CONSULTING AGREEMENT
Exhibit 10.2
Consultant: Xxxxxx Xxxxx
Effective Date: June 16, 2006
THIS AGREEMENT is by and between Genelabs Technologies, Inc. (“Genelabs”), a California corporation
with its principal place of business at 000 Xxxxxxxxx Xxxxx, Xxxxxxx Xxxx, XX 00000 and Consultant.
1. Engagement. Subject to the terms and conditions of this Agreement, Genelabs hereby engages
Consultant to provide the personal consulting services described in Exhibit A (the “Services”) and
Consultant agrees to such engagement. Consultant shall perform its services in a professional,
efficient and thorough manner consistent with the standards of service demonstrated by similar
consultants of similar expertise in the industry. Consultant agrees that its Services will
coordinate with Genelabs’ protocols, security requirements, staff and specialized equipment.
Consultant warrants that all materials supplied and work performed by it under this Agreement will
comply with all applicable laws and regulations.
2. Compensation. As full and complete compensation for the Services of Consultant, Genelabs
shall pay Consultant in accordance with the schedule of payments or hourly or daily rate specified
in Exhibit A. Compensation for Services will not exceed the maximum amounts specified in Exhibit
A. Consultant will also be reimbursed for reasonable travel, food and lodging expenses incurred in
performing the Services, up to the maximum amount specified in Exhibit A; provided that, all travel
expenses must be in accordance with Genelabs travel policies and all expenses must be approved in
advance by Genelabs. Consultant shall invoice Genelabs on a monthly basis for Services performed
and expenses incurred during the preceding month. Invoices shall itemize compensation and expenses
and include supporting documentation in form and detail sufficient for tax purposes. Genelabs
shall pay all such complete invoices within thirty (30) days of receipt.
3. Term of Agreement Unless otherwise specified in Exhibit A, this Agreement shall continue
in force for one year from the Effective Date set forth below. Genelabs may terminate this
Agreement upon prior written notice to Consultant. In the event this Agreement is terminated,
Consultant shall promptly wind up its work, provide Genelabs with work-in-progress and comply with
the requirements for return of property set forth in Section 5.4. If compensation has been advanced
to Consultant, Consultant shall reimburse any amounts for which work not performed.
4. Independent Contractor. Consultant enters into this Agreement as, and shall continue to
be, an independent contractor. Under no circumstances shall Contractor look to Genelabs as
Consultant’s employer, partner, agent, or principal. Consultant shall have no authority to bind or
speak for Genelabs except as may be specifically given in writing to Consultant from time to time.
Consultant shall not be entitled to benefits accorded to Genelabs employees including, without
limitation, worker’s compensation, disability insurance, health insurance, vacation, holidays or
sick pay. Consultant shall be responsible for providing, at Consultant’s expense and in
Consultant’s name, any disability, worker’s compensation or other insurance as well as any licenses
and permits usual or necessary for conducting the Services hereunder. Consultant shall pay, when
and as due, any and all taxes incurred as a result of Consultant’s compensation hereunder
including, without limitation, self-employment, income and estimated taxes. Consultant hereby
indemnifies Genelabs for any costs or liabilities to Genelabs arising out of Consultant’s failure
to pay all taxes applicable to Consultant’s compensation under this Agreement.
5. Proprietary Information.
5.1 “Proprietary Information” shall mean all Genelabs (or Genelabs affiliate) technology,
trade secrets, know-how, inventions, improvements, information, documents, materials and other
property, whether of a technical, scientific, business, financial or other nature, furnished or
disclosed to Consultant
or obtained by Consultant in connection with the activities of Consultant under this Agreement,
including information received by Genelabs from a third party. By way of illustration only and not
limitation: information includes formulas, formulations, sequences, constructs, data, bioassays,
costs, suppliers, profits, markets, sources of funds, research projects, plans for future
experiments and developments, and failed experiments; documents include notebooks, memoranda,
letters, papers, records, reports, data, software programs, search reports, electronic data
recorded or retrieved by any means, drawings, sketches, schematics, models and prototypes;
materials include samples of nucleic acids, proteins, tissue, cells, viruses, chemicals, and media.
Proprietary Information shall not include information which is publicly known through no breach of
this Agreement by Consultant, obtained from a third party without restriction who has the legal
right to disclose the information to Consultant, or known to Consultant before entering into this
Agreement as evidenced by Consultant’s written records predating this Agreement.
5.2 Consultant shall maintain in confidence and shall not directly or indirectly, either
during or after the term of this Agreement, (a) use any Proprietary Information for purposes except
providing services to Genelabs, or (b) disclose to anyone outside of Genelabs any Proprietary
Information without prior written authorization from a Genelabs employee having the authority to
grant such authorization.
5.3 This Agreement constitutes a limited license to Consultant to use Proprietary Information
solely for the purpose of performing the Services under this Agreement. Proprietary Information
shall not be used by Consultant in any research or other work that is or may be subject to
employment, consulting, commercial licensing or contracted research obligations to another person
or entity, unless written permission is first obtained by Consultant from Genelabs. Except for the
limited license to use Proprietary Information to perform the Services, Consultant acknowledges
that no license or other rights are granted to Consultant under this Agreement with respect to any
existing or future, issued or pending patents, trade secrets or know-how of Genelabs or any
Genelabs affiliate or licensee.
5.4 Except to the extent necessary to perform the Services under this Agreement, all
Proprietary Information shall remain on the Genelabs premises and be available for use and
inspection at all times by Genelabs. Upon termination of this Agreement, or at the request of
Genelabs prior to termination, Consultant shall promptly return all Proprietary Information
Consultant may have to Genelabs, including all materials, property, documents, copies, summaries,
or extracts, and, if requested by Genelabs, Consultant shall execute a certificate warranting that
all Proprietary Information has been returned to Genelabs in accordance with this Agreement and
erased from any electronic media used by Consultant.
6. Intellectual Property Produced Under This Agreement.
6.1 Genelabs shall have the worldwide right, without the payment of any additional
compensation, to use, duplicate and disclose in any manner and for all purposes and to authorize
others so to do, all data, writings, reports, or other information and items produced and delivered
by Consultant to Genelabs under this Agreement.
6.2 Consultant agrees that all technology, designs, plans, reports, specifications, drawings,
schematics, prototypes, data, writings, models, materials, ideas, processes, computer programs,
discoveries, innovations, inventions, improvements and other information and items conceived,
created, developed, authored or reduced to practice by Consultant during the course of, and arising
from the Services under, this Agreement (“New Developments”) shall be and hereby are assigned to
Genelabs as its sole and exclusive property. Consultant shall promptly disclose to Genelabs all
New Developments and shall treat New Developments as Proprietary Information, subject to all of the
provisions set forth in section 5, above. Consultant agrees that Genelabs and its licensees shall
have the sole and exclusive right, without further payment obligation, to use, disclose,
commercialize and exploit the work product provided by Consultant to Genelabs.
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6.3 At the request of Genelabs, during the term of this Agreement and thereafter, Consultant
agrees to execute applicable U.S. and foreign patent and copyright papers covering any New
Developments deemed by Genelabs to be patentable or otherwise registrable, including documents of
inventorship, authorship, and assignment, as well as any documents that Genelabs may reasonably
deem necessary or helpful in the prosecution of applications for patents or copyrights thereon or
in connection with any litigation or controversy relating thereto. Should Genelabs be unable to
secure Consultant’s signature on any document necessary to apply for, prosecute, obtain, or enforce
any patent, copyright, or other right or protection relating to any New Developments, Consultant
hereby irrevocably appoints Genelabs and its duly authorized officers and agents as Consultant’s
agent and attorney-in-fact, to execute and file any such document, and to do all other lawfully
permitted acts to further the prosecution, issuance, and enforcement of patents, copyrights, or
other rights or protections with the same force and effect as if executed and delivered by
Consultant. All expenses incident to the filing of applications, the prosecution thereof, the
conduct of litigation, and other activities under this Section 6.3 shall be borne by Genelabs, and
Consultant shall receive reasonable compensation for any services Consultant performs in obtaining,
perfecting, maintaining and enforcing Genelabs’ interests in such New Developments.
7. Conflicts of Interest.
7.1 This Agreement is non-exclusive. However, during the term of this Agreement, Consultant
shall not engage in any activity (whether as an individual, consultant, proprietor, joint venturer
or in any other capacity) that involves the research, development, clinical trials, marketing or
selling of products substantially similar to, or competitive with, any product under development by
Genelabs in the field of Consultant’s Services under this Agreement.
7.2 In performing the Services under this Agreement, Consultant shall not disclose to Genelabs
or make any unauthorized use of trade secrets or other confidential or proprietary information or
technology developed by or acquired from third parties. Consultant represents that Consultant’s
performance of the terms of this Agreement and use of its work product by Genelabs and its
licensees will not breach any duty which Consultant might owe to any third party, and that
Consultant has not entered into any agreement, written or oral, in conflict with this Agreement.
8. Governing Law. This Agreement shall be governed by and interpreted in accordance with the
laws of the State of California, exclusive of the choice of law rules, and venue for any action
shall be the County of San Mateo, State of California.
9. Miscellaneous. This Agreement, including the attached Exhibits which are hereby
incorporated by reference, sets forth the entire agreement between the parties relating to its
subject matter, and supersedes all prior written and verbal understandings and agreements, except
any prior confidentiality agreements. This Agreement may be amended only by a writing signed by
both parties. Consultant shall not assign any right nor delegate any obligations under this
Agreement except with the prior written consent of Genelabs.
10. Debarment Certification. Neither Consultant nor any person employed by Consultant has
been debarred by the U.S. Food and Drug Administration (the “FDA”) under 21 U.S.C. § 335a, or has
been disqualified by the FDA pursuant to 21 CFR § 312.70, and no debarred or disqualified person
will in the future be employed by Consultant in connection with any work to be performed for or on
behalf of Genelabs which may later become part of any application for approval of a drug or
biologic by the FDA. If at any time after execution of this Agreement, Consultant becomes aware
that Consultant or any person employed by Consultant is in the process of being debarred or
disqualified, Consultant hereby certifies that Consultant will so notify Genelabs at once. If
Consultant or its employee are or may be debarred, Genelabs may terminate this Agreement
immediately.
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11. Survival of Provisions. The following provisions shall survive termination of this
agreement: Sections 4, 5 (for a period of ten (10) years after the termination of this Agreement),
6 and 8.
AGREED TO:
CONSULTANT
|
Genelabs Technologies, Inc. | |||||||
/s/ Xxxxxx Xxxxx
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By: | /s/ Xxxxx A.D. Xxxxx | ||||||
| Xxxxx A.D. Xxxxx, President & CEO |
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EXHIBIT A
Consultant’s Name: Xxxxxx Xxxxx, M.D., Ph.D.
Consultant’s Services:
To assist Genelabs in regulatory affairs issues on an as needed basis.
Term of the Agreement: 1 year from the Effective Date. Renewal upon mutual agreement.
Genelabs Contact, Dept., Cost Center: Xxxxx Xxxxx
Time to be Devoted to Services:
Consultant’s time spent on Genelabs’ projects shall be mutually agreed upon on a case by
case basis.
Compensation:
Consultant will be paid at the rate of $145.00/per hour, but not for time spent in travel.
Consultant will be reimbursed for reasonable travel, food and lodging expenses incurred in
performing the Services, provided that all travel and expenses have been approved in advance
by the Genelabs contact person specified above.
In no event shall the total of all payments under this Agreement exceed $100,000.00.
Stock Options:
With respect to any stock options previously granted by Genelabs to Consultant for Genelabs
stock, it is understood that Consultant’s services under this Consulting Agreement shall be
considered service to Genelabs for purposes of continuing vesting of unvested options and
that the Termination Date under section 2 of Consultant’s Option Agreement shall be the date
that this Consulting Agreement terminates. As a result of this extension, all such stock
options shall be nonqualified stock options.
This provision on Stock Options, is conditioned upon Consultant signing and not revoking the
Separation Agreement and General Release between Consultant and the
Company, dated June 15, 2006 (the “Separation Agreement”). In the event Consultant does not sign or
revokes the Separation Agreement, this provision on Stock Options shall be void, however,
all other provisions of this Consulting Agreement shall remain in full force and effect.
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