EXHIBIT 10.8
CONSULTING AGREEMENT
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CONSULTING AGREEMENT (this "Agreement") dated as of November 19, 1999 (the
"Agreement") by and between Lakaro Biopharmaceuticals, Inc., (the "Company") and
Xxxxxx Xxx-Xxxxxx, Ph.D. ("Consultant").
WHEREAS the Company desires that it be able to call upon the experience and
knowledge of Consultant in the field of protein kinases modulation (the "Field")
for consultation services and advice in connection with its business;
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. The term of this Agreement shall be for three (3)
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years unless terminated by either party by written notice to the other. This
Agreement shall be automatically extended or renewed for additional three- (3)
year periods unless terminated by either party in accordance with paragraph 5
hereof. The initial period and any extensions or renewals thereof shall
constitute the "Consulting Term."
2. Position and Responsibilities.
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(a) 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 Xx. Xxxxxx Xxxxxx until such time as a Chief Executive Officer shall
be designated by and for the Company, and then to such Chief Executive Officer.
(b) Consultant shall undertake on a best-efforts basis such consultative
and advisory services as the Company may reasonable request in connection with
the Company's business including, without limitation, the Company's research and
development of its current technologies in the Field and evaluation and analysis
of any technologies in which the Company shall hereinafter develop a proprietary
or other interest.
3. Compensation. The Company shall pay Consultant in his capacity as a
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consultant to the Company at a rate of two-thousand dollars ($2,000) per month
payable monthly in arrears; and
4. Stock Issuance. Upon the execution of this Agreement, the Company
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shall issue to the Consultant 268,512 shares of common stock of the Company in
recognition of his contributions as the primary inventor of the signal
transduction technology being licensed by the Company from the Children's
Medical Center Corporation, and for the payment of $269.00 (the par value of
shares), receipt of which is hereby acknowledged.
5. Expenses. The Company shall reimburse the Consultant for all normal
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expenses incurred by Consultant in furtherance of the business and affairs of
the Company against receipt by the Company of appropriate vouchers or other
proof of the Consultant's expenditures and otherwise in accordance with such
expense-reimbursement policy as may from time to time be adopted by the Company.
6. Termination. This Agreement and Consultant's retention hereunder may
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be terminated prior to the end of the Consulting Term for any reason upon one
hundred and eighty (180) days written notice by either party (the "Notice
Period"). In the event that the Consultant is the party giving notice, he shall
be required to continue his work for the Company during the entire notice
period, but if the Company is the party giving notice, it shall have the option
to require the Consultant to cease his work immediately upon receiving such
notice or at any time thereafter during the Notice Period, provided that it
shall continue to be liable to compensate the Consultant for the entire Notice
Period.
7. Confidentiality.
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(a) 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 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 unless required is required to be disclosed by legal,
administrative or judicial process.
(b) "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.
(c) "Confidential Information" shall not include, however, (i)
information in the public domain, (ii) information disclosed to Consultant by a
third party entitled to disclose it without any obligation of confidentiality,
(iii) information already known to Consultant prior to its receipt or which is
developed through Consultant's own skill, knowledge, know-how and experience;
provided that Consultant can evidence such prior knowledge by written
documentation, (iv) information which is authorized to be disclosed the Company.
(d) Upon termination of this Agreement and upon written request by the
Company, Consultant shall promptly redeliver to the Company, or, if requested by
the Company, promptly destroy all written Confidential Information and any other
written material containing Confidential Information, and will be permitted to
retain one (1) copy of any such written Confidential Information requested to be
returned or destroyed for Consultant's records.
(e) In the event that Consultant is requested or required (by oral
questions, deposition, interrogatories, requests for information, documentation,
subpoena, civil investigative demand or other process) to disclose all or any
part of any Confidential Information, Consultant shall provide the Company with
prompt notice of such request or requirement, as well as notice of the terms and
conditions of such request or requirement, so that the Company shall have an
opportunity to seek an appropriate protective order. In such case, the parties
will consult with each other on the advisability of pursuing such order or other
legal action or available steps to resist or narrow such request or requirement.
