Exhibit 10.2
ATTACHMENT B
CONSULTING AGREEMENT
This Consulting Agreement (the "Agreement"), dated March 18, 2003 (the
"Effective Date"), is entered into by and between CollaGenex Pharmaceuticals,
Inc., a Delaware corporation (the "Company"), and Xxxxx Xxxxxxxxx (the
"Consultant").
WHEREAS, the Company desires to retain the Consultant to perform consulting
services for the Company, as more particularly described herein;
WHEREAS, the Consultant is knowledgeable in providing such consulting services
and has agreed to provide such services to the Company; and
WHEREAS, the parties have entered into a Transition Agreement and Release
governing the parties' rights and obligations in connection with the
Consultant's transition from the Company of which this Agreement is a part.
NOW, THEREFORE in consideration of the mutual covenants and promises contained
herein and other good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged by the parties hereto, the parties agree as
follows:
1. JOB TO BE PERFORMED. The Consultant will advise the Company on various
matters related to its business, as such are discussed below (the "Services").
It is anticipated that he will provide approximately 15 hours per month of
Services. It is contemplated, however, that during the first two months of the
term of this Agreement, the Consultant will provide approximately 80 hours per
month of Services. The Consultant agrees to comply with the Company's rules,
regulations, policies and procedures in performing such Services.
"Services" shall include, but shall not be limited to, the following: (i)
advice and counsel to the Company's Board of Directors and Chief Executive
Officer on matters including, but not limited to, business strategy,
long-term planning, and historical business and market perspective; (ii)
reasonable assistance, either by telephone or, if necessary, in-person,
with any information or strategy needed to formulate and implement an
effective transition as contemplated in the Transition Agreement and
Release; (iii) reasonable assistance with the prosecution or defense of any
legal proceeding, including, but not limited to, litigation and agency
proceedings and investigations, whether regarding intellectual property,
matters before the Food and Drug Administration or otherwise; (iv) investor
relations, including attendance at functions when directed by the Board of
Directors; and (v) such other related services as may be requested by the
Company from time to time.
The parties agree that nothing in this consulting agreement shall
unreasonably interfere with the Consultant's other business activities.
2. INDEPENDENT CONTRACTOR. It is the express intention of the parties hereto
that the Consultant is an independent contractor and not an employee, agent,
joint venturer or partner of the Company
for any purposes whatsoever. The Consultant shall not be entitled to any
benefits which the Company may make available to employees from time to time.
The Consultant shall be solely responsible for all state and federal income
taxes, unemployment insurance and social security taxes and for maintaining
adequate workers' compensation insurance coverage for himself or any employee(s)
he may have.
(a) Final Results. In the performance of the Services, the Consultant has
the authority to control and direct the performance of the details of the
Services, the Company being interested only in the results obtained.
However, the Services contemplated herein must meet the Company's standards
and approval and shall be subject to the Company's general right of
inspection and supervision to secure their satisfactory completion.
(b) Non-Exclusivity. The Consultant retains the right to contract with and
be employed by other companies or entities for his consulting services,
subject only to the restriction that any such alternate work may in no way
conflict with the Consultant's duties to the Company stated herein and in
the Transition Agreement and Release. Likewise, the Company retains a
reciprocal right to contract with other companies and/or individuals for
consulting services without restriction.
(c) No Agency. The Consultant is not an authorized agent of the Company and
does not have any right or authority to bind or otherwise act on the
Company's behalf in any contract or other business relationship, without a
prior written authorization signed by an executive officer of the Company.
3. COMPENSATION. For the full and proper performance of this Agreement, the
Company shall pay the Consultant in twenty-four (24) equal installments of
$27,037.50 paid on or about the first day of each month following the Separation
Date (as defined in the Transition Agreement and Release). The Company shall
reimburse the Consultant for all pre-approved reasonable expenses actually
incurred by the Consultant in the course of providing the Services.
4. CONFIDENTIAL AND PROPRIETARY INFORMATION. The Consultant acknowledges that
his relationship with the Company is one of high trust and confidence in that in
the course of his service to the Company, he will have access to and contact
with confidential and proprietary information of the Company, its affiliates and
of the Company's customers, including but not limited to business plans, methods
and practices of doing business, financial information and terms and conditions
of current contractual relations with customers and/or suppliers and customer,
supplier lists, technical specifications, personnel information, and trade
secrets. The Consultant will not, during the term of this Agreement or at any
time thereafter, disclose any confidential and proprietary information to others
outside the Company or use the same for any purpose unrelated to the business of
the Company. For such purposes, confidential and proprietary information shall
not include any general "know-how" of Consultant or information that the
Consultant knew prior to his engagement with the Company that has not been
previously assigned to the Company.
5. INVENTION ASSIGNMENT.
(a) Any and all any inventions, improvements, processes, procedures,
techniques, documentation, specifications, research, designs, files,
methods, ideas, whether patentable or not (collectively referred to as
"Inventions") which the Consultant may make, conceive, discover or develop,
during the course of his consultancy with the
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Company shall be deemed works made for hire under the applicable copyright
laws, and it is intended that all such Inventions shall be the sole and
exclusive property of the Company. The Consultant agrees to assign and
hereby does assign to the Company all his rights and interests in all
Inventions, patents, copyrights, trademarks, and rights to royalties with
respect to such Inventions, patents, copyrights, and trademarks, including
all proprietary rights, publication rights, display rights, attribution
rights, integrity rights, approval rights, publicity rights, privacy
rights, or moral rights associated therewith.
