CONSULTING AGREEMENT
Exhibit
10.8
THIS CONSULTING AGREEMENT,
dated as of March 1, 2009 (this “Agreement”), is by and between Xxxx
Xxxxxxxx (“Consultant”), and Ventrus Biosciences,
Inc., a Delaware corporation (“Company”).
WITNESSETH:
WHEREAS, Company is a
development stage biomedical and pharmaceutical company;
WHEREAS, Consultant provides
expertise in certain matters related to the pharmaceutical, biotechnology and
life science sectors and was an employee of the Company through February 28,
2009;
WHEREAS, Company desires that
it be able to call upon the knowledge and experience of Consultant for
consultation services and advice; and
WHEREAS, Consultant is willing
to render such services to Company on the terms and conditions hereinafter set
forth in this Agreement.
NOW, THEREFORE, in
consideration of the mutual covenants and agreements hereinafter set forth, the
parties hereto agree as follows:
Section 1. Services. Consultant
agrees to provide general consulting services to Company focused on the
Company’s product candidates and/or devices in the pharmaceutical, biotechnology
and life science sectors. Consultant’s services to the Company shall
include those set forth on Exhibit A hereto, and
shall include assisting with other projects at the Company’s direction that are
reasonably related to such services (the “Services”). Consultant hereby
agrees that the Services shall be provided at such times and at such places as
the Company shall reasonably request, and in accordance with the highest
prevailing industry standards and practices for the performance of similar
services.
Section 2. Term of
Agreement. The retention of the Consultant by the Company as
provided in Section 1 above shall be for a period of six (6) months from the date
hereof, unless sooner terminated in accordance herewith (the “Term”); provided, however, that the
Term shall be extended automatically for an additional six (6) month period upon
mutual written agreement of both Consultant and Company. Notwithstanding
anything to the contrary contained herein, the Agreement may be terminated by
Consultant or the Company upon three (3) days prior written notice to the other
party Immediately upon receipt of such notice from the Company, Consultant shall
institute such termination procedures as may be specified in the notice and
shall use his best efforts to minimize the cost to Company resulting from such
termination. Sections 5, 6, 7, 8, 9 and 10 shall survive the expiration or
termination of this Agreement.
Section 3. Compensation.
(a) As
full compensation for the performance by Consultant of his duties under this
Agreement, the Company shall pay Consultant $200 per hour (the “Fee”) that Consultant spends
performing his duties requested by the Company pursuant to the terms hereof,
provided, however that the
amount of time Consultant spends performing his duties pursuant to this
Agreement shall not exceed 160 hours per month unless otherwise agreed in
writing by Company and Consultant.
(b) Consultant
shall provide the Company with written invoices on a monthly basis for services
rendered for such month, which shall set forth the actual number of hours
Consultant spends performing the Services, a description of the activities
undertaken by Consultant, and the itemization of all expenses incurred that are
reimbursable pursuant to Section 4 hereof. The Company agrees that payment
shall be made to Consultant within thirty (30) business days of its receipt of
each undisputed monthly invoice.
(c) Consultant
and Company acknowledge and agree that the compensation set forth herein
represents the fair market value of the services provided to Company by
Consultant, negotiated in an arms-length transaction, and has not been
determined in a manner which takes into account the volume or value of any
current or future referrals or business otherwise generated between the Company
and the Consultant. Nothing contained in this Agreement constitutes or
shall be construed in any manner as an obligation or inducement for Consultant
to recommend the prescribing, purchase, use, or preferential formulary status or
dispensing of any of the Company’s products or services or those of any
organizations affiliated with the Company.
Section 4. Expenses.
The Company shall reimburse Consultant for all reasonable and necessary
expenses incurred by Consultant in connection with the Services provided
hereunder; provided, however, that such
expenses are pre-approved in writing by the Company.
Section
5. Confidential
Information and Inventions.
(a) Consultant
recognizes and acknowledges that in the course of his duties Consultant is
likely to receive confidential or proprietary information owned by the Company,
its affiliates or third parties with whom the Company or any such affiliates has
an obligation of confidentiality. Accordingly, during and after the Term,
Consultant shall use his best efforts to protect the confidentiality of the
Confidential and Proprietary information and agrees to keep confidential and not
disclose or make accessible to any other person or use for any other purpose
other than in connection with the fulfillment of his duties under this
Agreement, any Confidential and Proprietary information (as defined below) owned
by, or received by or on behalf of, the Company or any of its affiliates.
“Confidential and Proprietary Information” shall include, but shall not be
limited to, confidential or proprietary scientific or technical information,
data, formulas and related concepts, business plans (both current and under
development), client lists, promotion and marketing programs, trade secrets, or
any other confidential or proprietary business information relating to
development programs, costs, revenues, marketing, investments, sales activities,
promotions, credit and financial data, manufacturing processes, financing
methods, plans or the business and affairs of the Company or of any affiliate or
client of the Company. Consultant expressly acknowledges the trade secret status
of the Confidential and Proprietary Information and that the Confidential and
Proprietary information constitutes a protectable business interest of the
Company. Consultant agrees: (i) not to use any such Confidential and
Proprietary Information for himself or others;
and (ii) not to take any Company material or reproductions (including but not
limited to writings, correspondence, notes, drafts, records, invoices, technical
and business policies, computer programs or disks) thereof from the Company’s
offices at any time during the Term, except as required in the execution of
Consultant’s duties to the Company. Consultant agrees to return
immediately all Company material and reproductions (including but not limited,
to writings, correspondence, notes, drafts, records, invoices, technical and
business policies, computer programs or disks) thereof in his possession to the
Company upon request and in any event immediately upon termination or expiration
of the Term.
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(b) Except
with prior written authorization by the Company, Consultant agrees not to
disclose or publish any of the Confidential and Proprietary Information, or any
confidential, scientific, technical or business information of any other party
to whom the Company or any of its affiliates owes an obligation of confidence,
at any time during or after the Term.
(c) Consultant
agrees that all inventions, discoveries, improvements and patentable or
copyrightable works (“Inventions”) initiated, conceived or made
by him, either alone or in conjunction with others, in connection with or as a
result of performance of Services by Consultant during the Term shall be the
sole property of the Company to the maximum extent permitted by applicable law
and, to the extent permitted by law, shall be “works made for hire” as that term
is defined in the United States Copyright Act (17 U.S.C.A., Section 101).
The Company shall be the sole owner of all patents, copyrights, trade
secret rights, and other intellectual property or other rights in connection
therewith. Consultant hereby assigns to the Company all right, title and
interest he may have or acquire in all such Inventions. Consultant further
agrees to assist the Company in every proper way (but at the Company’s expense)
to obtain and from time to time enforce patents, copyrights or other rights on
such Inventions in any and all countries, and to that end Consultant will
execute all documents necessary:
(i) to
apply for, obtain and vest in the name of the Company alone (unless the Company
otherwise directs) letters patent, copyrights or other analogous protection in
any country throughout the world and when so obtained or vested to renew and
restore the same; and
(ii) to
defend any opposition proceedings in respect of such applications and any
opposition proceedings or petitions or applications for revocation of such
letters patent, copyright or other analogous protection.
(d) Consultant
acknowledges that while performing the Services under this Agreement
Consultant may locate, identify and/or evaluate patented or patentable
inventions having commercial potential in the fields of pharmacy,
pharmaceutical, biotechnology, healthcare, technology and other fields which may
be of potential interest to the Company or one of its affiliates (the “Third Party Inventions”). Consultant understands,
acknowledges and agrees that all rights to, interests in or opportunities
regarding, all Third-Party Inventions identified by the Company, any of its
affiliates or either of the foregoing persons’ officers, directors, employees,
agents or consultants (including the Consultant) during the Term shall be and
remain the sole and exclusive property of the Company or such affiliate and
Consultant shall have no rights whatsoever to such Third-Party Inventions and
will not pursue for himself or for others any transaction relating to the
Third-Party Inventions which is not on behalf of the Company.
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(e) Consultant
agrees that he will promptly disclose to the Company, or any persons designated
by the Company, all improvements and Inventions made or conceived or reduced to
practice or learned by him, either alone or jointly with others, during the
Term.
(f) Consultant
agrees that the Company shall be entitled to enjoin any breach of the
confidentiality and other obligations hereunder without having to post a bond in
addition to all other remedies it may have under applicable law.
Consultant will notify the Company in writing immediately upon the occurrence of
any unauthorized release of any Confidential and Proprietary Information or
other breach of any of the obligations under this Section 5 of which it is or
becomes aware.
Section 6. Xxxxxxx
Xxxxxxx. Consultant recognizes that in the course of his duties
hereunder, Consultant may receive from the Company or others information that
may be considered “material, nonpublic information” concerning a public company
that is subject to the reporting requirements of the Securities and Exchange Act
of 1934, as amended. Consultant agrees NOT to: (a) purchase
or sell, directly or indirectly, any securities of any company while in
possession of relevant material, nonpublic information relating to such company
received from the Company or others in connection herewith; (b) provide Company
with information with respect to any public company that may be considered
material, nonpublic information; or (c) communicate any material, nonpublic
information to any other person in which it is reasonably foreseeable that such
person is likely to (i) purchase or sell securities of any company with respect
to which such information relates, or (ii) otherwise directly or indirectly
benefit from such information. Without limiting any of the confidentiality
and xxxxxxx xxxxxxx obligations included in this Agreement, Consultant shall not
discuss any information concerning Company obtained by Consultant in the course
of performing the Services with any financial, securities or industry analyst or
with the media without the written agreement of Company.