In any event, Consultant shall use his best efforts to obtain and will not
oppose action by the Company to obtain, an appropriate protective order or other
reliable assurance that confidential treatment will be accorded the disclosure
of such information.
8. Ownership of Inventions. In consideration for the compensation paid
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to the Consultant by the Company in paragraph 3 of this Agreement, Consultant
hereby assigns to the Company any and all right, title and interest in any
inventions 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
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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 any form of equitable relief which may be
available to it.
10. Representation of Consultant; Use of Name. Consultant represents that
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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
consents to the use of his name 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.
11. Non-Competition. Consultant understands and recognizes that his
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services to the Company are special and unique and agrees that, during the
Consulting Term and for a period of two (2) years from the date of termination
of his retention hereunder, he shall not in any manner, directly or indirectly,
on behalf of himself or any person, firm, partnership, joint venture,
corporation or other business entity ("Person"), enter into or engage in any
business which manufactures or distributes any product arising out of the Field
directly or indirectly competitive with an existing or future technology of, or
product manufactured or distributed by, the Company in the Field ("Conflicting
Product"), either as an individual for his own account, or as a proprietor,
partner, member, joint venturer, employee, consultant, agent, salesperson,
officer, director or shareholder of a Person operating or intending to operate
within the Field, during the term hereof and as of the date of termination,
conducting or planning to conduct its business (the "Restricted Businesses");
provided, however, that nothing herein will preclude Consultant from holding one
percent or less of the stock of any publicly traded company; or from holding a
position with a Person which does not engage in a business in the Field directly
or indirectly competitive with a Conflicting Product or a Restricted Business so
long as Consultant works solely in a division of such Person which carries on a
bona fide business which is not in the Field or that is not directly or
indirectly competitive with a Conflicting Product or a Restricted Business.
12. Non-Solicitation. During the Consulting Term, and for two (2) years
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thereafter, Consultant shall not, directly or indirectly, without the prior
written consent of the Company:
(a) interfere with, disrupt or attempt to disrupt any past, present or
prospective relationship, contractual or otherwise, between the Company and any
of its licensors, licensees, clients, customers, suppliers, employees or other
related parties, or solicit or induce for hire any of the employees, agents,
consultants or advisors of the Company or any such individual who in the past
was employed or retained by the Company, within six (6) months of the
termination of said individual's employment or retention by the Company;
(b) solicit or accept employment or be retained by any party who, at
any time during the Term, was a customer or supplier of the Company or any
Affiliate or any licensor or licensee thereof where his position will be related
to a Conflicting Product or to a Restricted Business (as such term is defined in
Section 10 above); or
(c) solicit or accept the business of any customer or supplier of the
Company or any Affiliate with respect to products similar to those supplied by
the Company.
(d) During and after the Consulting Term, Consultant agrees not to
make any disparaging comment or statement about the Company, whether or not
true, including but not limited to comments which could adversely effect the
conduct of the Company's business, any of its plans or prospects, or the
business name or reputation of the Company.
13. Consultant Not an Employee. The Company and Consultant hereby
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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, other than as set forth in this Agreement, Consultant shall not be
entitled to benefits specifically associated with employment status, such as
medical, dental and life insurance of the Company and shall not be entitled to
participate in any other employer benefit programs, except as is set forth in a
separate Subscription Agreement between the parties hereto. 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 set forth herein.
14. Miscellaneous.
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(a) Governing Law. This Agreement shall be governed by and construed
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in accordance with the laws of the State of Israel, without regard to principles
of conflicts of laws.
(b) Entire Agreement; Amendment. This Agreement contains the entire
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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
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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 of any other term of this Agreement.
(d) Severability. In the event that any one or more of the
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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
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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 in
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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.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as
of the day and year first above written.
Consultant:
By: __________________________________
Name: Xxxxxx Xxx-Xxxxxx, Ph.D.
Company:
LAKARO BIOPHARMACEUTICALS, INC.
By: __________________________________
Name:
Its:
