AMENDED AND RESTATED CONSULTING AGREEMENT
Exhibit
10.6
AMENDED AND RESTATED
CONSULTING AGREEMENT
THIS AMENDED AND RESTATED CONSULTING
AGREEMENT, dated as of July 19, 2010 (this "Agreement"), is by and
between Xxxxx Xxxxxxx
("Consultant"), and
Ventrus BioSciences,
Inc., with principal executive offices at 000 0xx Xxxxxx,
00xx
Xxxxx, Xxx Xxxx, XX 00000 ("Company") and supersedes the
prior Consulting Agreement among the parties dated June 2010.
WITNESSETH:
WHEREAS, Company is a
development stage biomedical and pharmaceutical company;
WHEREAS, Consultant
provides expertise in financial matters;
WHEREAS, Company desires
that it be able to call upon the knowledge and experience of Consultant for
consultation services and advice; and
WHEREAS, Consultant is willing
to render such services to Company on the terms and conditions hereinafter set
forth in this Agreement.
NOW, THEREFORE, in
consideration of the mutual covenants and agreements hereinafter set forth, the
parties hereto agree as follows:
Section 1. Services. Consultant
agrees to serve as Chief Financial Officer of the Company. Consultant hereby
agrees that the
services shall be provided at such times and at such places as the Company shall
reasonably request, and in accordance with the highest prevailing industry
standards and practices for the performance of similar services. Consultant
agrees to provide services on a full-time basis. Consultant’s services
shall include, but not be limited to, preparation and adjudication of financial
statements, drafting sections of a registration statement on Form S-1 to support
an initial public offering, managing the auditor relationship and preparing
materials required for the auditors to issue an opinion, establishing a database
for all Company documents, preparing other materials at the Company’s request,
signing financial statements and performing other duties consistent with the
role of Chief Financial Officer.
Section 2. Term of
Agreement. The retention of the
Consultant by the Company as provided in Section 1 above shall be for a period
of six (6) months from the date hereof, unless sooner terminated in accordance
herewith (the “Term”);
provided, however, that the Term shall be extended for an additional one-year
period upon mutual written agreement of both Consultant and Company. Notwithstanding anything
to the contrary contained herein, the Agreement may be terminated by Consultant
or the Company upon thirty (30) days prior written notice to the other
party. Immediately upon receipt of such notice from the Company,
Consultant shall institute such termination procedures as may be specified in
the notice and shall use his/her best efforts to minimize the cost to Company
resulting from such termination. Sections 5, 6, 7, 8, 9 and 10 shall
survive the expiration or termination of this Agreement. Should the
parties hereto enter into an employment agreement in the future, the
commencement of such employment shall automatically terminate this
Agreement.
Section 3. Compensation. As full compensation for
the daily performance by Consultant of his/her duties under this Agreement, the
Company shall pay Consultant 15,000 US $ per month, such payment to be made at
the end of each month.
Section 4. Expenses.
The Company shall reimburse Consultant for all reasonable and necessary expenses
incurred by Consultant in connection with the Services provided
hereunder.
Section
5. Confidential
Information and Inventions.
(a) Consultant
recognizes and acknowledges that in the course of his/her duties Consultant is
likely to receive confidential or proprietary information owned by the Company,
its affiliates or third parties with whom the Company or any such affiliates has
an obligation of confidentiality. Accordingly, during and after the Term,
Consultant shall use his/her best efforts to protect the confidentiality of the
Confidential and Proprietary Information and agrees to keep confidential and not
disclose or make accessible to any other person or use for any other purpose
other than in connection with the fulfillment of his/her duties under this
Agreement, any Confidential and Proprietary Information (as defined below) owned
by, or received by or on behalf of, the Company or any of its affiliates.
“Confidential and Proprietary Information” shall include, but shall not be
limited to, confidential or proprietary scientific or technical information,
data, formulas and related concepts, business plans (both current and under
development), client lists, promotion and marketing programs, trade secrets, or
any other confidential or proprietary business information relating to
development programs, costs, revenues, marketing, investments, sales activities,
promotions, credit and financial data, manufacturing processes, financing
methods, plans or the business and affairs of the Company or of any affiliate or
client of the Company. Consultant expressly acknowledges the trade secret
status of the Confidential and Proprietary Information and that the Confidential
and Proprietary Information constitutes a protectable business interest of the
Company. Consultant agrees: (i) not to use any such Confidential and
Proprietary Information for himself/herself or others; and (ii) not to take any
Company material or reproductions (including but not limited to writings,
correspondence, notes, drafts, records, invoices, technical and business
policies, computer programs or disks) thereof from the Company’s offices at any
time during the Term, except as required in the execution of Consultant’s duties
to the Company. Consultant agrees to return immediately all Company
material and reproductions (including but not limited, to writings,
correspondence, notes, drafts, records, invoices, technical and business
policies, computer programs or disks) thereof in his/her possession to the
Company upon request and in any event immediately upon termination or expiration
of the Term.
(b) Except
with prior written authorization by the Company, Consultant agrees not to
disclose or publish any of the Confidential and Proprietary Information, or any
confidential, scientific, technical or business information of any other party
to whom the Company or any of its affiliates owes an obligation of confidence,
at any time during or after the Term.
(c) Consultant
agrees that all inventions, discoveries, improvements and patentable or
copyrightable works (“Inventions”) initiated,
conceived or made by him/her, either alone or in conjunction with others, in
connection with or as a result of performance of Services by Consultant during
the Term shall be the sole property of the Company to the maximum extent
permitted by applicable law and, to the extent permitted by law, shall be “works
made for hire” as that term is defined in the United States Copyright Act (17
U.S.C.A., Section 101). The Company shall be the sole owner of all
patents, copyrights, trade secret rights, and other intellectual property or
other rights in connection therewith. Consultant hereby assigns to the
Company all right, title and interest he/she may have or acquire in all such
Inventions. Consultant further agrees to assist the Company in every
proper way (but at the Company’s expense) to obtain and from time to time
enforce patents, copyrights or other rights on such Inventions in any and all
countries, and to that end Consultant will execute all documents
necessary:
(i) to
apply for, obtain and vest in the name of the Company alone (unless the Company
otherwise directs) letters patent, copyrights or other analogous protection in
any country throughout the world and when so obtained or vested to renew and
restore the same; and
(ii) to
defend any opposition proceedings in respect of such applications and any
opposition proceedings or petitions or applications for revocation of such
letters patent, copyright or other analogous protection.
(d) Consultant
acknowledges that while performing the Services under this Agreement Consultant
may locate, identify and/or evaluate patented or patentable inventions having
commercial potential in the fields of hemorrhoids, anal fissures, and fecal
incontinence which may be of potential interest to the Company or one of its
affiliates (the “Third Party
Inventions”). Consultant understands, acknowledges and agrees that
all rights to, interests in or opportunities regarding, all Third-Party
Inventions identified by the Company, any of its affiliates or either of the
foregoing persons’ officers, directors, employees, agents or consultants
(including the Consultant) during the Term shall be and remain the sole and
exclusive property of the Company or such affiliate and Consultant shall have no
rights whatsoever to such Third-Party Inventions and will not pursue for
himself/herself or for others any transaction relating to the Third-Party
Inventions which is not on behalf of the Company.
(e) Consultant
agrees that he/she will promptly disclose to the Company, or any persons
designated by the Company, all improvements and Inventions made or conceived or
reduced to practice or learned by him/her, either alone or jointly with others,
during the Term.
(f) Consultant
agrees that the Company shall be entitled to enjoin any breach of the
confidentiality and other obligations hereunder without having to post a bond in
addition to all other remedies it may have under applicable law.
Consultant will notify the Company in writing immediately upon the occurrence of
any unauthorized release of any Confidential and Proprietary Information or
other breach of any of the obligations under this Section 5 of which it is or
becomes aware.
