EXHIBIT 10.19
GENVEC, INC.
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (the "Agreement"), effective as of April 28,
1998 (the "Effective Date"), is entered into between Xxxxxxx X. Xxxxxx,
residing at 000 Xxxxxx Xxxx, Xxxx Xxxx, Xxx Xxxxxx 00000 ("Consultant"), and
GenVec, Inc., a Delaware corporation having a principal place of business at
00000 Xxxxxxxx Xxxxx, Xxxxxxxxx, XX 00000 ("GenVec").
BACKGROUND
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A. Consultant currently is serving as the Chairman of the Board of
Directors of GenVec.
B. GenVec desires to retain the services of Consultant in a consulting
capacity with respect to certain activities as described in this Agreement.
NOW, THEREFORE, Consultant and GenVec agree as follows:
1. Description of Services. GenVec hereby retains Consultant and
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Consultant hereby agrees to consult regarding GenVec's activities. Such
consulting services may take place between GenVec's management, scientists, or
other consultants, in the form of formal meetings, review of written materials,
informal consultation over the telephone, or otherwise, as agreed by the
parties.
2. Compensation. As consideration for Consultant's performance of the
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Agreement, GenVec shall pay Consultant One Thousand Five Hundred U.S. Dollars
($1,500.00) per day of consulting service requested by GenVec, and rendered by
Consultant. For purposes of this Agreement, eight (8) hours shall constitute
one day of consulting service. Consultant agrees to make himself available to
GenVec to provide consulting services for a minimum of five (5) business days
and up to ten (10) business days per month. Consulting services rendered for
any portion of one day hereunder shall be compensated on an hourly basis at the
rate of One Hundred Eighty-Seven U.S. Dollars ($187.00) per hour. GenVec shall
pay such consideration within 30 (thirty) days of receiving a written document
from Consultant, in a form reasonably acceptable to GenVec, stating the number
of days (or hours, if applicable) of consulting services provided during the
prior calendar month. Such statement shall be sent to the attention of the
Accounts Payable Department at GenVec. Consultant acknowledges that no amount
will be withheld from his consulting fees hereunder for payment of any federal,
national, state, or local taxes, and that Consultant has sole responsibility to
pay such taxes, if any, and to file such returns as may be required by
applicable laws and regulations.
3. Expenses. GenVec will reimburse Consultant for reasonable, documented
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expenses incurred by Consultant while rendering services under this Agreement,
subject to approval and
customary verification by GenVec. Such expenses shall include reasonable
necessary travel, lodging, and meal expenses. Requests for reimbursement shall
be in a reasonable form acceptable to GenVec and shall include an itemized
accounting of such expenses supported by documentation.
4. Proprietary Information and Inventions.
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4.1 Proprietary Information. Consultant acknowledges that his
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relationship with GenVec is one of high trust and confidence and that in the
course of his service to GenVec he will have access to and contact with
Proprietary Information. The Consultant agrees that he will not, during the
Term (as defined in Section 7 below) of the Agreement or at any time within five
(5) years thereafter, disclose to others, or use for his benefit or the benefit
of others, any Proprietary Information or Inventions (as defined in Section 4.3
below).
4.1.1 For purposes of this Agreement, "Proprietary Information"
shall mean all information (whether or not patentable and whether or not
copyrightable) owned, possessed or used by GenVec, including, without
limitation, any Invention, formula, trade secret, process, research, report,
technical data, know-how, technology or information with respect to employee
compensation, or any marketing plan or business plan, or forecasts, customer
lists or information regarding finances, marketing, pricing, or costs that is
communicated to, learned of, developed or otherwise acquired by Consultant as a
direct result of the services performed by Consultant for GenVec under the
Agreement.
4.1.2 Consultant's obligations under this Section 4.1 shall not
apply to any information that (i) is or becomes known to the general public
under circumstances involving no breach by the Consultant or others of the terms
of this Section 4.1, or (ii) is in Consultant's possession at the time of
disclosure, as shown by contemporaneous written evidence.
