EXHIBIT 10(i)
CONSULTING AGREEMENT
This Consulting Agreement is made as of September 1, 2002 between Marc
Pharmaceuticals, Inc., a Delaware corporation (the "Company") and Xx. Xxxx X.
Xxxxxx, Ph.D. (the "Consultant"), a principal investigator of the Weill Medical
College of Cornell University ("WMC") at WMC's laboratory at Cornell University
(the "University").
A. The Company is engaged in scientific research in chemotherapy (the
"Field") to develop and exploit a site-directed chemotherapeutic agent to
selectively attack only cancer cells and by apoptosis destroy the DNA and
thereby cell proliferation (the "Technology").
B. The Company has entered into a Sponsored Research Agreement (the
"Research Agreement") with WMC and Consultant dated June 19, 2002 relating to
the development of the Technology.
C. The Company has also entered into an Exclusive License Agreement
(the License Agreement") with Cornell Research Foundation, Inc. dated June 19,
2002 relating to the licensing by the Company of certain patent rights relating
to the Technology.
D. The Consultant has extensive experience in the Field, and the
Company seeks to benefit from the Consultant's expertise by retaining the
Consultant as a consultant. The Consultant wishes to perform consulting services
in the Field for the Company.
Accordingly, the Company and the Consultant agree as follows:
1. Services.
(a) The Consultant shall provide advice and consulting services to
the Company with respect to matters related to the Field. The
Consultant shall be engaged by the Company as a consultant only
and shall not direct or conduct research for or on behalf of the
Company, except on behalf of WMC pursuant to the Research
Agreement. Consultant's services shall be those reasonably
required by the Company from time to time, including, without
limitation, assistance in preparation of materials and
information for use in investment offering materials to be
prepared by the Company, attendance at meetings with prospective
and current investors, attendance at meetings with prospective
and current business partners and general advice and consultation
concerning the Technology and the Company's business and
prospects. Consultant's services shall be performed at such
locations as the Company shall from time to time designate. In no
event shall the Consultant have direct conversations with any
third parties concerning the Technology, the Company or its
business, whether or not on behalf of the Company, unless
specifically directed to do so by the Company and when
accompanied by a representative of the Company.
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(b) Upon request by the Company, and at times mutually agreed upon by
the Company and the Consultant, the Consultant shall devote up to
3 full days per month to provide consulting services to the
Company pursuant to this Agreement.
(c) The Company acknowledges that the Consultant is an employee of
WMC and is subject to WMC's policies, including policies
concerning consulting, conflicts of interest, and intellectual
property.
(d) Consultant shall perform his services under this Agreement to the
best of his abilities and in accordance with the highest
professional standards.
2. Compensation.
As full consideration for the consulting services provided by the
Consultant, the Company shall pay to the Consultant the amount of
$1,000 for each day that the Consultant shall perform consulting
services for the Company, payable monthly, within 20 days after the
end of each month during which Consultant shall perform consulting
services for the Company. In addition to the foregoing amount, the
Company shall promptly, upon invoice, reimburse the Consultant for all
reasonable expenses incurred by the Consultant in providing consulting
services under this Agreement.
3. Competition
(a) The Consultant represents to the Company that the Consultant does
not have any agreements to provide consulting services to any other
party, firm or company in the pharmaceutical industry on matters
relating to the Field, except for the agreement(s) listed on Schedule
A annexed to this Agreement with the parties therein named (the "Other
Companies"). During the term of this Agreement, the Consultant shall
not consult for any entity in the pharmaceutical industry other than
the Company and the Other Companies on matters relating to the Field.
(b) The Company acknowledges and agrees, however, that nothing in this
Agreement shall affect the Consultant's obligations to, or research on
behalf of, WMC or the University, including, without limitation,
obligations or research of the Consultant in connection with transfer
by WMC or the University of materials or intellectual property
developed in whole or in part by the Consultant, or in connection with
research collaborations.
4. Confidentiality
(a) The Consultant may disclose to the Company any information that
the Consultant would normally freely disclose to other members of the
scientific community at large, whether by publication, by presentation
at seminars, or in informal scientific discussions. However, the
Consultant
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shall not disclose to the Company information that is proprietary to
WMC or the University and is not generally available to the public
other than through formal technology transfer procedures or pursuant
to the Research Agreement or the License Agreement.
(b) In providing consulting services to the Company pursuant to this
Agreement, the Consultant may acquire information that pertains
to the Company's business, products, processes, equipment,
programs, developments, or plans and that is both (i) disclosed
or made known by the Company to the Consultant and (ii)
identified as "proprietary" by the Company at any time
("Proprietary Information"). The Consultant agrees not to
disclose any Proprietary Information to third parties or to use
any Proprietary Information for any purpose other than
performance of consulting services pursuant to this Agreement,
without the prior written consent of the Company.
(c) Proprietary Information subject to paragraph 4(b) does not
include information that: (i) is or later becomes available to
the public through no breach of this Agreement by the Consultant;
(ii) is obtained by the Consultant from a third party who had the
legal right to disclose the information to the Consultant; or
(iii) is already in the possession of the Consultant on the date
this Agreement becomes effective. In addition, Proprietary
Information subject to paragraph 4(b) does not including
information generated by the Consultant, alone or with others,
unless the information (I) is generated solely as a direct result
of the performance of consulting services under this Agreement
and (II) is not generated in the course of the Consultant's
activities as a WMC employee or University faculty member.
5. Return of Materials
The Consultant agrees to promptly return, following the termination of
this Agreement or upon earlier request by the Company, all drawings,
tracings, and written materials in the Consultant's possession and (i)
supplied by the Company in conjunction with the Consultant's
consulting services under this Agreement; or (ii) generated by the
Consultant in the performance of Consultant under this Agreement and
not generated in the course of the Consultant's activities as a WMC
employee or University faculty member.
6. Intellectual Property
(a) Subject to the terms of paragraph 6(b), below, the Consultant
hereby assigns to the Company any right, title and interest he
may have in any invention, discovery, improvement or other
intellectual property which (i) the Consultant, alone or with
others, develops solely as a direct result of performing
consulting services for the Company under this Agreement and
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(ii) is not developed in the course of Consultant's activities as
a WMC employee or University faculty member. (Any intellectual
property assignable to the Company pursuant to the preceding
sentence is hereinafter referred to as "Company Intellectual
Property"). Upon the request of the Company, the Consultant shall
execute such further assignments, documents and other instruments
as may be necessary to assign Company Intellectual Property to
the Company and to assist Company in applying for, obtaining and
enforcing patents or other rights in the United States and in any
foreign country with respect to any Company Intellectual
Property. The Company will bear the cost of preparation of all
patent or other applications and assignments, and the cost of
obtaining and enforcing all patents and other rights to Company
Intellectual Property.
(b) The Company shall have no rights by reason of this Agreement in
any publication, invention, discovery, improvement or other
intellectual property whatsoever, whether or not publishable,
patentable or copyrightable, which is developed as a result of a
program of research financed, in whole or in part, by funds
provided by or under the control of WMC or the University. The
Company also acknowledges and agrees that it will enjoy no
priority or advantage as a result of the consultancy created by
this Agreement in gaining access, whether by license or
otherwise, to any proprietary information or intellectual
property that arises from any research undertaken by the
Consultant in his capacity as an employee of WMC or a member of
the faculty of the University.
7. Defense and Indemnification
The Company agrees, at its sole expense, to defend WMC against,
and to indemnify and hold WMC harmless from, any liability,
claim, judgment, cost, expense, damage, deficiency, loss or
obligation, of any kind or nature (including, without limitation,
reasonable attorneys' fees and other costs and expenses of
defense) relating to a claim or suit by a third party against
WMC, either arising from this Agreement, the Consultant's
performance of services for the Company under this Agreement, or
any Company products or services which result from the
Consultant's performance of services under this Agreement.
8. Term and Termination
(a) Unless terminated earlier under paragraph 8(b), below, this
Agreement shall be for a term of 36 months.
(b) Without limiting any rights which either party to this Agreement
may have by reason of any default by the other party each party
reserves the right to terminate this Agreement at its convenience
by written notice given to the other party. Such termination
shall be effective upon the date not earlier
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than 30 days following the date of such notice as shall be
specified in said notice.
(c) Termination of this Agreement shall not affect (i) the Company's
obligations to recognize the priority of WMC and University
intellectual property rights under paragraph 6(b), above, (ii)
the Company's obligations to defend and indemnify WMC under
xxxxxxxxx 0, xxxxx, (xxx) the Company's obligation to pay for
services previously performed by the Consultant or expenses
reasonably incurred by the Consultant for which the Consultant is
entitled to reimbursement under paragraph 2, above, or (iv) the
Consultant's continuing obligations to the Company under
paragraphs 4(b) and 6(a), above.
