CONSULTANCY AGREEMENT
EXHIBIT
10.12
CONSULTANCY
AGREEMENT (the
“Agreement”) dated as of January 1st,
2006
(the “Effective Date”), by and between Pathogenics, Inc., a Delaware corporation
(the “Corporation”), having a place of business at 00 Xxxxx Xxxxxx, Xxxxx 000,
Xxxxxxx, XX 00000, and Xxxxxxx X. Xxxxxxx (the “Consultant”), an individual
residing at 0-00 000xx Xxxxxx, Xxxxxxxxxx, XX 00000.
WHEREAS,
the
Corporation desires that it be able to call upon the experience and knowledge
of
Consultant for consultation services and advice concerning the clinical,
regulatory and business development of therapeutic drugs and the technical
evaluation of commercial applications of such technologies; and,
WHEREAS,
Consultant
is willing to render such services to the Corporation on the terms and
conditions hereinafter set forth in this Agreement;
NOW,
THEREFORE, in
consideration of the promises and mutual covenants contained herein and for
other good and valuable consideration, the parties hereto agree as
follows:
1. Term
and Termination of Agreement.
Commencing on the Effective Date, Consultant shall be retained by the
Corporation on a monthly basis for a period of three (3) years, which shall
be
renewable upon written agreement of the parties for additional three-year
periods. The initial term and any extensions or renewals thereof shall
constitute the “Consulting Term.” This Agreement may be terminated by either
party at any time upon one (1) year’s prior written notice.
2. Position
and Responsibilities.
Consultant hereby agrees to serve as a consultant to the Corporation and to
render such advice and services to the Corporation as may be reasonably required
by the Corporation including, without limitation, advising the Corporation
with
respect to the direction of the Corporation’s research and product development
and business development activities. During the Consulting Term, Consultant
shall report directly to Xxxxxxxx X. Xxxxx, President of the
Corporation.
3. Compensation.
The
Corporation shall pay Consultant a monthly retainer of five-thousand dollars
($5,000/month) per month for Consultant’s first forty (40) hours of billable
work each month, and an hourly rate of one-hundred dollars per hour ($100/hr.)
for each hour thereafter. Consultant shall not exceed forty hours of billable
work per month without first providing the Corporation with a written estimate
of the expected excess hours, and then obtaining written pre-authorization
from
the Corporation. In the event Consultant exceeds forty hours of billable work
in
any given month, the Consultant shall provide the Corporation with an invoice
documenting Consultant’s activities and billable time in excess of forty hours,
and Corporation shall pay this invoice upon receipt (except as indicated herein
below) if the amount is not in dispute. Notwithstanding anything to the contrary
above, payment of the invoices following the execution of this Agreement shall
be deferred and accrued by the Corporation until such time as the Corporation
has sufficient funds to do so, but in no event later than January 31st,
2007,
whereupon the Corporation shall pay all the deferred and accrued invoices,
and
shall cease to defer and accrue any future invoices.
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4. Expenses.
Consultant shall be reimbursed in accordance with the policies of the
Corporation for necessary and reasonable pre-approved business expenses incurred
by Consultant in connection with their performance of his duties hereunder.
Consultant shall provide the Corporation with an invoice documenting
Consultant’s reimbursable expenses, and Corporation shall pay this invoice
within thirty (30) days of receipt if the amount is not in dispute.
5. Confidentiality.
Consultant recognizes and acknowledges that, in the course of his duties,
Consultant may receive confidential or proprietary information owned by the
Corporation or other third parties with whom the Corporation has an obligation
of confidentiality. Therefore, during and after the Consulting Term, Consultant
agrees to keep confidential and not disclose or use (except in connection with
the fulfillment of his consulting duties to the Corporation under this
Agreement) all confidential or proprietary information owned by or receive
by or
on behalf of the Corporation. “Confidential Information” shall include, but
shall not be limited to, confidential or proprietary scientific or technical
information customers, development programs, costs, marketing, trading,
investment, sales activities, promotion, credit and financial data,
manufacturing processes, financing methods, plans or the business and affairs
of
the Corporation generally, or of any subsidiary or affiliate of the Corporation.
“Confidential Information” shall not include, however, information in the public
domain, information disclosed to Consultant by a third party entitled to
disclose it without obligation of confidentiality or information already known
to Consultant prior to its receipt.
6. Non-Solicitation.
During
the Consulting Term and for a period of one year thereafter, Consultant shall
not directly or indirectly employ, solicit for employment or advise or recommend
to any other person that they employ or solicit for employment any person whom
he knows to be an employee of the Corporation or any parent, subsidiary or
affiliate of the Corporation.
7. Ownership
of Work Product and Inventions.
In
consideration of the compensation paid to the Consultant by the Corporation
in
paragraph 3 of this Agreement, Consultant hereby assigns to the Corporation
all
his right, title and interest in all Consultant's work product and inventions,
including any and all data, plans, reports and recommendations, as well as
any
inventions or improvements, conceived or made individually or jointly with
others while performing consulting activities under this Agreement, relating
to
any work within the scope of this Agreement and/or relating to the business
of
and/or resulting from Consultant's services upon behalf of the Corporation
("Work Product and Inventions") shall be considered as work made for hire,
made
and held by Consultant in a fiduciary capacity for the exclusive benefit of
the
Corporation. Work Product and Inventions shall be the sole and exclusive
property of the Corporation and shall not be disclosed to any other party
without the prior written approval of the Corporation and such Work Product
and
Inventions shall be considered Confidential subject to section 5
above.
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Consultant
shall promptly and disclose fully to the Corporation or its designated agent,
but to no other person, any and all inventions, improvements, formulas,
processes and the like (also “Inventions”), arising while performing consulting
activities under this Agreement. When requested by the Corporation, either
during or subsequent to the term of this Agreement, Consultant shall assist
the
Corporation and its agents in the preparation, filing and prosecution of patent
applications, covering such inventions, and in the enforcement or defense of
any
patent which may issue therefrom. Consultant shall assign, transfer, and set
over unto the Corporation his entire right, title and interest in and to any
and
all Work Product and Inventions, as well as any patent application(s) relating
to such Work Product and Inventions that arise from his consulting activities
for the Corporation hereunder. Consultant agrees to cooperate fully in the
prosecution of any patent applications resulting from any such invention, at
the
expense of the Corporation, which cooperation shall include executing any
necessary documents in connection therewith. The filing of all such
applications, as well as the issuance and maintenance of patent therefrom,
shall
be at the sole discretion of the Corporation.
8. Specific
Performance.
Consultant acknowledges and agrees that the Corporation’s remedies at law for a
breach or threatened breach of an of the provisions of paragraph 5 through
7 of
this Agreement would be inadequate and, in recognition of this fact, Consultant
agrees that, in the event of such a breach or threatened breach, in addition
to
any remedies at law, the Corporation shall be entitled to obtain equitable
relief in the form of specific performance, temporary restraining order,
temporary or permanent injunction or any equitable remedy which may then be
available.
9. Representation
of Consultant: Use of Name.
Consultant hereby represents that there are no binding agreements to which
he is
a party or by which he is bound forbidding or restricting his activities herein.
In addition, Consultant consents to the use of his name in various reports,
brochures or other documents produced by or on behalf of the Corporation,
including any and all documents filed with the Securities and Exchange
Commission.
10. Consultant
Not an Employee.
The
Corporation and Consultant hereby acknowledge and agree that Consultant shall
perform the services hereunder as an independent contractor and not as an
employee of the Corporation. Consultant agrees that he will file his own tax
returns on the basis of his status as an independent contractor for the
reporting of all income, social security, employment and other taxes due and
owing on the consideration received by him under this Agreement and that he
is
responsible for the payment of such taxes. Similarly, Consultant shall not
be
entitled to benefits specifically associated with employment status, such as
medical, dental and life insurance, stock or stock options of the Corporation
(except as specifically provided in this Agreement) and shall not be entitled
to
participate in any other employer benefit programs. As an independent
contractor, Consultant acknowledges, understands and agrees that he is not,
and
shall not represent himself to third parties as being, the agent or
representative of the Corporation nor does he have, and shall not represent
himself to third parties as having, power or authority to do or take any action
for or on behalf of the Corporation, as its agent, representative or otherwise,
except as specifically set forth herein. Consultant agrees to defend, indemnify
and hold the Corporation harmless from any and all claims made by any entity
on
account of an alleged failure by Consultant to satisfy any tax or withholding
obligations.
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11. Representation
and Warranty.
Consultant represents and warrants to the Corporation that all services and
advice offered to the Corporation are provided based on best efforts and a
good
faith belief of the veracity of such services and advice. Given such
representations and warranties the Corporation agrees to not hold Consultant
liable for any errors, omissions or consequential damages that may occur as
a
result of Consultant's services provided hereunder.
12. Limitation
of Liability.
Corporation acknowledges that it has substantial knowledge, experience and
expertise with respect to the matters as to which Consultant will provide
consulting services and that it is able to and will independently evaluate
any
advice rendered by Consultant to Corporation in the performance of its duties
hereunder. Therefore, Corporation agrees that neither Consultant nor any of
its
officers, directors, shareholders or affiliates shall have any liability
whatsoever for any advice rendered to Corporation under this Agreement.
Corporation’s sole remedy for Consultant’s failure to perform under the terms of
this Agreement shall be to terminate this Agreement in accordance with the
terms
of Section 1 herein.
13. Indemnification.
Corporation shall indemnify and hold Consultant harmless from any claim, suit,
loss, liability damage or expense (including attorney’s reasonable fees) arising
from Consultant’s service hereunder, including any losses arising from the use
by Corporation of any advice given by Consultant. Consultant shall indemnify
and
hold Corporation harmless from any losses arising from negligence or wrongful
or
intentionally willful misconduct or omissions of Consultant.
14. Consulting
for Third Parties.
The
Corporation recognizes that Consultant may, from time to time during the term
of
this Agreement and at his sole discretion, provide consulting services to other
parties. Consultant agrees to notify the Corporation in such case and to provide
information to the Corporation as reasonably necessary to demonstrate that
such
consulting services do not compete with the business of the Corporation. The
Corporation also agrees to permit Consultant to notify other parties with
information about this Agreement as reasonably necessary to demonstrate that
such consulting services do not compete with the business of the
Corporation.
15. Miscellaneous,
(a) Governing
Law and Dispute Resolution.
This
Agreement shall be governed by and construed in accordance with the laws of
the
State of New York, without regard to principals of conflicts of laws. Subject
to
the following, for purposes of this Agreement, each Party consents, for itself
and its Affiliates, to the jurisdiction of the courts of the state of New York,
county of Manhattan and the U.S. District Court for New York.
(b) Entire
Agreement.
This
Agreement contains the entire understanding of the parties with respect to
the
retention of Consultant by the Corporation. There are no restrictions,
agreements, promises, warranties, covenants or undertaking between the parties
with respect to the subject matter herein other than those expressly set forth
herein. This Agreement may not be altered, modified or amended except by written
instrument signed by the parties hereto.
(c) No
Waiver.
The
failure of a party to insist upon strict adherence to any term of this Agreement
on any occasion shall not be considered a waiver of such party’s rights or
deprive such party of the right thereafter to insist upon strict adherence
to
that term or any other term of this Agreement.
(d) Severability.
In the
event that any one or more of the provisions of this Agreement shall be or
become invalid, illegal or unenforceable in any respect, the validity, legality
and enforceability of the remaining provisions of this Agreement shall not
be
affected thereby.
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(e) Successor;
Binding Agreement.
This
Agreement shall inure to the benefit of and be binding upon the parties hereto
and their respective heirs, representatives, successors and assigns. Consultant
may not assign this Agreement without the prior written consent of the
corporation.
(f) Counterpart;
Effectiveness.
This
Agreement may be signed in counterparts, each of which shall be an original,
with the same effect as if the signatures thereto and hereto were upon the
same
instrument.
(g) Survival
of Termination.
Paragraph 5 (only for three years after the termination of this Agreement),
6
(only for one year after the termination of this Agreement), 7, 8, 9, 10, 11,
12, 13 and 15 shall survive the termination of this Agreement.
IN
WITNESS WHEREOF,
the
undersigned have duly executed this Agreement as of the date first above
written.
By:
/s/
Xxxxxxxx X. Xxxxx
Xxxxxxxx
X. Xxxxx, Esq.
President
& CEO
XXXXXXX
X. XXXXXXX.
By:
/s/
Xxxxxxx X. Xxxxxxx
Xxxxxxx
X. Xxxxxxx
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