Exhibit 4.16
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT is dated as of January 1, 2002 by and among
PARALEX, INC., (the "Corporation") a Delaware corporation having a place of
business at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ and
CARDIOSCIENCES CONSULTING, INC., a Maryland corporation having a place of
business at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ("Cardiosciences", and
together with the Corporation, the "Parties").
RECITALS
WHEREAS, the Corporation wishes to avail itself of the "Services" (as
defined herein) of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, M.D., Ph.D. ("▇▇. ▇▇▇▇▇▇"); and
WHEREAS, Cardiosciences hereby represents to the Corporation that it has the
sole and exclusive right to provide the Services of ▇▇. ▇▇▇▇▇▇ to third parties,
including the Corporation; and
WHEREAS, the Corporation desires to retain Cardiosciences for the purpose of
having Cardiosciences provide the Services of ▇▇. ▇▇▇▇▇▇ to the Corporation; and
WHEREAS, Cardiosciences has agreed to cause ▇▇. ▇▇▇▇▇▇ to render such
services on behalf of the Corporation, upon the terms and subject to the
conditions hereinafter set forth; and
WHEREAS, ▇▇. ▇▇▇▇▇▇ has consented to provide such Services, through
Cardiosciences, on behalf of the Corporation, upon the terms and subject to the
conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the foregoing premises and the mutual
covenants and agreements herein contained, the Parties hereto agree as follows:
l. Services. Cardiosciences agrees to arrange for and shall cause Dr.
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▇▇▇▇▇▇, and only ▇▇. ▇▇▇▇▇▇ (unless agreed, in writing, between the parties
hereto) to be available to the Corporation to perform the Services described in
Appendix A under the terms and conditions hereinafter set forth for and on
behalf of the Corporation, all as described herein (the "Services").
Cardiosciences shall cause, and ▇▇. ▇▇▇▇▇▇ by signing below where indicated has
agreed, to render the Services for a period of time each year as may be
reasonably required by the Company to meet its technical, scientific, and
financial objectives, but in no case shall such period of time exceed twelve
(12) days in any one year. Such Services shall be rendered at a site in
Baltimore, Maryland, or such other site agreed to by the Parties ("Consulting
Site"). Such Services shall be subject to the overall direction and control of
the Corporation.
2. Term and Termination. This Consulting Agreement shall be effective as of
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the date hereof and shall continue thereafter for a period of four (4)
consecutive years (the "Term"). This Consulting Agreement shall automatically
terminate and be of no further force or effect if, during the Term, ▇▇. ▇▇▇▇▇▇
is no longer available to render and is not rendering the Services required
hereunder to the Corporation by reason of (a) his employment or other
obligations to ▇▇▇▇▇ ▇▇▇▇▇▇▇ University ("JHU"); (b) his physical or mental
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disability (defined to mean his inability to perform the functions required of
him hereunder as determined in good faith by the Corporation after consulting
with experts of its choice); or (c) his death. The Corporation shall also have
the right to terminate the retention of Cardiosciences hereunder for "Cause," in
which event Cardiosciences shall only be entitled to the consulting fees earned
hereunder through the date of termination. "Cause" shall mean, in the sole good
faith judgment of the Board of Directors of the Corporation, any actions taken
or omitted to be taken by ▇▇. ▇▇▇▇▇▇ in bad faith, acts of dishonesty, fraud,
breach of the material terms of this Consulting Agreement, conviction of ▇▇.
▇▇▇▇▇▇ of any felony, or of any misdemeanor reasonably determined by the Company
to involve moral turpitude and therefore negatively affecting the Company's
reputation, or breach of fiduciary duty to the Corporation, whether or not
materially injurious to the Corporation.
3. Compensation. As full compensation for the performance of the Services
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and Cardiosciences agreements hereunder, the Corporation shall pay to
Cardiosciences, and Cardiosciences shall be solely and exclusively responsible
for paying ▇▇. ▇▇▇▇▇▇ for the performance of such Services, a consulting fee of
One Hundred Thousand Dollars ($100,000) per annum payable in equal quarterly
installments, in advance, of Twenty-Five Thousand Dollars ($25,000) each. In
addition, Cardiosciences shall be reimbursed for reasonable and necessary travel
expenses (including meals and lodging expenses) incurred by ▇▇. ▇▇▇▇▇▇ at the
Corporation's prior request in performing the Services at locations other than
the Consulting Site. Coach class shall be used for flights of two hours or less.
Reimbursement for expenses set forth in this Section 3 shall be made to
Cardiosciences on behalf of ▇▇. ▇▇▇▇▇▇ within fifteen (15) days of receipt by
the Corporation of invoices and receipts substantiating such expenditures and
detailing the Services provided. ▇▇. ▇▇▇▇▇▇ acknowledges that payment of sums
due by the Corporation to Cardiosciences relieves the Corporation of any
obligation to him. In the event that any payment due hereunder is not made when
due, the payment shall accrue interest beginning on the thirtieth (30th) day
following the due date thereof, calculated at the annual rate of the sum of (a)
two percent (2%) plus (b) the prime interest rate quoted by the Wall Street
Journal on the date said payment is due, the interest being compounded on the
last day of each calendar quarter, provided however, that in no event shall said
annual interest rate exceed the maximum legal interest rate for corporations.
