CONSULTING AGREEMENT
Exhibit 10.63
This Consulting Agreement (this “Agreement”) is entered into effective as of November
23, 2009 by and between ADVENTRX Pharmaceuticals, Inc., a Delaware corporation (the
“Company”), and Xxxx X. Xxxxxxxx, an individual (“Consultant”).
1. Consulting Relationship. During the term of this Agreement, Consultant will
provide consulting services (the “Services”) to the Company as described on
Exhibit A attached to this Agreement. Consultant represents that Consultant is duly
licensed (as applicable) and has the qualifications, the experience and the ability to properly
perform the Services.
2. Fees. As consideration for the Services to be provided by Consultant and
Consultant’s other obligations as set forth herein, the Company shall pay to Consultant the amounts
specified in Exhibit B attached to this Agreement at the times specified therein.
3. Expenses. Consultant shall not be authorized to incur on behalf of the Company any
expenses.
4. Term and Termination. Consultant shall serve as a consultant to the Company for a
period commencing on the Effective Date and terminating on the 1-year anniversary of the Effective
Date; provided, however, that either party may terminate this Agreement at any time upon
ten days’ written notice. In the event of such termination, Consultant shall be paid for any
portion of the Services that have been properly performed prior to notice of termination. In
addition, should Consultant default in the performance of this Agreement or materially breach any
of its obligations under this Agreement, including but not limited to Consultant’s obligations
under Section 7, or should any Assistant (as defined in Section 5(a) below) default in the
performance of or materially breach any of its obligations under the agreement referred to in
Section 5(a), the Company may terminate this Agreement immediately upon written notice to the
Consultant. This Section 4 and Sections 5, 7, 8, 10, 11 and 12 will survive the expiration or
termination of this Agreement.
5. Independent Contractor. Consultant’s relationship with the Company will be that of
an independent contractor and not that of an employee.
(a) Method of Provision of Services: Consultant shall be solely responsible for
determining the method, details and means of performing the Services. Consultant may, at
Consultant’s own expense, employ or engage the service of third parties as Consultant deems
necessary to perform the Services required by this Agreement (the “Assistants”). Assistants
are not the employees of the Company and Consultant shall be wholly responsible for the
professional performance of the Services by each of the Assistants such that the results are
satisfactory to the Company. Consultant shall expressly advise the Assistants of the terms of this
Agreement and shall require each Assistant to execute a written agreement subjecting such Assistant
to the same obligations in favor of the Company as to which the Consultant is subject under this
Agreement (including, without limitation, under Sections 1, 3, 5, 6, 7 and 8).
(b) No Authority to Bind Company. Neither Consultant nor any partner, agent or
employee of Consultant has authority to enter into contracts that bind the Company or create
obligations on the part of the Company without the prior written authorization of the Company.
(c) No Benefits. Consultant acknowledges and agrees that Consultant (or Consultant’s
employees, if Consultant is an entity) will not be eligible for any Company employee benefits and,
to the extent Consultant (or Consultant’s employees, if Consultant is an entity) otherwise would be
eligible for any Company employee benefits but for the express terms of this Agreement, Consultant
(on behalf of itself and its employees) hereby expressly declines to participate in such Company
employee benefits.
(d) Withholding; Indemnification. Consultant shall have full responsibility for
applicable withholding taxes for all compensation paid to Consultant, Assistants and its other
partners, agents and employees, and for compliance with all applicable labor and employment
requirements with respect to Consultant’s self-employment, sole proprietorship or other form of
business organization, and Assistants and Consultant’s other partners, agents and employees,
including state worker’s compensation insurance coverage requirements and any US immigration visa
requirements. Consultant agrees to indemnify, defend and hold the Company harmless from any
liability for, or assessment of, any claims or penalties with respect to such withholding taxes,
labor or employment requirements, including any liability for, or assessment of, withholding taxes
imposed on the Company by the relevant taxing authorities with respect to any compensation paid to
Consultant, Assistants or any other of Consultant’s partners, agents or its employees.
6. Supervision of Consultant’s Services. All of the services to be performed by
Consultant, including but not limited to the Services, will be as agreed between Consultant and the
Company’s Principal Executive Officer (the “Company Contact”). Consultant and, at the Company’s
request, Assistants will be required to report to the Company Contact concerning the services
performed under this Agreement. The nature and frequency of these reports will be left to the
discretion of the Company Contact.
7. Confidentiality. During the performance of the Services, the Company will disclose
to Consultant and/or the Assistants, and Consultant and/or the Assistants will generate or develop,
data and other information that the Company regards as confidential and/or proprietary (including
the terms of this Agreement) (collectively, “Confidential Information”). Consultant will maintain
all Confidential Information in confidence and will employ reasonable procedures to prevent its
unauthorized disclosure. Consultant will not disclose any Confidential Information to anyone, or
use any Confidential Information for any purpose, other than as is necessary to perform the
Services.
8. Inventions. Any inventions or discoveries (whether or not patentable or
copyrightable), innovations, suggestions and ideas (“Inventions”), and intellectual property rights
therein related to the Services or any Confidential Information, made, discovered or developed by
Consultant or any Assistants, jointly or with others, as a result of performing Services shall be
promptly disclosed to the Company and shall be the sole and exclusive property of the Company.
Consultant hereby assigns and agrees to assign to the Company any rights Consultant may have
or acquire in any such Inventions and agrees to assist the Company in every proper way to obtain
and from time to time enforce the Company’s intellectual property rights, whether registrable or
not, including, but not limited to, patents, copyrights and trademarks on Inventions in any and all
jurisdictions, and to that end Consultant will execute all documents for use in applying for and
obtaining intellectual property rights covering and enforcing Inventions as the Company may desire,
together with any assignments of Inventions to the Company or persons designated by it.
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9. Conflicts with this Agreement. Consultant represents and warrants that neither
Consultant nor any of Consultant’s partners, employees or agents or any of the Assistants is under
any pre-existing obligation in conflict or in any way inconsistent with the provisions of this
Agreement. Consultant represents and warrants that Consultant’s and the Assistant’s performance of
all the terms of this Agreement will not breach any agreement to keep in confidence proprietary
information acquired by Consultant in confidence or in trust prior to commencement of this
Agreement. Consultant warrants that Consultant has and the Assistants have the unrestricted right
to disclose and/or or use all ideas, processes, techniques and other information, if any, which
Consultant has gained from third parties, and which Consultant discloses to the Company or uses in
the course of performance of this Agreement, without any liability to such third parties.
Notwithstanding the foregoing, Consultant agrees that neither Consultant nor any of the Assistants
shall bundle with or incorporate into any deliveries provided to the Company herewith any third
party products, ideas, processes, or other techniques, without first obtaining for the Company (and
its successors and assigns) a royalty-free, worldwide, irrevocable, transferable, nonexclusive
license to use such product, idea, process, or other technique for any purpose whatsoever.
Consultant represents and warrants that neither Consultant nor any of the Assistants has granted
and none of them will grant any rights or licenses to any intellectual property or technology that
would conflict with Consultant’s or the Assistant’s obligations under this Agreement. Consultant
will not knowingly infringe upon any copyright, patent, trade secret or other property right of any
former client, employer or third party in the performance of the Services.
10. Warranty Disclaimer. THE COMPANY MAKES NO WARRANTIES OR REPRESENTATIONS TO
CONSULTANT WITH RESPECT TO ANY INFORMATION DISCLOSED OR PROVIDED BY COMPANY AND DISCLAIMS ALL
IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT AND
FITNESS FOR A PARTICULAR PURPOSE.
11. Indemnification. Consultant will hold Company and its officers, directors,
employees, agents and representatives harmless from liability resulting from Consultant’s
performance of the Services.
12. Miscellaneous.
(a) Amendments and Waivers. Any term of this Agreement may be amended or waived only
with the written consent of the parties.
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(b) Sole Agreement. This Agreement, including the Exhibits hereto, constitutes the
sole agreement of the parties and supersedes all oral negotiations and prior writings with respect
to the subject matter hereof.
(c) Notices. Any notice required or permitted by this Agreement shall be in writing
and shall be deemed sufficient upon receipt, when delivered personally or by courier, overnight
delivery service or confirmed facsimile, 48 hours after being deposited in the regular mail as
certified or registered mail (airmail if sent internationally) with postage prepaid, if such notice
is addressed to the party to be notified at such party’s address or facsimile number as set forth
below, or as subsequently modified by written notice.
(d) Choice of Law. The validity, interpretation, construction and performance of this
Agreement shall be governed by the laws of the State of California as applied to agreements among
California residents entered into and to be performed entirely within California.
(e) 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 for
such provision, then (i) such provision shall be excluded from this Agreement, (ii) the balance of
this Agreement shall be interpreted as if such provision were so excluded and (iii) the balance of
this Agreement shall be enforceable in accordance with its terms.
(f) Counterparts. This Agreement may be executed in counterparts, each of which shall
be deemed an original, but all of which together will constitute one and the same instrument.
(g) Arbitration. Any dispute or claim arising out of or in connection with any
provision of this Agreement will be finally settled by binding arbitration in San Diego County,
California, in accordance with the rules of the American Arbitration Association by one arbitrator
appointed in accordance with said rules. The arbitrator shall apply California law, as applied to
agreements among California residents entered into and to be performed entirely within California,
to the resolution of any dispute. Judgment on the award rendered by the arbitrator may be entered
in any court having jurisdiction thereof. Notwithstanding the foregoing, the parties may apply to
any court of competent jurisdiction for preliminary or interim equitable relief, or to compel
arbitration in accordance with this paragraph, without breach of this arbitration provision.
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(h) Advice of Counsel. EACH PARTY ACKNOWLEDGES THAT, IN EXECUTING THIS AGREEMENT,
SUCH PARTY HAS HAD THE OPPORTUNITY TO SEEK THE ADVICE OF INDEPENDENT LEGAL COUNSEL, AND HAS READ
AND UNDERSTOOD ALL OF THE TERMS AND PROVISIONS OF THIS AGREEMENT. THIS AGREEMENT SHALL NOT BE
CONSTRUED AGAINST ANY PARTY BY REASON OF THE DRAFTING OR PREPARATION HEREOF.
(i) Assignment; Subcontracting. Consultant shall have no right to assign,
subcontract, transfer, or otherwise dispose of its rights under this Agreement or to assign the
burdens hereof without the prior written consent of the Company. Subject to the foregoing, this
Agreement shall inure to the benefit of and be binding upon each party’s successors and assigns.
[Signature Page Follows]
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The parties have executed this Consulting Agreement effective as of the date first set forth
above.
| ADVENTRX PHARMACEUTICALS, INC. |
||||
| By: | /s/ Xxxxxxx Xxxxx | |||
| Title: Vice President, Legal | ||||
| Address: | 0000 Xxxx Xxxxx Xxxx, Xxxxx 000 Xxx Xxxxx, XX 00000 |
| By: | /s/ Xxxx X. Xxxxxxxx | |||
| Xxxx X. Xxxxxxxx | ||||
| Address: | 0 Xxxxx Xxxx Xxxxxx, XX 00000 |
EXHIBIT A
DESCRIPTION OF CONSULTING SERVICES
Consultant will:
| • | At the Company’s request, attend and participate in an in-person meeting at the U.S. Food and Drug Administration with Company and FDA personnel regarding the Company’s submitted new drug application for ANX-530, provided Consultant has been provided sufficient time and materials to prepare for such meeting; | ||
| • | Respond to inquiries of the Company’s personnel regarding medical, clinical and related matters, and such other matters related to the Company regarding which Consultant has knowledge; and | ||
| • | Provide advice and assistance regarding special projects or any other matter consistent with Consultant’s background, skills and experience. |
EXHIBIT B
COMPENSATION
For Services rendered by Consultant under this Agreement, the Company shall pay Consultant at
the rate of $350.00 per hour, due within 30 days of receipt of an invoice reasonably acceptable to
the Company. Consultant will invoice the Company within 10 days of the end of each calendar month
for services provided during the preceding month. Unless otherwise agreed upon in writing by
Company, Company’s maximum liability for all Services performed during the term of this Agreement
shall not exceed $100,000.