4.2 Ownership and Return of Property. All documents, data, records,
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apparatus, equipment and other physical property, whether or not pertaining to
Proprietary Information, furnished to Consultant by GenVec or produced by
Consultant or others in connection with Consultant's services shall be and
remain the sole property of GenVec and shall be returned promptly to GenVec as
and when requested by GenVec. Should GenVec not so request, Consultant shall
promptly return and deliver all such materials and property upon termination of
this Agreement for any reason, and Consultant will not retain any such property
or any reproduction or extract thereof following any termination.
4.3 Inventions.
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4.3.1 Ownership. All inventions, discoveries, data, technology,
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designs. innovations, and improvements related to the business of GenVec which
are made, conceived, reduced to practice or otherwise developed by the
Consultant, solely or jointly with others, as a direct result of services
performed under the terms of this Agreement (collectively, "Inventions") or
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GenVec's Proprietary Information received by the Consultant under the terms of
this Agreement shall be the property of GenVec. Consultant hereby assigns to
GenVec any right, title and interest he may have in any and all Inventions and
any and all related patents, copyrights, trademarks, trade names, and other
industrial and intellectual property rights and applications therefor, in the
United States and elsewhere, and appoints the Chief Executive Officer of GenVec
as his duly authorized attorney to execute, file, prosecute and protect the same
before any government agency, court or authority.
4.3.2 Disclosure. During the term of this Agreement and within
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one (1) year thereafter, Consultant will promptly disclose to GenVec all
Inventions.
4.3.3 Cooperation. Upon the request of GenVec and at GenVec's
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expense, Consultant shall execute such further assignments, documents and other
instruments as may be necessary or desirable to fully and completely assign all
Inventions to GenVec and to assist GenVec in applying for, obtaining, defending
and enforcing patents and/or copyrights or other rights in the United States and
in any foreign country with respect to any Inventions.
4.4 Relevant Developments. In the event that Consultant invents or
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discovers, or participates in the invention or discovery, of technology or
information relevant to the business of GenVec, Consultant agrees to use his
best efforts to notify GenVec of such invention or discovery and to assist
GenVec with the possible purchase or licensing of such invention or discovery.
5. Other Consultant Obligations.
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5.1 Consultant will not disclose to GenVec any information that
Consultant is obligated to keep secret pursuant to an existing agreement with a
third party or consistent with his duties or obligations to such third party and
nothing in this Agreement win impose any obligation on Consultant to the
contrary.
5.2 The consulting services provided by Consultant hereunder will not
be conducted on time that is required to be devoted to any third party.
Consultant shall not use the funding, resources or facilities of any other third
party to perform consulting services hereunder and shall not perform such
services in any manner that would give any third party rights to any result of
such services.
5.3 Subject to written waivers that may be provided by GenVec upon
Consultant's request, which waivers shall not be unreasonably withheld,
Consultant agrees that during the term of this Agreement he will not directly or
indirectly (i) provide any consulting services in the field of gene therapy to
any other business or commercial entity, (ii) participate in the formation of
any business or commercial entity in the field of gene therapy, or (iii) solicit
or hire away, or assist a third party to solicit or hire away, any employee or
consultant of GenVec. Consultant shall promptly
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notify GenVec of all other consulting agreements which Consultant has entered
into, or any consulting services which Consultant may provide to any third party
relating to gene therapy.
6. Nature of Relationship. At all times while acting pursuant to this
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Agreement, Consultant shall be deemed an independent contractor and will not be
deemed to be an employee of GenVec for any purpose, including without
limitation, for the purposes of any employee benefit program, tax withholding,
unemployment benefits, or otherwise. Consultant acknowledges and agrees and it
is the intent of the parties hereto that Consultant receive no GenVec-sponsored
benefits from GenVec either as a Consultant or employee. Such benefits include,
but are not limited to, paid vacation, sick leave, medical insurance, and 401(k)
participation. If Consultant is reclassified by a state or federal agency or
court as an employee, Consultant will become a reclassified employee and will
receive no benefits except those mandated by state or federal law, even if by
the terms of GenVec's benefit plans in effect at the time of such
reclassification Consultant would otherwise be eligible for such benefits.
