EXHIBIT 10.21
CONSULTANT AGREEMENT
This Agreement is made as of the 1st day of January, 1995 by and
between Neurex Corporation, a corporation of the State of California having
offices at 0000 Xxxxx Xxxxxx, Xxxxx Xxxx, Xxxxxxxxxx 00000-0000 ("Client"), and
Plexus Ventures, Inc., a corporation of the Commonwealth of Pennsylvania, with
offices at 0000 Xxxxxx Xxxxxxx West, Building 18, Suite 301, Blue Xxxx,
Pennsylvania 19422 ("Consultant").
Background
Client desires to obtain the consulting services of Consultant in the
field of business development and Consultant desires to provide Client with such
consulting services during the term of this Agreement in its capacity as
independent contractor.
Agreement
Now, therefore, for good and valuable consideration, the legality and
sufficiency of which is hereby acknowledged, and intending to be legally bound,
the parties hereto agree as follows:
1. Description of Services.
a. Consultant shall provide business development assistance
through the personal services of Xx. Xxxx X. Xxxxxxxx, Xxxxxx X. Xxxxx, Ph.D.
and Xx. Xxxxxx X. Xxxxx, except as the parties may otherwise agree from time to
time, to assist Client to execute agreements with one (1) or more pharmaceutical
industry partner(s) relating to the development, registration and
commercialization of Corlopam(R) (fenoldopam), its analogs and pro-drugs
("Services").
b. Consultant shall not delegate, subcontract or employ any
other person or entity in the performance of the Services without the prior
written consent of Client except as Consultant's own expense and where
appropriate a Confidential Disclosure Agreement in favor of the Client has been
executed.
c. Consultant shall use its best efforts in the performance of
the Services and agrees to perform the same to the best of its ability.
Consultant shall control the time, location and manner of performance under this
Agreement. Client understands and accepts that a substantial portion of
Consultant's services shall be performed at its offices in Blue Xxxx,
Pennsylvania; however, Consultant agrees to send its representative to Client's
facilities for a reasonable number of meetings per year as may be requested by
Client. Consultant shall provide Client with monthly written reports detailing
its activities hereunder.
d. Client understands and accepts that the performance of
Services shall not require Consultant's efforts on a full-time basis.
2. Compensation to Consultant.
a. As compensation for Consultant's Services over the term of
this Agreement, Client shall pay Consultant a quarterly retainer at a rate of
three thousand dollars ($3,000) and nine thousand (9,000) Neurex Corporation
common stock grants per quarter. Consultant's quarterly retainer shall be due
and payable by Client on the first day of each quarter.
b. In addition to the quarterly retainer, Client shall pay
Consultant a success fee ("Fee") in Neurex Corporation common stock grants and
cash based on the total value of transactions consummated by the Client with the
assitance of Consultant's Services. For transactions consummated having a total
value to Client of:
(1) less than two million dollars ($2,000,000), Client
shall pay Consultant a Fee of twenty-five thousand (25,000) Neurex Corporation
common stock grants and no cash.
(3) ten million dollars ($10,000,000) and above, Client
shall pay Consultant a Fee of 25,000 Neurex Corporation common stock grants and
four and one-half percent (4.5%) of the total value between two million dollars
($2,000,000) and ten million dollars ($10,000,000) and three and one-half
percent (3.5%) of the total value above ten million dollars ($10,000,000) in
cash. Should Client fail to retain exclusive commercial rights to Corlopam(R)
(fenoldopam) in the United States in the transaction consummated, the cash
portion of the Fee shall be reduced to three and one-half percent (3.5%) of the
total value between two million dollars ($2,000,000) and ten million dollars
($10,000,000) and two and three-quarters percent (2.75%) of the total value
above ten million dollars ($10,000,000); the equity portion of the Fee shall
remain unchanged.
c. For the purpose of computing Consultant's Fee, the total
value of each transaction consummated shall comprise the following:
(1) All cash payments received by Client from third
parties in the form of equity payments, commitment or signing fees, license
fees, milestone payments, collaborative research and/or development payments,
royalty payments, termination payments and any such payments of a similar
nature. Consultant and Client agree that if there is a need to value equity
received by Client, in lieu or of in addition to cash, as part of a transaction
consummated, Client and Consultant shall seek an appraisal of the fair market
value of that equity as of the date received by Client for the purpose of the
calculation of the Fee.
(2) Non-cash items received by Client from third parties
are specifically excluded from the calculation of the Fee.
d. Consultant's Fee shall be paid by Client to Consultant via
wire transfer within ten (10) days of Client's receipt of each and all payments
subject to such Fee. If any payments received in the transaction consummated are
in the form of foreign currency, they shall be converted to U.S. dollars at the
rate listed for that foreign currency in The Wall Street Journal on the date
such payment is received by Client.
3. Reimbursement of Consultant's Expenses.
a. Client shall reimburse Consultant for the reasonable
out-of-pocket and administrative business costs and expenses incurred by
Consultant in the performance of the Services, including courier, copying,
facsimile and telephone charges; travel, meals and lodging incurred by
Consultant while performing the Services at locations other than its offices and
as approved by Client in advance of the travel; and an administrative fee
relating to travel planned and undertaken by Consultant on behalf of Client.
b. Consultant shall periodically invoice Client for all
expenses defined herein and such invoices shall be payable to Consultant
immediately upon receipt by Client.
4. Business and Technical Information.
Client shall regularly furnish Consultant, at no charge
to Consultant, with such of its technical, scientific, marketing, legal and
financial information and data as may be reasonably necessary for the
performance of the Services.
5. Client's Responsibilities.
a. Client shall use its best efforts to assist Consultant to
progress the targeting of, presentations to and negotiations with potential
third party collaborators. Client reserves the right to accept or reject, in its
sole discretion, any terms or conditions offered by any third parties.
b. Client represents to Consultant that it owns or has the
right to develop and license to others the technologies that are the subject
matter of this Agreement.
c. Client shall use the Services of Consultant exclusively for
the Services which are subject to this Agreement.
6. Disclosure and Confidentiality.
Consultant acknowledges that Client shall disclose to
Consultant inventions, trade secrets, know-how or information used or developed
in or related to the business of Client and Consultant has executed a
Confidential Disclosure Agreement in favor of Client.
7. Conflicting Obligations.
Consultant represents that it is not a party to any
agreement which conflicts with the terms of this Agreement or which materially
and adversely affects Consultant's ability to perform the Services for Client;
and Consultant agrees that it shall not enter into any such agreement during the
term hereof.
8. Term and Termination.
This Agreement shall commence on the date noted above and
shall extend for a period of twelve (12) months; however, the Agreement is
cancelable upon sixty (60) days notice should the Client decide to terminate
activities such as those described by Consultant's Services. After the initial
twelve (12) month term, the Agreement shall run from quarter to quarter unless
terminated with thirty (30) days notice by one of the parties to the other.
Client agrees to pay Consultant the applicable Fee for any transaction(s)
consummated within a twelve (12) month period following the date of termination
of this Agreement.
9. Indemnity.
Client and Consultant shall defend, indemnify, and hold
harmless each other and each party's agents, employees, officers and directors
from and against any and all damage, loss, liability, obligations, cost or
expense, caused directly or indirectly, by or as a result of any wrongdoing,
negligence, error or omission under the terms of this Agreement.
10. Miscellaneous.
a. Independent Contractor. Consultant and Client are
independent contractors under the terms of this Agreement and neither shall be
deemed to be an agent, employee or representative of the other, or be deemed to
possess any of the benefits associated therewith.
b. Taxes. Client shall pay the transaction, excise or other
taxes which may result from its execution of this Agreement and Consultant shall
be responsible for the payment of withholding and other taxes resulting from the
payment of any compensation by Client to Consultant hereunder.
c. Notices. All notices given under this Agreement shall be by
personal service, facsimile machine or by first class United States mail,
postage prepaid, return receipt requested, addressed to the parties at the
following addresses:
If to Consultant: If to Client:
Plexus Ventures, Inc. Neurex Corporation
0000 Xxxxxx Xxxxxxx West 0000 Xxxxx Xxxxxx
Xxxxxxxx 00, Xxxxx 000 Xxxxx Xxxx, XX 00000-0000
Blue Xxxx, XX 00000 Attention: Xxxx Xxxxxxx, Ph.D.
