EXHIBIT 10.29
CONSULTING AGREEMENT
THIS AGREEMENT (this "Agreement") is entered into as of November 29, 2001 by and
between Endorex Corporation, a Delaware Corporation located at 00000 Xxxxxxx
Xxxxx, Xxxxx X, Xxxx Xxxxxx, XX 00000, (the "Company"), Xxxxxxxx Xxxxxxxxxxxxx
(the "Consultant"), an individual with an address at 0000 Xxxxxxxx Xxxxxx,
Xxxxxxxxx 0000 Xxxxx, Xxxxxxx 00000 and Corporate Technology Development, Inc.
("CTD"). In consideration of the mutual covenants contained herein, the parties
hereto agree as follows:
I. SERVICES
1.1 Consultant shall provide consulting services to the Company in connection
with the Company's ongoing product development and business development
activities and shall report to the President of the Company or his
designee.
1.2 During the term of this Agreement, Consultant shall provide such advisory
and counseling services to the Company as the Company may from time to time
request (the "Services") in writing. The Services shall consist exclusively
of consultation on: a) oral beclomethasone ("OrBec(R)") b) oral solution
azathioprine ("Oraprine(TM)"); c) opthlamic solution of metronidazole
("MetroptlM"); d) the Allergan BoTox(R) program; e) the drug delivery
technology under option from the University Pharmaceuticals of Maryland
("UM Technology"): and e) activities related to the business, products or
services offered by CTD and any of CTD's subsidiaries, prior to the date of
this Agreement including but not limited to intellectual property,
manufacturing, and regulatory/clinical issues.
1.3 Consultant shall make himself available to provide the Services on a
full-time basis during the consulting period, for an average of 40 hours
per week.
1.4 Consultant shall provide the Company with a Summary Report of his
activities in connection with the services on the last day of each month.
1.5 During those time that the Consultant is not performing Services, he is at
liberty to engage, either on his own or with other persons (including
Xxxxx X. Xxxxxx) or entities, in any pharmaceuticals-related and other
business activities that do not otherwise conflict with the terms of this
Agreement.
2. TERM
The term of this Agreement shall be six (6) months commencing
November 29, 2001. The term of this Agreement may be extended by the
execution of the parties hereto of an amendment to this Agreement providing
for such an extension.
3. COMPENSATION
3.1. For the Services and the Consultant's other obligations hereunder, the
Company shall pay or cause to be paid to Consultant during the term of this
Agreement a fee of $8,166.66 per calendar month, payable in semi-monthly
installments of $4,083.33 each, prorated for any partial period at the
beginning and end of the term of this Agreement.
3.2. The Company shall reimburse Consultant for reasonable out-of-pocket
expenses incurred on behalf of the Company in connection with the
performance
of the Services upon presentation of all receipts and consistent with
Company's expense reimbursement policy. It is a condition to reimbursement
of any individual expense in excess of $1000, including any individual
expense incurred by the Consultant for travel on the Company's behalf, that
Consultant obtain the Company's prior written approval for that expense.
All travel shall be consistent with the Company's travel policy.
3.3 In the event that a licensing or asset sale is consummated between RxEyes
and CibaVision or any affiliate of CibaVision for the licensing or asset
sale of Metropt(TM) due to the Consultant's efforts and during the time
period of the Consultant's agreement, the Company shall pay Consultant a
one percent (1%) transaction fee of any monies directly received by the
Company as a result of this transaction.
4. INDEPENDENT CONTRACTOR
4.1 Consultant shall act in the capacity of an independent contractor with
respect to the Company. Consultant shall not be, nor represent himself as
being an agent of the Company, and Consultant shall not have, or represent
himself as having the right or authority to enter into any agreement or to
make any promise of any nature whatsoever, whether oral or written, on
behalf of or in the name of the Company, without the Company's prior
written consent.
4.2 Consultant shall accept directions issued by the President of the Company
pertaining to the results to be achieved by Consultant, but shall be solely
responsible for the manner and working hours in which he performs any
Services.
4.3. As an independent contractor, Consultant shall not have the status of an
employee of the Company. Consultant shall not be eligible to participate in
any employee benefit group insurance or executive compensation plans or
programs maintained by the Company, and the Company shall not provide
social security, unemployment compensation, disability insurance, workers'
compensation or similar coverage, or any other statutory benefit to
Consultant.
6. SURVIVAL OF REPRESENTATIONS AND WARRANTIES
The parties hereto agree that the representations, warranties, covenants
and agreements of the parties contained in Sections 4, 7, 8 and 9 of this
Agreement shall survive the termination hereof.
7. CONFIDENTIALITY AND INVENTIONS
7.1 Company and Consultant acknowledge that as a result of this consulting
relationship, Consultant will be in possession of confidential customer
information, trade secrets, technical data and Know-how relating to the
products, research, development, processes, methods, equipment, research
and manufacturing agreements with third parties, license and joint venture
agreements with third partiesand intellectual property of the Company and
its subsidiaries ("Proprietary Information"). Proprietary Information does
not, however, include information that is or becomes generally available in
the pharmaceuticals industry other than by breach of this Agreement by
Consultant.
