusive remedy
of the parties with respect to any dispute arising out of, relating to, or
resulting from the interpretation of the terms of this Agreement, or any
breach thereof. The costs of such arbitration shall be borne equally by
the parties. Notwithstanding the foregoing provisions of this Paragraph 15
to the contrary, matters in which an equitable remedy or injunctive relief
is sought by a party, shall not be required to be submitted to
arbitration, if the party seeking such remedy or relief objects thereto,
but instead shall be submitted to a court of law having appropriate
jurisdiction. This Paragraph 15 shall survive the termination of this
Agreement.
16) This Agreement shall constitute the entire written agreement between the
parties, and shall supersede any and all agreements or understandings in
effect between the parties hereto. Neither this Agreement nor Exhibit A
hereto may be modified except by written agreement executed by the parties
hereto.
17) Each provision of this Agreement shall be treated as a separate and
independent clause, and the unenforceability of any one clause shall in no
way impair the enforceability of any of the other clauses herein.
Moreover, if one or more of the provisions contained in this Agreement
shall for any reason be held to be excessively broad as to scope,
activity, subject or otherwise
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Consulting Agreement
between Advanced Pharma, Inc. and Jenefir Isbister, Ph.D.
dated August 18, 2000
Page 5 of 7
so as to be unenforceable at law, such provision or provisions shall be
construed by the appropriate judicial body by limiting or reducing such
provision or provisions, so as to be enforceable to the maximum extent
comparable with the applicable law as such law shall then be.
18) No breach of any provision hereof can be waived unless in writing. Waiver
of any breach of any provision hereof shall not be deemed to be a waiver
of any other breach of the same, or any other provision.
19) Any notice required or permitted under this Agreement shall be in writing
and shall be deemed given upon the earlier of (a) when it is personally
delivered, (b) three (3) days after having been mailed by certified mail,
postage prepaid, return receipt requested or (c) two (2) days after having
been sent by recognized overnight delivery service, in all cases sent to
the address first set forth above, or to such other address as the person
to whom notice is to be given may have previously furnished to the other
in writing in the manner set forth herein.
[signatures on following page]
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Consulting Agreement
between Advanced Pharma, Inc. and Jenefir Isbister, Ph.D.
dated August 18, 2000
Page 6 of 7
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
day and year first above written.
ADVANCED PHARMA, INC. CONSULTANT
By: /s/ Xxxxxx X. Xxxxxx /s/ Jenefir Isbister
------------------------------------ --------------------------------
Xxxxxx X. Xxxxxx, Ph.D., Name: Jenefir Isbister, Ph.D.
President and Chief Executive Officer Xxxxxx Xxxxx University
TIN:
----------------------------
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Consulting Agreement
between Advanced Pharma, Inc. and Jenefir Isbister, Ph.D.
dated August 18, 2000
Page 7 of 7
EXHIBIT A
Description of Services to be Performed by Consultant
Under an Independent-Consultant Agreement Entered into by the Parties
Dated: August 18, 2000
Objective Fee (if applicable)
--------- -------------------
Work with Advanced Pharma to $1,500 per day
identify and develop genomic and
genetic strategies and/or insight into
pulsatile antibiotic delivery.
IN WITNESS WHEREOF, the parties hereto have executed this Attachment A to
that certain Agreement entered into by these parties dated August 18, 2000.
ADVANCED PHARMA, INC. CONSULTANT
By: /s/ Xxxxxx X. Xxxxxx /s/ Jenefir Isbister
------------------------ -------------------------------
Xxxxxx X. Xxxxxx, Ph.D., Name: Jenefir Isbister, Ph.D.
President and Chief Executive Officer Xxxxxx Xxxxx University
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August 20, 2001
Jenefir Isbister, Ph.X.
Xxxxxx Xxxxx University
Center for Bioresource Development
Shared Research Instrumentation Facility
MS 4D7
Xxxxxxx, Xxxxxxxx 00000
Dear Xx. Xxxxxxxx:
Subject to the following, this letter hereby confirms our understanding that the
Consulting Agreement (the "Original Agreement") by and between you and Advancis
Pharmaceutical Corporation, formerly known as Advanced Pharma, Inc., dated
August 18, 2000, is hereby extended for an additional 12-month period, effective
beginning August 18, 2001.