Attention: Xxxxxx X. Xxxxx FAX number: 000-000-0000
FAX number: 000-000-0000
or to such addresses as may be specified by like notice and shall be deemed to
have been duly given or made when delivered or deposited in the mails.
d. Governing Law. This Agreement shall be construed in
accordance with and governed by the internal laws of the State of California.
e. Sole Agreement. This Agreement, including the Exhibits
thereto, constitutes the sole agreement of the parties and supersedes all oral
negotiations and prior writings with respect to the subject matter hereof.
f. Waivers, etc. No amendment of this Agreement, and no waiver
of any one or more of the provisions hereof shall be effective unless set forth
in writing by such person against whom enforcement is sought.
g. Binding Agreement/Assignment. This Agreement shall be
binding upon and shall inure to the benefit of the parties hereto and their
respective successors and assigns; provided, however, that neither party may
assign any of their rights hereunder or any interests herein without the prior
written consent of the party against whom enforcement is sought.
h. Arbitration. The parties agree that any claim or
controversy relating to this Agreement shall be resolved exclusively by
arbitration in accordance with the rules of the American Arbitration
Association. Any such arbitration award granted shall be conclusive and binding
and shall not be appealable. Attorneys fees, costs and other out-of-pocket
expenses may be awarded by the arbitrators in their discretion to the party
which prevails in any such arbitration. Each party shall pay its own expenses
pending the arbitration award.
i. Enforceability. Any provision in this Agreement (except
provisions regarding the essence of this Agreement) that is held to be
inoperative, unenforceable, viodable or invalid in any jurisdiction shall, as to
that jurisdiction, be ineffective, unenforceable, void and invalid without
affecting the remaining provision hereof in that jurisdiction or the operation,
enforceability, or validity of that provision in any other jurisdiction, and to
this end the provisions of the Agreement are declared to be severable. In
Witness Whereof, Client and Consultant have executed this Agreement
as of the day and year written above.
Plexus Ventures, Inc. Neurex Corporation
By: __________________________ By: __________________________
Xxxxxx X. Xxxxx Xxxx Xxxxxxx, Ph.D.
Vice President President and C.E.O.
[Plexus Ventures, Inc. logo]
Via Telefax 000-000-0000
Regular Mail
September 25, 1995
Xxxx Xxxxxxx, Ph.D.
Chief Executive Officer
Neurex Corporation
0000 Xxxxx Xxxxxx
Xxxxx Xxxx, XX 00000
RE: Consultant Agreement
Dear Xxxx:
I would like to propose some revisions to the Consultant Agreement
between Neurex Corporation and Plexus Ventures dated January 1, 1995.
The philosophy behind our original proposal as regards compensation for
Plexus Ventures was to recognize the reality of Neurex' cash position and to
structure the relationship so that cash would not be an impediment to moving
ahead with the Corlopam(R) opportunity. In suggesting the following revisions,
we would like to maintain that approach by recognizing that the project has by
now moved to an advanced and, hopefully, late stage.
Proposed Revisions:
1. Original compensation be considered to be effective through August 31, 1995
as follows:
$ Shares
-----------
January - March 3,000 9,000
April - June 3,000 9,000
July - August 2,000 6,000
-------- -----------
8,000 24,000
2. The billing suspension we announced for September 1 will extend through
September 30;
3. Compensation to Plexus Ventures for the months October through December
will be at the rate of $5,000 per month. We will do everything possible to
complete our obligation to Neurex during this period and will agree in
advance that the project will be considered complete on December 31, 1995
unless Neurex elects to continue the Agreement into 1996.
4. The 25,000 Neurex shares payable as a portion of any Success Fee earned by
Plexus Ventures (Section 2.b. (1) et al) will now be payable by Neurex in
the form of stock grants or cash at the exclusive election of Neurex. If
the election is to pay cash the amount payable will be calculated at the
same percentage applicable to the $2 million up to $10 million tranche in
2.b. (2).
If these changes are acceptable to Neurex Corporation, you may signal
your consent by signing below and returning one copy to me.
If you would like us to consider other ideas, please let me know.
We look forward to the successful completion of the Corlopam(R) project
and its positive effect on the fortunes of Neurex.
Sincerely, Accepted,
Xxxx X. Xxxxxxxx _____________________
President Xxxx Xxxxxxx, Ph.D.
Neurex Corporation
_________________, 1995
