Exhibit 10(hhh)
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT made as of this 31ST DAY OF JULY, 2001
(the "Agreement") by and between Alliance Pharmaceutical Corp., a New York
corporation with its principal office at 0000 Xxxxxxx Xxxx Xxxx, Xxx Xxxxx,
Xxxxxxxxxx 00000 (the "Company"), and XXX X. XXXXXX, having his principal
place of business at 0000 Xxxxxxxx Xxxxx, Xxx Xxxxx, Xxxxxxxxxx 00000
("Consultant").
WITNESSETH:
WHEREAS, Consultant has previously been employed as a full-time
employee of the Company;
WHEREAS, upon the date of this Agreement, Consultant states that
he resigns as a full-time employee of the Company;
WHEREAS, the Company desires to retain Consultant as an
independent contractor to provide consulting services as requested from time
to time (collectively, the "Services"), and Consultant desires to serve in
such capacity, during the period and upon the terms and conditions
hereinafter set forth;
WHEREAS, in anticipation of this change in status, the Company
has accelerated the vesting of certain employee stock options, and Consultant
and Company have agreed to terminate certain stock options.
NOW, THEREFORE, in consideration of the foregoing and the mutual
promises herein contained, the parties hereto agree as follows:
1. TERM. The term of this Agreement shall commence on the date hereof
and continue until the earlier to occur of (i) expiration of all stock
options retained pursuant to Section 3 below, or (ii) termination of
Consultant's full-time employment with Metracor Technologies, Inc.
("Metracor"), and can be extended by the mutual agreement of the parties. The
parties confirm and agree, except as set forth in Section 3 below, that any
stock options previously issued and which remain unexercised as of the date
of this Agreement are terminated and that this Agreement shall not extend the
term of the option agreements for the term of this Agreement.
2. SERVICES. During the term of this Agreement, Consultant shall devote
adequate time and attention to performance of the Services as reasonably
necessary, or as requested by the Company; provided that such time and
attention do not in any way impair Consultant's ability to provide services
to Metracor. The Services shall be conducted in accordance with (i) all
applicable laws, rules and regulations, (ii) industry standards, and (iii)
written or other instructions of the Company.
3. COMPENSATION. Consultant shall retain and be entitled to exercise
the stock options listed on Exhibit "A" attached hereto until the earlier to
occur of (i) the expiration of the particular stock option agreement
pertaining thereto or (ii) the termination of this Agreement. All
out-of-pocket expenses incurred by Consultant in connection with the Services
hereunder shall be reimbursed by the Company, provided, however, that such
expenses have been expressly authorized in advance by the Company.
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4. TERMINATION. Unless previously terminated, this Agreement and stock
options listed on Exhibit "A" shall terminate immediately in accordance with
the respective stock option agreement upon Consultant's termination as a
full-time employee of Metracor. All obligations in Sections 5 and 6 herein
shall survive any termination or expiration of this Agreement. Consultant
agrees to return all Confidential Information and copies thereof upon
termination. Notwithstanding anything to the contrary contained herein, the
obligations of the Company to pay the compensation in Section 3 shall be
terminated automatically upon the first to occur of any of the following
events:
(a) Consultant shall willfully breach any of the provisions of
this Agreement.
(b) Consultant shall commit any fraud, embezzlement or other
act of dishonesty against the Company.
5. CONFIDENTIALITY. Consultant recognizes that the Company and its
subsidiaries and affiliated corporations (herein collectively referred to as
the "Company"), and its customers, corporate partners or others (herein
collectively referred to as "Related Parties"), own certain confidential
information, including, but not limited to, secret or confidential data,
proprietary information, trade secrets, technology, formulae, processes,
procedures, scientific studies, regulatory submissions, business plans,
information and the like, whether all of the same be in writing or not (all
of which is referred to as "Confidential Information"). Consultant
acknowledges that the Company has disclosed or may disclose to Consultant
portions of Confidential Information of the Company or Related Parties, and
agrees to maintain the confidential status of such Confidential Information.
Consultant further agrees not to use such Confidential Information except in
pursuit of Consultant's duties hereunder or to disclose the same to persons
not authorized in writing by the Company to receive such Confidential
Information. Consultant will not make and will take all reasonable steps
necessary to prevent unauthorized parties from making any copies, abstracts
or summaries of any of the Confidential Information except in pursuit of
Consultant's duties hereunder and for the sole use and account of the Company.