The Original Agreement, as extended and amended by this letter, contains the
entire understanding of the parties with respect to the subject matter thereof
and hereof and supersedes all prior oral and written agreements and
understandings between the parties with respect to the subject matter.
Please indicate your agreement with the foregoing by signing a copy of this
letter and returning it to my attention. This letter may be signed in
counterparts, and all capitalized terms used in this side letter but not
otherwise defined herein shall have the meanings set forth in the Original
Agreement.
Very truly yours,
ADVANCIS PHARMACEUTICAL CORPORATION
formerly Advanced Pharma, Inc.
By: /s/ Xxxxxx X. Xxxxxx
______________________________
Xxxxxx X. Xxxxxx, Ph.D.
President & CEO
ACKNOWLEDGED AND AGREED:
Jenefir Isbister, Ph.D.
By: /s/ Jenefir Isbister Date: 8/21/01
______________________________________ ____________________
January 28, 2002
Jenefir Isbister, Ph.X.
Xxxxxx Xxxxx University
Center for Bioresource Development
Shared Research Instrumentation Facility
MS 4D7
Xxxxxxx, Xxxxxxxx 00000
Dear Xx. Xxxxxxxx:
Subject to the following, this letter hereby confirms our understanding that the
Consulting Agreement (the "Original Agreement") by and between you and Advancis
Pharmaceutical Corporation, formerly known as Advanced Pharma, Inc., dated
August 18, 2000, and extended January 1, 2001, is hereby extended for an
additional 12-month period, effective beginning January 1, 2002.
The Original Agreement, as extended and amended by this letter, contains the
entire understanding of the parties with respect to the subject matter thereof
and hereof and supersedes all prior oral and written agreements and
understandings between the parties with respect to the subject matter.
Please indicate your agreement with the foregoing by signing a copy of this
letter and returning it to my attention. This letter may be signed in
counterparts, and all capitalized terms used in this side letter but not
otherwise defined herein shall have the meanings set forth in the Original
Agreement.
Very truly yours,
ADVANCIS PHARMACEUTICAL CORPORATION
formerly Advanced Pharma, Inc.
By: /s/ Xxxxxx X. Xxxxxx
------------------------
Xxxxxx X. Xxxxxx, Ph.D.
President & CEO
ACKNOWLEDGED AND AGREED:
Jenefir Isbister, Ph.D.
By: /s/ Jenefir Isbister Date: 2/12/02
---------------------- ---------
December 1, 2002
Jenefir X. Xxxxxxxx, Ph.X.
Xxxxxx Xxxxx University
Center for Bioresearch Development
Shared Research Instrumentation Facility
MSN 4D7 Room 306
00000 Xxxxxxxxxx Xxxx
Xxxxxxxx, XX 00000-0000
Dear Jenefir:
Subject to the following, this letter hereby confirms our understanding that the
Consulting Agreement (the "Original Agreement") by and between you and Advancis
Pharmaceutical Corporation, formerly known as Advanced Pharma, Inc., dated
August 18, 2000, and extended January 1, 2001 and January 1, 2002, is hereby
extended for an additional 12-month period, effective beginning January 1, 2003.
The Original Agreement, as extended and amended by this letter, contains the
entire understanding of the parties with respect to the subject matter thereof
and hereof and supersedes all prior oral and written agreements and
understandings between the parties with respect to the subject matter.
Please indicate your agreement with the foregoing by signing a copy of this
letter and returning it to my attention. This letter may be signed in
counterparts, and all capitalized terms used in this side letter but not
otherwise defined herein shall have the meanings set forth in the Original
Agreement.
Very truly yours,
ADVANCIS PHARMACEUTICAL CORPORATION
formerly Advanced Pharma, Inc.
By: /s/ Xxxxxx X. Xxxxxx
-------------------------
Xxxxxx X. Xxxxxx, Ph.D.
President & CEO
ACKNOWLEDGED AND AGREED:
Jenefir X. Xxxxxxxx, Ph.D.
By: /s/ Jenefir Isbister Date: 12/3/02
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