Each such payment when made shall be accompanied by all interest so accrued.
4. Nature of Engagement; Taxes. The Parties acknowledge and agree that
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Cardiosciences is entering into this Consulting Agreement as an independent
contractor and that this Consulting Agreement does not create and shall not be
construed to create a relationship of principal and agent, joint venture,
co-partners, employer and employee, master and servant or any similar
relationship between the Corporation and Cardiosciences or between Corporation
and ▇▇. ▇▇▇▇▇▇ or any person performing Services hereunder on behalf of or at
the request or direction of Cardiosciences. Cardiosciences shall have sole
responsibility for, and the Corporation shall have no responsibility or
liability with respect to, employee benefits that the Corporation may normally
extend to its employees, and the Corporation will not withhold any taxes from
the compensation paid to Cardiosciences with respect to the Services performed
by ▇▇. ▇▇▇▇▇▇.
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Cardiosciences further agrees to indemnify and hold the Corporation
harmless from and against any and all costs, damages and losses that the
Corporation may incur or suffer arising out of or in connection with any claim
brought by federal, state or local taxing authority with regard to
Cardiosciences' failure to withhold or pay required taxes, for failure to file
required forms with regard to compensation paid to Cardiosciences with respect
to the Services performed by ▇▇. ▇▇▇▇▇▇ for the Corporation, and compensation
paid by Cardiosciences to ▇▇. ▇▇▇▇▇▇ pursuant to this Consulting Agreement.
The manner in which ▇▇. ▇▇▇▇▇▇ renders Services will be within his sole
control and discretion, subject to the provisions of Section 1 hereof. Neither
▇▇. ▇▇▇▇▇▇ nor Cardiosciences (including, without limitation, all persons
performing Services on behalf of or at the request or direction of such parties)
shall have an expressed or implied right or authority to incur any liability, or
to make any decision or to create any binding obligation, on behalf of the
Corporation. The parties hereto agree that Cardiosciences directly, and ▇▇.
▇▇▇▇▇▇ indirectly, are being retained and shall perform as "Independent
Contractors" and shall not be employees of the Corporation.
5. Due Organization; No Conflicting Obligations. (a) Cardiosciences
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represents and warrants that (i) it is a corporation duly organized, validly
existing and in good standing under the laws of the State of Maryland, (ii) is
duly qualified to do business in all states in which it is required to do so
(including, without limitation, performance of the Services hereunder), (iii)
has full power and authority to conduct its business and to enter into this
Consulting Agreement and perform its obligations hereunder, (iv) the execution,
delivery and performance of this Consulting Agreement will not (x) violate any
rule, regulation, statute, order or judgment affecting Cardiosciences and/or ▇▇.
▇▇▇▇▇▇ (y) breach or contravene the terms of any agreement, contract,
understanding or obligation of Cardiosciences or ▇▇. ▇▇▇▇▇▇ (z) violate the
Certificate of Incorporation, Bylaws or other legal instruments affecting
Cardiosciences or ▇▇. ▇▇▇▇▇▇, or (xx) create any lien, claim or encumbrance upon
or which affects Cardiosciences or ▇▇. ▇▇▇▇▇▇.
(b) Except for ▇▇. ▇▇▇▇▇▇'▇ obligations to JHU, neither Cardiosciences nor
▇▇. ▇▇▇▇▇▇ are under any express or implied obligation to any third party, or
subject to any covenant, instrument, agreement or other document (including,
without limitation, Cardiosciences' organizational documents), which in any way
conflicts with or affects any of its respective obligations under this
Consulting Agreement and Cardiosciences and ▇▇. ▇▇▇▇▇▇ have obtained the consent
of all third parties to enter into and perform this Consulting Agreement. Except
for ▇▇. ▇▇▇▇▇▇'▇ obligation to JHU, Cardiosciences and ▇▇. ▇▇▇▇▇▇ agree that
during the Term of this Consulting Agreement (or any extension period) it will
not enter into any other consulting relationship which would conflict with any
of its respective obligations under this Consulting Agreement.
6. Confidentiality. Cardiosciences and ▇▇. ▇▇▇▇▇▇ agree to maintain in
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confidence all information and materials provided by, or obtained from or
through, Corporation, including, without limitation, all information regarding
drugs; pharmaceuticals; gene manipulations and or therapy; products, compounds
and compositions resulting from chemical, DNA, genetic engineering or other
methods; potential new uses of existing drugs, compounds or compositions;
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medical devices; and all financial information, computer software and
documentation; and other information relating to the business of Corporation
(collectively, the "Confidential Information"). Neither Cardiosciences nor ▇▇.
▇▇▇▇▇▇ shall publish, use or disclose Confidential Information learned,
developed or acquired as a result of Services performed under this Consulting
Agreement without the Corporation's prior written consent. Confidential
information shall not include information that both Cardiosciences and ▇▇.
▇▇▇▇▇▇ can affirmatively demonstrate (i) was rightfully in Cardiosciences or ▇▇.
▇▇▇▇▇▇'▇ possession without any obligation of confidentiality prior to
disclosure by or through Corporation; (ii) lawfully becomes part of the public
knowledge, literature or generally available to the public through no act of
Cardiosciences or ▇▇. ▇▇▇▇▇▇; or (iii) is obtained from any third party,
provided that neither Cardiosciences nor ▇▇. ▇▇▇▇▇▇ was aware that any such
third party did not obtain such information from Corporation or obtain such
information in confidence. Cardiosciences and ▇▇. ▇▇▇▇▇▇ shall protect the
Confidential Information as they would protect their own confidential
information and shall take all reasonable steps to prevent the unauthorized
disclosure, dissemination, or publication of the Confidential Information.
In the event that Cardiosciences or ▇▇. ▇▇▇▇▇▇ is requested or required (by
oral questions, deposition, interrogatories, requests for information or
documents, subpoena, civil investigative demand or other process) to disclose
all or any part of any Confidential Information, Cardiosciences or ▇▇. ▇▇▇▇▇▇
will provide the Corporation with prompt notice of such request or requirement,
as well as notice of the terms and circumstances surrounding such request or
requirement, so that the Corporation may seek an appropriate protective order or
waive compliance with the provisions of this Consulting Agreement. In such case,
the parties will consult with each other on the advisability of pursuing any
such order or other legal action or available steps to resist or narrow such
request or requirement. If, failing the entry of a protective order or the
receipt of a waiver hereunder, Cardiosciences or ▇▇. ▇▇▇▇▇▇ is, in the opinion
of counsel , legally compelled to disclose Confidential Information,
Cardiosciences or ▇▇. ▇▇▇▇▇▇ may disclose that portion of such information which
counsel advises Cardiosciences or ▇▇. ▇▇▇▇▇▇ that it is legally compelled to
disclose. In any event, Cardiosciences or ▇▇. ▇▇▇▇▇▇, at the sole expense of the
Corporation, will use their best efforts to assist the Corporation to obtain,
and will not oppose action by the Corporation to obtain, an appropriate
protective order or other reliable assurance that confidential treatment will be
accorded the disclosure of such information.
All data, records, analyses, reports and material prepared or compiled by
Cardiosciences and ▇▇. ▇▇▇▇▇▇ or furnished to them as a direct result of
performing services under this Consulting Agreement during the Term hereof shall
be the sole and exclusive property of Corporation, and all of such data,
records, analyses, reports and materials, and all copies thereof, shall be
delivered to Corporation at its request or on the termination of this Consulting
Agreement.
The parties acknowledge that Cardiosciences and ▇▇. ▇▇▇▇▇▇'▇ other
affiliations also contain or require certain obligations of confidentiality. In
discharging their duties relative to Confidential Information, Cardiosciences
and ▇▇. ▇▇▇▇▇▇ shall advise Corporation in writing when and if an actual or
potential conflict with such other obligations arise. If such conflict with
▇▇▇▇▇▇'▇ obligations to JHU cannot be resolved through good faith cooperation,
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Cardiosciences and ▇▇. ▇▇▇▇▇▇ are expressly excused from performing any services
hereunder that would result in a breach or potential breach of confidentiality
obligations owed to another entity.
(b) Notwithstanding any other provision of this Consulting Agreement,
nothing herein is intended or shall be interpreted as (i) granting or creating
any right or license in or to Cardiosciences or ▇▇. ▇▇▇▇▇▇ with respect to any
patent rights, copyright rights, trademarks or other intellectual property
rights owned or controlled by the Corporation, except as necessary to perform
the Services, or (ii) waiving or relinquishing any rights that the Corporation
may have with respect to trade secrets, know how, patent, copyright or trademark
infringement.
(c) The Parties expressly agree that each and every employee, agent and
representative of Cardiosciences engaged in performing Services hereunder shall
be advised of, be subject to, and be bound by, the obligations and restrictions
relating to use and disclosure of Confidential Information set forth in this
Section 6, and Cardiosciences shall assume full responsibility and liability for
any breach of such obligations and restrictions by any such employee, agent or
representative. Cardiosciences further agrees that if so requested by the
Corporation, it will cause its employees, agents and representatives engaged in
performing the Services to execute separate confidentiality agreements with the
Corporation in such form as the Corporation shall provide. Cardiosciences shall
not engage faculty members (other than ▇▇. ▇▇▇▇▇▇), staff, or employees of JHU
for purposes of assisting in the performance of Services hereunder.
