CONSULTATION AND MEDICAL ADVISORY BOARD AGREEMENT
THIS CONSULTATION and MEDICAL ADVISORY BOARD AGREEMENT (the "Agreement"),
dated as of October 1, 1996, between Discovery Laboratories, Inc., 000 Xxxxxxx
Xxxxxx, 00xx xxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the "Company"), and Xxxxxx XxXxxx,
Ph.D. ("Consultant").
WITNESSETH
WHEREAS, Consultant is an expert in scientific and medical matters of
particular importance to the advancement of the Company's technology relating to
the ST-630 compound for use in the treatment of osteoporosis;
WHEREAS, the Company desires to have the benefit of Consultant's knowledge
and experience, and Consultant desires to provide consulting services to the
Company, all as hereinafter provided in this Agreement; and
WHEREAS, the Company desires to have Consultant serve as a member of the
Company's Medical Advisory Board (the "MAB"), and Consultant desires to serve as
a member of such Board;
NOW, THEREFORE, in consideration of the promises and mutual agreements
hereinafter set forth, effective the date hereof, the Company and Consultant
hereby agree as follows:
1. Consultation and Medical Advisory Board. The Company shall retain
Consultant as a consultant, and Consultant shall serve the Company as a
consultant and a member of the MAB upon the terms and conditions hereinafter set
forth.
2. Term. Subject to the terms and conditions hereinafter set forth, the
term of the Consultant's consulting arrangement and service on the MAB hereunder
(hereinafter referred to as the "Consultation Period") shall commence on the
date hereof, and shall continue through September 31, 1999.
3. Consulting and Board Member Duties.
3.1 During the Consultation Period, Consultant shall render to
Company or to Company's designee such consulting services in his fields of
expertise and knowledge related to the business of Company and at such times and
places as Company may from time to time request, including (i) attending
meetings of the MAB and (ii) providing advice to the Company on clinical trial
design, scientific planning and research and development relating to the ST-630
Compound for use in treating osteoporosis. The Company shall give Consultant
reasonable advance notice of any services required of him hereunder.
3.2 All work-to be performed by Consultant for the Company shall be
under the general supervision of the Company.
3.3 Consultant shall devote his best efforts and ability to the
performance of the duties attaching to this obligation. All work performed by
Consultant to the Company shall be at times reasonably convenient to the
Consultant, and nothing contained herein shall interfere with Consultant's
teaching responsibilities, research duties or his other teaching and
administrative responsibilities.
3.4 During the Consultation Period, Consultant shall serve as a
member of the MAB which will meet periodically to advise the Company on
scientific affairs.
4. Compensation.
4.1 Consulting Fees. The Company shall pay to the Consultant (i) an
annual consulting fee of $30,000, payable monthly and (ii) stock options granted
pursuant to Section 5 hereof.
4.2 Benefits. The Consultant shall not be entitled to any benefits,
coverages or privileges, including, without limitation, social security,
unemployment, medical or pension payments, made available to employees of the
Company.
5. Stock Options to Consultant.
5.1 The Company shall grant to Consultant an option (the "Option")
to purchase 15,000 shares of Common Stock of the Company at a price of $0.20 per
share (the "Option Shares") pursuant to the terms and conditions of the
Company's Stock Option Plan.
5.2 The Option granted hereunder shall become exercisable
immediately with respect to 3,750 of the Option Shares and, thereafter, an
additional 3,750 of the Option Shares shall become exercisable on each
anniversary of the date hereof, on a cumulative basis for the next three years.
The Options granted under this agreement shall expire on the tenth anniversary
of the date hereof
6. Termination. The Company may, without prejudice to any right or remedy
it may have due to any failure of the Consultant to perform his obligations
under this Agreement, terminate the Consultation Period upon 30 days, prior
written notice to the Consultant. In the event of such termination, the
Consultant shall be entitled to payment for services performed prior to the
effective date of termination. Such payments shall constitute full settlement of
any and all claims of the Consultant of every description against the Company.
Notwithstanding the foregoing, the Company may terminate the Consultation
Period, effective immediately upon receipt of written notice, if the Consultant
breaches or threatens to breach any provision of Sections 7, 8, or 10.
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7. Cooperation. The Consultant shall use his best efforts in the
performance of his obligations under this Agreement. The Company shall provide
such access to its information and property as may be reasonably required in
order to permit the Consultant to perform his obligations hereunder. The
Consultant shall cooperate with the Company's personnel, shall not interfere
with the conduct of the Company's business and shall observe all rules,
regulations and security requirements of the Company concerning the safety of
persons and property.
8. Proprietary Information and Inventions Agreement. Upon commencement of
this Agreement, Consultant shall execute the Company's standard form of
Intellectual Property and Confidential Information Agreement (the
"Confidentiality Agreement") a copy of which is attached to this Agreement as
Exhibit A.
9. Independent Contractor Status. The Consultant shall perform all
services under this Agreement as an "independent contractor" and not as an
employee or agent of the Company. The Consultant is not authorized to assume or
create any obligation or responsibility, express or implied, on behalf of, or in
the name of, the Company or to bind the Company in any manner.
10. Noncompetition. Consultant agrees, during the Consultation Period, and
for two (2) years thereafter, not to render services (i) to any competitors of
the Company in the field of the development, clinical evaluation and manufacture
of ST-630 for use in the treatment of osteoporosis or (ii) for any other group
that is developing an oral version of the ST-630 compound; provided however,
Consultant may provide such services for Sumitomo Pharmaceuticals and Taisho
Pharmaceuticals.
11. Notices. All notices required or permitted under this Agreement shall
be in writing and shall be deemed effective upon personal delivery or upon
deposit in the United States Post Office, by registered or certified mail,
postage prepaid, addressed to the other party at the address shown above, or at
such other address or addresses as either party shall designate to the other in
accordance with this Section 11.
12. Pronouns. Whenever the context may require, any pronouns used in this
Agreement shall include the corresponding masculine, feminine or neuter forms,
and the singular forms of nouns and pronouns shall include the plural, and vice
versa.
13. Entire Agreement. This Agreement constitutes the entire agreement
between the parties and supersedes all prior agreements and understandings,
whether written or oral, relating to the subject matter of this Agreement.
14. Amendment. This Agreement may be amended or modified only by a written
instrument executed by both the Company and the Consultant.
15. Governing Law. This Agreement shall be construed, interpreted and
enforced in accordance with the laws of the State of New York.
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16. Successors and Assigns. This Agreement shall be binding upon, and
inure to the benefit of, both parties and their respective successors and
assigns, including any corporation with which, or into which, the Company may be
merged or which may succeed to its assets or business, provided, however, that
the obligations of the Consultant are personal and shall not be assigned by him.
17. Miscellaneous.
17.1 No delay or omission by the Company in exercising any right
under this Agreement shall operate as a waiver of that or any other right. A
waiver or consent given by the Company 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.
17.2 The captions of the sections of, this Agreement are for
convenience of reference only and in no way define, limit or affect the scope or
substance of any section of this Agreement.
17.3 In the event that any provision of this Agreement shall be
invalid, illegal or otherwise unenforceable, the validity, legality and
enforceability of the remaining provisions shall in no way be affected or
impaired thereby.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year set forth above.
DISCOVERY LABORATORIES, NC.
/s/ Xxxxx X. Xxx, M.A.
--------------------------------------
By: Xxxxx X. Xxx, M.A.
Title: President
Address: 000 Xxxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
CONSULTANT
/s/ Xxxxxx XxXxxx
--------------------------------------
By:
Address: 0000 Xxx XX
Xxxxxxxxx, XX 00000
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