EXHIBIT 10(e)
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CONSULTING AGREEMENT BETWEEN THE COMPANY AND
XX. XXXXXXX X. XXXX, DATED AS OF JANUARY 1, 1996
CONSULTING AGREEMENT
CONSULTING AGREEMENT ("Agreement"), dated as of January 1, 1996, between
Virologix Corporation, a Delaware corporation having offices at 000 Xxxxx
Xxxxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000 and Xx. Xxxxxxx X. Xxxx, c/o The
Rockefeller University, 0000 Xxxx Xxxxxx, Xxx Xxxx, XX 00000 ("Consultant").
WHEREAS, the Company has entered into a License and Research Support
Agreement, dated as of February 27, 1996 ("the "License Agreement") with
Consultant's current employer The Rockefeller University ("Rockefeller")
covering certain technology relating to vaccines and therapeutics, and the
development of animal models for use in pharmaceutical discovery.
WHEREAS, in connection with the License Agreement and the Company's
support of scientific research to be engaged in by Rockefeller thereunder, the
Company desires to retain Consultant, and Consultant desires to be retained, as
a part-time Chief Scientific Advisor, all pursuant to the terms and conditions
hereinafter set forth.
NOW, THEREFORE, in consideration of the foregoing and the mutual promises
and covenants herein contained, it is agreed as follows:
1. Duties. The Company hereby retains the Consultant as its
part-time Chief Scientific Advisor, to assist in the administration of the
License Agreement and in the performance of scientific research thereunder in
research laboratories at Rockefeller (the "Consulting Services"), and the
Consultant hereby accepts such retention and shall perform for the Company the
duties described herein, faithfully and to the best of his ability. In this
regard, Consultant shall devote an average of 19% of his business time and
attention to matters on which the Company shall request his services, subject to
the direction of senior management of the Company.
2. Term. The Consultant's retention hereunder shall be for a term of
two (2) years (the "Initial Term") commencing as of the date hereof, and shall
be automatically renewed for up to three additional one (1) year periods (each
period a "Renewal Term"; together with the Initial Term, the "Consultancy
Period") unless either party notifies the other in writing of its intention not
to so renew this Agreement no less than 90 days prior to the expiration of the
Initial Term or any Renewal Term.
3. Place of Performance. In connection with rendering Consulting
Services to the Company, Consultant shall be based in New York, NY, where the
Company currently has its executive offices and where Rockefeller's research
laboratories currently are located. Consultant acknowledges that the Company may
require that from time to time Consultant travel on behalf of the Company in
connection with scientific conferences or meetings with potential strategic or
financial partners or advisors, or in connection with potential financing
transactions, and the Company shall give Consultant reasonable prior notice of
such requirements and an approximation of the number of days that Consultant's
services will be required.
4. Compensation and Expenses.
(a) In consideration for Consultant's performing the Consulting
Services for the Company, the Company shall pay to Consultant a consulting fee
of $75,000 per year, payable quarterly in advance.
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(b) In addition to its consulting fees, Consultant may also be paid
annual bonuses and other compensation, including stock options, as may be
determined by the Board of Directors of the Company.
(c) The Company will reimburse Consultant for actual out-of-pocket
expenses incurred in connection with the performance of the Consulting Services,
provided that Consultant submits receipts or other expense records to the
Company in accordance with the Company's general reimbursement policy then in
effect.
5. Employee Benefit Plans. Because Consultant is a consultant to and
not an employee of the Company, Consultant shall not be entitled to participate
in any employee benefit plans in effect for employees of the Company.
6. Successors and Assigns. This Agreement is binding upon and inures
to the benefit of the Company and its affiliates, successors and assigns and is
binding upon and inures to the benefit of Consultant and his successors and
assigns; provided that in no event shall Consultant's obligations to perform the
Consulting Services be delegated or transferred by Consultant without the prior
written consent of the Company.
7. Termination.
(a) This Agreement may only be terminated by the Company for Cause,
or upon Consultant's death or Disability.
(b) The Company shall have "Cause" to terminate this Agreement upon
(i) Consultant's conviction of, or plea of "no contest" to, any felony; or (ii)
any material breach by Consultant of any provision of this Agreement.
