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CHIREX INC.
CONSULTING AGREEMENT
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THIS CONSULTING AGREEMENT (the "Agreement"), made as of this 17th day of
October, 1996, is entered into by CHIREX INC., a Delaware corporation with its
principal offices at ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ (the "Company") and
▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, with an address at ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (the "Consultant").
INTRODUCTION
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The Company desires to retain the services of the Consultant as a
consultant to the Company and the Consultant desires to serve as a consultant to
the Company. Accordingly, the parties agree as follows:
1. SERVICES. The Consultant agrees to use reasonable efforts to perform
such consulting, advisory and related services (collectively, the "Services")
for the Company as may be reasonably requested from time to time by the Company,
including primarily Services pertaining to (i) the Company's patents and
intellectual property rights and the Company's relationship with Sepracor Inc.,
(ii) the activities of the Company's Scientific Advisory Board ("SAB") and the
Company's relationship with the members of the SAB and (iii) the Company's
paclitaxel business and its relationship with Dabur; PROVIDED, HOWEVER, that the
Consultant shall not be required to provide Services which, in his good faith
judgment, would unduly interfere with any full-time employment situation he may
obtain. If the Consultant has a conflict of interest, or potential conflict of
interest, with respect to any matter presented to him in his consulting
capacity, he shall excuse himself from the consultation of such matter and in so
doing shall not be deemed in default hereunder. The delivery by the Consultant
of the Services hereunder shall be at such times and at such locations as the
Consultant and the Company may agree from time to time.
2. TERM. This Agreement shall be effective as of the date first above
written and shall continue until April 17, 1998, unless extended by mutual
written consent or sooner terminated as provided below (the "Consultation
Period"). This Agreement shall terminate, and the Company's
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obligations hereunder shall cease as of such time and the Company shall be under
no further obligation to make any additional payments under this Agreement to
the Consultant, if (i) the Consultant exercises his power to terminate the
Consultation Period upon 60 days' prior to written notice to the Company, or
(ii) the Consultant fails to perform the Services pursuant to Section 1 hereof
for any reason other than his death or disability; PROVIDED, HOWEVER, that the
terms of Sections 4 and 7 shall not terminate but shall remain in full force and
effect. In the event of such termination, the Consultant shall be entitled to
payment for services performed and expenses paid or incurred prior to the
effective date of termination. In the event that the Consultant should die or
become disabled prior to the end of the Consultation Period, the Company's
obligations hereunder shall not cease, and shall remain in full force and effect
(with all remaining payments continuing to be made to the legal representative
of the Consultant's estate) until the end of the Consultation Period regardless
of the fact that no further services will be rendered hereunder.
3. COMPENSATION. The Company shall pay the Consultant a monthly retainer of
$19,583.33, payable on the 17th day of each month commencing November 17, 1996.
The Company shall reimburse the Consultant for all reasonable and necessary
expenses incurred or paid by the Consultant, after having obtained the prior
approval of the Company, in connection with, or related to, the performance of
Services hereunder within 30 days after receipt of an itemization and
documentation of such expenses.
4. Proprietary Information; Inventions.
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4.1 PROPRIETARY INFORMATION. The Consultant acknowledges that his
relationship with the Company is one of high trust and confidence and that in
the course of his service to the Company he will have access to and contact with
Proprietary Information (as defined in this Section 4.1). The Consultant agrees
that he will not, at any time, disclose to others, or use for his benefit or the
benefit of others, any Proprietary Information or Inventions (as defined in
Section 4.2 below). For purposes of this Agreement, Proprietary Information
shall mean all information (whether or not patentable and whether or not
copyrightable) owned, possessed or used by the Company or any third party,
including, without limitation, any Invention, formula, trade secret, process,
research, report, technical data, know-how, technology and marketing or
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business plan, that is communicated to, learned of, developed or otherwise
acquired by the Consultant in the course of his performing consulting services
to the Company hereunder. The Consultant's obligations under this Section 4.1
shall not apply to any information that (i) is or becomes known to the general
public under circumstances involving no breach by the Consultant of the terms of
this Section 4.1, (ii) is generally disclosed to third parties by the Company
without restriction on such third parties, (iii) is in the Consultant's
possession at the time of disclosure otherwise than as a result of a prior
disclosure by the Company to the Consultant or (iv) is disclosed to the
Consultant by a third party not under an obligation of confidentiality to the
Company with respect thereto. The Consultant represents that his retention as a
consultant with the Company and his performance under this Agreement does not,
and shall not, breach any agreement that obligates him to keep in confidence any
trade secrets or confidential or proprietary information of his or of any other
party or to refrain from competing, directly or indirectly, with the business of
any other party. The Consultant shall not disclose to the Company any trade
secrets or confidential or proprietary information of any other party.
4.2 INVENTIONS. All inventions, discoveries, technology, designs,
innovations and improvements related to the business of the Company which are
made, conceived or reduced to practice by the Consultant, solely or jointly with
others, during the Consultation Period which arise directly from information and
discussions presented to the Consultant or which are provided to the Company or
while providing consulting services to the Company (collectively, the
"Inventions") shall be the sole property of the Company. The Consultant hereby
assigns to the Company all Inventions and any and all related patents,
copyrights, trademarks, trade names and other industrial and intellectual
property rights and applications therefor, in the United States and elsewhere
and appoints any officer of the Company as his duly authorized attorney to
execute, file, prosecute and protect the same before any government agency,
court or authority. Upon the request of the Company and at the Company's
expense, the Consultant shall execute such further assignments, documents and
other instruments as may be necessary or desirable to fully and completely
assign all Inventions to the Company and to assist the Company in applying for,
obtaining and enforcing patents or copyrights or other rights in the United
States and in any foreign country with respect to any Invention.
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5. INDEPENDENT CONTRACTOR STATUS. The Consultant shall perform all services
under this Agreement as an "independent contractor" and not as an employee or
agent of the Company. The Consultant is not authorized to assume or create any
obligation or responsibility, express or implied, on behalf of, or in the name
of, the Company or to bind the Company in any manner and shall not hold himself
out to any party as an employee of the Company. The Consultant shall bear full
responsibility for all taxes owing on the compensation payable hereunder, and
the Consultant acknowledges that the Company shall not withhold any taxes on
such compensation unless otherwise required by law.
6. CONSENT TO USE OF NAME. The Consultant hereby consents to the use of his
name by the Company, as required, in connection with any previous, current or
future offering and ongoing registration of securities of the Company,
including, but not limited to, any registration statement, prospectus or other
document filed with the Securities and Exchange Commission, any state securities
commission, the National Association of Securities Dealers, Inc. and the Nasdaq
Stock Market.
7. MISCELLANEOUS. This Agreement and Settlement Agreement of even date
herewith constitute the entire agreement between the parties and supersede all
prior agreements and understandings, whether written or oral, relating to the
subject matter hereof and thereof. This Agreement may be amended or modified
only by a written instrument executed by both the Company and the Consultant.
This Agreement shall be construed, interpreted and enforced in accordance with
the laws of the Commonwealth of Massachusetts. The Consultant agrees that a
breach of any of the restrictions set forth in this Agreement would cause the
Company irreparable injury and damage, and that, in the event of any breach or
threatened breach, the Company, in addition to all other rights and remedies at
law or in equity, shall have the right to enforce the specific performance of
such restrictions and to apply for injunctive relief against their violation.
The invalidity or unenforceability of any provision hereof (or portion thereof)
shall not affect the validity or enforceability of any other provision hereof,
and if any such provision (or portion thereof) is so broad as to be
unenforceable, it shall be interpreted to be only as broad as is enforceable.
This Agreement shall be binding upon, and inure to the benefit of, both parties
and their respective successors and
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assigns, including any corporation with which, or into which, the Company may be
merged or which may succeed to its assets of business; PROVIDED, HOWEVER, that
the obligations of the Consultant are personal and shall not be assigned by him.
Any notice or other communication hereunder to either party shall be in writing
and shall be deemed to have been duly given when delivered personally or mailed
by registered mail, return receipt requested, postage prepaid, addressed to the
party as its respective address appears in this Agreement. This Agreement may be
executed in counterparts, each of which will be deemed to be an original, but
each of which together will constitute one and the same agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year set forth above.
CHIREX INC. ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇ /s/ ▇▇▇▇▇▇ ▇.▇▇▇▇▇▇▇▇
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Name:
Title: C.E.O.