Exhibit 10.7
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT, made effective as of the 1st day of
October 1998, by and between FIRST SCIENTIFIC, INC., a Delaware
corporation with its principle office located at 0000 Xxxx 0000
Xxxxx, Xxxxx 000, Xxxxx, Xxxx 00000, and any existing or future
subsidiary (collectively, the "Company") PHARMULATIONS, L.C., a
Utah limited liability company, located at 0000 Xx. Xxxxx Xxxxx,
Xxxxx, XX 00000 ("Pharmulations").
The Company agrees to engage Pharmulations to perform certain
scientific and regulatory consulting and other services as detailed
hereinafter for the Company and Pharmulations agrees to perform
such services on the terms and conditions hereinafter set forth.
1. TERM. The services of Pharmulations shall commence on the 1st
day of October, 1998 and continue for seventy-two months (the
"Consulting Period") from the date hereof. The contract shall be
automatically renewable from year to year thereafter, unless either
(1) a majority of the directors of the Company or shareholders
holding a majority of the outstanding voting shares of Company
common stock should vote not to extend the Consulting Period and
Pharmulations is notified of such vote at least sixty (60) days
prior to the end of the Consulting Period or any extension thereof
or (2) Pharmulations gives Company at least 30 days prior
notification of termination.
2. DUTIES AND SERVICES. Pharmulations shall assist the Company in
the role of a chief scientific adviser and shall advise the Company
with respect to all of the Company's existing products, proposals
for improvements to such products and regulatory testing and
compliance issues for such products. Pharmulations agrees to
perform all of its duties hereunder pursuant to the directions of
the President of the Company and in accordance with reasonable
commercial standards. Provided, however, Pharmulations will
provide such services based upon one person providing such services
on a part-time basis and at such times and manner as Pharmulations
from time to time shall determine. Provided further, that such
services will be performed or supervised by a senior staff person.
The Company agrees and acknowledges that neither Pharmulations or
any of its employees shall be exclusively retained by the Company
and that at least one of Pharmulations' employees is a professor at
Xxxxx State University and that he and the other employees have and
will continue to serve in other capacities and for other businesses
during the term of this Agreement. The Company has no right to
control any such activity or any claim over any of the work product
or proprietary information developed by Pharmulations or its
employees in such other capacities or businesses.
3. NEW FORMULAS. In addition to providing the above services for
the Company's products, Pharmulations may from time to time use its
best efforts to provide formulas for new products similar in nature
to existing products. The Company's new formulas shall be
developed as follows. The Company shall, with the consent of its
president, fully consider the need for any new formula and shall
only after such consideration, propose the creation of such new
formula in detail in writing to Pharmulations. Pharmulations and
the Company shall then mutually agree as to whether or not the
creation of the proposed new formula can and should be performed by
Pharmulations and negotiate in good faith a written agreement which
may specify the incentive consideration which may be paid to
Pharmulations for such formula. The amount of such incentive
consideration, whether paid in a lump sum or periodic payments,
shall take into consideration or be based upon either the actual or
the anticipated costs to Pharmulations and an anticipated gross
revenues to the Company from products that use such formula. The
Company shall present to Pharmulations all ideas for new formulas
and shall not develop internally any such formulas or employ others
to develop such formulas unless Pharmulations determines it does
not want to develop such formula on terms acceptable to the Company
within 90 days of the Company's written request of Pharmulations to
develop it. Pharmulations shall keep the Company advised as to the
development process of any new formulation it undertakes. After
Pharmulations develops any such new formula, Pharmulations shall
give the Company written notice of completion and assign all of its
rights patent applications and patents, if any, to such new formula
to the Company. Any incentive consideration paid for new
formula(s)- shall be in addition to the compensation provided for
in Paragraph 4, below. The assignment of the formula and payment
of its incentive consideration shall be structured to the extent
possible so that Pharmulations will be subject to long-term capital
gains.
4. COMPENSATION. As compensation for its agreed services
hereunder, the Company shall pay Pharmulations a consulting fee of
$7,000 per month during the Consulting Period (which monthly amount
shall increase as of each annual anniversary date of this Agreement
by $ 1,000). In addition, the Company may pay such annual bonuses
(stock and/or cash) as the Company determines warranted based upon
Pharmulations' services and value to the Company.
5. OWNERSHIP OF INTELLECUTAL PROPERTY. As a result of the
acquisition of certain formulas from Xx. Xxxxxx Xxxxxx, as
identified in the Agreement and Plan of Reorganization created in
1998, between SPPS Financial Corporation, Linco Acquisition
Corporation, and Xx. Xxxxxx Xxxxxx, the Company owns the rights to
such identified formulas created by Xx. Xxxxxx Xxxxxx (the "Xxxxxx
Formulas"). Pharmulations hereby agrees that all reformulation,
minor modifications, and minor improvements to the Xxxxxx Formulas,
whether or not protectable under patents, trademark, copyright or
other laws (whether or not the Company chooses to file for such
protection) conceived, developed, enhanced, or extended wholly or
partially by Pharmulations during the Consulting Period, shall
constitute "work for hire" and shall be and remain the property of
the Company. Except for such reformulation, minor modifications,
and minor improvements to the Xxxxxx Formulas all other formulas,
technology and products developed by Pharmulations and/or Xx.
Xxxxxx Xxxxxx is the property of Pharmulations unless there exists
a written agreement executed by Pharmulations as provided for in
Paragraph 3, above, that clearly provides the Company will own such
formula, technology and/or product. The above ownership is true
whether or not such formulas are conceived developed enhanced or
extended before, during, or after the Consulting Period and/or
whether or not conceived or developed while Pharmulations is
providing services hereunder. Anything herein to the contrary
notwithstanding, except to the extent specifically herein above
provided to the contrary, the Company has no rights to or rights to
acquire any other formulas, products or intellectual property
developed, invented or produced by Pharmulations, Xx. Xxxxxx
Xxxxxx, or any other employee of Pharmulations.
6. TERMINATION OF CONCULTING RELATIONSHIP.
A. Notwithstanding anything to the contrary stated in the
Agreement, the consulting arrangement of Pharmulations with the
Company and its right to any and all compensation to which it would
otherwise be entitled shall terminate upon the earliest to occur of
the following events: (i) permanent disability (as hereafter
defined) of Xx. Xxxxxx Xxxxxx, (ii) upon written notice of
termination to Pharmulations for "just cause" as defined in
Paragraph 6 below, or (111) upon written notice to the Company of a
material breach hereof that goes substantially uncorrected for a
period of 30 days from written notice detailing the material
breach. Provided, however, in the event of such an early
termination as the result of Xx. Xxxxxx Xxxxxx'x permanent
disability or the Company's breach, the Company shall, never the
less continue to pay to Pharmulations for a period of twelve months
after such termination the monthly payment provided for in
Paragraph 4, above. In addition, the Company may terminate this
Agreement at any time, with or without cause, but in such event the
Company shall pay to Pharmulations, in a single lump sum, an amount
equal to the monthly compensation provided for in Paragraph 4,
above, multiplied by the greater of. 1) the number of months that
remain in the initial seventy-two month term provided for in
Paragraph 1, above or 2) six months.
B. "Permanent disability" for purposes of this Agreement.
Xx. Xxxxxx Xxxxxx shall be considered to have a "permanent
disability" if, in the judgment of two (2) licensed physicians (one
of whom shall be selected by the Board of Directors of the Company
and the other selected by Pharmulations) Xx. Xxxxxx Xxxxxx is
unable to perform his customary duties for Pharmulations under this
Agreement because of a physical or mental impairment or if Xx.
Xxxxxx Xxxxxx is unable to perform such customary duties and
responsibilities for one hundred twenty (120) days in any twelve
(1/2) month period for any reason whatsoever; provided, however,
that the Company shall only pay Pharmulations its compensation
package has provided by Paragraph 4 above for at least six months
during said disability period. The determination by such
physicians shall be binding and conclusive for all purposes upon
the expiration of said one hundred twenty 120-day period, the
Company may, in its sole discretion, terminate this Agreement.
7. Termination for "just cause."
A. "Just cause" for purposes of this Agreement shall mean the
commission by Pharmulations of acts constituting theft,
embezzlement, obtaining funds or property under false pretenses or
gross misconduct with respect to the property of the Company that
goes uncorrected during a 90 days period after written notice to
Pharmulations detailing such alleged gross misconduct.
B. In the event that Pharmulations is terminated without
"just cause" as that term has been defined above, and the Company
fails to make timely payments of any compensation due it under this
Agreement, Pharmulations will be entitled to be paid all reasonable
legal fees and costs incurred as the result of any legal action
taken by it to challenge such termination and to collect such
unpaid compensation and for other damages.
C. In the event the Company elects to terminate Pharmulations
under this Agreement for "just cause" as defined above, the Company
shall send written notice to Pharmulations describing in reasonable
detail what actions of Pharmulations are deemed to constitute "just
cause."
D. Pharmulations shall be given a reasonable opportunity to
demonstrate to the Board of Directors of the Company, at a meeting
that it may call for the purpose, that no "just cause" exists for
its termination. No waiver by the Company of any default by
Pharmulations or the breach by Pharmulations of its obligations to
perform under this Agreement shall be deemed a waiver of any future
breach or default, whether or not such breach or default is of the
same nature.
8. COVENANT OF CONFIDENTIALITY. During the Consulting Period
under this Agreement, including extensions and renewals, and for
two (2) years following termination thereof for any reason,
Pharmulations shall not (other than pursuant to its duties
hereunder) directly or indirectly, use, divulge, furnish or make
accessible to anyone, without the prior written consent of the
Board of Directors of the Company, any intellectual property or
secret information belonging to the Company.