6. RELATIONSHIP. The relationship between the Company and Consultant in
the performance of Services under this Agreement shall be that of independent
contractors, and nothing herein shall be construed to create a relationship
of principal and agent, employer and employee, joint venturers, co-partners
or any other similar relationship between the Company and Consultant. Neither
party hereto shall be liable in any way for any engagement, obligation,
liability, contract, representation or warranty of the other party to or with
any third party or purchasers whomsoever.
7. INDEMNIFICATION. The Company agrees to indemnify and hold Consultant
harmless from and against any and all liability, damages and expenses
(including attorney's fees) reasonably and necessarily incurred in the
defense or settlement of any action, proceeding or claim against Consultant
by any third party arising solely as a result of Consultant's Services
pursuant to this Agreement, provided (i) the Company is given prompt notice
of any such action, proceeding or claim and the opportunity to control the
defense thereof, (ii) the terms of any such settlement are approved in
writing by the Company, and (iii) such liability, damages or expenses were
not incurred in whole or in part as a result of any negligence or wrongdoing
on Consultant's part or any breach of Consultant's obligations to the Company
under this Agreement.
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8. GENERIC DRUG ENFORCEMENT ACT OF 1992. Consultant represents that it
has never been (i) debarred or (ii) convicted of a crime for which a person
can be debarred, under Section 306(a) or 306(b) of the Generic Drug
Enforcement Action of 1992. Consultant represents that it has never been and,
to the best of its knowledge after due inquiry, has ever been (a) threatened
to be debarred or (b) indicted for a crime or otherwise engaged in conduct
for which a person can be debarred, under Section 306(a) or (b). Consultant
agrees that it will promptly notify each Client in the event of any such
debarment, conviction, threat or indictment.
9. ASSIGNABILITY AND BINDING EFFECT. The obligations of Consultant may
not be delegated, and Consultant may not assign, transfer, pledge, encumber,
hypothecate or otherwise dispose of this Agreement, or any rights hereunder,
and any attempted delegation or disposition shall be null and void and
without effect.
10. HEADINGS. The headings set forth in this Agreement are for
convenience only and shall not be considered as part of this Agreement in any
respect nor shall they in any way affect the substance of the provisions
contained in this Agreement.
11. SEVERABILITY. The invalidity of all or any part of any provision
of this Agreement shall not invalidate the remainder of this Agreement or the
remainder of any section which can be given effect without such invalid
provision.
12. ENTIRE AGREEMENT. This Agreement constitutes the sole and entire
agreement between Consultant and the Company with respect to the acceptance
by the Company of the consulting and advisory services of Consultant and
supersedes all prior agreements, arrangements and understandings. This
Agreement may not be altered, modified or amended except by written
instrument signed by the party against whom such alteration, modification or
amendment is sought to be enforced.
13. GOVERNING LAW. This Agreement shall be governed by and construed
and interpreted in accordance with the laws of New York. Consultant
acknowledges that improper disclosure of Confidential Information or breach
of other obligations herein could cause irreparable harm to the Company, and
agrees that the Company may seek injunctive relief to enforce the terms of
this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement on
the day and year first above written.
ALLIANCE PHARMACEUTICAL CORP. XXX X. XXXXXX
By: /s/ Xxxxx X. Xxxxxxx /s/ Xxx X. XxXxxx
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Xxxxx X. Xxxxxxx
Vice President and General Counsel Social Security No.:
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Exhibit "A"
NUMBER OF EXPIRATION DATE
OPTION GRANT CONTINUING OPTIONS PER OPTION AGREEMENT
-------------------- ------------------------- ------------------------------
000253 10,000 1/31/2002
000268 30,000 4/13/2002
000262 3,300 4/13/2002
000265 9,900 4/13/2002
000272 6,300 4/01/2003
000418 15,000 2/16/2004
000659 40,000 5/16/2005
000949 30,000 11/13/2006
001066 30,000 11/12/2007
001394 75,000 11/11/2008
001606 35,000 8/11/2009
001862 10,000 12/28/2009
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