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EXHIBIT 4.1h
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT is made as of the date last signed
by the parties hereto as indicated on the signature page hereof (the "Effective
Date"), by and between Guilford Pharmaceuticals Inc., a Delaware corporation,
with its principal offices at 0000 Xxxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxx 00000
(the "Company"), and Xxx X. Xxxxx, Ph.D., of 00000 Xxxxxxxxxxx Xxxx, Xxxxxxxx
Xxxx, Xxxxxxxx 00000 (the "Consultant").
WHEREAS, the Company desires to engage the Consultant, and the
Consultant desires to be engaged by the Company, pursuant to the terms
contained in this Agreement;
NOW THEREFORE, in consideration of the mutual promises of the
parties hereunder, and for other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the Company and the
Consultant hereby agree as follows:
1. Services. The Company hereby retains the Consultant to
perform, and the Consultant hereby agrees to render to the Company, consulting
and advisory services as requested from time to time by the Company in the
field of biodegradable polymers and such other matters as the Company may
request from time to time (the "Services"). If the Company forms a scientific
advisory board in the area of biodegradable polymers (distinct from the
currently existing Scientific Advisory Board and any board of advisors related
to brain tumor therapeutics), the Company agrees to appoint the Consultant to,
and Consultant agrees to serve on, such polymer scientific advisory board as
part of the Services. Consultant agrees to use reasonable efforts to perform
the Services and to make himself available to render the Services for up to 38
days per year, at the Company's discretion, at times which are mutually
acceptable, during the term of this Agreement.
2. Consulting Fees.
(a) As complete consideration for the performance of the
Services by the Consultant under this Agreement, the Company agrees, subject to
the terms of this Agreement, to pay the Consultant a cash retainer and issue
stock options as provided in this Section 2.
(b) The Company agrees to pay the Consultant a cash retainer,
payable monthly in arrears within 10 days of the end of each month during the
term of the Agreement, in the amount of $3,000 per month.
(c) Commencing on the Effective Date and on each of the
following three (3) anniversaries thereof during the term of this Agreement, so
long as the Consultant remains a consultant to the Company in compliance with
his obligations under this Agreement, the Company shall issue to the Consultant
5,000 stock options (which may be incentive stock options or non-qualified
stock options at the Company's option), valid for 10 years from
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issuance, at an exercise price of the closing price per share on the last
trading day prior to the issuance of such stock options.
(d) All tax consequences of fees and other consideration
under this Agreement shall be the responsibility of the Consultant.
(e) The parties hereto agree that the Consultant shall
receive no other compensation (other than reimbursement of reasonable expenses)
for the Consultant's service on behalf of the Company, whether on any advisory
board or otherwise.
3. Term. The term of this Agreement shall commence on the
Effective Date and shall continue for a term of four (4) years, unless further
extended or renewed by mutual agreement of the parties hereto, or unless
earlier terminated as hereinafter provided. This Agreement may be terminated
as follows:
(a) automatically upon the death of the Consultant;
(b) by the Company, if, due to the illness or disability of
the Consultant, the Consultant is unable to perform his obligations under this
Agreement for a period in excess of three (3) consecutive months or 120 days
out of any 12 month period;
(c) by the Company on written notice "for cause"; "for cause"
as used in this Agreement shall mean (i) the failure or refusal on the part of
the Consultant to timely perform his duties under this Agreement; (ii) a
material breach by the Consultant of any other provision of this Agreement;
(iii) the commission by the Consultant of a fraudulent or dishonest act in the
Consultant's relations with the Company; (iv) the conviction of the Consultant
for any crime involving a felony, fraud, embezzlement or the like or an act of
moral turpitude; or (v) other willful, reckless or negligent misconduct or
similar action on the part of the Consultant that is materially damaging or
detrimental to the Company;
(d) by either party upon thirty (30) days' written notice.
4. Exclusivity and Non-Competition.
(a) The Consultant will consult exclusively for the Company
(except with respect to specific matters with the Company's prior consent), and
will not accept employment from or consult for any other commercial entities,
except as set forth in Appendix A attached hereto, or except pursuant to prior
written consent of the Company.
(b) In the event of any early termination of this Agreement
by the Consultant prior to the expiration of the four year term set forth in
Section 3 above (or any mutually agreed extension or renewal thereof), the
Consultant agrees that he will not, for a period of one year thereafter, accept
employment from or consult for any other commercial entities in the field of
targeted controlled delivery of drugs via biodegradable polymers, provided that
this Section 4(b)
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will not preclude the Consultant from (i) engaging in academic research or (ii)
performing the work described, for the companies listed, on Appendix A attached
hereto.
(c) The Consultant represents and warrants to the Company
that the Consultant is, as of and including the date hereof, under no
contractual or other restriction or obligation, including agreements or
understandings with other parties, which conflicts with this Agreement, the
performance of his duties hereunder or the other obligations of the Consultant
to the Company. The Consultant hereby represents and warrants that he has no
present plans to terminate his present relationship with Xxxxx Xxxxxxx
University, whether to join any pharmaceutical company, another academic
institution or otherwise.
(d) Nothing in this Agreement shall be deemed to limit the
Company from engaging other consultants or employees.
5. Independent Contractor Relationship. It is understood and
agreed that the Consultant's relationship with the Company is that of an
independent contractor and that neither this Agreement nor the Services to be
rendered hereunder shall for any purpose whatsoever or in any way or manner
create any employer-employee relationship between the parties.
6. Assignments; Inventions. The Consultant hereby agrees to
use his best efforts without further compensation to assign or to have assigned
to the Company all of his right, title and interest in and to, any and all
inventions, processes, systems, improvements, modifications, secrets, designs
or discoveries, whether or not made, possessed, discovered or conceived by him,
individually or jointly with any other person or persons, whether made in or
out of working hours, free and clear of all liens, charges and encumbrances,
created or conceived by him during the term of this Agreement and patented or
reduced to practice within one year thereafter, which relate to the business of
the Company and which are not owned by The Xxxxx Xxxxxxx University pursuant to
the Xxxxx Xxxxxxx School of Medicine Intellectual Property Guidelines (dated
January 1, 1995), a copy of which is attached hereto as Appendix B and
incorporated herein by reference (collectively, the "Inventions").
7. Disclosure of Inventions. The Consultant agrees to
promptly disclose Inventions to the Company. With respect to the Inventions,
the Consultant will, either during the term of or after the expiration or
termination of this Agreement for any reason, at the request and at the sole
cost of the Company, sign, execute, make and do all such deeds, documents, acts
and things as the Company and its duly authorized agents may reasonably
require, and further agrees to:
(i) apply for, obtain and vest in the name of the Company
alone (unless the Company otherwise directs) letters
patent or other invention protection in any country
throughout the world and when so obtained or vested
to extend, renew and restore the same;
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(ii) defend any opposition proceedings in respect of such
applications and any opposition proceedings or
petitions or applications for revocation of such
letters patent or other analogous protection; and
(iii) perform any other lawful acts which the Company may
reasonably request to carry out the purpose of this
Agreement.
8. Confidentiality.
The Consultant agrees that he will not at any time publish,
reveal, sell, make accessible, give away or disclose to others or use for his
own benefit or except for the benefit of the Company, any research,
development, engineering and manufacturing data, plans, designs, formula,
processes, specifications, techniques, trade secrets, business and financial
information, customer or supplier lists or other information which are, or
pursuant to the terms hereof become, the property or confidential information
of the Company or any of its clients, customers, consultants, licensees or
affiliates, or which are acquired by him directly as a result of his acting as
consultant to the Company, except to such extent as may be required by law.
The Consultant agrees that he will not make any notes or memoranda relating to
any matter that is an art of the trade, activities or business of the Company
or concerning any of its dealings otherwise than for the benefit of the
Company. The Consultant shall at the Company's request return or destroy all
tangible embodiments of such confidential information prior to or at the
termination of this Agreement.
9. Publication. Subject to Section 8 above, the Consultant
may publish information arising from his performance of Services under this
Agreement if in each instance the Consultant provides Company thirty (30) days
for review and comment upon the manuscript or other material for such
publication. Expedited reviews for abstracts or poster presentations may be
arranged if mutually agreeable to the Consultant and the Company. In addition,
if requested in writing by the Company, the Consultant will withhold such
publication an additional sixty (60) days to allow for filing a patent
application or taking such other measures as the Company deems appropriate to
establish and preserve available proprietary rights.
10. Breach of Agreement. The Consultant and the Company
agree that any material breach of this Agreement by either of them could cause
irreparable damage to the other party, and that in the event of such material
breach, in addition to any other remedies hereinbefore mentioned, the
non-breaching party shall have the right to obtain injunctive relief,
including, without limitation, specific performance or other equitable relief
to prevent the violation of the breaching party's obligations hereunder. It is
expressly understood and agreed that nothing herein contained shall be
construed as prohibiting the non-breaching party from pursuing any other
remedies available for such material breach including, without limitation, the
recovery of damages by the non-breaching party.
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11. Assignment; Binding Effect. The Services to be rendered
by the Consultant are personal in nature. The Consultant may not assign or
transfer this Agreement or any of his rights or obligations hereunder. In no
event shall the Consultant assign or delegate responsibility for actual
performance or Services or any other obligations hereunder. Subject to the
foregoing, this Agreement shall be binding upon and inure to the benefit of the
parties and their respective legal representatives, successors and assigns.
12. Notices. All notices and other communications hereunder
shall be delivered or sent by registered or certified mail or by a major
recognized express courier service (such as Federal Express), return receipt
requested, addressed to the Company at 0000 Xxxxxxxxx Xxxxxx, Xxxxxxxxx,
Xxxxxxxx 00000, Attn.: Xx. Xxxxx X. Xxxxx, or to the Consultant at the address
set forth above, or to such other address as either party may designate in
writing to the other.
13. Entire Agreement. This Agreement constitutes the entire
agreement between the parties as to the subject matter hereof and supersedes
and terminates as of this date any prior agreements between the parties for the
Services engaged hereunder. No provision of this Agreement shall be waived,
altered or canceled except in writing signed by the party against whom such
waiver, alteration or cancellation is asserted. Any such waiver shall be
limited to the particular instance and time and shall not constitute a waiver
of any subsequent instance without a specific waiver in writing by the party
against whom such waiver is sought to be enforced.
14. Counterpart. This Agreement may be executed in several
counterparts, each of which shall be an original and all of which shall
constitute but one and the same instrument.
15. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Maryland, without giving
effect to conflict of laws.
16. Severability. In the event that any term of this
Agreement is held to be invalid, illegal, or unenforceable, such invalidity,
illegality, or unenforceability shall not affect any other portion of this
Agreement, and there shall be deemed substituted therefor such term as will
most fully realize the intent of the parties as expressed in this Agreement to
the fullest extent permitted by applicable law, the parties hereby declaring
their intent that this Agreement be construed in such fashion as to maintain
its existence, validity, and enforceability to the greatest extent possible.
17. Xxxxx Xxxxxxx University Not A Party. The parties
acknowledge that The Xxxxx Xxxxxxx University, the Consultant's employer as of
the date hereof, is not a party to this Agreement, which is a private contract
between the Consultant and the Company. Notwithstanding the foregoing, the
parties agree as follows: with the limited exception of citing Consultant's
faculty title and institutional affiliation, the Company and its affiliates
will not use the names, likenesses, or logos of the Xxxxx Xxxxxxx University,
any of its Schools or Divisions, or the Xxxxx Xxxxxxx Hospital and Health
System in any of their fundraising or investment documents, general
publications, advertisements, or marketing and promotional materials without
the prior written permission of the Xxxxx Xxxxxxx University. A request for
such
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permission must be submitted by the Consultant to the School of Medicine's
Conflict of Interest Review Coordinator, who in appropriate circumstances, will
have it reviewed by the School of Medicine's Office of Public Affairs.
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IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the date and year first above written.
GUILFORD PHARMACEUTICALS INC.
By: /s/ Xxxxx X. Xxxxx, M.D. /s/ Xxx X. Xxxxx, Ph.D.
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Name: Xxxxx X. Xxxxx, M.D. Xxx X. Xxxxx, Ph.D.
Title: President & Chief Executive Officer
Date: June 28, 1996 Date: Sept. 10, 1996
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Appendix A
Company Consulting Area
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Synthes Maxillofacial Biodegradable orthopedic prostheses
Bionix Biodegradable orthopedic prostheses
AO Research Institute Biodegradable polymers
Anticipated Arrangements:
BioWhittaker Cell encapsulation technologies and polymeric
scaffolding for tissue engineering and toxicology
applications
New Venture Gene, protein and peptide delivery technologies
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Appendix B
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