Section 6. Xxxxxxx
Xxxxxxx. Consultant recognizes that in the course of his/her duties
hereunder, Consultant may receive from the Company or others information that
may be considered "material, nonpublic information" concerning a public company
that is subject to the reporting requirements of the Securities and Exchange Act
of 1934, as amended. Consultant agrees NOT to: (a) purchase
or sell, directly or indirectly, any securities of any company while in
possession of relevant material, nonpublic information relating to such company
received from the Company or others in connection herewith; (b) provide Company
with information with respect to any public company that may be considered
material, nonpublic information without the prior written consent of the
Company; or (c) communicate any material, nonpublic information to any
other person in which it is reasonably foreseeable that such person is likely to
(i) purchase or sell securities of any company with respect to which such
information relates, or (ii) otherwise directly or indirectly benefit from such
information. Without limiting any of the confidentiality and xxxxxxx
xxxxxxx obligations included in this Agreement, Consultant shall not discuss any
information concerning Company obtained by Consultant in the course of
performing the Services with any financial, securities or industry analyst or
with the media without the written agreement of Company.
Section 7. Representations,
Warranties and Covenants of Consultant. The Consultant hereby
represents, warrants and covenants to the Company as follows:
(a) Neither
the execution or delivery of this Agreement nor the performance by Consultant of
his/her duties and other obligations hereunder violate or will violate any
statute, law, determination or award, or conflict with or constitute a default
or breach of any covenant or obligation under (whether immediately, upon the
giving of notice or lapse of time or both) any prior employment agreement,
contract, or other instrument to which Consultant is a party or by which he/she
is bound.
(b) Consultant
has the full right, power and legal capacity to enter and deliver this
Agreement, as applicable, and to perform his/her duties and other obligations
hereunder. This Agreement constitutes the legal, valid and binding
obligation of Consultant enforceable against him/her in accordance with its
terms. No approvals or consents of any persons or entities are required
for Consultant to execute and deliver this Agreement, as applicable, or perform
his/her duties and other obligations hereunder.
(c) Consultant
represents that his/her performance of all the terms of this Agreement will not
breach any agreement to keep in confidence any confidential information or trade
secrets acquired by Consultant from any third party, and Consultant agrees not
to use any confidential information or trade secrets of any third party in
connection with the provision of the Services in violation of the agreements
under which he/she had access to or knowledge of such confidential information
or trade secrets.
(d) Consultant
hereby represents that he/she (i) has not been debarred by any relevant
professional organization and (ii) to the best of Consultant’s knowledge, is not
debarred or under consideration to be debarred by the Food and Drug
Administration (the “FDA”) from working in or
providing services to any pharmaceutical or biotechnology company under the
Generic Drug Enforcement Act of 1992. Consultant shall notify the Company
immediately if, during the Term, Consultant comes under investigation by the FDA
for debarment or disqualification or is debarred or disqualified.
Consultant shall notify the Company immediately if the FDA or any other
regulatory authority requests permission to or does inspect Consultant's records
in connection with the Services provided under this Agreement or any other
matter, and Consultant will deliver to the Company promptly all materials,
correspondence, statements, forms, and records which Consultant receives,
obtains or generates pursuant to any such inspection.
(e) Consultant
will not use any confidential information or trade secrets of any third party in
his service to Company in violation of the terms of the agreements under which
he had access to or knowledge of such confidential information or trade
secrets.
Section 8. Intentionally
Omitted.
Section 9. Consultant
not an Employee. Company and Consultant hereby acknowledge and
agree that Consultant shall perform the services hereunder as an independent
contractor and not as an employee or agent of Company or any Company
affiliate. Consultant will be solely responsible for all taxes,
withholding and other similar statutory obligations. Consultant shall not
represent that he/she is an employee of Company or any Company affiliate under
any circumstance. In addition, nothing in this Agreement shall be
construed as establishing any joint venture, partnership or other business
relationship between the parties hereto or representing any commitment by either
party to enter into any other agreement by implication or otherwise except as
specifically stated herein. Consultant shall not have any authority,
express or implied, to bind Company or any Company affiliate to any agreement,
contract, or other commitment. Consultant further understands and agrees
that this Agreement is entered into by Company on a non-exclusive basis and that
Company and its affiliates remain free to deal with others and retain other
consultants, employees, brokers, finders and other agents in the same or similar
capacity as Consultant has been retained at any time at their own
option.
Section 10. Miscellaneous.
(a) This
Agreement shall be governed by, and construed and interpreted in accordance
with, the laws of the State of New York, without giving effect to its principles
of conflicts of laws.
(b) Any
dispute arising out of, or relating to, this Agreement or the breach thereof
(other than Section 5 hereof), or regarding the interpretation thereof, shall be
finally settled by arbitration conducted in New York, New York in accordance
with the rules of the American Arbitration Association then in effect before a
single arbitrator appointed in accordance with such rules. Judgment upon
any award rendered therein may be entered and enforcement obtained thereon in
any court having jurisdiction. The arbitrator shall have authority to
grant any form of appropriate relief, whether legal or equitable in nature,
including specific performance. For the purpose of any judicial proceeding
to enforce such award or incidental to such arbitration or to compel arbitration
and for purposes of Section 5 hereof, the parties hereby submit to the exclusive
jurisdiction of the competent courts located in New York, New York, and agree
that service of process in such arbitration or court proceedings shall be
satisfactorily made upon it if sent by registered mail addressed to it at the
address referred to in paragraph (g) below. The costs of such arbitration
shall be borne proportionate to the finding of fault as determined by the
arbitrator.
(c) This
Agreement shall be binding upon and inure to the benefit of the parties hereto,
and their respective heirs, legal representatives, successors and permitted
assigns.
(d) This
Agreement, and Consultant’s rights and obligations hereunder, may not be
assigned, delegated or otherwise subcontracted by Consultant. The Company
may assign its rights, together with its obligations, hereunder in connection
with any sale, transfer or other disposition of all or substantially all of its
business or assets.
(e) This
Agreement cannot be amended orally, or by any course of conduct or dealing, but
only by a written agreement signed by the parties hereto.
(f)
The failure of
either party to insist upon the strict performance of any of the terms,
conditions and provisions of this Agreement shall not be construed as a waiver
or relinquishment of future compliance therewith, and such terms, conditions and
provisions shall remain in full force and effect. No waiver of any term or
condition of this Agreement on the part of either party shall be effective for
any purpose whatsoever unless such waiver is in writing and signed by such
party.
(g) All
notices, demands or other communications desired or required to be given by any
party to any other party hereto shall be in writing and shall be deemed
effectively given upon (i) personal delivery to the party to be notified, (ii)
upon confirmation of receipt of telecopy or other electronic transmission, (iii)
one business day after deposit with a reputable overnight courier, prepaid for
priority overnight delivery, or (iv) five days after deposit with the United
States Post Office, postage prepaid, in each case to such party at the address
set forth above, or to such other addresses and to the attention of such other
individuals as any party shall have designated to the other parties by notice
given in the foregoing manner.
(h) This
Agreement sets forth the entire agreement and understanding of the parties
relating to the subject matter hereof, and supersedes all prior agreements,
arrangements and understandings, written or oral, relating to the subject matter
hereof. No representation, promise or inducement has been made by either
party that is not embodied in this Agreement, and neither party shall be bound
by or liable for any alleged representation, promise or inducement not so set
forth.
(i)
As used in
this Agreement, “affiliate” of a specified person or entity shall mean and
include any person or entity controlling, controlled by or under common control
with the specified Person.
(j)
The section headings
contained herein are for reference purposes only and shall not in any way affect
the meaning or interpretation of this Agreement.
(k) This
Agreement may be executed in any number of counterparts, each of which shall
constitute an original, but all of which together shall constitute one and the
same instrument.
(l)
As used in this Agreement,
the masculine, feminine or neuter gender, and the singular or plural, shall be
deemed to include the others whenever and wherever the context so
requires. Additionally, unless the context requires otherwise, "or" is not
exclusive.
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Blank – Signature Page Follows]
IN WITNESS WHEREOF, the
parties hereto have executed this Agreement as of the date first written above
by proper person thereunto duly authorized.
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VENTRUS
BIOSCIENCES, INC.
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By:
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/s/ Xxxxxxx Xxxxxxx,
M.D.
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Name:
Xxxxxxx Xxxxxxx, M.D.
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Title:
Chief Executive Officer
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Xxxxx
Xxxxxxx
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By:
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/s/ Xxxxx Xxxxxxx
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