EXHIBIT 10.9
CONSULTING AGREEMENT
CONSULTING AGREEMENT dated as of December 15, 2000 by and between
Novirio Pharmaceuticals Limited, a company organized and existing in the Cayman
Islands with a mailing address c/x Xxxxxx Secretaries, Xxxxxx House, Grand
Cayman, Cayman Islands (the "Company"), and Xxxx X. Xxxxxx, with a mailing
address at 00 Xxxx 00xx Xxxxxx, #00XX, Xxx Xxxx, Xxx Xxxx 00000 (the
"Consultant").
RECITALS
1. The Company is engaged in the business of developing and
commercializing pharmaceuticals for the treatment of human viral diseases (the
"Business").
2. The Company desires to engage the Consultant for and the Consultant
desires to provide the services set forth in this Agreement.
3. In connection therewith, the Consultant and the Company mutually
desire to enter into this Agreement effective as of the date hereof and agree
that this Agreement will govern all of the work performed by the Consultant for
or on behalf of the Company.
NOW,THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Company and the Consultant
hereby agrees as follows:
1. Term. The Company agrees to engage the Consultant, and the
Consultant agrees to accept such engagement, to provide advisory, consulting and
other services to the Company on the terms and conditions hereinafter provided,
commencing as of the date hereof and terminating on December 15, 2003 (the
"Term"), unless terminated sooner pursuant to Section 9 hereof.
2. Services and Commitment.
(a) Services. The Consultant shall provide consulting,
advisory and other services in furtherance of the
Business. Such services shall include, without
limitation, (i) performing the functions described on
Exhibit A hereto and (ii) such other responsibilities
as the Company and the Consultant may agree
(together, the "Services").
(b) Commitment. Consultant agrees to make himself
available to render the Services at such times and
locations as may be mutually agreed provided,
however, that the Consultant shall not be required to
devote more than the equivalent of two days a month
to the performance of the Services.
3. Compensation and Expenses.
(a) Compensation. In exchange for services to be rendered
by the Consultant, the Company will, subject to the
terms and conditions set forth in a Stock Restriction
Agreement dated as of the date hereof, issue to the
Consultant Sixty Thousand (60,000) Ordinary Shares,
par value $.001 per share (the "Ordinary Shares").
The Ordinary Shares will vest in three equal
installments to the extent of 20,000 Ordinary Shares
on each of the first, second and third anniversaries
of the date of this Agreement, provided that the
Consultant is as of the respective date then
providing Services to the Company. As of the date
hereof, the current per share fair market value as
determined in good faith by the Board of Directors is
$2.00 per share. The Company will make no cash
payment for the Services rendered by the Consultant.
(b) Business Expenses. During the Term, the Company shall
reimburse the Consultant, in accordance with the
Company policy then in effect, for all reasonable and
necessary expenses incurred by the Consultant in
furtherance of the Business or in connection with the
Services, including without limitation, travel,
board, lodging, telephone and postage. To obtain
reimbursement, the Consultant shall submit to the
Company an itemized statement of such expenses along
with copies of bills and receipts.
4. Non-Solicitation. Except as otherwise provided in this Section 4, at
all times during the Term, and for a period of eighteen (18) months thereafter,
the Consultant shall not:
(a) induce or attempt to induce any customer, dealer or
distributor of the Company to reduce such customer's,
dealer's or distributor's business with the Company;
or
(b) solicit any of the Company's consultants or employees
to leave the employ of the Company or hire or cause
to be hired any person who was during or for six (6)
months after the termination of the Consultant's
engagement by the Company, a consultant or employee
of the Company.
5. Copyright. The Consultant acknowledges that all works of authorship
and all mask works that fall within the scope of the Services which the
Consultant is engaged to provide to the Company are owned by the Company and are
works made for hire. Accordingly, the Consultant agrees to assign and hereby
assigns to the Company any and all copyrights and mask work registration rights,
and all other mask work rights in all material prepared by him in the
performance of his Services hereunder. The Consultant further agrees to, to
execute and deliver both during and after the Term such assignments, instruments
and applications as may be required to allow the Company to perfect its rights
in copyrights, mask work registration rights and other mask work rights assigned
pursuant to this Section 5 by the Consultant to the Company. The Consultant
waives all "moral" rights to any copyrights and mask work registration rights,
and all other mask work rights in all material prepared by him in the
performance of his Services hereunder.
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6. Confidentiality. During the course of his engagement with the
Company, the Consultant may have access to, learn of, or participate in the
development of the Company's confidential information or confidential
information entrusted to the Company by other persons, corporations, or firms.
The Company's confidential information includes matters not generally known
outside of the Company, such as know-how, trade secrets, experimentation,
research and developments relating to existing and future products and services
to be or being marketed or used by the Company (whether or not such products or
services are actually realized or pursued by the Company), and also any
information which gives the Company a competitive advantage including, without
limitation, data relating to the general business operations of the Company
(e.g., sales, costs, profits, organizations, customer lists, pricing methods,
etc.). Confidential information shall not include information that may be
demonstrated by the Consultant to have been known by the Consultant prior to the
date hereof or which is otherwise disclosed to the Consultant by a third party
who is not under any confidentiality obligation preventing such disclosure. The
Consultant agrees to hold the Company's confidential information in confidence
and not disclose any such confidential information to any person, corporation or
firm (other than the Company). The Consultant further agrees not to make use of
such confidential information except on the Company's behalf whether or not such
information is produced by his own efforts. These restrictions shall apply to
all of the Company's confidential information whether such information is in
written, oral, magnetic, optical or in some other form. The Consultant
understands and agrees that his confidentiality obligations under this Section 6
shall continue during and after the termination of the Term hereof until such
confidential information becomes generally available to the public through
legitimate means. It is understood and agreed that specific information which
the Consultant may receive, observe, perceive, create, develop or learn while a
consultant to the Company shall not be deemed to be generally available to the
public merely because such specific information is embraced by more general
information which is generally available to the public.
7. Return of Information. At the end of the Term or at any time upon
the request of the Company, the Consultant agrees to deliver to the Company all
records, drawings, notebooks, documents, computer disks and tapes and other data
in any and all forms (without retaining copies) which pertain to the Company's
confidential information (whether prepared by the Consultant or others), and
also to return to the Company any equipment, tools, computers or other devices
owned by the Company and in his possession, provided however that the Consultant
shall have the right to retain one copy of such materials for his personal
records (but in any event not to be used in a manner inconsistent with the terms
of this Agreement). The Consultant agrees that the above documents, data and
devices are the exclusive property of the Company and shall not be copied or
removed from the Company premises except in the pursuit of the Business and in
connection with the performance of the Services.
8. Representations and Covenants.
(a) The Consultant hereby represents that he is not
subject to any agreement, restriction, right or
interest in any way limiting the scope of this
Agreement or his engagement by the Company. The
Consultant covenants that he will not during the term
hereof enter into or grant to anyone any agreements,
restrictions, rights or interests that limit in any
way the scope of this Agreement or his engagement
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by the Company. The Consultant will not disclose to
the Company, or induce the Company to use, any
confidential information of other persons,
corporations, or firms including his present or
former employers (if any).
(b) Set forth on Exhibit B hereto is a list of all
companies, institutions, entities and individuals
with whom the Consultant has current representative,
consultant, employment, business partnership or
similar relationships or of which the Consultant owns
greater than 5% of outstanding voting securities, and
a description of all agreements with such parties.
The Consultant shall notify the Company in writing
promptly whenever there is any change to this list.
9. Termination of Engagement. Notwithstanding the provisions of Section
1, the Consultant's engagement hereunder shall terminate under the following
circumstances:
(a) Death or Disability. The Consultant's engagement
hereunder shall immediately terminate upon his death
or disability. For purposes of this Agreement, the
Consultant shall be deemed disabled if in the good
faith opinion of the Company's Board of Directors,
the Consultant is unable to substantially perform the
Services due to illness, injury, accident or
condition of either a physical or psychological
nature for a period longer than ninety (90) days.
(b) Termination by the Company for Cause. The Company may
terminate the Consultant's engagement for "Cause"
after prior written notice to the Consultant setting
forth in reasonable detail the nature of such Cause.
For the purposes hereof, "Cause" shall be determined
in good faith by the Company's Board of Directors and
shall include (but not be limited to):
(i) the conviction of the Consultant by a court
of competent jurisdiction of any felony,
misdemeanor or any criminal offense
involving dishonesty or breach of trust
against the Company or any subsidiary of the
Company or misappropriation of any property
of the Company or any subsidiary of the
Company or the entering of a plea by the
Consultant of nolo contendre thereto;
(ii) the commission by the Consultant of an act
of fraud upon the Company or any subsidiary
of the Company;
(iii) the Consultant's willful violation of any
United States federal, state or local or
foreign government law, rule or regulation
relating to the Business or otherwise
governing the operation of the Company or
any subsidiary of the Company;
(iv) failure of the Consultant to perform the
Services, which failure continues for more
than twenty (20) business days after
Consultant is given notice setting forth in
reasonable detail the unfulfilled
obligations of the Consultant; or
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(v) any other material breach by the Consultant
of this Agreement, which breach continues
for more than twenty (20) business days
after the Consultant is given notice setting
forth in reasonable detail the nature of
such breach.
(c) Termination by the Consultant. The
Consultant may terminate his engagement for
any reason whatsoever upon thirty (30) days'
prior written notice to the Company.
10. Consequences of Termination. Upon the Consultant's termination, the
Consultant shall be entitled to receive from the Company only reimbursement of
expenses that have been incurred through the date of such termination in
accordance with the terms of Section 3 of this Agreement. Any Ordinary Shares
that have not vested as of the date of termination shall thereupon be deemed for
all purposes to have been forfeited as of such date, and the Consultant shall
have no further rights with respect thereto. All forfeited Ordinary Shares shall
be deemed to have been transferred to and redeemed by the Company without the
need for any payment to the Consultant or any action by the Company or any other
person as of the date of such forfeiture, and the Consultant shall, immediately
upon the request of the Company, deliver to the Company all certificates
evidencing the forfeited Ordinary Shares, duly endorsed for transfer to the
Company or its designee.
11. Independent Contractor. Both the Company and the Consultant agree
that the Consultant acts as an independent contractor in the performance of his
Services under this Agreement. Nothing in this Agreement shall be deemed to make
the Consultant an employee, partner or agent for the Company or any subsidiary
of the Company, nor shall either party have any authority to band the other in
any respect. Accordingly, the Consultant shall be responsible for payment of,
and shall indemnify and hold the Company harmless against, all taxes, including,
without limitation, federal, state and local taxes and taxes assessed by foreign
countries arising out of the Consultant's activities in accordance with this
Agreement, including by way of illustration but not limitation, federal and
state income tax, Social Security tax, a foreign country's income tax,
unemployment insurance taxes, Medicare taxes and any other taxes, or business
license fees as required.
12. Notices. Any notices, requests, demands and other communications
provided for by this Agreement shall be sufficient if in writing addressed to
the Consultant or if to the Company, to its Chief Executive Officer, and shall
be deemed duly given if delivered personally or sent by registered or certified
mail, postage paid, return receipt requested, and deposited in the U.S. Mail.
Any such notice shall be deemed to be given on the date of personal delivery or
as of the third day after the date mailed. Either party may, by notice in
writing to the other party, change the address to which notices to it or him are
to be addressed hereunder.
13. Miscellaneous.
(a) Entire Agreement; Amendments; Waivers. This Agreement
contains the entire understanding of the parties
regarding its subject matter and any amendment to
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this Agreement, and any waiver of any provision
hereof, shall be in writing and shall require the
prior written approval of the Chief Executive Officer
of the Company and the Consultant. Any waiver by the
Company of a breach of any provision of this
Agreement shall not operate or be construed as a
waiver of any subsequent breach hereof.
(b) Survival. Except as otherwise provided in this
Agreement, the obligations of the Company and the
Consultant contained in Sections 4, 5, 6, 7, 8 and 12
of this Agreement and this Section 13 shall survive
the termination of this Agreement.
(c) Governing Law; Consent to Jurisdiction. The
Consultant agrees that any dispute in the meaning,
effect or validity of this Agreement shall be
resolved in accordance with the laws of the
Commonwealth of Massachusetts without regard to the
conflict of laws provisions thereof. The Consultant
hereby agrees to submit to the nonexclusive
jurisdiction of the courts in and of the Commonwealth
of Massachusetts and to the courts to which an appeal
of the decisions of such courts may be taken and
consents that service of process with respect to all
courts in and of the Commonwealth of Massachusetts
may be made by registered mail.
(d) Enforcement. In view of the substantial harm which
will result from the breach by the Consultant of any
of the covenants contained in Sections 4, 5, 6, 7 and
8 of this Agreement, the parties agree that such
covenants shall be enforced to the fullest extent
permitted by law. Accordingly, if, in any judicial
proceeding, a court shall determine that such
covenants are unenforceable because they cover too
extensive a geographic area or survive for too long a
period of time, or for any other reason, then the
parties intend that such covenants shall be deemed to
cover such maximum geographic area and maximum period
of time and shall otherwise be deemed to be limited
in such manner as will permit enforceability by such
court. If any term or provision of this Agreement or
the application thereof to any circumstance shall, to
any extent, be invalid or unenforceable, the
remainder of this Agreement or the application to
other persons and circumstances shall not be affected
thereby and each term and provision hereof shall be
enforced to the fullest extent permitted by law.
(e) Remedies. The Consultant agrees that his breach of
any of the provisions of Sections 4, 5, 6, 7 or 8 of
this Agreement will cause irreparable damage to the
Company and that the recovery by the Company of money
damages will not alone constitute an adequate remedy
for such breach. Accordingly, the Consultant agrees
that such provisions may be specifically enforced
against him, in addition to any other rights or
remedies available to the Company on account of any
such breach.
(f) Indemnification.
(i) The Consultant will indemnify and hold the
Company harmless, and will defend the
Company against any and all loss, liability,
damage, claims,
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demands or suits and related costs and
expenses to persons or property that arise,
directly or indirectly, from either acts or
omissions of the Consultant, or material
breach by Consultant of any term or
condition of this Agreement which results in
harm to the Company.
(ii) The Company will indemnify and hold the
Consultant harmless, and will defend the
Consultant against any and all loss,
liability, damage, claims, demands or suits
and related costs and expenses to persons or
property that arise, directly or indirectly,
from breach by the Company of any term or
condition of this Agreement, and from acts
taken by the Consultant in furtherance of
the Business and in connection with the
performance of the Services if he (a) acted
in good faith, in accordance with this
Agreement and in a manner he reasonably
believed to be in or not opposed to the best
interests of the Company, and (b) with
respect to any criminal action or
proceeding, had no reasonable cause to
believe his conduct was unlawful.
(g) Successors and Assigns. This Agreement shall be binding upon
the Consultant, and inure to the benefit of, the parties
hereto and their respective heirs, successors, assigns and
personal representatives; provided, however, that the
Consultant may not delegate his obligations arising pursuant
to this Agreement.
(h) Attorney's Fees. 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
attorney's fees, costs and necessary disbursements, in
addition to any other relief to which the party may be
entitled.
(i) Public Disclosure. The Company shall have the right to
disclose the terms of this Agreement and the transactions
contemplated by this Agreement as well as to disclose the
Consultant's name and likeness in any regulatory filings and
publicity materials prepared by it and in presentations to
current or prospective clients, investor and other third
parties. Without obtaining the prior written consent of the
Company, the Consultant shall not use the Company's name in
any publications or publicity or other materials prepared by
or on behalf of the Consultant.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
a sealed document on the date first above written.
NOVIRIO PHARMACEUTICALS LIMITED
By: /s/ Xxxx-Xxxxxx Sommadossi
_____________________________________
Xxxx-Xxxxxx Sommadossi
Chairman and Chief Executive Officer
/s/ Xxxx X. Xxxxxx
_________________________________________
Xxxx X. Brooke
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EXHIBIT A
DUTIES OF CONSULTANT
1. Advise the Company's management in the preparation of such reports,
prospectus, information statements, executive summaries, corporate
and/or transaction profiles, due diligence packages and/or other
material and documentation as may be reasonably necessary to properly
present the Company in furtherance of its Business to other entities,
individuals, investors and prospective investors.
2. Advise the Company's management on matters related to corporate
finance, including the nature, structure, extent and other parameters
of any private or public offer(s) to be made to prospective investors,
investor groups or their agents.
3. Advise the Company's management in evaluating proposals and
participating in negotiations with prospective investors, investor
groups or their agents.
4. Advise the Company's management regarding company operations, staffing,
strategy, and other issues as the Company may reasonably request which
relate to the building of shareholder value.
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EXHIBIT B
CURRENT AFFILIATIONS
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