7.2 Consultant agrees that Consultant will not, during or after two years from
the date
of this Agreement, directly or indirectly, use or disclose to any person,
firm or corporation, any Proprietary Information, without the prior written
consent of Company.
Consultant agrees that in the event of termination of this Agreement for
any reason, Consultant will deliver to the Company all documents and data
of any nature pertaining to Consultant's work with the Company and will not
retain any documents or data of any description or any reproduction, in
whole or in part, thereof containing or pertaining to any Proprietary
Information.
7.3 Consultant agrees that any and all inventions, discoveries, improvements,
processes, compounds, or formulae (collectively "Inventions"), whether or
not patentable or registerable under patent, copyright, or similar
statutes, that are made, conceived, discovered or acquired by Consultant
pursuant to this Agreement, solely or jointly with others or otherwise or
which result from services performed by Consultant hereunder or which
result from use of premises owned, leased, or contracted for by the Company
and its subsidiaries and which may be used or useful in or relate to the
business of the Company and its subsidiaries, shall be the property of the
Company. Consultant hereby assigns to the Company all of the Consultant's
right, title and interest in and to any such Inventions, including without
limitation all Inventions discovered or acquired by Consultant during and
in connection with his employment with Corporate Technology Development,
Inc. and/or any of its subsidiaries. Without limiting the foregoing,
Consultant further acknowledges that all original works of authorship by
Consultant, whether created alone or jointly with others, in performing the
Services and which are protectable by copyright, are "works made for hire"
within the meaning of the United States Copyright Act, 17 U.S.C. Section.
101, as amended, and the copyright of which shall be owned solely,
completely and exclusively by the Company. If any Invention is considered
to be work not included in the categories of work covered by the United
States Copyright Act, 17 U.S.C. Section. 101, as amended, such work is
hereby assigned or transferred completely and exclusively to the Company.
Any assignment of copyright hereunder includes all rights of paternity,
integrity, disclosure and withdrawal and any other rights that may be known
as or referred to as "moral rights" (collectively "Moral Rights"). To the
extent such Moral Rights cannot be assigned under applicable law and to the
extent the following is allowed by the laws in the various countries where
Moral Rights exist, Consultant hereby waives such Moral Rights and consents
to any action of the Company that would violate such Moral Rights in the
absence of such consent. Consultant agrees to confirm any such waivers and
consents from time to time as requested by the Company.
Consultant shall, as requested by the Company at any time and from time to
time, whether prior to or after the expiration of the term of this
Agreement, execute and deliver to the Company any instruments deemed
necessary by the Company to effect disclosure and assignment of the
Inventions to it or to persons designated by it and shall cooperate with
the Company as may be reasonably required with regard to, and shall execute
and deliver to the Company, any patent, copyright or trademark applications
(United States or foreign) and renewals with respect thereto, including any
other instruments deemed necessary by the Company for the prosecution of
such patent, copyright or trademark application or the acquisition of
letters patent. Consultant's obligation to assist the Company in obtaining
and enforcing patents, copyrights or trademarks for such Inventions in any
and all countries shall continue beyond the termination of this Agreement,
but the Company shall compensate Consultant at a reasonable rate after such
termination for time actually spent at the Company's request on such
assistance. In the event the Company is unable, after
reasonable effort, to secure the signature of Consultant on any document or
documents needed to apply for or prosecute any patent, copyright or to
other right or protection relating to an Invention, whether because of
physical or mental incapacity or for any other reason whatsoever,
Consultant hereby irrevocably designates and appoints the Company and its
duly authorized agents as agent and attorney-in-fact, to act for and on
behalf of Consultant to execute and file any such application or
applications and to do all other lawfully permitted acts to further
prosecution and issuance of patents, copyrights or other similar protection
thereon with the same legal force and effect as if executed by Consultant.
8. RESTRICTIVE COVENANTS
8.1 During the period in which Consultant provides the Services to the Company,
and for a period of two (2) years after termination of this Agreement for
any reason, Consultant will not anywhere in the world (I) engage in; (ii)
have any interest in any person, firm, or corporation that engages in; or
(iii) perform any services for any person, firm, or corporation that
engages in the development of, research relating to, manufacture,
processing, marketing, distribution, or sale of (a) orally delivered
corticosteroids for the treatment of Graft Versus Host Disease, Crohns
Disease, ulcerative colitis, or any other related gastrointestinal
disorder(s), (b) orally delivered solutions of Azathioprine, or analogs
thereof for the supression of the immune system or any part thereof,
including the uses that as of the date hereof are approved by the U.S. Food
and Drug Administration, (c) imidazole-like compounds or analogs thereof
for the treatment of dry eye syndrome or blepharitis, (d) the Allergan
BoTox(R) program, or (e) polymer based drug delivery technologies for the
rapid dissolution into suspension of normal and controlled release drugs in
tablet form, including the UM Technology.