Consultant shall not enter into any agreement or incur any obligations on
GenVec's behalf, or commit GenVec in any manner. Consultant further agrees to
indemnify and hold harmless GenVec and its directors, officers, and employees
from and against all taxes, losses, damages, liabilities, costs and expenses,
including attorney's fees and other legal expenses, arising directly or
indirectly from (i) any negligent, reckless or intentionally wrongful act of
Consultant or Consultant's assistants, employees or agents, (ii) a determination
by a court or agency that the Consultant is not an independent contractor, or
(iii) any breach by Consultant or Consultant's assistants, employees or agents
of any covenants contained in this Agreement
7. Term. This Agreement shall become effective as of the Effective Date
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and remain in effect until the first anniversary of the Effective Date, unless
terminated earlier pursuant to Section 8 (the "Term"), and, if mutually agreed,
may be extended on a month to month basis, on the same terms and conditions
herein.
8. Termination. Each of GenVec and Consultant may terminate this
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Agreement for any reason upon thirty (30) days written notice to the other
party. This Agreement shall automatically terminate upon death of Consultant.
Termination or expiration of this Agreement or any mutually agreed extension
shall not relieve a party with respect to any obligation accrued hereunder prior
to such expiration or termination. Sections 4, 5 and 9 through 13 shall survive
any expiration or termination of this Agreement.
9. Remedies. Consultant acknowledges that GenVec will suffer irreparable
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harm and have no adequate remedy at law if Consultant violates the terms of
Sections 4 or 5. In such event, GenVec shall have the right, in addition to any
other rights it may have, to obtain in any court of competent jurisdiction
injunctive or other relief to restrain any breach or threatened breach of this
Agreement without the obligation of posting any bond.
10. Governing Law. This Agreement shall be governed and construed in
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accordance with the laws of the State of Maryland, U.S.A., and the exclusive
venue for any dispute between the
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parties regarding the subject manner of this Agreement shall be the state and
federal courts located in the State of Maryland, U.S.A., and the parties hereby
consent to the personal jurisdiction of such courts.
11. No Conflict. Consultant represents that his retention as a consultant
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with GenVec and his performance under this Agreement does not, and shall not,
breach any agreement that obligates him to keep in confidence any trade secrets
or confidential or proprietary information of his or of any other party or to
refrain from competing, directly or indirectly, with the business of any other
party. Consultant shall not disclose to GenVec any trade secrets or confidential
or proprietary information of any other party.
12. Assignment. GenVec shall have the right to assign its rights under
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this Agreement to any person, partnership, corporation, or other entity,
provided that any assignee, transferee, or other successor agrees to be bound by
the terms hereof. Consultant shall not assign this Agreement without GenVec's
prior written consent. This Agreement shall be binding on GenVec, its
successors and assigns, and on Consultant, his heirs and assigns.
13. Notices. Any notice required or permitted hereunder shall be in
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writing and considered given when personally delivered or sent by certified or
registered mail, postage paid, or overnight delivery service, if to Consultant,
at his residence listed above, and if to GenVec, at the address listed above,
attention: President.
14. Entire Agreement; Counterparts. This Agreement constitutes the entire
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agreement between the parties and supersedes all prior written and oral
agreements between the parties with respect to the subject matter herein. No
change, amendment, or other modification of this Agreement shall be effective
unless signed by Consultant and an authorized representative of GenVec. This
Agreement may be executed in counterparts, each of which shall be deemed an
original and all of which shall constitute one instrument.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
and year written above.
GENVEC, INC. CONSULTANT
/s/ Xxxx X. Xxxxxxx /s/ Xxxxxxx X. Xxxxxx
By:_______________________________ By:________________________________
Xxxx X. Xxxxxxx Xxxxxxx X. Xxxxxx
Title: President and Chief
Executive Officer
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