EXHIBIT 10.28
CONSULTING AND OPTION AGREEMENT
This Agreement (this "Agreement") is effective as of the 13th day of November
2003, (the "Effective Date") between Emisphere Technologies, Inc., a Delaware
corporation having its principal place of business at 000 Xxx Xxx Xxxx Xxxxx
Xxxx, Xxxxxxxxx, Xxx Xxxx 00000 (the "Corporation"), and Xx. Xxxxxx X. Xxxxxxxx,
an individual with a principal place of business at University of Wisconsin, 000
Xxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxx 00000-0000 (the "Consultant").
WHEREAS, the Consultant will provide advice and guidance in the areas of
clinical research, regulatory affairs and general corporate development, as well
as provide recommendations and counsel in these disciplines to the Corporation;
and
WHEREAS, both parties are sensitive to the need to avoid all areas where there
may be a conflict of interest.
NOW, THEREFORE, in consideration of the premises and mutual covenants and
conditions herein contained, the Corporation and the Consultant hereby agree as
follows:
1. RETAINER.
The Corporation agrees to retain the Consultant on a consulting basis and the
Consultant agrees to serve the Corporation as a consultant upon the terms and
conditions hereafter set forth. The retainer includes full compensation for all
administrative and any other consulting services to be rendered by the
Consultant, who is retained only for the purposes and to the extent set forth in
this Agreement.
2. TERM.
The term of this Agreement shall commence on the Effective Date, and shall
continue until October 31, 2005, unless sooner terminated as hereinafter
provided, or as extended by mutual written agreement of both parties.
3. COMPENSATION AND EXPENSES.
A. The Corporation agrees to grant to the Consultant the options to
purchase shares of common stock of the Corporation evidenced in the agreement
set forth at Exhibit A attached hereto.
B. The Corporation agrees to pay Consultant the sum of SIXTY THOUSAND
DOLLARS ($60,000.00) payable in equal quarterly installments of $7,500.00 on
November 13, 2003; February 1, May 1, August 1 and November 1 of calendar year
2004; and February 1, May 1, and August 1 of calendar year 2005. The
Consultant's Employer Identification number is ###-##-####, which is requested
and shall be used by the Corporation solely for the purpose of preparing a Form
1099 or similar form as required by law. The Consultant shall be responsible
for, and shall pay, all income, employment and other applicable taxes due on the
compensation he receives pursuant to this Agreement, and shall indemnify and
hold harmless the Corporation from all liability, claims and demands for
payments under any applicable unemployment and disability insurance,
self-employment, social security, income and other taxes, deductions and
payments required by applicable law with regard to his compensation received
under this Article 3. The Options granted pursuant to Paragraph A, the cash
payments set forth in Paragraph B and the reimbursement of expenses pursuant to
Paragraph C each of this Article 3 collectively represent the full payment due
the Consultant for services performed under this Agreement.
C. The Corporation shall pay directly or shall reimburse the Consultant for
all reasonable and necessary out-of-pocket expenses incurred by the Consultant.
The Consultant shall not be paid for any travel time. Any direct or indirect
expenses exceeding ONE THOUSAND DOLLARS ($1,000.00) in the aggregate during any
one (1) month period shall require the prior written consent of the Corporation.
In all events, reimbursable expenses must be directly related to the business of
the Corporation, unless otherwise agreed to in advance by the parties hereto in
a separate writing.
4. SERVICES.
A. The Consultant agrees to serve the Corporation faithfully and shall
devote such time as the Consultant, in consultation with the Corporation,
determines is required to perform the services hereunder to the business of the
Corporation. The Consultant shall perform his duties hereunder during regular
office hours at the offices of the Corporation or at a site agreed upon by the
parties. The Consultant shall provide additional time to the Corporation by
telephone and/or other means of communication as reasonably requested by the
Corporation. In the event that the Consultant and the Corporation are unable to
reach agreement on a reasonably acceptable work schedule, the parties shall have
the right to terminate this Agreement pursuant to Article 8 of this Agreement.
B. The Consultant agrees to render advice and services in connection with
the development of the Corporation's clinical research, assist in all areas of
regulatory affairs, and provide counsel and recommendations with regard to
general corporate development, business relationships, overall strategy and any
specific items submitted for the Consultant's review.
5. CORPORATION'S AUTHORITY.
The Consultant agrees to observe and comply with the rules and regulations of
the Corporation in respect of the performance of the Consultant's duties and to
carry out orders, directions and policies stated by the Corporation to the
Consultant from time to time (whether orally or in writing); provided, however,
that the Consultant shall determine the manner of carrying out the professional
duties hereunder. The Consultant's relationship with the Corporation during the
term of this Agreement shall be that of an independent contractor. The
Consultant shall have no authority to contract with any third party on behalf of
the Corporation or create any obligation on behalf of the Corporation. Neither
party has any authority to make any statement, representation, or commitment of
any kind or to take any action binding upon the other party, without the other
party's specific prior written authorization. Nothing contained in the Agreement
shall be construed to constitute the Consultant as a partner, employee,
representative or agent of the Corporation and none of the Consultant, its
officers, employees or affiliates shall hold itself out as such. As
non-employees of the Corporation, neither the Consultant nor any of the
Consultant's employees shall be eligible or entitled to participate or enroll in
any employee benefit plan or arrangement of the Corporation, including without
limitation any pension, stock, bonus, profit-sharing, savings, health, medical,
or similar benefit plan or arrangement the Corporation may from time to time
provide, or to receive any distributions from or with respect to any such plan
or arrangement.
6. CONFIDENTIALITY.
During the course of this Agreement, the Consultant will be exposed to data and
information that is confidential and proprietary to the Corporation, which
includes, but is not limited to, trade secrets, privileged records, proprietary
information, data, case report forms, laboratory work sheets, slides, research,
reports, results, investigations, experiments, developmental work, experimental
work, works in progress, plans, proposals, codes, and all concepts, ideas,
materials or information related to the business, products, or operation of the
Corporation, whether in written, verbal, physical, electronic, tangible or
intangible form, made available, disclosed, or otherwise made known to the
Consultant as a result of services rendered or to be rendered under this
Agreement (hereinafter "Confidential Information").
The Consultant acknowledges and agrees that the Corporation is entitled to
prevent the disclosure of Confidential Information. As a portion of the
consideration for the compensation being paid by the Corporation to the
Consultant, the Consultant agrees, except for purposes of this Agreement and the
services rendered, to hold in strictest confidence and to maintain as
confidential all Confidential Information obtained from the Corporation or
developed by the Consultant for the Corporation and shall not use for any
purpose, commercial or otherwise, or disclose to any third parties any
Confidential Information. The Consultant acknowledges that Confidential
Information is the sole and exclusive property of the Corporation. The
Consultant is not permitted to use any such Confidential Information for
teaching, research or publication purposes.
C. The Consultant agrees to disclose only such information that the
Consultant is legally free to disclose and agrees that the Corporation shall
have the right, without further payment other than as set forth in Article 3
above, to freely use any and all information disclosed by the Consultant to the
Corporation. The Consultant shall avoid all circumstances and actions that place
the Consultant in a position of divided loyalty with regard to his obligations
to the Corporation. All Confidential Information disclosed to the Consultant by
the Corporation, as well as any information generated by the Consultant pursuant
to the execution of services hereunder, shall be maintained by the Consultant in
strictest confidence. Accordingly, the Consultant will use the Confidential
Information furnished by the Corporation only for the purpose of fulfilling its
obligations under this Agreement.
D. The above restrictions shall not prevent the Consultant from disclosing
or using in any manner information that the Consultant can show by written
records:
(i) was in the public domain at the time of disclosure; or
(ii) becomes part of the public domain other than by breach of this Agreement
by the Consultant; or
(iii) was not acquired, directly or indirectly, from the Corporation; or
(iv) is received without restriction on use or disclosure from a third party
who is under no such restriction; or
(v) is required by law, regulation or court order to be disclosed, provided
prompt advance written notice is given to the Corporation to allow it the
opportunity to obtain appropriate protection of Confidential Information.
E. All obligations of confidentiality and nondisclosure set forth in this
Agreement will survive, without limitation, the expiration or earlier
termination of this Agreement for any reason.
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7. OWNERSHIP AND RETENTION BY CORPORATION.
