EXHIBIT 10.18
CONSULTING AGREEMENT
THIS AGREEMENT is made and entered into as of this 1st day of January,
2003, ("Effective Date") by and between ILEX(TM) Products, Inc. with place of
business at 0000 Xxxxxxx Xxxx Xxxx., Xxx Xxxxxxx, Xxxxx 00000 (ILEX Products,
Inc. and its parent and affiliated corporations and partnerships collectively
referred to as "ILEX") and Xxxxxx X. Xxx Xxxx., M.D., and his solely owned legal
entity known as NDA, LLC, located at 0000 X. Xxxxxxx xx Xxxxxxx, Xxxxxx, XX
00000 (hereinafter referred to as "Consultant").
THE PARTIES AGREE as follows:
1. Services
ILEX hereby engages Consultant to serve as a consultant to
ILEX, and Consultant hereby accepts such engagement, upon and subject to the
terms and conditions set forth herein.
From and following the Effective Date of this Agreement, Xx.
Xxx Xxxx shall update ILEX on a monthly basis as to any other consulting or
advisory board agreements that are made. Xx. Xxx Xxxx warrants and represents to
ILEX that Xx. Xxx Xxxx has no affiliations in any capacity with any persons or
entities other than ILEX, except those listed on EXHIBIT A attached hereto.
The parties understand and acknowledge that potential
conflicts or duality of interest, or the appearance of such conflict or duality
of interest, may arise during Xx. Xxx Xxxx'x performance of those duties and
services as a result of Xx. Xxx Xxxx'x other affiliations. Both parties
recognize the importance of avoiding both actual conflicts and the appearance of
conflicts of interest. The parties will therefore mutually develop procedures
for identifying and evaluating actual, potential and apparent conflicts of
duality of interests. In discharging his duties and responsibilities hereunder,
Xx. Xxx Xxxx will advise ILEX when and if an actual or potential conflict
arises. The parties will then mutually work at attempting to resolve the
conflict.
During the term of this Agreement, Consultant agrees to
provide services to ILEX as set forth in Exhibit B, and other activities as may
be requested by senior management of ILEX from time to time (collectively
"Services").
2. Compensation
A. In exchange for Consultant's providing Services as
described above, during the term of this Agreement, ILEX shall pay Consultant
and Consultant agrees to accept
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for Consultant's Services an annual fee of $275,000.00 USD paid at a monthly
rate of $22,916.66 by the 15th of each month.
B. ILEX shall also reimburse Consultant for all
reasonable and necessary travel in accordance with ILEX's corporate policy and
will reimburse other reasonable and necessary out-of-pocket documented direct
expenses such as postage, facsimile, printing and long distance incurred in
connection with the Services. ILEX shall make these expense payments to
Consultant in accordance with this Agreement within thirty (30) days of receipt
of each detailed invoice with any receipts from Consultant indicating payment,
including travel as well as any reasonable and necessary incidental expenses
incurred in rendering such Services
C. All payments, including reimbursements for actual
expenditures, shall be included in Consultant's gross income as compensation for
services rendered and accordingly reported on Consultant's IRS Form 1099.
Consultant is responsible for payment of all local, state and federal taxes
(including FICA taxes) on income earned under this Agreement, as none will be
withheld by ILEX. Consultant is not relying upon ILEX for advice regarding tax
aspects of this Agreement.
3. Independent Contractor
A. It is agreed that Consultant is to have complete
freedom of action as to the details, methods, and means of performing the
consulting Services. It is further understood that Consultant has contracted
with ILEX only for the purposes and to the extent set forth in this Agreement
and Consultant's relation to ILEX is that of an independent contractor, and
Consultant shall be free to dispose of any portion of his entire time, energy,
and skill beyond that Consultant is obligated to devote to ILEX in such a manner
as Consultant sees fit and to such persons or entities as Consultant deems
advisable so long as any such other work by Consultant does not conflict with
the interest of ILEX.
B. Consultant acknowledges that this Agreement creates a
relationship of special trust and confidence and imposes on him fiduciary duties
to act for the benefit of ILEX and its affiliated entities. By this Agreement,
ILEX retains Consultant only for the purposes and to the extent set forth
herein. As an independent contractor, Consultant does not have the authority to
bind ILEX or any of its affiliates to any third person, unless expressly agreed
to in writing by the President of ILEX.
C. Neither Consultant nor Consultant's employees, agents
and/or subcontractors shall be considered, under the provisions of this
Agreement or otherwise, as having a status as an employee of ILEX nor shall
Consultant or his employees, agents and/or subcontractors be entitled hereafter
to participate in any plans, arrangements, or distributions by ILEX relating to
any pension, deferred compensation, bonus, stock bonus, hospitalization,
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insurance, or other benefits extended to employees, since Consultant is
performing the consulting service hereunder as an independent contractor.
4. Term and Termination
A. This Agreement shall come into being on its Effective
Date and will continue in effect until December 31, 2004 unless sooner
terminated. Either Consultant or ILEX may terminate this Agreement at any time
during its term by giving ninety (90) days notice of termination to the other
party.
B. Sixty (60) days prior to the end of the term of this
Agreement, the parties shall enter into negotiations regarding the renewal of
this Agreement or the execution of a new agreement, which renewal or new
agreement shall contain such terms and conditions as may be agreed by the
parties.
C. Regardless of whether this Agreement terminates at
the end of the agreed period above or as extended by supplemental agreement or
by any of the methods of early termination provided for herein, Consultant's
obligations set forth in Paragraphs 6, 7 and 8 below shall continue.
5. Representations and Warranties
A. Consultant represents and warrants that Consultant is free to
enter into this Agreement and perform the Services provided for in this
Agreement and will perform the Services in compliance with all applicable laws,
rules and regulations. Consultant agrees that all information Consultant
discloses to ILEX shall be received by ILEX without further obligation to
Consultant than as provided herein.
B. Consultant further represents that performance of all the
terms of this Agreement do not and will not breach any duties or obligations
owed under applicable law to third parties nor any agreement to keep in
confidence proprietary information, knowledge or data acquired in confidence or
in trust prior to the commencement of this Agreement and will not disclose to
ILEX or induce ILEX to use any confidential or proprietary information or
material belonging to any previous employer or others.
C. If Consultant is aware of circumstances under which ILEX may
not be free to use Consultant's information without liability of any kind, or
the use of which by ILEX would result in a possible infringement of one or more
unexpired patents or other proprietary rights known to Consultant, then
Consultant agrees to disclose such circumstances to ILEX and, upon disclosure of
such circumstance, Consultant shall be under no obligation to disclose further
related information to ILEX.
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6. Ownership of Work Product
All work performed for ILEX by Consultant hereunder (including
but not limited to all data compiled by Consultant or reports, working notes,
drawings, design, and specifications developed or prepared by Consultant in
connection with such work) shall become the sole property of ILEX, unless
specifically otherwise agreed upon in writing by ILEX and Consultant. Consultant
hereby assigns to ILEX all rights related thereto, including copyright.
7. Non-Disclosure
A. Consultant shall protect, guard, and maintain the
confidentiality of Confidential Information (as defined in Paragraph 11), Except
as required in performance of Consultant's services for ILEX, Consultant will
never directly, indirectly, or otherwise, use, permit others to use,
disseminate, disclose, lecture upon, or publish articles concerning Confidential
Information, without ILEX's prior written consent. Further, Consultant agrees to
return Confidential Information supplied by ILEX and any copies thereof upon
completion of services relating to the Confidential Information or upon ILEX's
written request to do so. The obligations of confidentiality and non-use set
forth in this Agreement shall continue for a period often (10) years after
expiration or other termination of this Agreement.
B. Consultant may disclose Confidential Information to persons
within their direct employment who have a need to receive the Confidential
Information in order to further the purposes of this Agreement and who are bound
to protect the confidentiality of the Confidential Information. Consultant
agrees that all employees who are permitted access to Confidential Information
under this Agreement are bound to protect the confidentiality of such
information to the same extent as Consultant pursuant to this Agreement.
C. In the event that Consultant receives a subpoena, order, or
other process of any court or other governmental body seeking disclosure of
Confidential Information, Consultant shall notify ILEX immediately so that ILEX
shall have a reasonable amount of time prior to any court-ordered disclosure to
object to disclosure. Subject to the foregoing notice requirement, if required
by subpoena, order, or other process of any court or other governmental body,
Consultant may disclose the Confidential Information to a governmental authority
or by order of a court of competent jurisdiction, provided that such disclosure
is subject to all applicable governmental or judicial protection available for
like confidential or trade secret information.
D. Consultant hereby acknowledges that Consultant is aware that
the United States and other applicable securities laws prohibit any person who
has material, non-public information about a company from purchasing or selling
securities of such company or from communicating such information to any other
person under circumstances in which it is
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reasonably foreseeable that such person is likely to purchase or sell such
securities. Consultant agrees not to disclose or use ILEX's Confidential
Information, directly or indirectly, to purchase, sell or trade, directly or
indirectly, securities of ILEX or of any other company which might be identified
in any Confidential Information, in violation of applicable law, including
Securities and Exchange Commission (SEC) Rules 10b5-l and 10b5-2.
8. Inventions, etc.
Consultant hereby assigns to ILEX all Inventions (as defined
in Paragraph 11) and any and all related patents, copyrights, trademarks, trade
names, and other industrial and intellectual property rights and applications
therefor, in the United States and elsewhere, and appoints any officer of ILEX
as his duly authorized agent to execute, file, prosecute and protect the same
before any government agency, court or authority. Consultant will ensure that
obligations under affiliations with any other persons or entities, including.,
without limitation, those persons or entities listed in EXHIBIT A, do not extend
to intellectual property rightfully owned by ILEX.
All Inventions (as defined in Paragraph 11) made, conceived or
completed by Consultant, individually or in conjunction with others, shall be
the sole and exclusive property of ILEX if said Inventions:
(a) Are made with any of ILEX's equipment, supplies,
facilities or trade secrets; or
(b) Are conceived or made by Consultant during the hours
Consultant is providing Services to ILEX; or
(c) Relate to Confidential Information; or
(d) Result from any work performed by Consultant for
ILEX.
Consultant shall, without royalty or any other further
consideration to Consultant therefore, but at the expense of ILEX:
(a) As promptly as reasonably possible, disclose to ILEX
all information with respect to said inventions;
(b) Whenever requested to do so by ILEX, promptly execute
and assign any and all applications, assignments and other instruments which
ILEX shall reasonably deem necessary to apply for and obtain Letters Patent of
the United States and of foreign countries for
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said Inventions, and to assign and convey to ILEX or to ILEX's nominee the sole
exclusive rights, title and interest in and to the Inventions or any
applications or patents thereon;
(c) Whenever requested to do so by ILEX deliver to ILEX
evidence for interference purposes or other legal proceedings and testify in any
interference or other legal proceedings; and
(d) Do such other proper and lawful acts as may be
necessary in the opinion of ILEX to obtain and maintain United States and
foreign Letters Patent for the Inventions.
The foregoing provisions (as appropriate) shall also apply to
copyrights for copyrightable subject matter.
9. Survival of Certain Agreements
The covenants and agreements set forth in Paragraphs 6, 7, 8
and 9 shall survive termination or expiration of this Agreement and remain in
full force and effect.
10. Binding Effect
This Agreement shall be binding upon Consultant, and, except
as regards personal services, upon Consultant's heirs, personal representatives,
executors and administrators, and shall bind and inure to the benefit of ILEX,
its successors and assigns.
11. Definitions
As used in this Agreement:
(a) "Confidential Information" means information
disclosed to Consultant or known by Consultant as a consequence of, or through
performance of services for, ILEX whether or not related to Consultant's duties
hereunder and includes trade secrets or any other like information of value
relating to the business and/or field of interest of any corporation, firm or
partnership directly or indirectly controlled by ILEX through more than five
percent (5%) ownership interest, including, but not limited to, information
relating to inventions, disclosures, processes, systems, methods, formulas,
patents, patent applications, machines, material, research activities and plans,
cost of production, contract forms, prices, volume of sales, promotional
methods, and lists of names or classes of customers. Information shall be
considered, for purposes of this Agreement, to be confidential if not known by
the trade generally, even though such information has been disclosed to one or
more third parties pursuant to any other agreement entered into by ILEX or any
of its affiliates.
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Confidential Information shall not include information which:
(i) was in the public domain at the time of disclosure,
as shown by ILEX's records; or
(ii) after disclosure, becomes a part of the public domain
by publication or otherwise through no violation of this Agreement by Consultant
or violation of law or agreement by any other person;; or
(iii) was, at the time of disclosure, in possession of
Consultant, otherwise than through, or in connection with, its services to ILEX
hereunder, and Consultant is able to so demonstrate possession of this
Confidential Information in writing to ILEX within sixty (60) days of receipt of
Confidential Information, or forego application of this provision; or
(iv) is disclosed to Consultant without obligation of
confidence by a third party who did not acquire the same directly or indirectly
from ILEX under an obligation of secrecy.
Confidential Information disclosed or developed under this
Agreement shall not be deemed to be within the foregoing exceptions merely
because such information is embraced by more general information in the public
domain or in Consultant's possession.
(b) "Inventions" means any and all discoveries, concepts and ideas, whether
patentable or not, including, but not limited to, processes, methods, formulas,
compositions, techniques, articles and machines, as well as improvements thereof
or know-how related thereto, relating to the business and/or field or interest
of ILEX or any corporation, firm or partnership directly or indirectly
controlled by ILEX or through more than a thirty percent (30%) ownership
interest.
12. Assignment
This Agreement shall not be assignable by the Consultant
without the prior written consent of ILEX; any attempted assignment is void.
ILEX may assign this Agreement to an affiliated company or parent company or
subsidiary or in connection with the merger, consolidation or sale of all or
substantially all of its assets.
13. Entire Agreement
This Agreement constitutes the entire agreement between the
parties, no representations having been made by any of the parties except as are
herein specifically set forth. No rights or obligations other than those
expressly recited herein are to be implied from this Agreement, It may be
amended only by an agreement in writing, signed by the party against
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whom enforcement of any waiver, amendment modification, extension or discharge
is sought. Nothing herein shall require the parties to enter into further
agreements. This Agreement may be executed in any number of counterparts, each
of which shall be deemed an original and all of which shall constitute one and
the same instrument.
14. Waiver
A waiver or consent regarding any term, provision, or
condition of this Agreement given by ILEX on any one occasion shall be effective
only in that instance and shall not be construed as a bar or waiver of any right
on any other occasion.
15. Notices
Any correspondence or notifications concerning this Agreement
shall be deemed to have been duly given upon hand delivery or upon deposit in
the United States Mail, postage prepaid, certified or registered mail, return
receipt requested and will be addressed to ILEX and Consultant as follows:
If to ILEX:
ILEX Products, Inc.
Attention: Xxxxxxx Xxxxxxxxx, Director
0000 Xxxxxxx Xxxx Xxxx.
Xxx Xxxxxxx, Xxxxx 00000
Fax: 210/000-0000
and
If to Consultant:
NDA, LLC
Attention: Xxxxxx X. Xxx Xxxx, M.D.
0000 X. Xxxxxxx xx Xxxxxxx
Xxxxxx, XX 00000
Fax: 520/000-0000
or at some other address as shall have been furnished to the other in writing in
accordance herewith, except that such notice of such change shall be effective
only upon receipt.
16. Applicable Law
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This Agreement shall be construed and performed in accordance
with the laws of the State of Texas, without (i) reference to the choice of law
principles thereof; or (ii) regard to any presumptions or rule requiring
construction or interpretation against the party drafting or causing the
Agreement to be drafted.
17. Miscellaneous
This Agreement is expressly conditioned upon obtaining the
review, consideration and approval of ILEX's Board of Directors.
IN WITNESS WHEREOF, ILEX and Consultant have executed this Agreement
each on the date specified below by their duly authorized representatives.
ILEX PRODUCTS, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxx
-------------------------------
Printed Name: Xxxxxxx X. Xxxxxxxxx [STAMP OF APPROVED AS TO FORM]
Title: Director
Date: December 9, 2002
CONSULTANT
By: /s/ Xxxxxx X. Xxx Xxxx, M.D.
----------------------------
Xxxxxx X. Xxx Xxxx, M.D.
President of NDA, LLC
Date: December 10,2002
00-0000000
-----------------------------------------
(Tax Identification/Social Security No.)
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EXHIBIT A
AFFILIATIONS OF XX. XXX XXXX
BOARD MEMBERSHIPS (2002):
Genta
AFFILIATIONS AND CONSULTING AGREEMENTS OF XX. XXX XXXX:
Other Outside Activities of Xxxxxx X. Xxx Xxxx, M.D. (11/24/02)
ENTITY ACTIVITY
------------------------ -----------------------------------------
Genta Member of the Board of Directors
U.S. Oncology Chief Scientific Officer
PharmaMar Scientific Advisor to the Board
Boston Millenia Partners Consulting on technology investments
eMed Securities Consulting on technology investments
Paw Partners Consulting on technology investments
Affymetrix Member of Clinical Advisory Committee
Celgene Member of Corporate Advisory Board
Rimononest Ltd. Member of Board of Advisors
Antigenics Member of Scientific Advisory Board (SAB)
Aton Pharmaceutical Member of SAB
CanBas Member of SAB
Cell Pathways Member of SAB
Cyternex Member of SAB and holder of founder's shares
Emerging Xxx.Xxx Member of SAB
Forsetti Bio Sc. Member of SAB
Genetronics Member of SAB
Glycogenesis Member of SAB
ImaRX Therapy Member of SAB
Introgen Member of SAB
Light Sciences Member of SAB
Merck Member of SAB
Norcus Member of SAB
PharmaNet Member of SAB
Pintex Member of SAB
PrivaComp Member of SAB
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Takeda Member of SAB
TarGen Member of SAB
Topo Target A/S Member of SAB
Ventana Member of SAB
VidaCare Member of SAB and holder of founder's shares
Y.M. Bioscience Occasional consulting on molecules/trial design
Aphton Pharma/Cato Res. Occasional consulting on molecules/trial design
Apoliz Occasional consulting on molecules/trial design
Biomeasure Occasional consulting on molecules/trial design
C.A.C. Occasional consulting on molecules/trial design
Centocor Occasional consulting on molecules/trial design
CombinatoRx Occasional consulting on molecules/trial design
Curis Occasional consulting on molecules/trial design
Geminz Occasional consulting on molecules/trial design
Gen Vec Occasional consulting on molecules/trial design
Glycodesign Occasional consulting on molecules/trial design
Human Genome Sciences Occasional consulting on molecules/trial design
Medigene Occasional consulting on molecules/trial design
Merix Bioscience Occasional consulting on molecules/trial design
Millenium Pharma. Occasional consulting on molecules/trial design
Myriad Pharma. Occasional consulting on molecules/trial design
Oncolytics Occasional consulting on molecules/trial design
Peregrine Pharma. Occasional consulting on molecules/trial design
Pfizer Occasional consulting on molecules/trial design
Research Corp. Tech. Occasional consulting on molecules/trial design
Sang Stat Occasional consulting on molecules/trial design
Shire Pharma. Occasional consulting on molecules/trial design
Unither Pharma. Occasional consulting on molecules/trial design
Yamanouchi Pharma. Occasional consulting on molecules/trial design
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EXHIBIT B
Consultant shall perform the following services for ILEX personally by Xx. Xxx
Xxxx and by no other employee or representative of NDA, LLC. Xx. Xxx Xxxx shall
at all times exercise his independent judgment, discretion and control to
accomplish the stated objective.
(1) Consultant will assist in the recruitment and hiring of a qualified
person to assume the role at ILEX as Chief Medical Officer.
(2) Consultant shall physically attend Research & Development Management
Committee (RDMC) Meetings once a month at ILEX and at other times designated by
ILEX. Upon extenuating circumstances, Consultant may attend by conference call
with prior notice to Xxxx Xxxxxxxxx.
(3) In conjunction with RDMC Meetings, Consultant shall spend an average of
two (2) days per month physically located at ILEX with one day a month as a
minimum
(a) meeting with ILEX clinical development teams, and
(b) reviewing New Drug Candidates (NDC) and protocols.
(4) Consultant shall be available by phone to ILEX management and clinical
teams as needed.
(5) At the request of ILEX, Consultant shall, consistent with the terms of
this Agreement, make presentations or publications for and on behalf of ILEX to
financial investors and/or potential financial investors regarding ILEX's
portfolio of compounds provided that such presentations or publication shall
include an appropriate disclosure of Consultant's financial relationship with
ILEX.
(6) Consultant shall, consistent with the terms of this Agreement, advise
and assist the management of ILEX in establishing the strategic direction of
ILEX's clinical development plans.
(7) Consultant shall assist ILEX in the identification and assessment of
potential licensing opportunities.
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