CONSULTING SERVICES AGREEMENT
This AGREEMENT ("AGREEMENT") is entered into as of September 1, 2005, by
DNAPrint genomics, Inc., 000 Xxxxxxxx Xxx., Xxxxxxxx, XX 00000, XXX ("DNAP") and
XX. XXXXXX X. XXXXXXXXX residing at 000 Xxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxxxxx
00000, XXX ("XX. XXXXXXXXX").
WITNESSETH:
WHEREAS, DNAP is engaged in a project (the "PROJECT") relating to human
erythropoietin (the "FIELD"); and
WHEREAS, XX. XXXXXXXXX has knowledge and expertise regarding the FIELD;
and
WHEREAS, DNAP desires to make use of the specialized knowledge and
expertise of XX. XXXXXXXXX as a consultant in the FIELD; and
WHEREAS, XX. XXXXXXXXX has advised DNAP of his willingness, ability and
desire to provide consulting and advisory services to it in connection with the
FIELD;
NOW, THEREFORE, in consideration of the mutual covenants and conditions
contained herein, XX. XXXXXXXXX and DNAP agree as follows:
1. ENGAGEMENT - DNAP hereby engages XX. XXXXXXXXX and XX. XXXXXXXXX hereby
agrees to hold himself available and to render, at DNAP's request, independent
advisory and consulting services, in compliance with the terms and conditions
set forth herein and all applicable laws, statutes and regulations.
2. SERVICES AND DUTIES - XX. XXXXXXXXX agrees that during the term of this
AGREEMENT and any subsequent extension(s) thereof, he will provide his services
as a consultant to DNAP in the FIELD. XX. XXXXXXXXX'x responsibilities shall
include, but shall not be limited to, the following services:
a. Consulting on all matters involving the FIELD, including, without limitation,
implementation of analytics, purification, medical uses, regulatory issues and
patent affairs;
b. Advising and training personnel designated by DNAP in the FIELD technology;
c. Advising on the status of FIELD- related patents and prosecutions;
d. Advising on clinical trials, medical uses and side effects of the FIELD;
e. Providing information on new developments in the FIELD;
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f. Providing expertise and introduction to XX. XXXXXXXXX'x personal contacts in
the FIELD, including without limitation, scientific, medical, biotech,
regulatory and patent issues; and,
g. Completing the Milestone Tasks described on the attached Exhibit "A".
XX. XXXXXXXXX further agrees to render his services conscientiously, consistent
with the highest standards of his profession, and to devote, subject to existing
professional duties, the requisite time, effort and abilities required to
satisfactorily perform his obligations during the term of this AGREEMENT and any
subsequent extension(s) thereto, and to do so in such reasonable manner as DNAP
and XX. XXXXXXXXX shall mutually agree.
3. PAYMENT - As full consideration for the services performed by XX. XXXXXXXXX
hereunder, DNAP agrees to compensate XX. XXXXXXXXX as follows:
a. ONE HUNDRED AND TWENTY THOUSAND ($ 120,000.00) U.S. DOLLARS to be paid
in twelve equal monthly installments of TEN THOUSAND ($10,000.00) U.S. DOLLARS.
Each payment will be made within THIRTY (30) DAYS of the first day of each
month, with the first month commencing on the date of execution hereof.
b. Upon presentation of receipts, DNAP will reimburse XX. XXXXXXXXX for
reasonable out-of-pocket expenses incurred in connection with services performed
under this AGREEMENT, including but not limited to airfare, lodging, meals,
taxis, trains, extraordinary fee-based computer searches and the like. Flights
of greater than two (2) hours will be business class or the next higher class
above economy, if XX. XXXXXXXXX so chooses. XX. XXXXXXXXX will invoice DNAP for
such travel and other expenses promptly after incurring such charges and DNAP
agrees to pay such invoices, subject to the conditions of this paragraph, within
THIRTY (30) DAYS of their receipt.
c. DNAP agrees to reimburse XX. XXXXXXXXX for airfare, lodging, meals,
taxis, trains, and all other reasonable out-of-pocket expenses incurred in
conjunction with attending two scientific/medical, biotechnology or
pharmaceutical related meetings per year, said meetings to relate directly to
the FIELD and/or to XX. XXXXXXXXX'x consulting and advisory services under this
AGREEMENT. XX. XXXXXXXXX shall obtain DNAP's consent prior to incurring such
expenses. XX. XXXXXXXXX agrees to invoice DNAP promptly after incurring such
charges and DNAP agrees to pay such invoices within THIRTY (30) DAYS of their
receipt.
d. In recognition of XX. XXXXXXXXX'x knowledge and skill, DNAP agrees to
make five separate incentive payments to XX. XXXXXXXXX at the rate of TWENTY
FIVE THOUSAND ($25,000.00) U.S. DOLLARS per year to be paid on or before each
anniversary of the date of execution hereof.
4. MILESTONE CONTINGENT PAYMENTS- DNAP agrees to make the following milestone
payments to XX. XXXXXXXXX following the completion of the described event to the
satisfaction of DNAP, and to the extent XX. XXXXXXXXX has not received any
monies from Xxxx Israel Deaconess Medical Center ("BIDMC") under any agreements
between XX. XXXXXXXXX and BIDMC relating to the described event:
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a. Initiation of the first Phase I trial of an erythropoietin or
erythropoietin-related product, TWENTY FIVE THOUSAND ($25,000.00)
U.S. DOLLARS.
b. Initiation of the first Phase II trial of an erythropoietin or
erythropoietin-related product, TWENTY FIVE THOUSAND ($25,000.00)
U.S. DOLLARS.
c. First regulatory approval of an erythropoietin or
erythropoietin-related product, TWENTY FIVE THOUSAND ($25,000.00)
U.S. DOLLARS.
d. First commercial sale of an erythropoietin or erythropoietin-related
product, FIFTY THOUSAND ($50,000.00) U.S. DOLLARS.
DNAP's obligation to make these payments to XX. XXXXXXXXX will extend for ten
(10) years beyond the term of this AGREEMENT, or any termination, renewal or
extension thereof. Any payments XX. XXXXXXXXX receives from BIDMC relating to
the described events shall reduce, dollar for dollar, DNAP's obligations
hereunder.
5. INDEMNIFICATION - DNAP shall indemnify, defend and hold harmless XX.
XXXXXXXXX and his employees and agents and their respective heirs, successors
and assigns (the "INDEMNITEES"), against any liability, damage, loss, or expense
(including attorneys' fees and expenses of litigation) actually incurred by or
imposed upon the INDEMNITEES or any one of them in connection with any claims,
suits, actions, demands, or judgments of any party other than DNAP arising out
of or relating to the PROJECT, including, but not limited to, any theory of
product liability (including but not limited to, strict liability) concerning
any products, process or service made, used or sold pursuant to any rights
granted under this AGREEMENT. DNAP's indemnification shall not apply to any
claim, suit, action, demand, loss or expense (including attorneys' fees and
expenses of litigation) to the extent that it is actually incurred or imposed or
is due to the breach of this AGREEMENT, violation of or failure to comply with
any law, or governmental regulation, negligence, reckless MISCONDUCT or
intentional MISCONDUCT (hereinafter collectively the " MISCONDUCT ") of any of
the INDEMNITEES.
6. CONFIDENTIALITY - In view of the proprietary rights and interests of DNAP
concerning the PROJECT and their facilities and technology, XX. XXXXXXXXX agrees
that during the term of this AGREEMENT and any subsequent extension(s) thereto,
and for a period of three (3) years thereafter, XX. XXXXXXXXX shall hold in
strictest confidence and not use for his own benefit or for the benefit of any
third party any information concerning the PROJECT and DNAP (including DNAP's
security and computer systems) or the FIELD which is disclosed to XX. XXXXXXXXX
by DNAP or that results from his services under this AGREEMENT. Such information
includes, but is not limited to, confidential or proprietary information,
discoveries, results, methodology, codes, passwords, materials, technology,
know-how, financial and other data, both technical and non-technical. XX.
XXXXXXXXX shall not disclose nor cause nor permit to be disclosed such
information to any third party or use such information for any purpose, except
as provided herein, without the prior written approval of DNAP. The foregoing
restrictions and obligations of XX. XXXXXXXXX shall not apply to any portion of
such information which:
a. Is or later becomes generally available to the public by use, publication or
the like, through no fault of XX. XXXXXXXXX;
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b. Is obtained from a third party who had the legal right to disclose the same
to XX. XXXXXXXXX; or
c. Is already possessed by XX. XXXXXXXXX, as evidenced by his written records,
predating receipt thereof from DNAP.
Specific information disclosed to XX. XXXXXXXXX by DNAP shall not be deemed to
be available to the public or in prior possession of XX. XXXXXXXXX merely
because such specific information is embraced by more general information
available to the public or in the prior possession of XX. XXXXXXXXX.
7. RIGHT TO DISCLOSE - XX. XXXXXXXXX agrees that during the term of this
AGREEMENT, he will not disclose to DNAP any information which he is under a
contractual or other legal obligation to a third party not to disclose.
8. TERM, TERMINATION AND EXTENSION OF THIS AGREEMENT - This AGREEMENT shall be
effective for a twelve (12) month Period beginning August 1, 2005 and ending
July 31, 2006.