Section 7. Representations,
Warranties and Covenants of Consultant. The Consultant hereby
represents, warrants and covenants to the Company as follows:
(a) Neither
the execution or delivery of this Agreement nor the performance by Consultant of
his duties and other obligations hereunder violate or will violate any statute,
law, determination or award, or conflict with or constitute a default or breach
of any covenant or obligation under (whether immediately, upon the giving of
notice or lapse of time or both) any prior employment agreement, contract, or
other instrument to which Consultant is a party or by which he is
bound.
(b) Consultant
has the full right, power and legal capacity to enter and deliver this
Agreement, as applicable, and to perform his duties and other obligations
hereunder. This Agreement constitutes the legal, valid and binding obligation of
Consultant enforceable against him in accordance with its terms. No
approvals or consents of any persons or entities are required for Consultant to
execute and deliver this Agreement, as applicable, or perform his duties and
other obligations hereunder.
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(c) Consultant
represents that his performance of all the terms of this Agreement will not
breach any agreement to keep in confidence any confidential information or trade
secrets acquired by Consultant from any third party, and Consultant agrees not
to use any confidential information or trade secrets of any third party in
connection with the provision of the Services in violation of the agreements
under which he had access to or knowledge of such confidential information or
trade secrets.
(d) Consultant
hereby represents that he (i) has not been debarred and (ii) to the best of
Consultant’s knowledge, is not under consideration to be disbarred by the Food
and Drug Administration (the “FDA”) from working in or providing
services to any pharmaceutical or biotechnology company under the Generic Drug
Enforcement Act of 1992. Consultant shall notify the Company immediately
if, during the Term, Consultant comes under investigation by the FDA for
debarment or disqualification or is debarred or disqualified. Consultant shall
notify the Company immediately if the FDA or any other regulatory authority
requests permission to or does inspect Consultant’s records in connection with
the Services provided under this Agreement, and Consultant will deliver to the
Company promptly all materials, correspondence, statements, forms, and records
which Consultant receives, obtains or generates pursuant to any such
inspection.
(e) Consultant
will not use any confidential information or trade secrets of any third party in
his employment by Company in violation of the terms of the agreements under
which he had access to or knowledge of such confidential information or trade
secrets.
(f) During
the Term of this Agreement and for a period of one-year thereafter, if
Consultant uses, recommends, or comments upon the attributes of any Company
product or service in connection with the treatment of a patient, a scientific
or educational presentation or publication, a media interview, or any other
third-party communication or interaction, Consultant shall disclose that
Consultant is or has been a paid consultant of Company and the fact of any other
of Consultant’s financial relationships with Company.
Section 8. Non-Circumvention.
With respect to any of the technologies or parties introduced to the
Consultant by the Company, Consultant agrees not to contact any parties
(including any of their officers, directors, employees, agents, affiliates
and/or consultants) with whom the Company has shared information without the
presence of an officer of the Company or without the prior written consent of an
officer of the Company and further agrees not to take any action which would
adversely affect or otherwise hinder the Company’s ability to ultimately execute
any agreements with such parties. In addition, Consultant agrees not to
circumvent, avoid, bypass or obviate the Company directly or indirectly
regarding the Confidential and Proprietary Information disclosed in connection
with the Services and any possible business arrangement envisioned
thereby.
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Section 9. Consultant
not an Employee. Company and Consultant hereby acknowledge and
agree that Consultant shall perform the services hereunder as an independent
contractor and not as an employee or agent of Company or any Company
affiliate. Consultant will be solely responsible for all taxes,
withholding and other similar statutory obligations. Notwithstanding the
foregoing, during the Term, Consultant shall be permitted to use the title of
“Consultant” of the Company in any dealings with third parties. Nothing in
this Agreement shall be construed as establishing any joint venture,
partnership or other business relationship between the parties hereto or
representing any commitment by either party to enter into any other agreement by
implication or otherwise except as specifically stated herein. Consultant
shall not have any authority, express or implied, to bind Company or any Company
affiliate to any agreement, contract, or other commitment. Consultant further
understands and agrees that this Agreement is entered into by Company on a
non-exclusive basis and that Company and its affiliates remain free to deal with
others and retain other consultants, employees, brokers, finders and other
agents in the same or similar capacity as Consultant has been retained at any
time at their own option.
