CONSULTING AGREEMENT
This CONSULTING AGREEMENT (the "AGREEMENT"), is made as of April 1, 2006 (the
"EFFECTIVE DATE") by and between:
VION PHARMACEUTICALS, INC. a Delaware corporation, having a place of
business located at 4 Science Park, New Haven,
Connecticut, Telephone (000) 000-0000,
Telecopier (000) 000-0000
(hereinafter, the "COMPANY") and
X X XXXXX CONSULTING INC. a Connecticut corporation, having a place of
business located at 0 Xxxxxxxxx Xxxx,
Xxxxxxxxxxxx XX 00000-0000, Telephone (860)
663-2342
(hereinafter, "TWDC").
WHEREAS TWDC is willing to provide the Company with consulting services pursuant
to the terms of this Agreement and Company is willing to receive such services.
NOW, THEREFORE, TWDC and the Company hereby agree as follows:
1. Consulting Services.
(a) Description of Services. The Company hereby contracts with and retains
TWDC to obtain its services as a consultant to the Company to act in such
capacities and to perform such services, and at such times, as are reasonably
pre-authorized by the Company. TWDC's services hereunder shall be rendered
through the services of Xxxxxxxx Xxxxx, Ph.D. ("CONSULTANT"). Consultant shall
perform certain services to the Company, at the Company's request, to assist in
the search, evaluation and institution of discovery and pre-clinical development
programs (the "SERVICES") in the field of anti-cancer compounds being pursued by
the Company during the term of this agreement (the "COMPANY'S FIELD OF
RESEARCH").
(b) Availability of the Consultant. TWDC and the Company mutually agree
that Consultant shall be available to work on the Company's projects at the
discretion of the Company. Travel time incurred by Consultant in connection with
travel pre-authorized by the Company shall be deemed time spent on the Company's
projects. Travel time incurred by Consultant to and from New Haven county,
including to and from the Company's place of business, shall not be billable to
the Company. Consultant shall devote his best efforts, consistent with the terms
and provisions hereof, to performing the Services.
2. Term and Expiration.
(a) Term. The term of this Agreement shall become effective on the
Effective Date, and remain in effect until March 31, 2008, subject to earlier
termination as provided herein. The term of this Agreement may be renewed by
mutual consent of both parties for one additional year by written amendment.
(b) Termination. Notwithstanding Paragraph 2(a), either party may terminate
this Agreement at any time upon thirty (30) days prior written notice to the
other. In addition, if Consultant's employment with TWDC is terminated for any
reason, including physical or mental disability or death, TWDC shall notify the
Company of such termination and this Agreement shall terminate immediately
effective upon termination of Consultant's employment.
(c) Payment upon Termination. Upon termination, the Company shall be
obligated to pay, within five (5) days of the effective date of termination, all
amounts owing to TWDC for Services completed prior to the termination date and
related expenses, if any, in accordance with the provisions of Paragraph 3
(Compensation) hereof.
3. Compensation.
(a) Fees. For all services provided hereunder, the Company shall pay TWDC
at the rate of $150.00 per hour of services performed by Consultant (the
"FEES"). The hourly fee rate will be reviewed annually and adjusted to reflect
any increases or decreases due to inflation as measured by the Consumer Price
Index. Consultant will notify the Company in writing of any such rate adjustment
in advance of providing services to be billed at the adjusted rate. TWDC shall
send a monthly itemized invoice of time spent by Consultant on the Company's
projects to the Company after provision of Services. Invoices and any other
written notices shall be sent to the attention of Xxxxx Xxxxxxxxx, c/o Vion
Pharmaceuticals, Inc., 0 Xxxxxxx Xxxx, Xxx Xxxxx, XX 00000. Payment shall be due
within twelve (12) days of the Company's receipt of such invoice. Payments will
be made via wire transfer in U.S. funds.
(b) Expenses. The Company shall reimburse Consultant for any business and
reasonable travel and related expenses incurred by Consultant in connection with
the Services to be provided by Consultant at any location other than TWDC's
facility, provided that the travel is pre-authorized by the Company, that
Consultant arranges economy airfare through the Company's designated travel
agent, and that all such expenses are properly documented using the Company's
travel and expense report and supported by receipts.
(c) Taxes. The parties agree that Consultant is an employee of TWDC and
will not be classified or treated as an employee the Company for any purpose.
TWDC shall file, on a timely basis, all income and employment tax returns and
make any withholdings and payments required to be made under applicable law with
respect to the amounts provided to Consultant as compensation for the services
provided hereunder. Neither party, nor such party's directors, officers,
employees or agents, shall bind or make any commitment on behalf of the other
party.
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4. Property of the Company.
(a) Definition. For the purposes of this Agreement, the term "INVENTIONS"
shall mean all discoveries, inventions, improvements, developments, products,
processes, procedures, techniques, formulae, works, computer programs, drawings,
designs, notes, documents, information and materials, whether or not protectable
by copyright, patent or trademark or as a trade secret, made, conceived,
developed or reduced to practice by Consultant, alone or with others.
(b) Ownership; Assignment of Ownership and Confidentiality.
(i) Proprietary Information and Inventions Agreement. TWDC and the
Company agree that they are each bound by the terms and conditions of the
Confidentiality Disclosure Agreement, attached hereto as Schedule A, and
that Consultant shall be required to execute same before commencing the
Services.
(ii) Ownership. TWDC acknowledges and agrees that the Company shall
have the sole right to any and all right, title and interest in and to all
Inventions related to the Company's Field of Research including but not
limited to, all copyrights, patent rights, trade secret rights and
trademark rights related thereto,
(iii) Assignment. Any and all right, title and interest in and to all
Inventions, including but not limited to, all copyrights, patent rights,
trade secret rights and trademark rights related thereto, developed in the
course of performing Services under this Agreement are the sole property of
the Company. Such Inventions conceived or reduced to practice by the
consultant shall be, to the extent permitted by law, "works made for hire"
and TWDC shall assign any and all rights in such Inventions to the Company.
The Company shall have the sole right to determine the treatment of such
Inventions, including the right to keep them as trade secrets, to file and
execute patent applications on them, to use and disclose them without prior
patent application, to file registrations for copyrights or trademarks on
them in its own name, or to follow any other procedure that the Company
deems appropriate.
(iv) Expenses. The Company shall pay for all expenses in connection
with any assignment of Inventions by TWDC in accordance with clause (iii)
above and any assistance provided by Consultant at the Company's request to
protect the Company's rights in any Inventions. Other than such acts as are
reasonably required for any assignment of Inventions in accordance with
clause (iii) above, TWDC shall not be required to take any legal or other
actions for the benefit of the Company.
5. Indemnification. TWDC hereby agrees to indemnify and hold harmless the
Company and its directors, officers, stockholders, agents and employees, from
and against all claims, liabilities, losses, damages, and expenses as incurred
(including reasonable legal fees), joint or several (including actions or
proceedings in respect thereof) (collectively "Losses"), relating to or arising
out of its or Consultant's
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performance of the Services, resulting from TWDC or Consultant's gross
negligence, wilful misconduct or bad faith in connection with the Services. The
Company hereby agrees to indemnify and hold harmless TWDC and its directors,
officers, stockholders, agents and employees (including Consultant), from and
against all Losses, relating to or arising out of the Services or any
transaction or matter which is related to the subject matter of the Services,
resulting from the Company's gross negligence, wilful misconduct or bad faith in
connection with the Services.
6. Solicitation of Employment. During the term of this Agreement and for a
period of two (2) years thereafter, (a) TWDC agrees not to solicit or encourage
any employee of the Company to leave the Company or to devote less than all of
such employee's efforts to the Company and (b) the Company shall not solicit or
encourage any employee of TWDC to leave TWDC or to devote less than all of such
employee's efforts to TWDC.
7. Survival of Obligations. The obligations of Paragraphs 2(c), 3, 4, 5 and 6
hereof will survive any expiration or earlier termination of this Agreement.
8. Remedies. In the event of any violation of provisions of Paragraphs 4, 5 or 6
hereof, the Company shall have the right, in addition to any other rights it may
have, to obtain in any court of competent jurisdiction injunctive relief to
restrain such breach or threatened breach.
9. Notices. Any notice required or permitted hereunder shall be given in writing
and shall be deemed effective if given as follows: (a) upon personal delivery;
(b) three (3) days after deposit in the mail by certified or registered mail
(return receipt requested); (c) one (1) business day after deposit with any
return receipt express courier (prepaid); or (d) one (1) business day after
transmission by telecopier, addressed to the other party at its address (or
facsimile number, in the case of transmission by telecopier) as shown above, or
to such other address as such party may designate in writing from time to time
to the other party.
10. Governing Law; Severability. This Agreement shall be governed by and
construed and enforced in accordance with the laws of the State of Connecticut,
regardless of its or any other jurisdiction's conflicts of laws provisions. If
any provision of this Agreement is determined by a court of law to be illegal,
invalid or unenforceable, then such provision shall be enforced to the maximum
extent possible and the other provisions shall remain in full force and effect.
11. Complete Understanding; Modification. This Agreement (including any exhibits
or schedules hereto) constitutes the full and complete understanding of the
parties hereto and supersedes all prior understanding and agreements. Any
waiver, modification or amendment of any provision of this Agreement shall be
effective only if in writing and signed by the parties hereto.
* * *
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date first written above.
VION PHARMACEUTICALS, INC.
By: /s/ Xxxx Xxxxxxx
----------------
Name: Xxxx Xxxxxxx
Title: CEO
X X XXXXX CONSULTING INC.
By: /s/ Xxxxxxxx X. Xxxxx
---------------------
Name: Xxxxxxxx X. Xxxxx
Title: President
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SCHEDULE A
PROPRIETARY INFORMATION
AND INVENTIONS AGREEMENT
------------------------
The following confirms an agreement between Xxxxxxxx X. Xxxxx and Vion
Pharmaceuticals, Inc., a Delaware corporation (the "Company"). This agreement is
a material part of the consideration for my Consulting Agreement with the
Company:
1. I recognize that the Company is engaged in a continuous program of
research, development and production in cancer treatment. I also recognize that
the Company possesses or has rights to information which has commercial value in
the Company's business ("Proprietary Information"). For example, Proprietary
Information includes, without limitation, inventions (patentable or otherwise),
improvements, business strategies, product ideas, formulas, processes,
copyrightable or patentable material, schematics, biological material (including
cell lines antibodies, c-DNAs, antisense nucleotides, proteins, vectors, new
chemical entities, media, reagents and related materials) and techniques for
their handling and use, any other confidential or proprietary information of the
Company, or its customers or clients which I may learn of, or be exposed to,
from time to time prior to and during the term of my Consulting Agreement and as
a direct consequence of those activities. Specifically excluded is information
obtained by me as part of other activities not associated with my consulting
activities for Vion
2. I understand and agree that my Consulting Agreement creates a
relationship of confidence and trust between me and the Company with respect to
(i) all Proprietary Information, and (ii) the confidential information of others
with which the Company has a business relationship. At all times, both during my
Consulting Agreement with the Company and after its termination, I will keep in
confidence and trust all such information, and I will not use or disclose any
such information without the written consent of the Company, except as may be
necessary in the ordinary course of performing my duties to the Company or as
may be required by law. I understand that should I violate this agreement by
disclosing any such Proprietary Information and/or confidential information, the
Company will seek to recover damages by initiating legal action against me and
possibly the party or parties to whom I made the disclosure, and will criminally
prosecute under the Economic Espionage Act of 1996.
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3. In addition, I hereby agree as follows:
(a) All Proprietary Information disclosed to me in consequence of my
consulting as defined in this agreement and the Consulting Agreement dated April
1, 2006, shall be the sole property of the Company and its assigns, and the
Company and its assigns shall be the sole owner of all trade secrets, patents,
copyrights, and other rights in connection therewith. I hereby assign to the
Company any rights I may have or acquire in such Proprietary Information.
(b) All documents, records, apparatus, equipment and other physical
property whether or not pertaining to Proprietary Information, furnished to me
by the Company or produced by me or others in connection with my Consulting
Agreement shall be and remain the sole property of the Company. I shall return
to the Company all such materials and property as and when requested by the
Company. Even if the Company does not so request, I shall return all such
material and property upon the termination of the Consulting Agreement by me or
by the Company for any reason, and I will not take with me any such material or
property or any reproduction thereof upon such termination.
(c) I will promptly disclose to the Company, or any persons designated by
it, all improvements, inventions, works or authorship, formulas, ideas,
processes, techniques, know-how and data, whether or not patentable
(collectively, "Inventions"), made or conceived, reduced to practice or learned
by me, either alone or jointly with others, during the term and as a direct
consequence of my Consulting during the term of and as defined by this agreement
and the Consulting Agreement dated April 1, 2006.
(d) All Inventions which I conceive, develop or have developed (in whole or
in part, either alone or jointly with others) and (i) use or have used
equipment, supplies facilities or trade secret information of the Company, or
(ii) use or have used the hours for which I am to be or was compensated by the
Company, or (iii) which relate at the time of conception or reduction to
practice thereof to the business of the Company or to its actual or demonstrably
anticipated research and development (iv) which result from any work performed
by me for the Company shall be the sole property of the Company and its assigns
(and to the fullest extent permitted by law shall be deemed works made for
hire), and the Company and its assigns shall be the sole owner of all patents,
copyrights and other rights in connection therewith. I hereby assign to the
Company any rights I may have or acquire in such Inventions. I agree that any
Invention required to be disclosed under paragraph (c) above during the term of
my Consulting Agreement shall be presumed to have been conceived during the term
of my Consulting Agreement with the Company. I understand that I may overcome
the presumption by showing that such Invention was conceived after the
termination of my Consulting Agreement.
(e) With respect to Inventions described in paragraph (d) above, I will
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 said
Inventions in any and all countries, and will execute all documents reasonably
necessary or appropriate for this purpose. This obligation shall survive the
termination of my Consulting Agreement, but the Company shall compensate me at a
reasonable rate after such termination for time actually spent by me at the
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Company's request on such assistance. In the event that the Company is unable
for any reason whatsoever to secure my signature to any document reasonably
necessary or appropriate for any of the foregoing purposes, (including renewals,
extensions, continuations, divisions or continuations in part), I hereby
irrevocably designate and appoint the Company and its duly authorized officers
and agents, as my agents and attorneys-in-fact to act for and in my behalf and
instead of me, but only for the purpose of executing and filing any such
document and doing all other lawfully permitted acts to accomplish the foregoing
purposes with the same legal force and effect as if executed by me.
(f) So that the Company may be aware of the extent of any other demands
upon my time and attention, I will disclose to the Company (such disclosure to
be held in confidence by the Company) the nature and scope of any other business
activity in which I am or become engaged during the term of my Consulting
Agreement, and I will not engage in any business activity which is related to
the Company's business or its actual or demonstrably anticipated research and
development.
(g) I will not now or in the future disrupt, damage, impair or interfere
with the business of the Company, whether by way of interfering with or raiding
its employees, disrupting its relationships with customers, agents, vendors,
distributors or representatives, or otherwise. During the term of my Consulting
Agreement with the Company and for a period of one year after termination of my
Consulting Agreement, I agree not to solicit any employees of the Company to
work for an employer which competes with the Company. I understand that I am not
restricted from being employed by or engaged in a competing business after
termination of my Consulting Agreement by the Company.
(h) It is understood that the Consultant will make the Company aware of any
academic activities which may be related to the interests of the Company but
this agreement will in no way constrain the Consultant's usual and normal
academic pursuits.
4. I represent that my execution of this Agreement, my Consulting Agreement
with the Company and my performance of my proposed duties to the Company in the
development of its business will not violate any obligation I may have to any
present or former employer, including any obligation to keep confidential any
proprietary or confidential information of any such employer. I have not entered
into, and I will not enter into, any agreement which conflicts with or would, if
performed by me, cause me to breach this Agreement.
5. In the course of performing my duties to the Company, I will not utilize
any proprietary or confidential information of any present or former employer.
6. I agree that this Agreement does not constitute an employment
relationship or agreement and that, unless otherwise provided in a written
contract signed by both the Company and me, (i) my relationship with the Company
is as an independent contractor, and (ii) I shall have the right to terminate my
independent contractor relationship,
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and the Company shall have the right to terminate my independent contractor
relationship, under the terms and conditions of the Consulting Agreement, with
or without cause.
7. This Agreement shall be effective on the date signed, shall be binding
upon me, my heirs, executors, assigns and administrators and shall inure to the
benefit of the Company, its successors and assigns.
Dated March 31, 2006 Accepted and Agreed to:
VION PHARMACEUTICALS, INC.
By: /s/ Xxxxxxxx X. Xxxxx By: /s/ Xxxx Xxxxxxx
--------------------- ----------------
Xxxxxxxx X. Xxxxx Xxxx Xxxxxxx
CEO
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