(c) "Disability" shall mean Consultant's incapacity due to physical
or mental illness that results in his being unable to substantially perform his
duties hereunder for six consecutive months (or for six months out of any nine
month period). The Company shall give Consultant written notice of termination
which shall take effect thirty (30) days after the date it is sent to Consultant
unless Consultant shall have returned to the performance of his duties hereunder
during such thirty (30) day period (whereupon such notice shall become void).
(d) In the event of a termination of this Agreement for Cause, or
Consultant's death or Disability, Consultant shall receive consulting fees only
to the Date of Termination. If the Company shall terminate Consultant other than
for Cause or his death or Disability, the Company shall be obligated to pay
Consultant the full amount of compensation due Consultant hereunder through the
completion of the Initial Term, or the Renewal Term, as the case may be, then in
effect at the time of termination.
8. Inventions, Patents and Technology. Consultant shall promptly and
fully disclose to the Company any and all inventions, methods, improvements,
discoveries, original works of authorship, trade secrets, or other intellectual
property conceived, developed or reduced to practice by Consultant or any of his
employees, consultants or research assistants, during the performance of the
Consulting Services hereunder or derived from Confidential Information, as
hereinafter defined, including without limitation, as relates to the Core
Technology, as defined in the License Agreement (collectively, "Work Product").
Consultant shall treat all Work Product as the Confidential Information of the
Company. Consultant agrees and does hereby assign to the Company and its
successors and assigns, without further consideration, his entire right, title
and interest in and to all Work Product developed during the performance of
Consulting Services hereunder or derived from any Confidential Information,
whether or not
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patentable or copyrightable, subject only to the provisions of the License
Agreement and Rockefeller's rights thereunder and any other existing written
agreement Consultant may have with Rockefeller. Consultant further agrees to
execute all applications for patents and/or copyrights, domestic or foreign,
assignments and other papers necessary to secure and enforce rights relating to
the Work Product. The parties acknowledge that all original works of authorship
that are made by Consultant within the scope of the Consulting Services and that
may be protected by copyrighted are "works made for hire," as that time is
defined in the United States Copyright Act (17 USC Section 101).
9. Covenants.
(a) Consultant hereby recognizes that the value of all trade secrets
and other proprietary data and all other information of the Company not in the
public domain ("Confidential Information") disclosed by the Company in the
course of performing Consulting Services with the Company is attributable
substantially to the fact that such Confidential Information is maintained by
the Company in the strict confidentiality and secrecy and would be unavailable
to others without the expenditure of substantial time, effort or money.
Consultant, therefore, covenants and agrees to keep strictly secret and
confidential the Confidential Information of the Company in accordance with the
following provisions of this Section 9(a), subject only to the provisions of the
License Agreement and Rockefeller's rights thereunder. Consultant covenants and
agrees to safeguard the Confidential Information of the Company disclosed to or
otherwise acquired by Consultant in the course of performing Consulting Services
and to prevent the disclosure or other dissemination thereof to any third party,
or the use thereof by any competitor. In implementation of the foregoing,
Consultant shall not disclose any of the Confidential Information of the Company
to any employee, consultant or research assistant except those for whom
disclosure is necessary for the effective performance of their responsibilities
as employees, consultants or research assistants and, in each case, only to the
extent required for such effective performance of responsibilities by employees,
consultants or research assistants to whom such disclosure is made pursuant to
this Section 9(a). The obligations undertaken by Consultant pursuant to this
Section 9(a) shall not apply to any Confidential Information which hereafter
shall become published or otherwise generally available to the public, except in
consequence of a willful or negligent act or admission by Consultant, or his
employees, consultants or research assistants, in contravention of the
obligations hereinabove set forth in this Section 9(a), and such obligations
shall, as so limited, survive expiration or termination of this Agreement.
(b) Consultant shall not, during or after the term of this
Agreement, make any statement or do any act which will disparage or injure the
goodwill or reputation of the Company.
(c) Consultant acknowledges and agrees that (i) the principal
business of the Company is development of the Core Technology, as defined in the
License Agreement; (ii) he is one of the limited number of persons who has
developed such business; (iii) the business of the Company is conducted
primarily throughout the United States but also internationally; (iv) his work
for the Company has included the identification and solicitation of present and
prospective strategic partners; (v) his work for the Company has provided him,
and his consulting services for the Company will continue to provide him, with
confidential information. To induce the Company to enter into this Agreement,
Consultant covenants and agrees that:
(i) From the date hereof and until the date that is two (2)
years from the expiration of the Consultancy Period (the "Restricted Period"),
Consultant shall not unless with written consent of the Company:
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(A) engage in the business of research and development of the Core
Technology, or, (I) during the Consultancy Period, engage in the
business of research and development of any other products or
processes in which the Company is engaged during the term of this
Agreement or in any other business presently being conducted or
which may from time to time be conducted by the Company, or, (II)
during the two year period after the end of the Consultancy Period,
engage in the business of research and development of any other
products or processes in which the Company had been engaged at the
end of the Consultancy Period or for the six (6) months prior
thereto or in any other business conducted by the Company at the end
of the Consultancy Period or for the six (6) months prior thereto
(collectively the "Prohibited Activity") in the United States or
elsewhere for his own account;
(B) directly or indirectly, enter the employ of, or render any
services to, any individual, corporation, partnership or other
business entity (a "Person") engaged in any Prohibited Activity in
the United States or elsewhere; or
(C) become interested in any Person engaged in any Prohibited
Activity in the United States, directly or indirectly, as an
individual, partner, shareholder, officer, director, principal,
agent, employee, trustee, consultant or in any other relationship or
capacity; provided, however, that Consultant may own directly or
indirectly, solely as an investment, securities of any Person which
are traded on any national securities exchange if Consultant (x) is
not a controlling person of, or a member of a group which controls,
such person or (y) does not, directly or indirectly, own 5% or more
of any class of securities of such person;
(ii) directly or indirectly hire, engage or retain any person
which at any time during the Restricted Period or for the two year period prior
thereto was a supplier, client or customer of the Company, or directly or
indirectly solicit, entice or induce any such person to become, a supplier,
client or customer of any other person engaged in any Prohibited Activity; or
(iii) directly or indirectly hire, employ or retain any person
who at any time was an employee of the Company or directly or indirectly
solicit, entice, induce or encourage any such person to become employed by any
other person.
(d) The restrictions of Section 9(c) shall continue to apply in the
event that the Consultant elects not to renew this Agreement in accordance with
the provisions of Section 2.
(e) Notwithstanding the foregoing, the restrictions of Section 9(c)
shall not apply in the event Consultant is terminated without Cause by the
Company or if the rights to the Core Technology revert back to The Rockefeller
University.
(f) Consultant hereby acknowledges that the covenants and agreements
contained in Sections 8 and 9 (the "Restrictive Covenants") are reasonable and
valid in all respects and that the Company is entering into this Agreement,
inter alia, on such acknowledgment. If Consultant breaches, or threatens to
commit a breach, of any of the Restrictive Covenants, the Company shall have the
following rights and remedies, each of which rights and remedies shall be
independent of the other and severally enforceable, and all of which rights and
remedies shall be in addition to, and not in lieu of, any other rights and
remedies available to the Company under law or in equity: (i) the right and
remedy to have the Restrictive Covenants specifically enforced by any court
having equity jurisdiction, it being acknowledged and agreed that any such
breach or threatened breach will cause irreparable injury to the Company and
that money damages will not provide an adequate remedy to the Company; (ii) the
right and remedy to require Consultant
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to account for and pay over to the Company all compensation, profits, monies,
accruals, increments or other benefits (collectively, "Benefits") derived or
received by Consultant as the result of any transactions constituting a breach
of any of the Restrictive Covenants, and Consultant shall account for and pay
over such Benefits to the Company; (iii) if any court determines that any of the
Restrictive Covenants, or any part thereof, is invalid or unenforceable, the
remainder of the Restrictive Covenants shall not thereby be affected and shall
be given full effect, without regard to the invalid portions; and (iv) if any
court construes any of the Restrictive Covenants, or any part thereof, to be
unenforceable because of the duration of such provision or the area covered
thereby, such court shall have the power to reduce the duration or area of such
provision and, in its reduced form, such provision shall then be enforceable and
shall be enforced.