Either party may terminate this AGREEMENT upon ninety (90) days written notice
to the other party. If DNAP terminates this AGREEMENT for XX. XXXXXXXXX'x breach
of this AGREEMENT, or XX. XXXXXXXXX'x violation of or failure to comply with any
law, or governmental regulation, negligence or MISCONDUCT, XX. XXXXXXXXX shall
not be entitled to receive the Milestone payments referenced in Section 4,
above. Any rights or obligations set forth herein, which are accrued prior to
the termination of this AGREEMENT, shall survive termination of this AGREEMENT.
Negotiations may be initiated at the request of either party prior to
termination of this AGREEMENT to extend this AGREEMENT. If the parties do not
agree on an extension in writing prior to July 15, 2006, the AGREEMENT shall
terminate on July 31, 2006.
9. INDEPENDENT CONTRACTOR - For the purpose of this AGREEMENT, XX. XXXXXXXXX
shall be an independent contractor of DNAP without the authority to bind or act
as agent for DNAP or its employees for any purpose, and nothing in this
AGREEMENT shall be construed to create any joint venture or partnership among or
between the parties.
10. PUBLICITY - Neither party will use the name of the other party in
publication or advertising involving this AGREEMENT without the other party's
prior written approval.
11. WARRANTIES - The parties warrant and represent that they have the right to
enter into and perform this AGREEMENT. XX. XXXXXXXXX further warrants and
represents that he knows of no conflict between the terms of this AGREEMENT and
any other contractual or other obligations, expressed or implied, which he may
have with anyone, including but not limited to his contractual obligations to
Xxxx Israel Deaconess Medical Center.
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12. GOVERNING LAW - This AGREEMENT shall be governed by the laws of the
Commonwealth of Massachusetts, USA, and XX. XXXXXXXXX and DNAP hereby submit to
the exclusive jurisdiction of the Massachusetts Courts, both State and Federal.
13. AMENDMENTS - No modification to this AGREEMENT shall be effective unless
made in writing and signed by a duly authorized representative of each party.
14. NOTICES - All notices required or permitted to be given hereunder shall be
in writing and given to each of the other parties hereto by delivery to its or
his respective address as first set forth above by (i) personal delivery, (ii)
courier service or registered or certified air mail (postage prepaid) or (iii)
by fax (with a copy by registered or certified air mail). All such notices shall
be effective when received by the addressee.
15. TAXES -Each party shall be responsible for his or its own tax obligations as
imposed by any governmental authority having jurisdiction.
16. ASSIGNMENT - This AGREEMENT may not be assigned without the parties' express
written consent. Any purported assignment of this AGREEMENT is void and of no
effect.
17. ENTIRE AGREEMENT - This AGREEMENT provides continuity in the contractual
relationship between XX. XXXXXXXXX and DNAP in connection with XX. XXXXXXXXX'x
prior commitment to DNAP relating to the FIELD. This AGREEMENT is the entire
AGREEMENT between the parties with respect to XX. XXXXXXXXX'x consulting
services in respect of the PROJECT and FIELD and supersedes all prior agreements
and understandings between the parties (whether written or oral) relating to
said subject matter, including that certain Consulting Services Agreement
between DNAP and XX XXXXXXXXX dated June 1, 2005 which effective today is hereby
terminated and of no further force or effect.
IN WITNESS WHEREOF, the parties have executed this AGREEMENT as of dates set
forth below:
XX. XXXXXX X. XXXXXXXXX DNAPrint genomics, Inc.
Date: Name (print):
Place: Date:
Signature: /s/ Xxxxxx Xxxxxxxxx Place:
Signature: /s/ Xxxxxxx Xxxxxxx
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EXHIBIT A
1. Supervise construction of a new Epo-Epo fusion protein gene and
transfection into CHO cells. This will include as follows:
o Construction of Epo-Epo gene.
o Confirmation of DNA sequence of the gene.
o Transfection of the gene into Chinese hamster ovary (CHO) cells.
o Application of G418 biochemical selection to achieve cells with the
gene stably integrated into the genome. o Derive clonal cell lines
by limiting dilution.
o Identify Epo-Epo protein expressing clones by western blot analysis.
o Select, expand and cryopreserve highly expressing clones. o
Re-isolate gene from the clones and confirm the fidelity of the DNA
sequence.
2. Transfer new, living CHO cell cultures to Proteos.
3. Interact with Proteos personnel including transfer of and training in
analytic techniques.
4. Supervise in vitro bioassays of samples provided by Proteos.
5. Supervise in vivo bioassays of samples provided by Proteos.
6. Supervise the determination of biologic activities of longer Epo fusion
proteins and evaluate for further development.
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