CONSULTING AGREEMENT
Exhibit
10.18
This Consulting Agreement (this “Agreement”) is made and entered into as of July 5,
2006 by and between Sirion Therapeutics, Inc., a North Carolina corporation (“Sirion”),
and Xxxxxxxx Xxxxxxxxxx (the “Consultant”).
RECITALS
Whereas, Sirion desires to engage Consultant, and Consultant desires to accept the
engagement by Sirion, to provide certain Services (as defined below) to Sirion according to the
terms and conditions set forth in this Agreement.
Now, Therefore, in consideration of the foregoing premises and the mutual covenants
and agreements set forth herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
AGREEMENT
1. Definitions. As used in this Agreement, the following terms shall have the following
respective meanings:
1.1 “Intellectual Property” shall mean and include all apparatus, biological materials,
clinical data, chemical compositions or structures, databases and data collections, diagrams,
formulae, inventions (whether or not patentable), know-how, logos, marks (including brand names,
product names, logos, and slogans), methods, processes, proprietary information, protocols,
schematics, specifications, software, techniques, URLs, websites, works of authorship, and other
forms of technology (whether or not embodied in any tangible form and including all tangible
embodiments of the foregoing such as instruction manuals, laboratory notebooks, prototypes,
samples, studies, and summaries).
1.2 “Intellectual Property Rights” shall mean and include all past, present, and future rights
of the following types, which may exist or be created under the laws or regulations of any
jurisdiction in the world: (i) rights associated with works of authorship, including exclusive
exploitation rights, copyrights and moral rights; (ii) trademark and trade name rights and similar
rights; (iii) trade secret rights; (iv) patents and industrial property rights; (v) other
proprietary rights in Intellectual Property of every kind and nature; and (vi) all registrations,
renewals, extensions, combinations, divisions, or reissues of, and applications for, any of the
rights referred to in the foregoing clauses “(i)” through “(v)” of this definition.
2. Consulting Services. Subject to the terms and conditions of this Agreement, effective
as of the date of this Agreement, Sirion hereby engages Consultant, and Consultant hereby accepts
the engagement by Sirion, to act as a consultant to Sirion for the duration of the Term (as defined
below). In his capacity as a consultant to Sirion, Consultant agrees to provide such services
relating to business development (the “Services”) as Sirion may assign from time to time. The
manner and means by which Consultant chooses to perform the Services shall be in Consultant’s sole
discretion; provided, however, that Consultant shall perform all Services in a
timely and professional manner, using a degree of skill and care at least consistent with industry
standards.
3. Consulting Fees. As consideration for Consultant’s provision of the Services, Sirion
shall pay to Consultant fees in the amount of One Hundred Seventy-Five Thousand and No/100 Dollars
($175,000) per year for each year during the Term (the “Consulting Fees”). Such Consulting Fees
shall be payable in equal monthly installments on the first (1st) business day of each calendar
month during the Term.
4. Expenses. Sirion shall reimburse Consultant for all reasonable out-of-pocket expenses,
including, without limitation, reasonable travel expenses, incurred in connection with Consultant’s
provision of Services pursuant to this Agreement; provided, however, that
Consultant must: (i) obtain the prior approval of Sirion for any such expenses that, individually
or in the aggregate, exceed $500 (other than travel expenses incurred by Consultant in connection
with any travel requested by Sirion); and (ii) submit written documentation of all such expenses to
Sirion. Sirion will reimburse Consultant for all expenses covered by this Section 4 within ten
(10) business days of the date that Consultant submits documentation of such expenses to Sirion.
5. Health Insurance. At all times during the Term, Sirion shall use reasonable efforts to
provide Consultant with medical, dental and vision insurance benefits substantially similar in
substance to the medical, dental and vision insurance benefits provided to its employees, provided
that Sirion’s expense relating thereto shall not be in excess of 120% of Sirion’s average per
employee cost for such coverage.
6. Independent Contractor Relationship. Consultant’s relationship with Sirion shall be
solely that of an independent contractor, and nothing in this Agreement shall be construed to
create a partnership, joint venture, or employer-employee relationship between Consultant and
Sirion. Consultant is not the agent of Sirion and is not authorized to make any representation,
contract or commitment on behalf of Sirion. Except as expressly set forth in Section 5, Consultant
shall not be entitled to any of the benefits that Sirion may make available to its employees, such
as group insurance, profit-sharing or retirement benefits. Consultant shall be solely responsible
for all tax returns and payments required to be filed with or made to any federal, state or local
tax authority with respect to Consultant’s provision of the Services and receipt of the Consulting
Fees pursuant to this Agreement. Sirion will regularly report amounts paid to Consultant by filing
Form 1099-MISC with the Internal Revenue Service as required by law, but given that Consultant is
an independent contractor, Sirion will not withhold or make payments for social security, make
unemployment insurance or disability insurance contributions, or obtain worker’s compensation
insurance on Consultant’s behalf. Consultant agrees to comply, on a timely basis, with all
applicable federal, state and local laws governing self-employed individuals, including, without
limitation, obligations such as payment of taxes, social security, disability and other
contributions based on the Consulting Fees paid to Consultant, and to accept exclusive liability
for such compliance. Consultant hereby agrees to indemnify, hold harmless and defend Sirion from
and against any and all such taxes and contributions, as well as any penalties and interest arising
therefrom.
7. Information and Intellectual Property Rights.
7.1 Proprietary Information. Consultant agrees that, during the Term and thereafter, he
shall: (i) take all steps necessary to hold the Proprietary Information (as defined below) in trust
and confidence; (ii) not use such Proprietary Information in any manner or for
2.
any purpose except as expressly set forth in this Agreement; and (iii) not disclose any such
Proprietary Information to any third party without first obtaining Sirion’s express written consent
on a case-by-case basis; provided, however, that nothing in this Section 7.1 shall
prohibit Consultant from making any disclosures to the extent legally required by a valid subpoena
or order of a court or other governmental body having jurisdiction, provided that he notifies
Sirion in advance of any such required disclosure and uses commercially reasonable efforts to
obtain, or to assist Sirion in obtaining, a protective order preventing or limiting the disclosure
and/or requiring that the Proprietary Information so disclosed be used only for the purposes for
which the law or regulation required, or for which the order was issued. For purposes of this
Agreement, “Proprietary Information” shall mean any and all technical and non-technical information
regarding Sirion, including, without limitation, information regarding: (i) Sirion’s patents,
patent applications, trade secrets, ideas, gene sequences, cell lines, samples, media, chemical
compounds, assays, biological materials, techniques, sketches, drawings, works of authorship,
models, inventions, know-how, processes, apparatuses, equipment, algorithms, software programs,
software source documents, and formulae related to the current, future and proposed products and
services of Sirion; or (ii) Sirion’s business and financial information, including, without
limitation, information pertaining to Sirion’s current or forecasted capital structure, equity or
debt financing activities, investors, employees, directors, consultants, business and contractual
relationships and research and development plans; provided, however, that
information received by Consultant shall not be considered to be Proprietary Information if
Consultant can demonstrate that such information has been published or is otherwise readily
available to the public other than by a breach of this Agreement or any other duty or obligation of
confidentiality of Consultant. Consultant’s prior knowledge of any Proprietary Information shall
not obviate or diminish the applicability or effectiveness of these provisions with regard to such
information.
7.2 Third-Party Information. Consultant understands that Sirion has received and will in the
future receive from third parties certain confidential or proprietary information relating to such
third parties (collectively, “Third-Party Information”), subject to duties on Sirion’s part to
maintain the confidentiality of such Third-Party Information and to use such Third-Party
Information only for certain limited purposes. Consultant agrees to hold all Third-Party
Information in confidence and not to disclose to anyone (other than personnel of Sirion) or to use,
except in connection with Consultant’s provision of the Services, any Third-Party Information
unless expressly authorized in writing by an officer of Sirion.
7.3 Intellectual Property Rights. Consultant agrees that any and all Intellectual Property
and Intellectual Property Rights that Consultant had knowledge of, conceived, reduced to practice
or developed during the course of his prior engagements with Sirion, together with any and all
Intellectual Property and Intellectual Property Rights that Consultant conceives, reduces to
practice or develops during the course of his provision of the Services pursuant to this Agreement,
in each case whether alone or in conjunction with others (all of the foregoing being collectively
referred to herein as the “Inventions”), shall be the sole and exclusive property of Sirion.
Accordingly, Consultant hereby: (i) assigns and agrees to assign to Sirion his entire right, title
and interest in and to all Inventions; and (ii) designates Sirion as his agent for, and grants to
the officers of Sirion a power of attorney (which power of attorney shall be deemed coupled with an
interest) with full power of substitution solely for the purpose of, effecting the foregoing
assignments from Consultant to Sirion. Consultant further agrees to cooperate with and provide
reasonable assistance to Sirion to obtain and from time to time enforce any and all current or
3.
future Intellectual Property Rights covering or relating to the Inventions in any and all
jurisdictions.
8. No Conflicting Obligation. Consultant represents and covenants that his entering into
this Agreement, his performance of all the terms of this Agreement and his provision of the
Services pursuant to this Agreement do not and will not breach or conflict with any agreement or
other arrangement between any Consultant and any third party, including, without limitation, any
agreement or other arrangement between Consultant and any third party to provide services
exclusively or keep in confidence any proprietary information of another entity acquired by
Consultant in confidence or in trust prior to or after the date of this Agreement. Consultant
agrees not to enter into any agreement that conflicts with this Agreement or his covenants and
obligations hereunder at any time during the Term.
9. Term and Termination.
9.1 Term. Subject to Section 9.2, this Agreement shall remain in effect for a period of one
(1) year following the date of this Agreement (the “Term”).
9.2 Termination for Convenience by Consultant. This Agreement may be terminated, for any
reason or no reason at all, by Consultant at any time following the date hereof by delivering
fifteen (15) days’ prior written notice to Sirion.
9.3 Termination by Sirion. This Agreement may be terminated by Sirion as follows:
(a) Upon Consultant’s failure to provide the services provided for under this Agreement or
other material breach of by Consultant of his obligations hereunder; provided that Sirion shall
provide Consultant written notice of any such breach or failure and describing in reasonable detail
the basis for such claim and Consultant shall have thirty (30) days to cure any such failure or
breach. In the event of such termination, Consultant will be entitled only the Consulting Fee
accrued and unpaid through the effective date of the termination;
(b) Immediately upon written notice for any or no reason at all; provided, however, that in
such case Consultant shall be entitled to all remaining amounts due under this Agreement as if
Consultants had fully performed the Services through the end of the Term.
9.4 Effect of Termination. The obligations set forth in Sections 6, 7, 9.3 and 10,
as well as any outstanding payment or reimbursement obligations of Sirion accrued or incurred
through the date of termination or expiration under Sections 3 or 4, shall survive any termination
or expiration of this Agreement. Upon any termination or expiration of this Agreement, Consultant
shall promptly deliver to Sirion all documents and other materials of any nature pertaining to the
Services, together with all documents and other items containing or pertaining to any Proprietary
Information, Third-Party Information or Inventions.
10. Miscellaneous.
10.1 Notices. Any notices or other communications required or permitted hereunder shall be
given to the appropriate party at the address of such party set forth on the signature page(s)
hereto or at such other address as such party shall specify by ten (10) days advance
4.
written notice to the other party hereto. Such notice shall be in writing and shall be deemed
given: (i) upon personal delivery; (ii) upon delivery by facsimile transmission with receipt
confirmed if received during normal business hours; if not, then on the next business day; (iii) if
sent by certified or registered mail, postage prepaid, three (3) days after the date of mailing; or
(iv) one (1) day after deposit with a nationally-recognized overnight courier, specifying next day
delivery, with verification of receipt.
10.2 Governing Law. This Agreement shall be construed in accordance with, and governed in all
respects by, the laws of the State of Florida as applied to contracts to be performed entirely
within such state.
10.3 Successors and Assigns. The rights and liabilities of the parties hereto shall bind and
inure to the benefit of their respective successors, heirs, executors and administrators, as the
case may be; provided, however, that, as Sirion has specifically contracted for
Consultant’s Services, which Services are unique and personal, Consultant may not assign or
delegate his obligations under this Agreement either in whole or in part to any party without the
prior written consent of Sirion. Sirion may assign its rights and obligations hereunder to an
Affiliate or to any person or entity that succeeds to all or substantially all of Sirion’s
business. For purposes hereof, “Affiliate” means, with respect to any person or entity, any other
person or entity, directly or indirectly, controlling, controlled by or under common control with
such person or entity. For purposes of this definition a person or entity is deemed to “control”
an entity if such person or entity, directly or indirectly, (i) has the power to direct the
management or policies of such entity; or (ii) owns, beneficially or of record (a) an amount of
voting securities or other interests in such entity that is sufficient to enable such controlling
person or entity to elect at least a majority of the members of such entity’s board of directors or
other governing body or (b) at least fifty percent (50%) of the outstanding equity or financial
interests of such entity.
10.4 Waiver. No failure on the part of any party to exercise any power, right, privilege or
remedy under this Agreement, and no delay on the part of any party in exercising any power, right,
privilege or remedy under this Agreement, shall operate as a waiver of such power, right, privilege
or remedy and no single or partial exercise of any such power, right, privilege or remedy shall
preclude any other or further exercise thereof or of any other power, right, privilege or remedy.
No party shall be deemed to have waived any claim arising out of this Agreement, or any power,
right, privilege or remedy under this Agreement, unless the waiver of such claim, power, right,
privilege or remedy is expressly set forth in a written instrument duly executed and delivered on
behalf of such party, and any such waiver shall not be applicable or have any effect except in the
specific instance in which it is given.
10.5 Amendments. This Agreement may not be amended, modified, altered or supplemented other
than by means of a written instrument duly executed and delivered on behalf of all of the parties
hereto.
10.6 Severability. If one or more provisions of this Agreement are held to be unenforceable
under applicable law, the parties agree to renegotiate such provision in good faith. In the event
that the parties cannot reach a mutually agreeable and enforceable replacement in writing for such
provision, then: (i) such provision shall be excluded from this Agreement; (ii) the balance of the
Agreement shall be interpreted as if such provision were so excluded; and (iii) the balance of the
Agreement shall be enforceable in accordance with its terms.
5.
10.7 Entire Agreement. This Agreement sets forth the entire understanding of the parties
hereto relating to the subject matter hereof and supersede all prior agreements and understandings
between the parties relating to the subject matter hereof.
10.8 Counterparts. This Agreement may be executed in counterparts, each of which shall be
deemed an original and all of which together shall constitute one and the same instrument.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
6.
In Witness Whereof, the parties hereto have executed this Consulting
Agreement as of the date first written above.
| SIRION: | ||||
| Sirion, Inc. | ||||
| /s/ Xxxxx Xxxxxx | ||||
| Xxxxx Xxxxxx | ||||
| President | ||||
| Address: | 0000 Xxxxxx Xxxx Xx. #000 | |||
| Xxxxx, XX 00000 | ||||
| Fax No. | 000-000-0000 | |||
| CONSULTANT: | ||||
| /s/ Xxxxxxxx Xxxxxxxxxx | ||||
| Xxxxxxxx Xxxxxxxxxx | ||||
| Address: | 00 Xxxxx Xx Xxxx Xxxxxx | |||
| 00000 St Xxx Au Mont D’or: France | ||||
| Fax No.: | 33 - 000000000 | |||
A-1