(g) The parties intend to and hereby confer jurisdiction to enforce
the Restrictive Covenants upon the courts of any jurisdiction within the
geographical scope of such Covenants. If the courts of any one or more such
jurisdictions hold the Restrictive Covenants wholly unenforceable by reason of
the breadth of such scope or otherwise, it is the intention of the parties that
such determination not bar or in any way affect the Company's right to the
relief provided above in the courts of any other jurisdiction, within the
geographical scope of such Covenants, as to breaches of such Covenants in such
other respective jurisdictions such Covenants as they relate to each
jurisdiction being, for this purpose, severable into diverse and independent
covenants.
10. Representations and Warranties. Consultant represents and
warrants that he is not under any obligation, contractual or otherwise, to
Rockefeller or to any other person, which would prevent his entering into this
Agreement or prevent, impede or hinder his fully faithfully performing any of
his duties and services hereunder.
11. Notice. For the purpose of this Agreement, notices and all other
communications provided for herein shall be in writing and shall be deemed to
have been duly given (i) when delivered, if personally delivered, (ii) when sent
by facsimile transmission, when receipt therefor has been duly received, or
(iii) when mailed by United States registered mail, return receipt requested,
postage prepaid, or by recognized overnight courier, addressed as follows:
If, to Consultant:
Xx. Xxxxxxx X. Xxxx
c/o Rockefeller University
0000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Fax: 000-000-0000
If, to the Company:
Virologix Corporation
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: President
Fax: 000-000-0000
or to such other address as any party may have furnished to the other in writing
in accordance herewith, except that notices of change of address shall be
effective only upon receipt.
12. Miscellaneous. No provisions of this Agreement may be modified,
waived or discharged unless such waiver, modification or discharge is agreed to
in writing signed by authorized officers of each party. No waiver by either
party hereto of, or compliance with, any condition or provision of this
Agreement to be performed by such other party shall be deemed a waiver of
similar or dissimilar provisions or conditions at the same or at any prior or
subsequent time. No
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agreements or representations, oral or otherwise, express or implied, with
respect to the subject matter hereof have been made by either party which are
not set forth expressly in this Agreement. The validity, interpretation,
construction and performance of this Agreement shall be governed by the internal
laws of the State of New York. Any controversy arising under or in relation to
this Agreement shall be settled by binding arbitration in New York, New York in
accordance with the laws of the State of New York and the rules of the American
Arbitration Association.
13. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same instrument.
14. Severability. If in any jurisdiction, any provision of this
Agreement or its application to any party or circumstance is restricted,
prohibited or unenforceable, such provision shall, as to such jurisdiction, be
ineffective only to the extent of such restriction, prohibition or
unenforceability, without invalidating the remaining provisions hereof and
without affecting the validity or enforceability of such provision in any other
jurisdiction or its application to other parties or circumstances. In addition,
if any one or more of the provisions contained in this Agreement shall for any
reason in any jurisdiction be held to be excessively broad as to time, duration,
geographical scope, activity or subject, it shall be construed, by limiting and
reduction it, so as to be enforceable to the extent compatible with the
applicable law of such jurisdiction as it shall then appear.
IN WITNESS WHEREOF, this Consulting Agreement has been executed by the
Company and Consultant as of the date first written above.
VIROLOGIX CORPORATION
By: /s/ Xxxxxx X. Xxxxxx
----------------------------
Authorized Officer
/s/ Xxxxxxx X. Xxxx
-------------------------------
Xx. Xxxxxxx X. Xxxx
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AMENDMENT TO CONSULTING AGREEMENT
WHEREAS, Virologix Corporation, a Delaware corporation having
offices at 000 Xxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000 (the "Company") and
Xx. Xxxxxxx X. Xxxx, c/o University College Dublin, Department of Microbiology,
Xxxxxxxx, Xxxxxx 0, Xxxxxxx (the "Consultant") have entered into a consulting
agreement dated as of January 1, 1996 (the "Agreement").
WHEREAS, the Consultant has relocated from The Rockefeller
University to Xxxxxxxxxx Xxxxxxx, Xxxxxx ("Xxxxxx"), the parties hereby amend
the Agreement as follows:
Paragraph 1 is amended to read:
1. Duties. The Company hereby retains the Consultant as its
part-time Chief Scientific Advisor, to assist in the administration of the
License Agreement and in the performance of scientific research thereunder in
research laboratories at Dublin (the "Consulting Services"), and the Consultant
hereby accepts such retention and shall perform for the Company the duties
described herein, faithfully and to the best of his ability. In this regard,
Consultant shall devote an average of 19% of his business time and attention to
matters on which the Company shall request his services, subject to the
direction of senior management of the Company.
Paragraph 3 is amended to read:
3. Place of Performance. In connection with rendering Consulting
Services to the Company, Consultant shall be based in Dublin, Ireland, where
Dublin's research laboratories currently are located. Consultant acknowledges
that the Company may require that from time to time Consultant travel on behalf
of the Company in connection with scientific conferences or meetings with
potential strategic or financial partners or advisors, or in connection with
potential financing transactions, and the Company shall give Consultant
reasonable prior notice of such requirements and an approximation of the number
of days that Consultant's services will be required.
Paragraph 5 is amended to read:
5. Inventions, Patents and Technology. Consultant shall promptly and
fully disclose to the Company any and all inventions, methods, improvements,
discoveries, original works of authorship, trade secrets, or other intellectual
property conceived, developed or reduced to practice by Consultant or any of his
employees, consultants or research assistants, during the performance of the
Consulting Services hereunder or derived from Confidential Information, as
hereinafter defined, including without limitation, as relates to the Core
Technology, as defined in the License Agreement (collectively, "Work Product").
Consultant shall treat all Work Product as the Confidential Information of the
Company. Consultant agrees and does hereby assign to the Company and its
successors and assigns, without further consideration, his entire right, title
and interest in and to all Work Product developed during the performance of
Consulting Services hereunder or derived from any Confidential Information,
whether or not patentable or copyrightable, including all Work Product developed
at Dublin, subject only to the provisions of the License Agreement and
Rockefeller's rights thereunder and any other existing written agreement
Consultant may have with Rockefeller. Consultant further agrees to execute all
applications for patents and/or copyrights, domestic or foreign, assignments and
other papers necessary to secure and enforce rights relating to the Work
Product. The parties acknowledge that all
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original works of authorship that are made by Consultant within the scope of the
Consulting Services and that may be protected by copyrighted are "works made for
hire," as that time is defined in the United States Copyright Act (17 USC
Section 101).
Paragraph 10 is amended to read:
10. Representations and Warranties. Consultant represents and
warrants that he is not under any obligation, contractual or otherwise, to
Rockefeller, Dublin, or to any other person, which would prevent his entering
into this Agreement or prevent, impede or hinder his fully faithfully performing
any of his duties and services hereunder.
Paragraph 11 is amended to read:
11. Notice. For the purpose of this Agreement, notices and all other
communications provided for herein shall be in writing and shall be deemed to
have been duly given (i) when delivered, if personally delivered, (ii) when sent
by facsimile transmission, when receipt therefor has been duly received, or
(iii) when mailed by United States registered mail, return receipt requested,
postage prepaid, or by recognized overnight courier, addressed as follows:
If, to Consultant:
Xx. Xxxxxxx X. Xxxx
c/o University College Dublin
Department of Microbiology
Belfield, Xxxxxx 0
Xxxxxxx
Fax: 000-000-0-000-0000
If, to the Company:
Virologix Corporation
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: President
Fax: 000-000-0000
or to such other address as any party may have furnished to the other in writing
in accordance herewith, except that notices of change of address shall be
effective only upon receipt.
IN WITNESS WHEREOF, this Amendment to Consulting Agreement has been
executed by the Company and Consultant as of June 21, 1996.
VIROLOGIX CORPORATION
By: /s/ Xxxxxx X. Xxxxxx
-------------------------
Authorized Officer
/s/ Xxxxxxx X. Xxxx
-----------------------------
Xx. Xxxxxxx X. Xxxx
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