Section
10. Miscellaneous.
(a) This
Agreement shall be governed by, and construed and interpreted in accordance
with, the laws of the State of New York, without giving effect to its principles
of conflicts of laws.
(b) Any
dispute arising out of, or relating to, this Agreement or the breach thereof
(other than Section 5 hereof), or regarding the interpretation thereof, shall be
finally settled by arbitration conducted in New York, New York in accordance
with the rules of the American Arbitration Association then in effect before a
single arbitrator appointed in accordance with such rules. Judgment upon
any award rendered therein may be entered and enforcement obtained thereon in
any court having jurisdiction. The arbitrator shall have authority to grant any
form of appropriate relief, whether legal or equitable in nature, including
specific performance. For the purpose of any judicial proceeding to
enforce such award or incidental to such arbitration or to compel arbitration
and for purposes of Section 5 hereof, the parties hereby submit to the exclusive
jurisdiction of the competent courts located in New York, New York, and agree
that service of process in such arbitration or court proceedings shall be
satisfactorily made upon it if sent by registered mail addressed to it at the
address referred to in paragraph (g) below. The costs of such arbitration
shall be borne proportionate to the finding of fault as determined by the
arbitrator. Judgment on the arbitration award may be entered by any court
of competent jurisdiction.
(c) This
Agreement shall be binding upon and inure to the benefit of the parties hereto,
and their respective heirs, legal representatives, successors and permitted
assigns.
(d) This
Agreement, and Consultant’s rights and obligations hereunder, may not be
assigned, delegated or otherwise subcontracted by Consultant. The Company
may assign its rights, together with its obligations, hereunder in connection
with any sale, transfer or other disposition of all or substantially all of its
business or assets.
(e) This
Agreement cannot be amended orally, or by any course of conduct or dealing, but
only by a written agreement signed by the parties hereto.
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(f) The
failure of either party to insist upon the strict performance of any of the
terms, conditions and provisions of this Agreement shall not be construed as a
waiver or relinquishment of future compliance therewith, and such terms,
conditions and provisions shall remain in full force and effect. No waiver
of any term or condition of this Agreement on the part of either party
shall be effective for any purpose whatsoever unless such waiver is in writing
and signed by such party.
(g) All
notices, demands or other communications desired or required to be given by any
party to any other party hereto shall be in writing and shall be deemed
effectively given upon (i) personal delivery to the party to be notified, (ii)
upon confirmation of receipt of telecopy, e-mail, or electronic facsimile
transmission, (iii) one business day after deposit with a reputable overnight
courier, prepaid for priority overnight delivery, or (iv) five days after
deposit with the United States Post Office, postage prepaid, in each case to
such party at the address set forth above, or to such other addresses and to the
attention of such other individuals as any party shall have designated to the
other parties by notice given in the foregoing manner
(h) This
Agreement sets forth the entire agreement and understanding of the parties
relating to the subject matter hereof, and supersedes all prior agreements,
arrangements and understandings, written or oral, relating to the subject matter
hereof. No representation, promise or inducement has been made by either
party that is not embodied in this Agreement, and neither party shall be bound
by or liable for any alleged representation, promise or inducement not so set
forth.
(i) As
used in this Agreement, “affiliate” of a specified person or entity shall mean
and include any person or entity controlling, controlled by or under common
control with the specified Person.
(j) The
section headings contained herein are for reference purposes only and shall not
in any way affect the meaning or interpretation of this Agreement.
(k) This
Agreement may be executed in any number of counterparts, each of which shall
constitute an original, but all of which together shall constitute one and the
same instrument.
(1) As
used in this Agreement, the masculine, feminine or neuter gender, and the
singular or plural, shall be deemed to include the others whenever and wherever
the context so requires. Additionally, unless the context requires
otherwise, “or” is not exclusive.
[Remainder
of Page Intentionally Left Blank — Signature Page Follows]
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IN WITNESS WFIEREOF, the
parties hereto have executed this Agreement as of the date first written above
by proper person thereunto duly authorized.
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VENTRUS
BIOSCIENCES, INC.
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By:
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/s/ Xxxx Xxxxxxx
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Name:
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Title:
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CONSULTANT
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By:
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/s/ Xxxx Xxxxxxxx
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Name: Xxxx
Xxxxxxxx
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Exhibit
A
Scope
of Work
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·
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Consultant
shall provide consultation on various manufacturing, preclinical and
clinical aspects of the current and any future drug development programs
of the company.
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