(d) In the event of a breach or threatened breach of any of the provisions
set forth in this Section, the Corporation shall have the right to seek monetary
damages for any past breach and equitable relief, including specific performance
and injunctive relief against Cardiosciences and/or any and all persons acting
directly or indirectly on behalf or under the direction of Cardiosciences, to
prevent or restrain any such breach. Accordingly, Cardiosciences and ▇▇▇▇▇▇
acknowledge that, in the event of a breach or threatened breach of this
Consulting Agreement by them, the Corporation may have no adequate remedy at
law, and that the Corporation shall be entitled to move before a court of law,
without bond, for preliminary and permanent equitable relief enjoining such
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breach and requiring such prophylactic or remedial acts or conduct as the Court
deems necessary or appropriate to fully protect the Corporation. Nothing in this
provision shall effect a waiver of any other rights of the Corporation.
7. Ownership of Materials. All data, results, ideas, discoveries,
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inventions, reports and other works of authorship, whether or not patentable or
subject to copyright, which may be made, written or conceived by Cardiosciences
(including ▇▇. ▇▇▇▇▇▇ and all persons performing Services on behalf of
Cardiosciences) as a direct result of performing the Services hereunder, in
whole or in part and whether alone or in conjunction with others (collectively,
"Inventions/Works"), and all rights, title and interests in and to such
Inventions/Works throughout the world, are hereby assigned to the Corporation
and shall become the sole and exclusive property of the Corporation or its
nominee. Cardiosciences and ▇▇. ▇▇▇▇▇▇ will promptly disclose in writing all
such Inventions/Works to the Corporation, and the Corporation shall have full
power and authority to file and prosecute patent applications and copyright
registrations throughout the world thereon and to procure and maintain patents
and copyrights thereon. Cardiosciences and ▇▇. ▇▇▇▇▇▇ shall, at the
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Corporation's request and expense, execute applications, assignments,
instruments, and other documents, and perform such acts, as its counsel may deem
necessary or advisable to confirm and vest in the Corporation all right, title
and interest throughout the world in and to such Inventions/Works and in and to
all patent applications, patents, copyrights and other intellectual property
rights thereon, and to enable and assist the Corporation in procuring,
maintaining, enforcing and defending patents, ▇▇▇▇▇ patents, patent
applications, copyrights and other applicable statutory protection throughout
the world thereon. Unless and until covered by letters patent or otherwise
disclosed to the public by the Corporation, Cardiosciences and ▇▇. ▇▇▇▇▇▇ will
treat all such Inventions/Works as Confidential Information hereunder. Without
limiting the rights of the Corporation or the obligations of Cardiosciences and
▇▇. ▇▇▇▇▇▇ set forth in this Section 7, it is understood that if, with respect
to any particular Invention/Work, Cardiosciences and ▇▇. ▇▇▇▇▇▇ desire to be
granted or assigned any right or interest therein, they shall request the
consent of the Corporation to such grant or assignment in a writing setting
forth a specific description of such Invention/Work and describing their
proposed use and/or disclosure thereof, and the Corporation may, in its
discretion, consent thereto, such consent to be in writing. By way of
illustration, but not limitation, "Invention/ Work" includes trade secrets,
processes, discoveries, structures, inventions, designs, ideas, works of
authorship, copyrightable works, trademarks, copyrights, formulas, data,
know-how, show-how, improvements, inventions, product concepts, techniques,
information or statistics contained in, or relating to, marketing plans,
strategies, forecasts, blueprints, sketches, records, notes, devices, drawings,
customer lists, patent applications, continuation applications, continuation-in-
part applications, file wrapper continuation applications and divisional
applications and information about the Corporation or its affiliates' employees
and/or consultant (including, without limitation, the compensation, job
responsibility and job performance of such employees and/or consultants).
It is further understood and agreed that the Corporation will have the
royalty-free and unrestricted right to use, disclose and assign to third parties
any and all unpatented information, know-how, inventions, discoveries, and ideas
disclosed to the Corporation by Cardiosciences and ▇▇. ▇▇▇▇▇▇ in the course of
the performance of Services hereunder, without any liability or obligation to
Cardiosciences or Dr-▇▇▇▇▇▇.
Cardiosciences and ▇▇. ▇▇▇▇▇▇ warrant and represent to Corporation that none
of their other affiliations require, to any degree or under any conditions, that
they assign their rights to any discoveries, inventions or developments created
or obtained under this Consulting Agreement to any persons or entities except as
set forth on Schedule 7.0 attached hereto. Cardiosciences and ▇▇. ▇▇▇▇▇▇ agree
that any inventions, improvements, processes, designs, materials, products,
developments or discoveries (whether or not subject to patent, copyright or
trademark protection) (all of the foregoing being hereinafter referred to as
"Intangible Property") that they may conceive, make, invent, develop, suggest or
reduce to practice (whether individually or jointly with any other person or
persons), using the funds, materials, information or facilities of the
Corporation in pursuit of specific projects delegated to them by the
Corporation, shall be the sole, exclusive and absolute property of the
Corporation. They agree to notify the Corporation of any additional
collaborators on any such inventions, improvements, processes, designs,
materials, products, developments or discoveries projects prior to engaging or
contracting such individuals. They will ensure that their obligations under any
other affiliation do not extend to intellectual property rightfully owned by
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Corporation. They will assist Corporation in obtaining legal protection for such
intellectual property as part of their duties and responsibilities hereunder, at
the sole expense of the Corporation, and will execute such documents as
reasonably necessary to secure such protection and confirm ownership in
Corporation.
Corporation and Cardiosciences (and ▇▇. ▇▇▇▇▇▇) agree that Cardiosciences
(and ▇▇. ▇▇▇▇▇▇) will report any invention resulting from the consulting
services provided under this Agreement to JHU for its review and records, and
Corporation agrees to cooperate with Cardiosciences' and ▇▇. ▇▇▇▇▇▇'▇ reporting
obligations. Cardiosciences or ▇▇. ▇▇▇▇▇▇ shall complete and submit a Report of
Invention (ROI) to JHU's Office of Technology Licensing for (i) any invention
that Cardiosciences or ▇▇. ▇▇▇▇▇▇ assigns to Corporation under the terms of this
Consulting Agreement, with the ROI to be submitted within ten (10) business days
of such assignment and (ii) any patent application (including provisional patent
applications) filed by company on which Cardiosciences of ▇▇. ▇▇▇▇▇▇ is named as
an inventor, with the ROI to be submitted sixty (60) days prior to the patent
filing.
8. No Publication Without Consent. Cardiosciences and ▇▇. ▇▇▇▇▇▇ may not
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publish, exhibit or lecture on matters directly relating to the Services
hereunder, unless they first obtain the Corporation's prior written consent
thereto, such consent not to be unreasonably withheld, and the manuscript,
paper, exhibit or speech shall have been approved by the Corporation. The
Corporation specifically reserves the right to reproduce, disseminate and use
for any purpose all or part of any paper written utilizing data generated
pursuant to this Consulting Agreement and any such manuscript or paper shall be
treated as an Invention/Work under Section 7 hereof. Accordingly, in the event
Cardiosciences or ▇▇. ▇▇▇▇▇▇ desire, individually or as a group, to publish or
disclose, by written, oral or other presentation, relating to Paralex's
know-how, patent rights, licenses, sublicenses, the Services, intellectual
property, or any material information related thereto, then Cardiosciences or
▇▇. ▇▇▇▇▇▇ shall notify the Corporation in writing by facsimile where confirmed
by the receiving party, and/or by certified or registered mail (return receipt
requested) of their intention at least sixty (60) days prior to any speech,
lecture or other oral presentation and at least sixty (60) days before any
written or other publication or disclosure. Cardiosciences and ▇▇. ▇▇▇▇▇▇ shall
include with such notice a description of any proposed oral presentation or, in
any proposed written or other disclosure, a current draft of such proposed
disclosure or abstract. The Corporation may request that Cardiosciences and ▇▇.
▇▇▇▇▇▇, no later than forty-five (45) days following the receipt of such notice,
delay such presentation, publication or disclosure in order to enable the
Corporation to file, or have filed on their behalf, a patent application,
copyright or other appropriate form of intellectual property protection related
to the information to be disclosed. Upon receipt of such request to delay such
presentation, publication or disclosure, Cardiosciences and ▇▇. ▇▇▇▇▇▇ shall
arrange for a delay of such presentation, publication or disclosure until such
time as the Corporation has filed, or had filed on its behalf, such patent
application, copyright or other appropriate form of intellectual property
protection in form and in substance reasonably satisfactory to the Corporation.
This section shall in no way limit ▇▇. ▇▇▇▇▇▇'▇ ability to publish the results
of his academic research.
9. Assumption of Risk; Indemnification. Cardiosciences and ▇▇. ▇▇▇▇▇▇
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assume all risk and liability for loss of, or damage to, their property, and for
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personal injury, sickness and/or disease, including death, that may be sustained
by any of their employees, agents, representatives or any other persons acting
directly or indirectly at the request or direction of them (collectively, the
"Consultant Related Parties"), arising out of or in connection with their
presence on the Corporation's property, use of the Corporation's facilities,
materials, equipment or resources, and/or performance of the Services hereunder,
unless caused by the Corporation's gross negligence or the gross negligence of
the Corporation's employees, agents or contractors. Each of Cardiosciences and
▇▇. ▇▇▇▇▇▇ hereby releases, waives and forever discharges the Corporation, its
subsidiary and affiliated companies, and their respective officers, directors,
agents, representatives and employees (collectively, "the Corporation Related
Parties"), and agree to indemnify and hold harmless the Corporation and all the
Corporation Related Parties, from and against any and all claims, causes of
action, costs, losses, liabilities, expenses (including reasonable attorneys'
fees) and damages (collectively, "Liabilities") that may be sustained or
brought, as the case may be, by Cardiosciences or ▇▇. ▇▇▇▇▇▇ or the Consultant
Related Parties, or that may otherwise arise out of, or relate to, the
performance of the Services including, without limitation, access to or use of
the Corporation's facilities, resources, material or equipment, other than
liabilities directly and solely resulting from the Corporation's willful
disregard or gross negligence of their (including the Consultant Related
Parties') safety and welfare.
10. Compliance with Law, Policies and Procedures. Cardiosciences and Dr.
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▇▇▇▇▇▇ agree, on behalf of themselves and all persons performing Services on
their behalf or at their request or direction, to observe the Corporation's
business hours, as well as the Corporation's rules, policies and security
procedures concerning conduct and the health, safety and protection of persons
and property, while working on the Corporation's premises. They will comply with
all applicable governmental laws, ordinances, rules and regulations applicable
to the performance of Services hereunder.
11. Non-Solicitation of Employees. During the Term of this Consulting
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Agreement and for a period of one (1) year thereafter, neither Cardiosciences
nor ▇▇. ▇▇▇▇▇▇ will directly or indirectly: (i) employ, hire, or cause to be
employed or hired, any person who is then employed by the Corporation or was so
employed within six (6) months prior thereto or a member of the Company's
Scientific Advisory Board; or (ii) cause, invite, solicit, entice or induce any
such person to terminate his employment with the Corporation.
12. Non-Competition. During the term of this Consulting Agreement and for a
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period of three years thereafter, neither Cardiosciences nor ▇▇. ▇▇▇▇▇▇ shall,
without the prior written consent of the Corporation, either directly or
indirectly through any other person, firm or corporation, engage or participate
in, or render consulting services in the "Licensed Field" as that term is
defined by the Exclusive Agreement between ▇▇▇▇▇ ▇▇▇▇▇▇▇ University and the
Corporation, a copy of which is attached as Appendix 1. Neither Cardiosciences
nor ▇▇. ▇▇▇▇▇▇ shall be encumbered from consulting in areas outside the
"Licensed Field", subject to the prevailing guidelines for consulting as set
forth by ▇▇▇▇▇ ▇▇▇▇▇▇▇ University, if applicable. Notwithstanding the foregoing,
▇▇. ▇▇▇▇▇▇ and Cardiosciences shall provide the Corporation with i) the identity
of other companies, universities, corporations or other entities that have
engaged ▇▇. ▇▇▇▇▇▇ and Cardiosciences as consults; ii) a brief description of
the consulting duties, obligations, and services to be performed for such other
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entities; and iii) a brief description of the scientific technology and "field
of use" relating to such consulting services. Such descriptions will be attached
hereto as Appendix 12 and shall be amended by Cardiosciences and ▇▇. ▇▇▇▇▇▇,
from time to time, as applicable, but in no case later than the execution of
this agreement (regarding current consulting obligations) or within 10 days of
execution of future consulting agreements with other entities.
13. Injunctive and Other Equitable Relief. Cardiosciences and ▇▇. ▇▇▇▇▇▇
--------------------------------------
acknowledge that, in the event of a breach of any of the provisions of this
Consulting Agreement, the Corporation would sustain great and irreparable injury
and damage. Therefore, in addition to any other remedies which the Corporation
may have under this Consulting Agreement or otherwise, the Corporation shall be
entitled to, without the posting of bond, the remedies of-injunction, specific
performance and other equitable relief for a breach or threatened breach by any
of the provisions of this Consulting Agreement. This Article 12 shall not,
however, be construed as a waiver of any of the rights which the Corporation may
have for damages or otherwise.
14. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Etc. Cardiosciences and ▇▇. ▇▇▇▇▇▇ recognize that
---------------------
in the course of his duties hereunder, Cardiosciences and ▇▇. ▇▇▇▇▇▇ may receive
from the Corporation or others information which may be considered "material,
non-public information" concerning a public company that is subject to the
reporting requirements of the Securities and Exchange Act of 1934, as amended.
The Corporation, however, will use reasonable efforts to provide ▇▇. ▇▇▇▇▇▇ or
Cardiosciences with such material non-public information only on a "as-needed"
basis. Not withstanding the foregoing, Cardiosciences and ▇▇. ▇▇▇▇▇▇ agree that
they will not, without the prior written consent of the Corporation (which shall
not be unreasonably withheld and shall be granted or denied upon standards no
more restrictive than applied to other non-executive officer and non-employee
consultants and to members of the Board of Directors and Scientific Advisory
Board), perform any of the following:
(a) purchase, trade, offer, pledge, sell, contract to sell or to
purchase or sell "short" or "short against the box" (as such terms are generally
understood in the securities markets), or otherwise dispose of or acquire any
securities of the Corporation or options or other derivative securities in
respect of such securities while in possession of relevant material, non-public
information received from the Corporation or others in connection herewith;\
(b) provide the Corporation with information with respect to any public
company that may be considered material, non-public information; and
(c) provide any person with material, non-public information, received
from the Corporation, including any relative, associate, or other individual who
intends to, or may, (i) trade securities with respect to the Corporation which
is the subject of such information or (ii) otherwise directly or indirectly
benefit from such information.
In addition, Cardiosciences and ▇▇. ▇▇▇▇▇▇, if and to the extent that all
executive officers and consultants are so bound, also agree (i) (other than upon
the exercise of any stock options that have been previously granted to him or
with the consent of the Corporation) also agree (i) not to acquire, or agree to
acquire directly or indirectly, by purchase, tender offer or otherwise, any
Page 10
assets, voting securities or indirect rights, options, warrants to acquire any
assets or voting securities of the Corporation, and not to solicit or assist any
other person or entity in doing any of the same; (ii) announce or publicly
propose any extraordinary transaction involving the Corporation or any voting
securities or assets of the Corporation; (iii) make, or in any way participate,
directly or indirectly, in any "solicitation" of proxies to vote (as such terms
are used in the proxy rules of the Securities and Exchange Commission), or seek,
to advise or influence any person or entity with respect to the voting of any
voting securities of the Corporation; or (iv) form, join or in any way
participate in a "group" within the meaning of Section 13(d)(3) of the
Securities Exchange Act of 1934, except, in each case, with the prior written
consent of the Corporation.
15. Assignment. This Consulting Agreement may not be assigned by either
----------
Party, and no obligation owed or performed by either Party hereunder may be
delegated, without the prior written consent of the other Party. Any attempted
assignment or delegation by either Party without any such requisite prior
written consent of the other Party shall be void and ineffective for all
purposes. Notwithstanding the foregoing, the Corporation may assign or transfer
this Consulting Agreement in conjunction with the sale of substantially all of
its assets.
16. Notice. All notices requests, consents or other communications
-------
given by either party hereto shall be in writing and shall be deemed duly given
if personally delivered or mailed by registered or certified mail, return
receipt requested, postage prepaid, to the other party at its addresses set
forth below or at such other addresses as such other Party may hereafter
designate in the manner herein provided.
(a) If to Consultant:
CARDIOSCIENCES CONSULTING, INC.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
With a copy to:
Dr. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
(b) If to the Corporation:
PARALEX, INC.
▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇. Y. 10019
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇
(c) With a copy to:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
c/o McCarter & English LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇. Y. 10022
17. Entire Agreement; Amendments. This Consulting Agreement represents
----------------------------
the entire understanding and agreement between the Parties hereto with respect
Page 11
to the subject matter hereof and supersedes all prior negotiations,
representations and agreements made by and between such parties. No alternation,
amendment or modification of any of the terms or provisions of this Consulting
Agreement shall be valid unless made pursuant to an instrument in writing signed
by each of the parties hereto.
18. Governing Law. This Consulting Agreement shall be governed by, and
--------------
constructed and enforced in accordance with the laws of the State of New York.
19. Mandatory Arbitration. The Corporation, Cardiosciences and Dr.
---------------------
▇▇▇▇▇▇ hereby agree that any dispute which may arise between them out of or in
connection with this Consulting Agreement, its construction, interpretation,
effect, performance or nonperformance, or the consequences thereof (provided
that such dispute involves only the Corporation, Cardiosciences, Dr,. ▇▇▇▇▇▇ and
any other person or entity similarly so bound to arbitrate), shall be resolved
pursuant to the Commercial Arbitration Rules of the American Arbitration
Association. All arbitration proceedings shall be held in New York, New York.
The terms of this Paragraph 19 shall not be deemed to limit or waive any of the
Corporation's rights pursuant to Paragraph 13 hereof (provided that the decision
of any subsequent arbitration proceeding shall be determinative as to whether
any injunction is appropriate).
20. Paragraph Headings. The paragraph headings contained in this
-------------------
Consulting Agreement are for reference purposes only and shall not effect in any
way the meaning or interpretation of this Consulting Agreement.
21. Severability; Reformation. If at any time subsequent to the date
--------------------------
hereof any provisions of this Consulting Agreement shall be held by any court of
competent jurisdiction to be illegal, void, or unenforceable, such provisions
shall be of no force and effect, but the illegality or unenforceability of such
provisions shall have no effect upon and shall not impair the enforceability to
any provisions of this Consulting Agreement. Furthermore, if any provision of
this Consulting Agreement shall for any reason be held to be excessively broad
as to duration, geographical scope, activity or subject, it shall be construed
by limiting and reducing it, so as to be enforceable to the fullest extent
compatible with then existing applicable law.