9. ENTITLEMENT OF THE COMPANY TO INJUNCTIVE RELEIF. Pharmulations
acknowledges that the services to be rendered by it are of a
special, unique and extraordinary character and, in connection with
such services, it will have access to confidential information
vital to the business of the Company. Pharmulations consents and
agrees that, if it violates any provision of this Agreement with
respect to confidentiality, that in addition to any other remedies
which the Company may have under this Agreement or otherwise, the
Company shall be entitled to apply to any court of competent
jurisdiction for an injunction restraining Pharmulations or any
other party acting in concert with it from committing, continuing
or participating in a violation of this Agreement.
10. INDEMNIFICATION AND PAYMENT OF LITIGATION EXPENSES.
A. The Company agrees to hold harmless against and indemnify
Pharmulations, its members, manager, employees and agents
(collectively "Indemnitee") from and against reasonable costs,
disbursements and counsel fees and amounts paid or incurred in
satisfaction of settlements, 'judgments, fines and penalties, in
connection with any proceeding involving Indemnitee by reason of
any action or inaction taken by Indemnitee for the benefit of the
Company or as a result of its relationship with of the Company.
B. The termination of any proceeding by judgment, order,
settlement, conviction or upon a plea of nolo contenders or its
equivalent shall not result in Indemnitee being required to
reimburse the Company for any amounts paid under this
indemnification provision unless the trier of fact specifically
determines that Indemnitee intentionally took the action or actions
complained of solely for its personal benefit as opposed to that of
the Company.
C. As used in this indemnification provision, the term
"proceeding" means any pending, threatened or completed civil,
criminal, administrative or arbitrative action, suit or proceeding,
and any appeal therefrom in any inquiry or investigation which
would lead to such action, suit or proceeding.
D. In any proceeding subject to this indemnification provision, the
Indemnitee will be entitled to retain an attorney of its own choice to
represent it personally.
E. Indemnitee shall be entitled to advances or
reimbursements for reasonable costs, disbursements and counsel
fees incurred by Pharmulations in its capacity a consultant
officer, director, or duly authorized representative of the
Company in advance of the final disposition of the proceeding,
upon receipt by the Company of a written undertaking from
Indemnitee and its counsel that such amounts will be reimbursed if
there is an ultimate determination that Indemnitee intentionally
took the action or actions complained of solely for its personal
benefit.
11. MODIFICATION. This Agreement sets forth the entire
understanding of the parties with respect to the subject matter
hereof, supersedes all existing Agreements between them concerning
the subject matter and may be modified only by a written
instrument duly authorized and executed by the party to be bound.
12. NOTICES. Any notice or other communication required to be
given hereunder shall be in writing and shall be delivered
personally or mailed by certified mail return receipt requested,
to the party to whom it to be given at the addresses such party as
set forth on the signature page to this Agreement or to such other
address as the parties shall have furnished in writing in
accordance with the provisions of this section.
13. WAIVER. Any waiver by any party of a breach of any
provision of this Agreement shall not operate as or be construed
to be a waiver of any other breach of such provision or of any
breach of any other provision of this Agreement. The failure of
party to insist upon strict adherence to any term of this
Agreement on one or more occasions shall not be considered a
waiver or deprive that party of the right hereafter to insist upon
strict adherence to that term or any other term of this Agreement.
Any waiver by the Company must be in writing and authorized by a
resolution of the Board of Directors.
14. BINDING EFFECT. This Agreement shall inure to the benefit
of and shall be binding upon the heirs, executors, administrators,
successors, and legal representatives of Pharmulations and shall
inure to the benefit of and be binding upon the Company and its
successors. In the event of any sale or other disposition of all
or substantially all of the business of the Company, whether by
sale of stock, sales of assets, merger or otherwise, then its
successors and assigns shall assume the obligations of the Company
under this Agreement.
15. SEPARABILITY. If any provision of this Agreement is
invalid, illegal or unenforceable, the balance of this Agreement
shall remain in effect, and if any provision is inapplicable to
any person, circumstance or jurisdiction, it shall nevertheless
remain applicable to all other persons, circumstances and
jurisdictions.
16. HEADINGS. The headings in this Agreement are solely for
convenience of reference and shall be given no effect in the
construction or interpretation of this Agreement.
17. COUNTERPARTS. This Agreement may be executed in any number
of counterparts, of which shall be deemed an original, but all of
which together shall constitute one in the same instrument.
18. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the state of Utah without
giving effect to the conflict of laws. The parties hereby
irrevocably consent exclusively to jurisdiction of the courts of
the state of Utah and to any federal court located in such
jurisdiction in connection with any action or proceeding arising
out of or relating to this Agreement, any document or instrument
delivered pursuant thereto, in connection with, or simultaneously
with this Agreement or breach of this Agreement or any such
document or instrument. In the event the services of an attorney
are retained to obtain enforcement of this Agreement by the
non-defaulting party, such party shall be entitled to recover all
costs and expenses and reasonable attorney's fees, whether or not
legal proceedings are initiated to obtain performance of this
Agreement by the defaulting party.
In witness whereof, the parties have duly executed this Agreement
as of the date first above written.
FIRST SCIENTIFIC, INC.
By: /s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx, President
PHARMULATIONS, LC.
By: /s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx, Manager