The Consultant understands that this paragraph (a) shall not apply to
Inventions which are made and conceived by him (i) not on the Company's
premises and (ii) not using the Company's tools, devices, equipment, or
Confidential Information.
(b) The Consultant agrees to cooperate fully with the Company, both during
and after his consultancy with the Company, with respect to the
procurement, maintenance and enforcement of copyrights, patents and other
intellectual property rights (both in the United States and foreign
countries) relating to Inventions. The Consultant shall sign all papers,
including, without limitation, copyright applications, patent applications,
declarations, oaths, formal assignments, assignments of priority rights,
and powers of attorney, which the Company may deem necessary or desirable
in order to protect its rights and interests in any Invention.
6. RETURN OF PROPERTY. Any and all materials furnished to the Consultant by the
Company or relating to the business of the Company shall be returned to the
Company on the earlier of the conclusion of the term of the Agreement or upon
written request by the Company.
7. NO CONFLICTS. The Consultant represents and agrees that he has no actual or
potential conflicts of interest in accepting this engagement with the Company
and/or performing the Services. The Consultant further represents and agrees
that he has not brought and will not bring to the Company, or use in the
performance of the Services, any materials or documents of a present or former
employer or client that are not generally available to the public, unless he has
obtained written authorization for possession and use of such materials or
documents.
8. TERM OF AGREEMENT. This Agreement is effective from the Separation Date, as
such is defined in the Transition Agreement and Release, through and including
the day of the second anniversary thereof, unless sooner terminated as set forth
below.
9. TERMINATION OF AGREEMENT. This Agreement may be terminated in the following
manner: (a) at any time upon the mutual written consent of the parties hereto;
or (b) if one party has materially breached this Agreement, upon ten (10) days'
prior written notice delivered to the breaching party, if such breaching party
does not cure such breach within such ten (10) day period. In addition, the
Company's obligations hereunder shall cease immediately upon the death or
disability of the Consultant; provided, however, the Company shall pay to
Consultant or Consultant's heirs, as applicable, any amount due and owing to the
Consultant prior to such event of death or disability. For purposes of this
Agreement, the disability of the Consultant shall be deemed to have occurred
upon Consultant's medical inability to fulfill his obligations hereunder for a
period of three (3) consecutive months.
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10. NON-WAIVER. No delay or omission by the Company in exercising any right
under this Agreement shall operate as a waiver of that or any other right. A
waiver or consent given by the Company on any one occasion shall be effective
only in that instance and shall not be construed as a bar or waiver of any right
on any other occasion.
11. AMENDMENT. This Agreement may be amended or modified only by a written
instrument executed by both the Company and the Consultant.
12. NON-ASSIGNABILITY OF CONTRACT; SUCCESSORS. This Agreement is personal to the
Consultant, and he shall not have the right to assign any of his rights or
delegate any of his duties without express written consent of the Company. Any
assignment or delegation to which the Company does not consent, whether express
or implied or by operation of law, shall be void and shall constitute a breach
and a default of this Agreement by the Consultant. Any successor to the Company
(whether direct or indirect and whether by purchase, lease, merger,
consolidation, liquidation or otherwise) to all or substantially all of the
Company's business and/or assets shall assume the Company's obligations under
this Agreement in the same manner and to the same extent as the Company. In
addition all rights of the Company under this agreement shall inure to the
benefit of and be enforceable by any of its successors, agents, employees, and
assigns.
13. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the Commonwealth of Pennsylvania.
14. WARRANTIES. The Consultant will assume sole responsibility for his
compliance with applicable federal and state laws and regulations, and shall
rely exclusively upon his own determination, or that of his legal advisers, that
the performance of Services and the receipt of consideration hereunder comply
with such laws and regulations, including but not limited to, applicable tax
law.
15. COMPLETE AGREEMENT. This Agreement contains the entire understanding between
the parties and supersedes, replaces and takes precedence over any prior
understanding or oral or written agreement between the parties respecting the
subject matter of this Agreement, except that nothing herein shall supercede the
Transition Agreement and Release between Consultant and the Company. There are
no representations, agreements, arrangements, nor understandings, oral or
written, between the parties hereto relating to the subject matter of this
Agreement which are not fully expressed herein.
16. SEVERABILITY. In the event any provision of this Agreement shall be held
invalid, the same shall not invalidate or otherwise affect in any respect any
other term or terms of this Agreement, which term or terms shall remain in full
force and effect.
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17. COUNTERPARTS. This Agreement may be executed in two (2) signed counterparts,
each of which shall constitute an original, but all of which taken together
shall constitute one and the same instrument.
This Agreement is executed and entered into on the date(s) set forth below.
XXXXX XXXXXXXXX COLLAGENEX PHARMACEUTICALS, INC.
/s/ Xxxxx Xxxxxxxxx /s/ Xxxxx X'Xxxx
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Date: March 18, 2003 By: Xxxxx X'Xxxx
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Title: Member of the Board of Directors
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Date: March 18, 2003
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