22. Relationship with JHU. (a) The parties hereto acknowledge that JHU is
----------------------
not a party to this Consulting Agreement which is a private contract between and
among Cardiosciences, ▇▇. ▇▇▇▇▇▇ and the Corporation. Accordingly, JHU is not
intended to be nor is it a third party beneficiary hereof.
(b) The Corporation, Cardiosciences and ▇▇. ▇▇▇▇▇▇ recognize that ▇▇.
▇▇▇▇▇▇'▇ primary duty as a full-time JHU faculty member is to JHU. The
Corporation and Cardiosciences agree that JHU's polices and ▇▇. ▇▇▇▇▇▇'▇
obligation to JHU shall govern and be afforded primacy in the event a conflict
arises with this Consulting Agreement.
(c) With the limited exception of citing ▇▇. ▇▇▇▇▇▇'▇ faculty title
(subject to the conditions outlined below), the Corporation and its affiliates
will not use the names, likenesses, or logos of the ▇▇▇▇▇ ▇▇▇▇▇▇▇ University ,
any of its Schools or Divisions, or the ▇▇▇▇▇ ▇▇▇▇▇▇▇ Hospital and Health System
in any of their fund-raising or investment documents, general publications,
advertisements, or marketing and promotional materials (hereinafter
Page 12
"Materials"). If the Corporation cites ▇▇. ▇▇▇▇▇▇'▇ title and affiliation with
JHU in its Materials, it agrees to include the following statement in such
Materials as a parenthetical comment next to the consultant's name, title, and
affiliation: "Participation by ▇▇. ▇▇▇▇▇▇ as a consultant does not constitute or
imply endorsement by The ▇▇▇▇▇ ▇▇▇▇▇▇▇ University, The ▇▇▇▇▇ ▇▇▇▇▇▇▇ Hospital,
or The ▇▇▇▇▇ ▇▇▇▇▇▇▇ Health System." A request for permission to otherwise or
more fully describe ▇▇. ▇▇▇▇▇▇'▇ relationship with the Corporation must be
submitted to the School of Medicine's Conflict of Interest Review Coordinator,
who, In appropriate circumstances, will have it reviewed by the School of
Medicine's Office of Public Affairs.
(d) The Corporation recognizes that ▇▇. ▇▇▇▇▇▇, is an employee of ▇▇▇▇▇
▇▇▇▇▇▇▇ University ("JHU") and is bound to certain policies of JHU with respect
to JHU's property.
(e) The Corporation recognizes that ▇▇. ▇▇▇▇▇▇, as an employee of JHU,
is subject to the Invention Policy of JHU, a copy of which has been provided to
the Corporation.
IN WITNESS WHEREOF, the parties have executed, or have caused their duly
authorized representatives to execute, this Consulting Agreement as of the date
and year first above written.
PARALEX, INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇, M.D. Title: Chairman
CARDIOSCIENCES CONSULTING, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, M.D., Ph.D.
Title: President
AGREED AND CONSENTED
AS HIS INTEREST MAY APPEAR
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, M.D., Ph.D.
Appendix A
DESCRIPTION OF SERVICES
-----------------------
As consultant, Dr. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, President/CEO of CardioSciences Consulting
Inc., will serve as a member of the Corporation's Scientific Advisory Board.
In addition, the ▇▇▇▇▇▇ agrees to advise the Corporation with regard to:
1) Therapeutic applications of xanthine oxidase inhibitors in humans;
2) Therapeutic applications of xanthine oxidase inhibitors in veterinary
practice;
3) Design of cardiovascular clinical trials involving xanthine oxidase
inhibitors, including but not limited to heart failure and cardiogenic
shock;
4) Identification and recruitment of additional consultants and/or
contractors, as required;
5) Marketing, financial and regulatory support as related to items 1-3.
▇▇▇▇▇▇ agrees to undertake, on a best-efforts basis, such consultative and
advisory services as the Company shall reasonably request in connection with the
Company's business. In his role as consultant to the Corporation,. ▇▇▇▇▇▇ will
report directly to the Chief Executive Officer of the Corporation.
▇▇▇▇▇▇ hereby also agrees to serve as a member of the Corporation's Scientific
Advisory Board (the "SAB"). As a member of the SAB, ▇▇▇▇▇▇ agrees to meet at
least semi-annually to advise the Corporation of advances in his field of
expertise, and to consult with the Corporation, assessing the feasibility of
research and development programs under consideration by the Corporation and
offering guidance for current and future research and clinical applications of
the Corporation's technology. In addition to SAB meetings, ▇▇▇▇▇▇ further agrees
to meet individually and in groups as called upon from time to time to review
and advise the Corporation on its research, development and commercialization of
its technology and to consult at reasonable times and upon reasonable prior
notice with the Corporation and the Corporation's management, agents, employees
and other Scientific Advisors on projects.
