EXHIBIT 10.01
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (this "Agreement") is made and entered into
as of the 12th day of November, 2001, by and between NeoPharm, Inc., a Delaware
corporation (the "Company"), and Unicorn Pharma Consulting, Inc., a North
Carolina corporation ("Consulting Company") and its employee, Xxxxxxx X. Xxxxx,
M.D. (the "Supervising Consultant" and with the Consulting Company, the
"Consultant").
In consideration of the mutual covenants, agreements and warranties
herein contained and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
1. DEFINITIONS.
(a) "BUSINESS" means the business of researching, developing, testing,
licensing, manufacturing, distributing and marketing pharmaceutical products
used in the treatment of cancer or any other business, operation, or commercial
endeavor that is the same or reasonably similar thereto, including any business
engaged in or conducted by the Company or its affiliates or subsidiaries at any
time during the term of this Agreement.
(b) "CONFIDENTIAL INFORMATION" means any information, observation,
idea, patent, design, improvements, plan, invention, trade secret or data, in
whatever form or medium, concerning the business or affairs of the Company,
including, without limitation, products, processes, inventions (whether or not
patentable or registrable under copyright or similar laws and whether or not
reduced to practice), discoveries, concepts, ideas, improvements, techniques,
methods, specifications, data, know-how, products in development, investment
opportunities, the identity of potential or actual collaborators, customers or
suppliers, records, computer software (including data and related
documentation), methods of operation, pricing and bid strategies, technical and
research data, financial information, financing plans, business or marketing
techniques, strategies, forecasts or developments, product or system ideas or
designs, and other trade secrets; provided that "Confidential Information" shall
not include any information which is in the public domain through no fault of
Consulting Company or the Supervising Consultant.
2. ACKNOWLEDGMENTS.
(a) As a condition to entering into this Agreement, Company requires
the receipt and performance of the covenants described herein from Consulting
Company and the Supervising Consultant, which covenants Consulting Company and
the Supervising Consultant acknowledge and agree are fair and reasonable.
Consulting Company and the Supervising Consultant acknowledge that: (i) the
Confidential Information is highly confidential and valuable, and constitutes
trade secrets, (ii) the Services rendered by the Consultant will be of a special
character which have a unique value to the Company, (iii) the terms, provisions
and restrictions contained in this Agreement are in addition to, and not in lieu
of the Illinois Trade Secrets Act, as amended from time to time.
(b) Consulting Company and the Supervising Consultant further
acknowledge and agree that the Consulting Company and the Supervising Consultant
will act as independent contractors in the performance and satisfaction of their
duties and obligations under this Agreement. Accordingly, Consultant
acknowledges and agrees to be responsible for the payment of all federal, state
and local taxes arising out of or related to this Agreement and the Services (as
defined below) to be provided by the Consultant.
3. DUTIES AND RESPONSIBILITIES OF CONSULTANT. The Consultant shall provide,
principally through the Supervising Consultant, certain services to the Company
("Services") during the term of this Agreement. Such Services shall include, but
are not limited to, those Services set forth on Schedule A. Such Services shall
be performed in accordance with the highest standards, customs and ethical
principles generally applicable to the provision of services such as the
Services. The Consultant agrees that the Supervising Consultant shall dedicate a
minimum of twenty-five (25) hours per week to providing the Services to the
Company.
4. COMPENSATION. The Company shall pay the Consulting Company in accordance with
Schedule A. The Company will also provide, without charge to the Consultant,
such support facilities and office space at the Company's principal offices, as
may be required, in the Company's reasonable judgment, to allow the Consultant
to perform the Services. All fees paid hereunder shall be paid to the Consulting
Company. The Consulting Company shall provide invoices to the Company for
Services performed by the Consultant, and expenses incurred, on a monthly basis,
with the exception, however, that an initial payment of $30,000 shall be paid by
the Company to the Consulting Company upon execution of this Agreement, which
advance payment shall be set off against amounts thereafter invoiced by the
Consulting Company.
5. CONFLICTS OF INTEREST. The Consultant represents and warrants to the Company
that the Consulting Company and the Supervising Consultant do not have any
relationship with a third party which would represent a conflict of interest
with the rendering of the Services or the performance of duties by the
Consultant hereunder, prevent the Consultant from entering into or carrying out
the terms of this Agreement, or present any opportunity for the disclosure of
any Confidential Information of the Company. The Consultant represents and
warrants to the Company that any information that the Consultant provides to the
Company shall not be in violation of or in conflict with the Illinois Trade
Secret Act.
6. RESTRICTIVE COVENANTS.
(a) COVENANTS REGARDING CONFIDENTIAL INFORMATION. The Consultant
covenants and agrees that, during the term of this Agreement and continuing
thereafter, the Consulting Company and the Supervising Consultant shall hold all
Confidential Information in the strictest confidence and shall not: (i) disclose
or make use of the Confidential Information for any purpose whatsoever other
than the performance of Services to the Company, or (ii) disclose to any person
or entity or use for the Consultant's benefit or for the benefit of others,
directly or indirectly, any Confidential Information. Upon the termination of
this Agreement, the Consultant shall cease use of and deliver to the Company all
Confidential Information in the possession or control of the Consultant. Prior
to disclosing any Confidential Information, pursuant to subclause (i) above, the
Consultant shall (y) obtain the prior written authorization of
the Company and (z) cause the party to whom such disclosure is made to provide
the Company with reasonable assurances (in form and substance satisfactory to
the Company in its sole and absolute discretion) that it will not further
disclose such Confidential Information without the Company's consent.
(b) NON-SOLICITATION & NON-INTERFERENCE. The Consultant covenants and
agrees that, except to the extent required to perform Services hereunder, during
the term of this Agreement and for a period of one (1) year thereafter, the
Consulting Company and the Supervising Consultant shall not: (i) persuade or
attempt to persuade any consultant, supplier, customer or business associates of
the Company to terminate or modify his or her or its relationship with the
Company or (ii) hire any employee or former employee of the Company or knowingly
solicit any business from any supplier or potential supplier, or customer or
potential client or business associates of the Company.
(c) OWNERSHIP OF CONFIDENTIAL INFORMATION. All Confidential
Information, including without limitation trade secrets, conceived, created or
acquired by the Consultant, alone or with others, during the term of or
resulting from this Agreement or any prior Services provided by the Consultant
to the Company that is within the scope of the Business is the exclusive
property of Company. The phrase "within the scope of the Business" shall be
broadly construed. The Consultant agrees to disclose promptly to the Company any
and all such Confidential Information and to assist the Company in every way to
secure the Company's rights in such Confidential Information including without
limitation any copyrights, patents, trademarks, or other rights relating
thereto.
(d) RETURN OF PROPERTY. The Consultant acknowledges and agrees that all
Company property, including Confidential Information, keys, credit cards, books,
manuals, records, reports, notes, contracts, customer lists, and other
information defined as confidential and proprietary in any other agreement
between the parties, copies of any of the foregoing, and any equipment furnished
to the Consultant by the Company, including, but not limited to computer
software, belong to the Company and shall be promptly returned to the Company
upon termination of this Agreement.
(e) DEVELOPMENTS OF THE COMPANY. All ideas, inventions, trademarks,
works of art, photographs, publishable materials, and other developments or
improvements created, conceived or developed by the Consultant, alone or with
others, during the term of this Agreement, whether or not during working hours,
that are within the scope of the Company's Business, or that relate to any
Company work or projects, shall be conclusively presumed to have been created
for or on behalf of the Company ("Developments"). The Consultant shall disclose
promptly to the Company any and all such Developments. Such Developments are the
exclusive property of the Company without the payment of consideration therefor,
and the Consultant hereby transfers, assigns and conveys all of the Consultant's
rights, titles and interests in any such Developments to the Company and agrees
to execute and deliver any documents that the Company deems necessary to effect
such transfer on the demand of the Company. The Consultant agrees to assist the
Company, at its expense, to obtain patents on any such patentable ideas,
inventions, trademarks, and other developments, and agree to execute all
documents necessary to obtain such patents in the name of the Company. This
Agreement does not apply to any inventions
which were made prior to the date of this Agreement and which are listed on
Schedule B attached hereto (if any) or for which no equipment, supplies,
facility or trade secret information of the Company was used and which was
developed entirely on the Consultant's own time unless: (1) the invention
relates (a) to the Business of the Company or (b) to the Company's actual
demonstratively anticipated research or development, or (2) the invention
results from any work performed by the Supervising Consultant for the Company.
(f) WORK MADE FOR HIRE. The Consultant recognizes and understands that
the Consultant's duties at the Company may include the preparation of materials,
including written or graphic materials and other Developments, and that any such
materials conceived or written by Consultant shall be done as "work made for
hire" as defined and used in the Federal Copyright Act, 17 U.S.C. Section 101.
In the event of publication of such materials, the Consultant understands that
since such work is "work made for hire," the Company shall solely retain and own
all rights in such materials, including any right of copyright.
(g) REMEDIES. If the Consultant breaches, or threatens to commit a
breach of, this Section, the Company shall have the following rights and
remedies, each of which rights and remedies shall be independent of the other
and severally enforceable, and all of which rights and remedies shall be in
addition to, and not in lieu of, any other rights and remedies available to the
Company under law or in equity:
(i) the right and remedy to have this Section
specifically enforced by any court having equity jurisdiction, it being
acknowledged and agreed that any such breach of threatened breach will
cause irreparable injury to the Company and that money damages alone
will not provide an adequate remedy to the Company; and
(ii) the right and remedy to require the Consultant
to account for and pay over to the Company all compensation, profits,
monies, accruals, increments or other benefits derived or received by
the Consultant as the result of any actions or transactions
constituting a breach of this Section.
The Company may exercise its rights and remedies under this Section without the
necessity of proving actual damages or posting bond. Moreover, if the Consultant
breaches any of the provisions of this Section, the running of any restrictive
period shall be suspended during the continuance of any actual breach or
violation.
(h) BLUE-PENCILING. If any court determines that this
Agreement, or any part thereof, is unenforceable because of the duration of such
provision or the area covered thereby, such court shall have the power to reduce
the duration or area of such provision and, in its reduced form, such provision
shall then be enforceable and shall be enforced. If any provision of this
Agreement is held by a court to be invalid, void, or unenforceable and the court
does not elect to reduce such provision, this Agreement shall be deemed amended
to delete therefrom such provision or portion adjudicated to be invalid or
unenforceable without in any way affecting the remaining parts of this
Agreement.
7. TERM AND TERMINATION. The initial term of this Agreement will be for four (4)
months and will automatically renew for successive one (1) month terms unless
prior thereto the Consultant has completed the Services hereunder or the
Consultant provides notice to Company, or the Company provides notice to the
Consultant, of an intention to terminate this Agreement no earlier than seven
(7) days after the date of such notice. Notwithstanding the foregoing, the
Company may terminate this Agreement at any time based on the Consultant's
failure to provide the Services to the reasonable satisfaction of the Company.
The Company may also terminate this Agreement based on the Consultant's failure
to comply with Paragraphs 2, 3, 5, 6, 9 and 17. Upon any termination (including
wrongful termination) of this Agreement by the Company, the Company shall only
be liable to the Consultant for Services actually provided and the Consultant
shall not be entitled to any additional compensation or payments from the
Company
The Consultant specifically acknowledges and agrees that
notwithstanding any other provision contained herein, Sections 2, 6, 9, 14, 16,
and 17 shall survive the termination of this Agreement.
8. ENTIRE AGREEMENT; AMENDMENT; WAIVER; ASSIGNMENT. This Agreement constitutes
the entire agreement between the parties respecting the subject matter contained
herein, and supersedes all other prior agreements, contracts or arrangements and
may not be modified or amended except in a writing signed by both parties. No
waiver or discharge of any breach of this Agreement shall be effective unless it
is in a writing signed by all parties hereto. Any waiver of any breach of any
provision of this Agreement shall not be a waiver of any subsequent breach of
the same or of any other provision of this Agreement. The Consultant may not
assign or transfer this Agreement or any rights hereunder. The Company may
assign or transfer this Agreement and the rights hereunder at any time upon
providing written notice to the Consultant. This Agreement shall inure to the
benefit of Company's successors and assigns.
9. INDEMNIFICATION. The Consultant shall indemnify the Company and the Company's
respective officers, directors, independent contractors, representatives
shareholders, affiliates and subsidiaries (collectively the "Company
Affiliates") against, and agree to defend and hold harmless from, any and all
liabilities, losses, costs, damages, penalties or expenses (including, without
limitation, reasonable attorneys' fees and expenses and costs of investigation
and action, suit or proceeding) incurred or suffered by the Company or any
Company Affiliate arising out of any breach or threatened breach of this
Agreement by the Consultant.
10. WAIVER. The failure of a party hereto at any time or times to require
performance of any provision hereof shall in no manner effect its right at a
later time to enforce the same. No waiver by a party of any condition or of any
breach of any term, covenant, representation or warranty contained in this
Agreement shall be effective unless in writing, and no waiver in any one or more
instances shall be deemed to be a further or continuing waiver of any such
condition or breach in other instances or a waiver of any other condition or
breach of any other term, covenant, representation or warranty.
11. COUNTERPARTS. This Agreement may be executed simultaneously in counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
12. HEADINGS. The headings preceding the text of Sections of this Agreement are
for convenience of reference only and shall not be deemed part of this
Agreement.
13. APPLICABLE LAW. This Agreement shall be governed by and construed enforced
in accordance with the internal laws of the State of Illinois, without regard to
its conflict of law rules.
14. VENUE; JURISDICTION.
(a) The Consultant irrevocably agrees that all actions or proceedings
in any way, manner or respect, arising out of or from or related to this
Agreement shall be litigated only in courts having situs within the City of
Chicago, State of Illinois. The Consultant hereby consents to the jurisdiction
of any local, state, or federal court located within said City and State and
hereby waives any objections based on improper venue or forum non conveniens to
the conduct of any proceeding instituted hereunder.
(b) The Consultant irrevocably waives any right to trial by jury in any
action or proceeding (i) to enforce or defend any rights under or in connection
with this Agreement or any amendment, instrument, document or other agreement
delivered or which may in the future be delivered in connection herewith or
therewith or (ii) arising from any dispute or controversy in connection with or
related to this agreement or any such amendment, instrument, document or other
agreement, and agree that any such action or proceeding shall be tried before a
court and not before a jury.
15. CONSULTATION WITH AN ATTORNEY. This Agreement is a legal document. The
Consultant is advised to consult with an attorney before signing this Agreement.
16. ATTORNEYS' FEES. In the event any legal proceeding is commenced for the
purpose of interpreting, construing, enforcing or claiming under this Agreement,
the Company shall be entitled to recover reasonable attorney fees in such
proceeding, or on any appeal therefrom
17. ILLINOIS TRADE SECRETS ACT. Without in any way limiting the Consultant's
other obligations, duties and responsibilities hereunder, the Consultant agrees
to be subject to, bound by and comply with the Illinois Trade Secrets Act, as
amended from time to time.
18. LOCATION OF WORK. The Consultant agrees that the Consultant shall perform
the Services principally at the offices of the Company set forth in paragraph
19, or such other location as the Company may reasonably request from time to
time, it being acknowledged by the Company, however, that certain aspects of the
Services may be performed, with the Company's consent, at locations other than
the Company's offices
19. NOTICES. All notices, demands, requests or communications which may be
required to be given by one party to the other party shall be in wiring, shall
be delivered either personally, by registered or certified mail, by messenger
service, or by facsimile transmission, and shall be addressed as follows:
If to Company: NeoPharm, Inc.
000 Xxxxx Xxxxx, Xxxxx 000
Xxxx Xxxxxx, XX 00000
Fax No.: (000) 000-0000
Attn: Xxxxx X. Xxxxxx, President
If to Consulting Company: Unicorn Pharma Consulting, Inc.
000 Xxxx Xxxxxxx Xxxxx
Xxxx, XX 00000
Fax No.: (000) 000-0000
Attn: President
If to Supervising Consultant: Xx. Xxxxxxx X. Xxxxx
c/o Unicorn Pharma Consultants, Inc.
000 XxxxXxxxxxx Xxxxx
Xxxx, XX 00000
Fax No.: (000) 000-0000
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
NEOPHARM, INC. UNICORN PHARMA CONSULTING, INC.
By: ______________________________ By: _____________________________
Name: ____________________________ Name: ___________________________
Title: ___________________________ Title: __________________________
SUPERVISING CONSULTANT:
---------------------------------
Xxxxxxx X. Xxxxx, M.D.
SCHEDULE A
DESCRIPTION OF SERVICES
The Company wishes to enlist the services of the Consulting Company to
assist with an anticipated expansion of staff during 2002 in the Pre-Clinical
and Clinical Development areas. Responsibilities of this role will include: 1)
consulting with the Company's CSO and CMO in defining the skill set of personnel
needed to achieve the goals and objectives of their respective groups during
2002; 2) screening and helping select executive search firms needed to achieve
the objective described previously; 3) helping to establish a timeline for the
hiring of the necessary staff to achieve the Company's 2002 objectives; 4)
advising the Company regarding infrastructure and process issues to most
efficiently achieve the 2002 goals; and 5) performing additional tasks as
requested by the Company.
The compensation to the Consulting Company for consulting services
rendered under this Agreement will be $300.00 per hour. The Company anticipates
that this assignment should be completed within four months and the Consulting
Company will be available to perform services hereunder for approximately
twenty-five (25) hours per week (the Consulting Company staff will provide
consulting services at the Company site two days per week on average). A
retainer of $30,000.00 will be paid upon the execution of this Agreement and
repeated within one week after each 100 hour segment of invoiced services have
been billed. The Company will reimburse the Consulting Company for lodging, meal
and transportation expenses related to this project. Any monies remaining from
the last retainer, once the final invoice is submitted, will be returned to the
Company at the termination of this Agreement.
SCHEDULE B
INVENTIONS MADE PRIOR TO THIS AGREEMENT AND EXCLUDED FROM
PARAGRAPH 6(e):
NONE
