EXHIBIT 10.13
CONSULTANCY AGREEMENT
THIS CONSULTANCY AGREEMENT (this "Agreement") is made as of this 15 day of
March, 2003, by and between Advaxis, Inc, a Delaware corporation, having a
principal place of business at 000 Xxxxxxxx Xxxxxx, Xxxxxxxxx, XX ("Company"),
and the party indicated below ("Consultant").
Name: Xxx X. Xxxxxxxxx, PhD, DABT, RAC
Address: X.X. Xxx 0000 Xxxxxxxx, XX 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
SS No.
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WHEREAS, Consultant and Company desire to enter into an agreement for the
performance by Consultant of certain consulting services (the "Services"); and
WHEREAS, Consultant has the specific knowledge, experience, and expertise
to perform the Services;
NOW, THEREFORE, in consideration of the mutual covenants, terms, and
conditions hereinafter set forth, and intending to be legally bound, Company and
Consultant agree as follows:
1. SERVICES AND COMPENSATION
1.1 Services. Consultant shall provide the Services and perform all duties
as requested by Company, as more particularly set forth in project plans
executed in writing by the parties and attached hereto from time to time (each,
a "Project Plan"). The initial Project Plan is attached hereto as Schedule A.
Each subsequent Project Plan shall be in substantially the same form as the
initial Project Plan. Upon execution in writing of each Project Plan by the
parties, the provisions of this Agreement shall be incorporated by reference and
shall form the entire agreement with respect to such project. The parties may
agree at any time to modify a Project Plan; provided, however, that all such
modifications must be in writing and signed by both parties. Consultant shall
control the manner and means by which it performs the Services, subject to the
parameters of the applicable Project Plan and the express provisions of this
Agreement. Company agrees that Consultant shall have reasonable access to
Company's representatives as necessary to perform the Services provided for by
this Agreement.
1.2 Reports. Consultant shall communicate the progress of each Project
Plan to Company informally on a regular basis and in written reports to be
provided to Company as specified in each Project Plan, and if not specified in a
Project Plan, then on a calendar quarterly basis within ten (10) days after the
end of such calendar quarter. Each written report shall be subject to acceptance
by Company.
1.3 Compensation. Consultant shall be paid for performance of the Services
as specified in the applicable Project Plan, subject to completion by Consultant
of written reports acceptable to Company pursuant to Section 1.2.
Notwithstanding the foregoing, Company may suspend payment if, in Company's
reasonable opinion after review of such reports, Consultant has not been
performing the Services in the manner and in accordance with the schedule set
forth in the applicable Project Plan and pursuant to this Agreement.
1.4 Conflict of Interest; Non-Exclusive Arrangement.
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1.4.1 If a conflict of interest should arise during the performance
of this Agreement, Consultant shall immediately notify Company thereof and
Company shall have the option to pursue any and all remedies, equitable, legal
or otherwise, that may be available to Company in connection therewith.
Consultant shall ensure that its performance of the Services does not conflict
with Consultant's duties with other entiries.
1.4.2 Company may from time to time (i) engage other persons and
entities to act as consultants to Company and perform services for Company,
including, without limitation, services similar to the Services, and (ii) enter
into agreements similar to this Agreement with other persons or entities, in all
cases without the necessity of obtaining any approval from Consultant.
1.4.3 Subject to the provisions of Section 6.2, Consultant may from
time to time act as a consultant to, perform services for, or enter into
agreements similar to this Agreement with, other persons or entities without the
necessity of obtaining approval from Company; provided, however, that in no
event shall Consultant provide such other persons or entities with, or
incorporate into or provide as part of any services for such other persons or
entities, any information or know-how obtained by Consultant through its conduct
of the Services (including, without limitation, any Confidential Information (as
defined below)).
2. CONFIDENTIAL INFORMATION
2.1 Confidentiality. Consultant agrees to maintain in strict confidence
all Confidential Information (as defined below) provided to, or learned or
developed by, Consultant during the course of Consultant's performance of the
Services. Consultant shall not disclose or disseminate any Confidential
Information to any person or entity, except with the prior written consent of
Company. In addition, Consultant shall not use or copy any Confidential
Information for any purpose other than in connection with performance of the
Services hereunder.
2.2 Definition of Confidential Information. The term "Confidential
Information" shall mean all trade secrets, processes, formulae, data and
know-how, improvements, inventions, chemical or biological materials,
techniques, marketing plans, strategies, customer lists, or other information
that has been created, discovered, or developed by Company, or has otherwise
become known to Company, or which proper rights have been assigned to Company,
as well as any other information and materials that are deemed confidential or
proprietary to or by Company (including, without limitation, all information and
materials of Company's customers and any other third party and their
consultants), regardless of whether any of the foregoing are marked
"confidential" or "proprietary" or communicated to Consultant by Company in
oral, written, graphic or electronic form.
2.3 Exceptions to Confidential Information. Notwithstanding the foregoing
paragraph, "Confidential Information" shall not include any information or
materials that: (a) are or become known to the general public through no act or
omission of Consultant or any other person with an obligation of confidentiality
to Company, or (b) are required to be disclosed pursuant to applicable law
(provided, however, that prior to any disclosure of Confidential Information as
required by applicable law, Consultant shall advise Company of such required
disclosure promptly upon learning thereof and shall cooperate with Company in
order to afford them a reasonable opportunity to contest or limit such
disclosure).
2.4 Consultant-Restricted Information. Consultant agrees that Consultant
will not improperly use or disclose to the Company any proprietary or
confidential information or trade secrets of any person or entity with whom
Consultant has an agreement or duty to keep such information or secrets
confidential.
2.5 Use of Third Party Information. Consultant will not use any equipment,
supplies, chemicals, molecules, organisms, biological materials, or other
physical property, facilities or trade secret information of any present or
former employee or consulting client which are not generally available to the
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public, unless Consultant has obtained prior written authorization for such use
and have delivered a copy of such authorization to Company prior to such use.
Notwithstanding such authorization, Company shall have the right, at its sole
discretion, to exclude the use of any of the foregoing by Consultant.
3. INTELLECTUAL PROPERTY
3.1 Assignment of Inventions. Consultant agrees that Consultant will
promptly make full written disclosure to Company, will hold in trust for the
sole right and benefit of Company, and hereby assigns, transfers and conveys to
Company, or its designee, all of Consultant's worldwide right, title, and
interest in and to any and all inventions, original works of authorship,
findings, conclusions, data, discoveries, developments, concepts, improvements,
trade secrets, techniques, processes and know-how, whether or not patentable or
registrable under copyright or similar laws, which Consultant may solely or
jointly conceive or develop or reduce to practice, or cause to be conceived or
developed or reduced to practice, in the performance of the Services or which
result, to any extent, from use of Company's premises or property (collectively,
the "Inventions"), including, without limitation, any and all intellectual
property rights inherent in the Inventions and appurtenant thereto including,
without limitation, all patent rights, copyrights, trademarks, know-how and
trade secrets (collectively, "Intellectual Property Rights"). Consultant
acknowledges and agrees that certain of the Inventions (whether made solely by
Consultant or jointly with others) may be "works made for hire," as that term is
defined in the United States Copyright Act, and therefore Company would be
deemed the owner of such Inventions. For purposes of clarification, to the
extent any Invention is not a "work made for hire," such Invention would be
subject to the assignment in the first sentence of this Section 3.1.
3.2 Further Assurances. Upon the request and at the expense of Company,
Consultant shall execute and deliver any and all instruments and documents and
take such other acts as may be necessary or desirable to document the assignment
and transfer described in Section 3.1 or to enable Company to secure its rights
in the Inventions and any patents, trademarks, copyrights or other intellectual
property rights relating thereto in any and all jurisdictions, or to apply for,
prosecute and enforce patents, trademark registrations, copyrights or other
intellectual property rights in any and all jurisdictions with respect to any
Inventions, or to obtain any extension, validation, re-issue, continuance or
renewal of any such intellectual property right.
4. REPRESENTATIONS AND WARRANTIES
4.1 Each party represents and warrants that, to the best of its knowledge,
it has the right to enter into and to perform its obligations hereunder without
thereby breaching any of its obligations to third parties.
4.2 Consultant represents and warrants to Company that: (i) the Services
performed by Consultant hereunder will be of professional quality, consistent
with generally-accepted industry standards and expectations for work of a
similar nature, (ii) all Services provided to Company hereunder shall conform to
the agreed-upon specifications therefor, if any, (iii) to the best of
Consultant's knowledge, all Services, Inventions, and Intellectual Property
Rights provided to Company hereunder will not infringe or misappropriate the
patent, copyright, trademark, trade secret, or other intellectual property
rights of any third party, (iv) Consultant's performance under this Agreement
and Consultant's retention as a consultant by Company does not and will not
breach any obligation or agreement by which Consultant is bound to keep in
confidence any information Consultant may acquire, or not to compete with any
other person or entity, and (v) Consultant has not entered into, and will not
enter into, any agreement, and is not affected by any policy, either written or
oral, that would interfere or be inconsistent with Consultant's performance
under this Agreement. Consultant shall indemnify, defend, and hold harmless
Company and its officers and employees from and against any and all losses,
damages, liabilities, obligations, judgments, penalties, fines, awards, costs,
expenses, and disbursements (including without limitation, the costs, expenses
and disbursements, as and when incurred, of investigating, preparing or
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defending any claim, action, suit, proceeding, or investigation) suffered or
incurred by Company on account of Consultant's breach of any of the foregoing
representations and warranties.
4.3 COMPANY MAKES NO OTHER WARRANTY RELATING TO THE CONFIDENTIAL
INFORMATION AND THE USE TO BE MADE THEREOF BY CONSULTANT AND HEREBY DISCLAIMS
ALL IMPLIED WARRANTIES.
5. TERM
5.1 Term. The initial term of this Agreement shall begin on the date set
forth above and shall end on September 15th, 2003, or upon termination in
accordance with the terms set forth in Section 5.2, whichever date is earlier
("Initial Term"). The Term shall be automatically extended until March 15, 2004
unless Company notifies Consultant no later than August 15th of its intent not
to extend the Initial Term. Thereafter, the Term may be extended upon mutual
agreement of the parties in writing.
5.2 Termination. Consultant may terminate this Agreement for any reason
during the term hereof upon thirty (30) days prior written notice to the
Company. Company may terminate the Agreement on September 15, 2003 by providing
Consultant with a prior notice as provided in Section 5.1, or at any time with a
10-day prior notice for Cause. Cause shall be defined as any material breach of
this agreement which was not cured by Consultant within 5 business days from the
Company's written notice of such material breach. Upon the expiration or earlier
termination of this Agreement, Company shall only be required to pay Consultant
for Services actually completed as of the effective date of such expiration or
earlier termination; provided, however, that Company shall not be required to
make any payments for Services associated with a milestone or targeted
completion date that Consultant has failed to achieve.
5.3 Return of Company Property. All property belonging to Company in
Consultant's possession or control, including, without limitation, all
Confidential Information (as well as all copies, summaries, or other
representations thereof) and all originals and copies of any documents, devices,
records, data, notes, reports, proposals, lists, correspondence, specifications,
drawings, blueprints, sketches, materials, and equipment shall be and remain the
sole property of Company and shall be returned promptly to Company upon the
expiration or earlier termination of this Agreement, and earlier if requested by
Company at any time. Consultant shall not remove any of Company's property from
Company's premises without prior written authorization from Company.
5.4 Survival. In the event this Agreement expires or is terminated for any
reason, the rights and obligations of Sections 5.3, 5.4 and Articles 2, 3, 4, 6
and 7 shall survive such expiration or termination.
6. NON-SOLICITATION AND NON-COMPETITION
6.1 Non-solicitation. Consultant agrees that during the term of this
Agreement and for one year thereafter, Consultant shall not for any reason,
either directly or indirectly, on Consultant's own behalf or in the service or
on behalf of others, (i) solicit, recruit or attempt to persuade any person to
terminate employment or a consulting relationship with Company or (ii) interfere
in any manner with Company's relationship with, any of Company's co-venturers,
vendors, suppliers, licensors or partners.
6.2 Non-competition. During the term of this Agreement and for one year
thereafter, Consultant shall not, either directly or indirectly, alone or as a
consultant, partner, officer, director, employee, joint venturer, lender or
stockholder of any entity, accept employment with or provide consulting services
to, any business or entity or engage in any business or activity that relates to
cancer vaccines.
7. MISCELLANEOUS
7.1 Social Security Number. Consultant certifies that his or her correct
Social Security is listed on the first page of this Agreement. Consultant
acknowledges that Company will rely upon the foregoing certification in filing
certain documents and instruments required by law in connection with this
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Agreement, including, without limitation, Form 1099 under the Internal Revenue
Code of 1986, as amended (or any successor form).
7.2 Independent Contractor. For purposes of this Agreement and all
Services to be provided hereunder, Consultant shall not be considered a partner,
co-venturer, agent, employee or representative of Company, but shall remain in
all respects an independent contractor, and neither party shall have any right
or authority to make or undertake any promise, warranty or representation, to
execute any contract, or otherwise to assume any obligation or responsibility in
the name of or on behalf of the other party. Without limiting the generality of
the foregoing, Consultant shall not be considered an employee of Company for
purposes of any state or federal laws relating to unemployment insurance, social
security, workers compensation or any regulations which may impute an obligation
or liability to Company by reason of an employment relationship. Consultant
agrees to pay all income, FICA, and other taxes or levies imposed by any
governmental authority on any compensation that Consultant receives under this
Agreement. Consultant shall indemnify, defend and hold harmless Company and its
officers and employees from and against any and all losses, damages,
liabilities, obligations, judgments, penalties, fines, awards, costs, expenses
and disbursements (including without limitation, the costs, expenses and
disbursements, as and when incurred, of investigating, preparing or defending
any claim, action, suit, proceeding or investigation) suffered or incurred by
Company as a result of any allegation that Consultant is an employee of Company
by virtue of performing any work for or on behalf of Company hereunder or
otherwise.
7.3 Rules and Policies. While at Company's facilities, Consultant shall
observe and follow Company's work rules, policies, and standards as the same are
communicated to Consultant from time to time, including, without limitation,
those rules, policies and standards of Company relating to security of and
access to facilities, telephone systems, electronic mail systems, and computer
systems.
7.4 Successors. All of the terms and provisions of this Agreement shall be
binding upon and inure to the benefit of and be enforceable by the respective
heirs, executors, administrators, legal representatives, successors and assigns
of the parties hereto, except that the duties and responsibilities of Consultant
hereunder are of a personal nature and shall not be assignable or delegable in
whole or in part by Consultant.
7.5 Equitable Relief. Consultant hereby acknowledges and agrees that
damages at law may be an inadequate remedy for any breach of Consultant's
obligations under Article 2 (Confidential Information), Article 3 (Intellectual
Property), Article 6 (Non-Solicitation and Non-Competition), and, accordingly,
Consultant agrees that Company will be entitled to such temporary, preliminary
and permanent injunctive relief as may be necessary to remedy or limit such
breach, without the necessity of proving actual damages or posting any bond or
other security, and including specific performance of such obligations and an
order enjoining Consultant from the continuation of, or from any threatened,
breach of such obligations. The rights set forth in this paragraph shall be in
addition to, and not in lieu of, any other rights which Company may have at law
or in equity.
7.6 Publicity. Consultant shall not disclose to any third party any
information about the Services provided or to be provided by Consultant for or
on behalf of Company, except as may be required by law or as Company may
otherwise agree in writing.
7.7 Assignment. Consultant shall not assign this Agreement or any right
hereunder, nor delegate of any Consultant's duties hereunder, without the prior
written consent of Company.
7.8 Amendments. No change, modification, extension, termination or waiver
of this Agreement, or any of the provisions herein contained, shall be valid
unless made in writing and signed by Consultant and a duly authorized
representative of Company.
7.9 No Waiver. No term or provision of this Agreement will be considered
waived and no breach consented to by either party unless such waiver or consent
is in writing signed on behalf of the party against whom it is asserted. No
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consent to or waiver of a breach of this Agreement by either party, whether
express or implied, will constitute a consent to, waiver of, or excuse for any
other, different, or subsequent breach of this Agreement by such party.
7.10 Severability. Any provisions of this Agreement which are determined
to be invalid or unenforceable in any jurisdiction shall be ineffective to the
extent of such invalidity or unenforceability in such jurisdiction, without
rendering invalid or unenforceable the remaining provisions of this Agreement or
affecting the validity or enforceability of such provisions in any other
jurisdiction. If a court of competent jurisdiction declares any provision of
this Agreement to be invalid or unenforceable, the parties hereto shall request
that such court reduce the scope, duration, or area of the provision, delete
specific words or phrases from the provision, or to replace the provision with a
provision that is valid and enforceable and that comes closest to expressing the
original intention of the parties hereto, and this Agreement shall be
enforceable as so modified in the jurisdiction in which the provision was
declared invalid or unenforceable.
7.11 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of New Jersey without regard to its conflict of law
provisions.
7.12 Entire Agreement. This Agreement represents the entire agreement
between the parties regarding the Services provided during the term of this
Agreement and shall supersede all previous communications, representations,
understandings, and agreements, whether oral or written, by or between the
parties with respect thereto, whether theretofore or hereafter disclosed to
Consultant. Without limitation, this Agreement does not supersede any
confidentiality agreement that may have been signed between Company and
Consultant.
7.13 Counterparts. This Agreement may be executed in two counterparts,
each of which shall be deemed to be an original as against any party whose
signature appears thereon, but both of which together shall constitute but one
and the same instrument.
[SIGNATURE PAGE IMMEDIATELY FOLLOWS]
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IN WITNESS HEREOF, the parties have read and agree to be bound by the above
terms and conditions and have entered into this Agreement effective as of the
date set forth above.
Company Consultant
By: By:
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(Signature) (Signature)
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Printed Name Printed Name
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Title Title
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Date Date
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SCHEDULE A
PROJECT PLAN
for
Project No. 1
I. CONSULTING SERVICES
Scope: for two days per month during the term of this agreement and any
extension thereof, Consultant shall provide Company with Consulting
services and advise the Company on the subjects and tasks detailed below:
i. Assisting and advising Company on defining its scientific
milestones;
ii. Reviewing Company scientific technical and business data and
materials;
iii. Developing a regulatory strategy to advance the Company's technology
to clinical trials.
iv. Support Company's effort on obtaining regulatory approval for Phase
I clinical trial in cervical cancer ("Phase I").
v. Support the Company's effort to meet RAC submission.
vi. Working with the Company's staff and management on designing
executing and monitoring pre clinical trials (including all
toxicology and bio-distribution studies or additional pre clinical
studies if necessary).
II. COMPENSATION AND PAYMENT SCHEDULE
CASH: a monthly consulting fee of $3,000 which shall be pay as follows:
i. Paid in cash: $1,000 monthly.
ii. Deferred: $1,000 paid at the closing of any equity financing above
$500,000.
iii. Deferred: $1,000 at the closing of a subsequent equity financing
greater than $1,000,000.
EQUITY COMPENSATION. Company has adopted and approved its 2003 Stock
Option Plan (the "Plan") and is planning to implement a 100:1 split in its
shares. Pursuant to the terms of Plan, Company agrees to grant stock
options ("Options") to Consultant (on a post split basis) for 1500 (one
thousand five hundred) Shares of Common Stock, at an exercise price of
$1.50 per share, per each month while this Agreement is in effect and
provided it has not been terminated. The Options shall be non-qualified.
The Options shall be fully vested when granted. Other terms and conditions
as set forth in the Plan shall apply.
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The parties intend this Project Plan to be a "Project Plan" under the
Consultancy Agreement between the parties dated as of the ___ of March, 2003.
The parties have read and agree to be bound by the above terms and conditions
and have entered into this Project Plan effective as of the latest date set
forth below.
Company Consultant
By: /s/ J. Xxxx Xxxxxx By: /s/ Xxx Xxxxxxxxx
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(Signature) (Signature)
T. Xxxx Xxxxxx
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Printed Name Printed Name
CEO
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Title Title
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Date Date
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