9. Miscellaneous
(a) This Agreement shall inure to the benefit of and be binding upon
the respective heirs, executors, successors, representatives, and
assigns of the parties, as the case may be: provided, however,
the obligations hereunder of each party to the other are personal
and may not be assigned without the express written consent of
such other party.
(b) The relationship created by this Agreement shall be that of
independent contractor; and the Consultant shall have no
authority to bind or act as agent for the Company or its
employees for any purpose.
Consultant acknowledges that he is an independent contractor and
that this Agreement shall not give or extend to Consultant any
rights with respect to additional compensation by Company nor to
any deferred compensation plan, bonus plan or fringe benefits,
and further agrees to hold Company harmless from any employment,
income or other taxes which may be assessed in connection with
payments to Consultant under this Agreement.
(c) The Company may use the Consultant's name, and in doing so may
cite the Consultant's relationship with WMC, so long as any such
usage (i) is limited to reporting factual events or occurrences
only, and (ii) is made in a manner that could not reasonably
constitute an endorsement of the Company or of any Company
program, product or service. However, the Company shall not use
the Consultant's name or WMC's name in any press release, or
quote the Consultant in any company materials, or otherwise use
the Consultant's name or WMC's name in a manner not specifically
permitted by the preceding sentence or prohibited by either the
Research Agreement or the License Agreement, unless in each case
the Company obtains in advance the written consent of WMC and, in
the case of the use of the Consultant's name, the Consultant's
consent as well.
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(d) Notice given by one party to the other hereunder shall be in
writing and deemed to have been properly given or paid if
deposited with the United States Postal Service, registered or
certified mail, addressed as follows:
To Consultant: Xx. Xxxx X. Xxxxxx, Ph.X.
Xxxxx Medical College of Cornell University
0000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
To Company: Marc Pharmaceuticals, Inc.
Xxx Xxxxxxxxxx Xxxxx, 0xx Xxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: Xxxx San Xxxxxxx
(e) This Agreement supersedes all previous agreements and discussions
relating to the consulting services and constitutes the entire
agreement between the Company and the Consultant with respect to
the consulting services. This Agreement may not be modified in
any respect by any verbal statement, representation, or agreement
made by an employee, officer, or other representative of the
Company and by the Consultant. The Company and the Consultant
acknowledge and agree that any amendment of this Agreement
(including, without limitation, any extension of this Agreement
or any change from the terms of paragraph 2 in the consideration
to be provided to the Consultant with respect to services to be
provided hereunder, or any departure from the terms or conditions
hereof with respect to he Consultant's consulting services for
the Company) is subject to WMC's prior written approval.
(f) If any provision of this Agreement is adjudicated to be invalid,
unenforceable, contrary to, or prohibited under applicable laws
or regulations of any jurisdiction, such provision shall be
severed and the remaining provisions shall continue in full force
and effect.
(g) The Consultant and the Company acknowledge that (i) the
Consultant is entering into this Agreement in his, individual
capacity and not as an employee or agent of WMC, (ii) WMC is not
a party to this Agreement and has no liability or obligation
hereunder, and (iii) WMC is an intended third-party beneficiary
of this Agreement and certain provisions of this Agreement are
for the benefit of WMC and are enforceable by WMC in its own
name.
(h) The parties hereto agree to perform any further acts and to
execute and deliver any further documents which may be necessary
or appropriate to carry out the purposes of this Agreement.
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(i) If any provision of this Agreement is held to be unenforceable,
invalid or illegal by any court of competent jurisdiction, such
unenforceable, invalid, or illegal provision shall not affect the
remainder of this Agreement.
(j) The validity of this Agreement and the interpretation and
performance of all of its terms shall be governed by the
substantive laws of the State of New York.
(k) Failure by either party hereto to insist upon strict compliance
with any of the terms, covenants and condition hereof shall not
be deemed a waiver or relinquishment of any similar right or
power hereunder at any subsequent time or of any other provision
hereof.
IN WITNESS WHEREOF, the parties have executed this Agreement effective
the date first stated above.
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Xx. Xxxx X. Xxxxxx
Xxxx Pharmaceuticals, Inc.
By:
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