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EXHIBIT 10.1
AMENDED AND RESTATED
CONSULTING AGREEMENT
This Amended and Restated Consulting Agreement is made and entered into
this 1st day of March, 1998, by and between DEPOTECH CORPORATION, a California
corporation, having its principal place of business at 10450 Science Center
Drive, San Diego, California 92121 ("Company"), and STEPHEN B. HOWELL, M.D., an
individual, residing at 13612 Nogales Drive, Del Mar, California 92014
("Consultant").
WHEREAS, Company desires to retain Consultant to perform certain
services, and Consultant is agreeable to doing so; and
WHEREAS, Company and Consultant desire to amend and restate certain
provisions of that certain Consulting Agreement dated as of November 1, 1993, as
previously amended pursuant to Amendment No. 1 to Consulting Agreement dated May
25, 1995 (the "Prior Agreement").
NOW, THEREFORE, in consideration of the foregoing recitals and of the
mutual covenants and conditions set forth below, the parties agree as follows:
1. Services; Fees. Consultant hereby is retained as an independent
contractor to provide consulting services described in Exhibit A hereto.
Consultant shall receive consulting fees for such services and reimbursement for
expenses as set forth in Exhibit A hereto. Such consulting services shall be
performed as requested from time to time by Company's executive officers.
2. Term. The initial term of this Agreement shall commence on November
1, 1997 and continue through October 31, 1999. Consultant's services shall be
rendered as requested by Company and in a manner satisfactory to Company. This
Agreement shall be cancelable by either party upon the giving of thirty (30)
days prior written notice; provided, in the event that the Company terminates
this Agreement prior to its term, Consultant shall continue to receive
consulting fees and reimbursement for expenses as set forth in Exhibit A hereto
for a period equal to the greater of (a) twelve (12) months from the date of
termination or (b) through October 31, 1999.
3. Manner of Performance. Consultant represents that Consultant has the
requisite expertise, ability and legal right to render the consulting services,
and will perform the consulting services in an efficient manner and in
accordance with the terms of this Agreement. Consultant will abide by all laws,
rules and regulations that apply to the performance of the consulting services
and when on Company premises, will comply with Company's policies with respect
to conduct of visitors.
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4. Confidentiality.
(a) Consultant recognizes that in performing services under this
Agreement he will have contact with information of substantial value to Company,
which is not generally known and which gives Company an advantage over its
competitors who do not know or use it, including but not limited to improvements
to the DepoFoam Technology, techniques, drawings, processes, inventions,
developments, sales and customer information, and business and financial
information, relating to the business, products, practices or techniques of
Company and of any other corporation or entity that may be a party to a
particular transaction with the Company (hereinafter referred to as
"Confidential Information"). Confidential Information shall also include
information belonging to a third party which Company is obligated to keep
confidential from others. Consultant agrees, at all times, to regard and
preserve as confidential such Confidential Information, and to refrain from
publishing or disclosing any part of such Confidential Information and from
using it except on behalf of Company, without prior written consent of Company.
Consultant further agrees, at all times, to refrain from any other acts or
omissions that would reduce the value of such Confidential Information to
Company.
(b) Upon termination of this Agreement, Consultant agrees to
promptly surrender to Company all documents or items which are the property of
Company or which contain or comprise such Confidential Information.
(c) Consultant's duties of confidence to Company and other duties
pursuant to this Agreement, shall survive the termination of this Agreement for
any reason.
5. Reports. Any reports, specifications or other materials prepared by
Consultant for the purpose of or pursuant to this Agreement shall be the
property of Company exclusively and shall be maintained in confidence by
Consultant.
6. Inventions.
(a) Consultant agrees to promptly and fully disclose in writing
to Company any invention, discovery, development, improvement, method or
product, know-how and data, whether or not patentable, which are made, conceived
or reduced to practice by Consultant during the term of this Agreement that
result from any work performed by Consultant for Company pursuant to this
Agreement.
(b) Consultant agrees that such inventions shall be the sole
property of Company and agrees to assign and hereby assigns to Company such
inventions.
7. Independent Contractor. Consultant's relationship with Company is and
shall be that of an independent contractor, and neither party is authorized to
nor shall act as the agent of the other. Consultant agrees that he will be
solely responsible for the payment of all taxes relating to the compensation
paid pursuant to this Agreement.
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8. Notices. Unless otherwise provided, any notice required or permitted
under this Agreement shall be given in writing and shall be deemed effectively
given upon personal delivery to the party to be notified or upon deposit with
the United States Post Office, by registered or certified mail, postage prepaid
and addressed to the party to be notified at the address for such party set
forth in the introductory paragraph above, or at such other address as such
party may designate by ten (10) days' advance written notice to the other
parties.
9. Remedies. Consultant acknowledges that any disclosure or unauthorized
use of Proprietary Information will constitute a material breach of this
Agreement and cause substantial harm to Company for which damages would not be a
fully adequate remedy, and, therefore, in the event of any such breach, in
addition to other available remedies, Company shall have the right to obtain
injunctive relief.
10. Attorneys' Fees. If any action at law or in equity is necessary to
enforce or interpret the terms of this Agreement, the prevailing party shall be
entitled to reasonable attorneys' fees, costs and necessary disbursements in
addition to other relief to which such party may be entitled.
11. Successors and Assigns. This Agreement shall be binding upon
Consultant, and inure to the benefit of, the parties hereto and their respective
heirs, successors, assigns, and personal representatives; provided, however,
that it shall not be assignable by Consultant.
12. Amendment and Modification. No amendment, modification or supplement
of this Agreement shall be binding unless executed in writing and signed by all
of the parties hereto.
13. Entire Agreement; Governing Law. This Agreement contains the entire
understanding of the parties with respect to the matters contained herein. This
Agreement shall supersede any and all previous and existing Consulting
Agreements between Company and Consultant. This Agreement shall be governed by
and construed in accordance with the laws of the State of California, without
regard to principles of conflicts of law.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the parties have executed this Agreement effective
as of the date first above written.
DEPOTECH CORPORATION, a California
corporation
By: /s/ John P. Longenecker
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Title: President and Chief
Operating Officer
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CONSULTANT
By: /s/ STEPHEN B. HOWELL
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STEPHEN B. HOWELL, M.D.
Social Security No.: ###-##-####
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EXHIBIT A
Scope of Services of Consultant:
The scope of consulting work contemplated by this Agreement shall be as
follows:
The Consultant shall act as "Senior Medical Advisor" to the Board of Directors
and management team of the Company, including: (i) input to and review of the
Company's product portfolio in terms of new product ideas, strategic balance,
medical applications and product positioning; (ii) review and opinion on new
drug delivery technologies; (iii) identification and evaluation of new molecular
entities as candidates for formulation and DepoFoam(TM) or new drug delivery
technologies being developed or considered by DepoTech; (iv) access and
introductions as the need may arise to Consultant's personal contacts (subject
to Consultant's agreement on a case-by-case basis) in the medical, scientific
and business communities; and (v) membership on the Company's Strategy
Committee.
Consulting Fees:
Consultant shall be compensated as follows:
At the rate of $40,000.00 per year, assuming contribution of at least 25 days
but no more than 35 days per year, excluding travel time, to be billed no less
frequently than monthly. The fee shall be paid to Consultant.
Compensation payable pursuant to this Agreement will be reviewed annually by the
Compensation Committee of the Board of Directors on the basis of fairness and
comparability to the officers of the Company taking into account the pro-rata
share of Consultant's time actually spent in consulting to DepoTech.
Reimbursement of Expenses:
Consultant shall be reimbursed for reasonable expenses on approval of
the CEO.
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