A. The Consultant shall timely communicate in full detail and disclose all
data, information, reports, results and other work product collected, generated,
prepared or derived by the Consultant during the course of or as a result of
Services performed by the Consultant pursuant to this Agreement ("Data"). All
Data shall be and remains the sole and exclusive property of the Corporation,
and shall be treated as Confidential Information. All Data, discoveries,
inventions, improvements, new uses, processes, copyrights, trade secrets,
techniques, and compounds, whether patentable or not, arising from advice
provided and/or services rendered under this Agreement (collectively referred to
hereinafter as "Inventions"), shall be the sole and exclusive property of the
Corporation with full right of ownership, title, and interest thereto.
B. The Consultant shall promptly disclose to the Corporation any Inventions
arising hereunder. The Consultant represents that any employees, agents, and
consultants of the Consultant have agreed in writing to assign to the Consultant
all Inventions made by such employee, agent or consultant in the course of his
or her employment. The Consultant hereby assigns, and agrees unconditionally to
assign, to the Corporation without the payment of additional compensation to the
Consultant, any and all right, title and interest in and to any Inventions
arising as a result of Consultant's activities on behalf of the Corporation. The
Consultant shall fully cooperate with the Corporation in obtaining and
maintaining, at the Corporation's cost and expense, any registration or other
protection as may be available with respect to such Inventions, and shall
execute all documents reasonably deemed necessary by the Corporation for
purposes of procuring and maintaining such patent protection, and all documents
necessary for assigning Inventions to the Corporation. The Corporation shall be
free to exploit both the registration or other rights or protections it holds as
a result of the services provided hereunder as well as any other results of the
services provided hereunder without any additional compensation to the
Consultant. All works authored by the Consultant under this Agreement shall be
deemed or treated as "works for hire" to the extent permitted by federal
copyright law. The Consultant may not use, publish, communicate, divulge or
disclose any such information that has been designated as Confidential
Information. Project results, findings, reports, notebook records, raw data and
any other information arising out of the performance of this Agreement will not
be released, published or referred to, in whole or in part, by the Consultant or
any affiliates.
C. Neither party shall use the name or logo of the other party, nor the
names of any of the other party's employees in any statement or presentation
that is public or likely to become public (including, without limitation, in any
publicity, advertising or news release) without the prior written permission of
the other party.
D. At the completion of advice provided and/or services rendered by the
Consultant, all original Data, regardless of the method of storage or retrieval,
shall at the direction and written request of the Corporation be delivered to
the Corporation and all additional copies held by the Consultant shall be erased
or destroyed.
E. The Consultant represents to the Corporation that he is not a party to
any agreement that would prevent him from fulfilling his obligations under this
Agreement. During the term of this Agreement, the Consultant agrees he will not
enter into any agreement to provide services, which would prevent him, in any
way, from providing the services contemplated under this Agreement.
F. All obligations imposed on the Consultant by this Article 7 of this
Agreement will survive, without limitation, the expiration or earlier
termination of this Agreement for any reason.
G. In the event of a breach or potential breach of the restrictions and
prohibitions in Articles 6 and 7, the Consultant acknowledges that the
Corporation will be caused irreparable harm and that money damages may not be an
adequate remedy. The Consultant also acknowledges that the Corporation shall be
entitled to injunctive relief (in addition to its other remedies at law) to have
such provisions enforced without posting any bond.
8. TERMINATION.
A. This Agreement shall be terminated upon the happening of the earliest of
the following events:
(i) a date on which the Corporation and the Consultant mutually agree in
writing to terminate the Consultant's services;
(ii) October 31, 2005;
(iii) receipt of written notice from either party canceling this Agreement (with
or without cause);
(iv) determination by the Corporation that actions (or inactions) of the
Consultant have made the Consultant's relationship with the Corporation
professionally detrimental to the Corporation or its employees or customers; or
(v) as set forth in Article 4A.
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9. NOTICES.
Notices and requests for reimbursement pursuant to Paragraph C of Article 3 and
other communication shall be in writing and shall be deemed to have been
received upon the hand delivery thereof, or if sent by courier or overnight
mail, or by certified, return receipt mail, postage prepaid, and addressed to
the party at the address given below, or such other address as may be designated
in writing, five (5) days after the mailing thereof if mailed in the State of
New York, or eight (8) days after the mailing thereof if mailed outside the
State of New York,
If to the Corporation, to: If to the Consultant, to:
Xx. Xxxxxxx X. Xxxxxxxx Dr. Xxxxxx Xxxxxxxx
Emisphere Technologies, Inc University of Wisconsin
000 Xxx Xxx Xxxx Xxxxx Xxxx 000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000 Xxxxxxx, Xxxxxxxxx 00000-0000
10. INDEMNIFICATION AND WARRANTIES.
The Consultant agrees to defend, indemnify and hold harmless the Corporation,
its officers, agents, employees, executors and assigns with respect to all
claims, damages, judgments, actions and causes of action, arising out of the
Consultant's (or its employees') negligent or unlawful acts or omissions that
are adverse to the Corporation or any of its employees or agents, including,
without limitation, (a) activities contrary to the relevant interests and
recommendations of the Corporation, and (b) any use of Confidential Information,
by the Consultant, including all costs, expenses and attorney's fees incurred in
the defense of any and all claims and/or litigation.
11. WAIVER AND INVALID PROVISIONS.
The failure to enforce any right or provision herein shall not constitute a
waiver of that right or provision. No failure or delay by the Corporation in
exercising any right, power or privilege hereunder shall operate as a waiver
hereof, nor shall any single or partial exercise thereof preclude any other or
further exercise thereof. If any provisions herein are found to be
unenforceable, it is the intent of the parties that such provisions be replaced,
reformed or narrowed so that their original business purpose can be accomplished
to the extent permitted by law. The validity or unenforceability of any
particular provision of this Agreement shall not affect the validity or
enforceability of any other provisions of this Agreement, and the Agreement
shall be construed in all respects as if such invalid or unenforceable
provisions were omitted.
12. OTHER DOCUMENTS.
If at any time the Consultant exercises the Options granted to him pursuant to
this Agreement or otherwise purchases Common Stock, then the Consultant agrees
to sign documents submitted to him by the Corporation, from time to time,
pertaining to stock trading restrictions based upon Securities and Exchange
Regulations and Xxxxxxx Xxxxxxx prohibitions and designed to protect the
Corporation from liability incurred as a result of a breach of any such
regulation by the Consultant.
13. CONSTRUCTION.
This Agreement shall be governed by, construed, interpreted, applied and
enforced in accordance with the laws of the State of New York applicable to
contracts to be performed fully within the State of New York, exclusive of its
conflicts of laws provisions. The Consultant consents to personal jurisdiction
and service and venue in any Federal or State Court within the State of New York
for the purpose of any action or suit arising out of this Agreement.
14. GENDERS AND USAGE.
As used in this Agreement, any gender shall be construed as including all other
genders, and the singular shall be construed as including the plural and the
plural the singular, as the sense requires.
15. AMENDMENT.
No amendment to any provision of this Agreement shall be effective unless in
writing and signed by each party. This Agreement may not be changed, amended or
supplemented, except in a writing signed by the parties.
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16. ASSIGNMENT.
This Agreement may not be assigned or transferred, nor may any of the rights or
obligations of any of the parties hereunder be assigned or delegated, by a party
without the prior written consent of the other party, which consent shall not be
unreasonably withheld; provided, however, that the Corporation may assign or
transfer this Agreement to a parent or subsidiary corporation.
17. DISPUTE RESOLUTION.
Except as otherwise provided in Article 7G, any dispute or controversy arising
under or in connection with this Agreement shall be settled exclusively by
arbitration, conducted before a single arbitrator in New York, New York in
accordance with the National Rules for the Resolution of Employment Disputes of
the American Arbitration Association ("AAA") then in effect. The Consultant and
the Company irrevocably and unconditionally waive any objection, including,
without limitation, any objection to the laying of venue or based on the grounds
of forum non conveniens to the bringing of any action or proceeding in such
location. The decision of the arbitrator will be final and binding upon the
parties hereto. Judgment may be entered on the arbitrator's award in any court
having jurisdiction. Each party shall bear its own costs of arbitration and
shall equally divide the charges of the arbitrator and the AAA.
17. ENTIRE AGREEMENT; COUNTERPARTS.
This Agreement contains the entire agreement of the parties and supersedes all
prior oral or written representations, negotiations and understandings between
the parties relating to subject matter within this Agreement. It may be executed
in counterparts (including, by facsimile), and each such counterpart shall be
deemed an original and shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed and
delivered on the date first above written by their respective officers duly
authorized and empowered.
Emisphere Technologies, Inc.
By: /S/ Xxxxxx X. Xxxxxxxx
----------------------------
Xx. Xxxxxx X. Xxxxxxxx
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