EXHIBIT 10.22
CONSULTANT AGREEMENT
This Agreement is made as of the 18th day of July, 1996 by and between
Neurex Corporation, a corporation of the State of California having offices at
0000 Xxxxx Xxxxxx, Xxxxx Xxxx, Xxxxxxxxxx 00000-0000 ("Client"), and Plexus
Ventures, Inc., a corporation of the Commonwealth of Pennsylvania, with offices
at 0000 Xxxxxx Xxxxxxx West, Building 18, Suite 301, Blue Xxxx, Pennsylvania
19422 ("Consultant").
Background
Client desires to obtain the consulting services of Consultant in the
field of business development and Consultant desires to provide Client with such
consulting services during the term of this Agreement in its capacity as
independent contractor.
Agreement
Now, therefore, for good and valuable consideration, the legality and
sufficiency of which is hereby acknowledged, and intending to be legally bound,
the parties hereto agree as follows:
1. Description of Services.
a. Consultant shall provide business development services
("Services") to assist Client to execute agreement(s) with
pharmaceutical company(ies) relating to the development,
registration and commercialization of Client's products
("Products") in Japan, South Korea, Taiwan and the Peoples
Republic of China.
b. At the written request of Client, Consultant shall seek
agreements with a broader geographical territory for either or
both the Apoptosis and Exocytosis Research Programs referenced
in this Agreement. If Client elects this option, the value of
the broader transactions will be the basis for the Fee
compensation.
c. Consultant shall not delegate, subcontract or employ any
other person or entity in the performance of the Services,
except as noted below, without the prior written consent of
Client.
d. Consultant shall use its best efforts in the performance of
the Services and agrees to perform the same to the best of its
ability. Consultant shall control the time, location and
manner of performance under this Agreement. Client understands
and accepts that a substantial portion of Consultant's
services shall be performed at its offices in Blue Xxxx,
Pennsylvania; however, Consultant agrees to send its
representative to Client's facilities for a reasonable number
of meetings per year as may be requested by Client. Consultant
shall provide Client with monthly written reports detailing
its activities hereunder.
e. Client understands and accepts that the performance of
Services shall not require Consultant's efforts on a
full-time basis.
2. Products Included Under This Agreement.
a. NSCC, VSCC and other ion channel Development Compounds
including SNX-111 (in all identified applications such as the
treatment of acute and chronic pain, including intra-thecal
administration with Medtronic's pump, and ischemic
neurological disorders) and any identified back-up and second
generation compounds.
b. Fenoldopam Family including 'Corlopam' i.v.,
enantiomers and pro-drug in peri- and post-operative control of blood pressure
and renal disease;
c. Apoptosis and Excocytosis Research Programs
(pre-clinical); and
d. Discovery research in ion channel subtype
receptor modulation.
3. Consultant's Services.
a. Consultant shall present Client as a company with a variety
of high quality early, mid and late stage Product
collaboration opportunities. Such Product collaboration
opportunities are divisible; however, Client favors broadly
based, long-term, strategic relationships with one or two
Japanese pharmaceutical companies.
b. Client and Consultant agree that Consultant shall utilize a
Japan-based individual ("Facilitator") who shall provide local
access to Japanese companies and periodic follow-up contact
with them. Consultant shall identify several individuals who
could serve as the Facilitator in Japan and shall agree with
Client on an appropriate individual.
c. Consultant shall direct the activities of the Facilitator
who shall be compensated by Client. Client and Consultant
agree that Facilitator shall visit Client to gain
familiarization with the company, management and, especially,
Products.
d. Consultant shall be responsible for the overall
management of the project as outlined below:
(1.) Working with Client, Consultant shall produce a
non-confidential document or documents (i.e. Neurex Corporation Opportunity
Profile) to introduce Client and Products to potential partners.
(2.) Consultant shall compile a list of companies to
be targeted. Client and Consultant shall agree on the profile sought in
potential partner(s).
(3.) Under the direction of the Consultant,
Facilitator shall call on targeted companies in Japan. Additionally, Consultant
shall contact selected U.S.-based representative offices of Japanese companies.
Facilitator and Consultant shall provide the Opportunity Profile to targeted
companies for use in their internal evaluation of Client's Products.
(4.) Consultant and Facilitator shall organize
face-to-face meetings involving Client in order for Client to present
confidential information about Products to interested Japanese companies.
(5.) Consultant shall manage all follow-up contacts
with targeted companies and provide periodic reports on the project to Client.
(6.) Consultant shall provide counsel to Client in
defining deal structures and terms to potential partners and provide negotiation
assistance as agreed with Client.
4. Compensation to Consultant.
a. Client shall pay Consultant a cash retainer of six thousand dollars ($6,000)
per month over the term of this Agreement and a single grant of twenty-five
thousand (25,000) Neurex Corporation common stock options, awarded and priced as
of this Agreement date and vesting after thirty-six (36) months. Consultant's
monthly cash retainer shall be due and payable by Client on the first day of
each month.
b. Client shall pay Consultant a success fee ("Fee") in cash based on the value
of each transaction consummated by the Client with the assistance of
Consultant's Services. This Fee shall be calculated as follows:
Deal Value Fee
Up to $5,000,000 5% of Deal Value
$5,000,001 to $10,000,000 $250,000 + 4% of Deal Value over $5,000,000
$10,000,001 to $15,000,000 $450,000 + 3% of Deal Value over $10,000,000
$15,000,000 to $20,000,000 $600,000 + 2% of Deal Value over $15,000,000
$20,000,001 to $25,000,000 $700,000 + 1 % of Deal Value over $20,000,000
c. For the purpose of computing Consultant's Fee, the total
value of each transaction consummated shall be computed as follows:
(1.) All cash payments received by Client from third
parties in the form of commitment or signing fees,
license fees, irrevocable option payments, milestone
payments and any such payments of a similar nature
shall be included in the calculation of the Fee.
(2.) All other forms of payments received by Client
from third parties, such as advance royalty payments
and directly funded research, are specifically
excluded from the calculation of the Fee.
d. Transactions which involve cash payments to Client which
are conditional on the success of explorative efforts--such as
license agreements contingent on successful discovery
research, feasibility studies and similar efforts--shall
obligate Client to success fees provided that the cash
payments are defined in the transaction consummated under this
Agreement.
e. Consultant's Fee shall be paid by Client to Consultant via
wire transfer within ten (10) days of Client's receipt of each
and all payments subject to such Fee. If any payments received
in the transaction consummated are in the form of foreign
currency, they shall be converted to U.S. dollars at the rate
listed for that foreign currency in The Wall Street Journal on
the date such payment is received by Client.
5. Compensation to Facilitator.
a. Client shall be responsible for the payment of compensation
to the Facilitator and for the reimbursement of Facilitator's
reasonable out-of-pocket expenses; however, Client shall not
be responsible to Facilitator for the payment of any success
fee. Client and Consultant agree to limit the total of such
Facilitator compensation and reimbursable out-of-pocket
expenses for the period through December 31, 1996 to forty
thousand dollars ($40,000). Facilitator expenses, if any,
beyond the period noted shall be agreed between Client and
Consultant prior to December 31, 1996.
6. Reimbursement of Consultant's Expenses.
a. Client shall reimburse Consultant for the reasonable
out-of- pocket and administrative business costs and expenses
incurred by Consultant in the performance of the Services,
including courier, copying, facsimile and telephone charges;
travel, meals and lodging incurred by Consultant while
performing the Services at locations other than its offices
and as approved by Client in advance of the travel; and an
administrative fee relating to travel planned and undertaken
by Consultant on behalf of Client.
b. Consultant shall periodically invoice Client for ail
expenses defined herein and such invoices shall be payable to
Consultant immediately upon receipt by Client.
7. Business and Technical Information.
Client shall regularly furnish Consultant, at no charge to
Consultant, with such of its technical, scientific, marketing,
legal and financial information and data as may be reasonably
necessary for the performance of the Services.
8. Client's Responsibilities.
a. Client shall use its best efforts to assist Consultant to
progress the targeting of, presentations to and negotiations
with potential third party collaborators. Client reserves the
right to accept or reject, in its sole discretion, any terms
or conditions offered by any third parties.
b. Client represents to Consultant that it owns or has the
right to develop and license to others the technologies that
are the subject matter of this Agreement.
c. Client shall use the Services of Consultant exclusively
for the Services which are subject of this Agreement.
9. Disclosure and Confidentiality.
Consultant acknowledges that Client shall disclose to
Consultant inventions, trade secrets, know-how or information
used or developed in or related to the business of Client and
Consultant has executed a Confidential Disclosure Agreement in
favor of Client. Consultant shall insure that Facilitator also
executes a Confidential Disclosure Agreement in favor of
Client.
10. Conflicting Obligations.
Consultant represents that it is not a party to any agreement
which conflicts with the terms of this Agreement or which
materially and adversely affects Consultant's ability to
perform the Services for Client; and Consultant agrees that it
shall not enter into any such agreement during the term
hereof.
11. Term and Termination.
This Agreement shall commence on the date noted above and
shall extend for a period of twelve (12) months; however, the
Agreement is cancelable upon sixty (60) days notice should the
Client decide to terminate activities such as those described
by Consultants Services. After the initial twelve (12) month
term, the Agreement shall run from quarter to quarter unless
terminated with thirty (30) days notice by one of the parties
to the other. Client agrees to pay Consultant the applicable
Fee for any transaction(s) consummated within a twelve (12)
month period following the date of termination of this
Agreement.
12. Indemnity.
Client and Consultant shall defend, indemnify, and hold
harmless each other and each party's agents, employees,
officers and directors from and against any and all damage,
loss, liability, obligations, cost or expense, caused directly
or indirectly, by or as a result of any wrongdoing,
negligence, error or omission under the terms of this
Agreement.
13. Miscellaneous.
a. Independent Contractor. Consultant and Client are
independent contractors under the terms of this Agreement and
neither shall be deemed to be an agent, employee or
representative of the other, or be deemed to possess any of
the benefits associated therewith.
b. Taxes. Client shall pay the transaction, excise or other
taxes which may result from its execution of this Agreement
and Consultant shall be responsible for the payment of
withholding and other taxes resulting from the payment of any
compensation by Client to Consultant hereunder.
c. Notices. All notices given under this Agreement shall be
by personal service, facsimile machine or by first class
United States mail, postage prepaid, return receipt
requested, addressed to the parties at the following
addresses:
If to Consultant: If to Client:
Plexus Ventures, Inc. Neurex Corporation
0000 Xxxxxx Xxxxxxx West 0000 Xxxxx Xxxxxx
Xxxxxxxx 00, Xxxxx 000 Xxxxx Xxxx, XX 00000-0000
Blue Xxxx, XX 00000 Attention: Xxxx Xxxxxxx, Ph.D.
Attention: Xxxxxx X. Xxxxx FAX number: 000-000-0000
FAX number: 000-000-0000
or to such addresses as may be specified by like notice and
shall be deemed to have been duly given or made when delivered
or deposited in the mails.
d. Governing Law. This Agreement shall be construed in
accordance with and governed by the internal laws of the
State of California.
e. Sole Agreement. This Agreement, including the Exhibits
thereto, constitutes the sole agreement of the parties and
supersedes all oral negotiations and prior writings with
respect to the subject matter hereof.
f. Waivers, etc. No amendment of this Agreement, and no waiver
of any one or more of the provisions hereof shall be effective
unless set forth in writing by such person against whom
enforcement is sought.
g. Binding Agreement Assignment. This Agreement shall be
binding upon and shall inure to the benefit of the parties
hereto and their respective successors and assigns; provided,
however, that neither party may assign any of their rights
hereunder or any interests herein without the prior written
consent of the party against whom enforcement is sought.
h. Arbitration. The parties agree that any claim or
controversy relating to this Agreement shall be resolved
exclusively by arbitration in accordance with the rules of the
American Arbitration Association. Any such arbitration award
granted shall be conclusive and binding and shall not be
appealable Attorneys fees, costs and other out-of-pocket
expenses may be awarded by the arbitrators in their discretion
to the party which prevails in any such arbitration. Each
party shall pay its own expenses pending the arbitration
award.
i. Enforceability. Any provision in this Agreement (except
provisions regarding the essence of this Agreement) that is
held to be inoperative, unenforceable, voidable or invalid in
any jurisdiction shall, as to that jurisdiction, be
ineffective, unenforceable, void and invalid without
affecting the remaining provisions hereof in that
jurisdiction or the operation, enforceability, or validity of
that provision in any other jurisdiction, and to this end the
provisions of the Agreement are declared to be severable.
In Witness Whereof, Client and Consultant have executed this Agreement,
as of the day and year written above.
Plexus Ventures, Inc. Neurex Corporation
By:_____________________________ By: _____________________________
Xxxx X. Xxxxxxxx Xxxx Xxxxxxx, Ph.D.
President President & C.E.O.