8.2 Consultant will not, directly or indirectly, employ, solicit for
employment, or advise or recommend to any other person that they employ or
solicit for employment, any employee of the Company while Consultant is
providing the Services to the Company and for a period of two (2) years
thereafter.
8.3 Consultant represents that his experience and capabilities are such that
the provisions of this Section 8 will not prevent him from earning a
livelihood.
8.4 On condition that he otherwise complies with the terms of this Agreement,
including without limitation the restrictive covenants contained within
this Section 8, the Consultant may at any time contact and do business with
any person or entity that the Consultant had dealings with in his capacity
as an employee of CTD and while performing the Services.
9. NO CONFLICT WITH OR BREACH OF OTHER AGREEMENTS
9.1 In order to induce the Company to enter into this Agreement, Consultant
hereby represents, warrants and covenants that (a) Consultant is not party
to any agreement, contract, arrangement or understanding that prohibits or
purports to prohibit Consultant from entering into this Agreement and
performing duties hereunder, (b) the execution, delivery and performance by
Consultant of this Agreement will not constitute a breach of or default
under any agreement, contract, arrangement or understanding to which
Consultant is a party or which is or purports to be binding upon
Consultant, (c) performance of all the terms of the Agreement does not, and
will not breach any agreement or duty to keep in confidence proprietary
information acquired by Consultant in confidence or in trust prior to
employment by the Company, (d) Consultant will not during performance of
the Services breach any obligation of confidentiality or duty owed
current or former employers, and further agrees that all such obligations
will continue to be fulfilled during such consulting relationship with the
Company, and (e) Consultant has not brought and will not bring to the
Company or use in performing the Services any materials or documents of a
current or former employer that are not generally available to the public,
unless written authorization from the current or former employer for their
possession and use is obtained.
10. MISCELLANEOUS
10.1 This Agreement shall be binding upon and for the benefit of the parties
hereto and their respective heirs, executors, administrators, successors,
devisees and assigns; provided, however, that Consultant may not assign
rights or delegate duties under this Agreement without the prior written
consent of the Company and that any attempt by Consultant to do so without
such consent shall be void. Except as provided for in Section 1.6 (g) of
the Merger Agreement, the parties hereto hereby agree and acknowledge that
the Employment Agreement by and among Consultant and CTD, dated as June 28,
1998 (the "CTD Employment Agreement") is terminated as of the date hereof
and Consultant hereby specifically waives the provisions and rights set
forth in Section 3 of the CTD Employment Agreement, including but not
limited to, any bonuses, milestone payments or carried interests in
licenses, technologies or acquisitions by CTD or any subsidiaries of CTD.
Consultant hereby resigns from any and all positions held by the Consultant
within CTD or any subsidiaries of CTD and acknowledges and agrees that no
obligations or amounts are owed to Consultant (whether in cash, equity or
otherwise) under the CTD Employment Agreement or pursuant to any other
agreement, understanding or arrangement under which CTD or any of its
subsidiaries would be so obligated, unless such exception is expressly
stated in this agreement.
10.2 This Agreement contains the entire understanding and agreement of the
parties with respect to the relationship between the Company and Consultant
(other than as a security holder of the Company), and it may not be
altered, amended, modified or otherwise changed in any respect whatsoever
except by a writing duly executed by the parties hereto.
10.3 This document may be executed in any number of counterparts, each of which
shall be deemed to be an original and shall fully bind each party who has
executed it, but all such counterparts together shall constitute one and
the same agreement.
10.4 No failure or delay on the part of any party hereto in exercising any
right, power or remedy hereunder shall operate as a waiver thereof. The
Company shall have the right to enforce this Agreement and any of its
provisions by injunction, specific performance or other equitable relief,
without bond and without prejudice to any other rights and remedies that
the Company may have for the breach of this Agreement.
10.5 Should any provision of this Agreement be held invalid or illegal, such
illegality shall not invalidate the whole of this Agreement, but rather,
the Agreement shall be construed as if it did not contain the illegal part
and the rights and obligations of the parties shall be construed and
enforced accordingly.
10.6 This Agreement shall be construed and enforced pursuant to the laws of the
State of Illinois, without giving effect to conflict of law principals.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
day and year first above written.
ENDOREX CORPORATION
By:
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Xxxxxxx X. Xxxxx
President and COO
CONSULTANT
By:
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Xxxxxxxx Xxxxxxxxxxxxx
IN WITNESS WHEREOF, CTD has executed this Agreement for the purposes of Section
10.1 hereof as of the day and year first above written.
CORPORATE TECHNOLOGY DEVELOPMENT, INC.
By:
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Name:
Title:
