CONSULTANT AGREEMENT
This Agreement ("Agreement") is made and entered into this 15th day of
September, 1996 by and between John M. Cullen, Ph.D., J.D. of 419 Minden Way,
Wynnewood, Pennsylvania 19096 ("Consultant") and IBAH, Inc., a Delaware
corporation with a principal place of business at Four Valley Square, 512
Township Line Road, Blue Bell, Pennsylvania 19422 ("IBAH").
WHEREAS, Consultant has been an executive employee of IBAH pursuant to an
Employment Agreement, dated January 4, 1994, (the "Employment Agreement") by and
between Consultant and Bio-Pharm Clinical Services, Inc., a predecessor
corporation to IBAH; and
WHEREAS, IBAH has decided to terminate to Employment Agreement pursuant to
Section 5D of the Employment Agreement; and
WHEREAS, IBAH and Consultant desire to enter into a consulting
relationship for a period of time to permit IBAH to continue to have the benefit
of Consultant's expertise in performing advisory services; and
WHEREAS, Consultant is now engaged in the business of providing such
services;
NOW, THEREFORE, for good and valuable consideration, AND INTENDING TO BE
LEGALLY BOUND, Consultant and IBAH hereby agree as follows:
10. DUTIES AND OBLIGATIONS OF CONSULTANT
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IBAH has engaged Consultant as an independent contractor to IBAH's business.
Consultant shall be available to IBAH to perform such duties and
responsibilities as shall be needed by the Chief Executive Officer of IBAH. It
is contemplated by the parties that Consultant will provide services under this
Agreement on an "as needed" and "as available" basis. Consultant's duties may
include, but shall not be limited to, advice and assistance in the areas of
sales and marketing, industry trends and objectives, and regulatory.
2.0 COMPENSATION
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In consideration for the services to be provided under Paragraph 1.0 of this
Agreement, IBAH agrees to pay Consultant a consulting fee (the "Fee"), payable
in equal monthly installments during the term of this Agreement, of $375,000 and
to reimburse Consultant for all reasonable expenses incurred in the performance
of his duties under this Agreement during the term. The Fee shall be paid in
full regardless of any termination of this
Agreement by the parties prior to September 14, 1997. This provision shall
survive any termination of this Agreement.
3.0 TERM AND TERMINATION
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The Employment Agreement is hereby terminated, effective September 15, 1996. The
effective date of this Consultant Agreement shall be September 15, 1996, and it
shall continue for a term of one (1) year, until September 14, 1997, unless
terminated by mutual written agreement of the parties before that date.
Consultant may terminate this Agreement at any time by forty five (45) days
written notice. Upon termination of this Agreement, Consultant will assemble and
turn over in an orderly fashion to authorized representatives of IBAH all
documents, notes, computer programs and other material related to the services
performed by Consultant.
4.0 STOCK OPTIONS
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Pursuant to the terms of the Employment Agreement, all Stock Options granted to
Consultant by IBAH during the term of his employment by IBAH shall be fully
vested as of the termination of the Employment Agreement on September 15, 1996.
Consultant's right to exercise these options through services provided to IBAH
by Vector Securities (or a subsequent vendor) shall continue throughout the term
of this Agreement plus a period of three months thereafter.
5.0 TAXES
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It is understood that payments to Consultant for services rendered shall be made
in full as agreed, without any deductions for taxes of any kind whatsoever, in
conformity with Consultant's status as an independent contractor. It is
understood that any taxes that may be due and payable as a result of the
payments specified herein by IBAH to Consultant shall be entirely Consultant's
responsibility. It is understood that, as part of this Agreement, Consultant
undertakes to pay all taxes for which Consultant may be liable on such payments
when due.
6.0 CONFIDENTIALITY
---------------
All information, know-how, trade secrets and data (technical or non-technical)
transmitted or observed in conjunction with the performance of services under
this Agreement is deemed to be the confidential and proprietary information of
IBAH, its subsidiaries, subdivisions, affiliates, successors, assigns and/or
clients. Confidential information or trade secrets includes, but is not limited
to, operating procedures, salary structure/compensation information, pricing
strategies, investigator lists, budgets and other related data, computer
software, databases and programming, data files, client lists and related
information, financial information and projections, inventions, know-how,
products, services, techniques and any other information which, if divulged to a
third party could have an adverse impact on IBAH, or on any third party to which
IBAH owes a confidentiality obligation, except as may be required in the
ordinary course of performing the Consultant's duties. Consultant
agrees that he will not at any time, whether during or after the termination of
his status as a Consultant to IBAH, reveal to any person or entity any trade
secrets or confidential information of IBAH.
Consultant understands that client companies disclose confidential information
to IBAH and that IBAH agrees, in writing, to maintain the confidentiality of
this information. Accordingly, Consultant agrees that he will not at any time,
whether during or after the termination of his status as a Consultant to IBAH,
reveal to any person or entity any trade secrets or confidential information
concerning any third party or client to which IBAH owes a confidentiality
obligation.
6.1 Confidential information does not include disclosed information that:
(a) is or becomes part of the public domain through no fault of
Consultant; (b) is disclosed to Consultant by a third party entitled
to disclose it; or (c) is required by law to be disclosed.
6.2 Consultant will only use the confidential information furnished by
IBAH for the purpose of fulfilling his obligations under this
Agreement. Upon the completion or earlier termination of this
Agreement and at IBAH's request, Consultant will promptly return all
written confidential information.
6.3 Consultant will not use any such confidential information for his own
benefit or for the benefit of any third party, and will not furnish to
any third party any materials which incorporate any confidential
information except as otherwise hereinabove provided. All obligations
of confidentiality and non-disclosure set forth in this Agreement will
survive, without limitation, the expiration or earlier termination of
this Agreement.
6.4 The obligations of confidentiality contained herein shall remain in
effect for five (5) years after the termination of this Agreement.
7.0 INTELLECTUAL PROPERTY
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If at any time or times during the term of this Agreement, Consultant shall
(either alone or with others), make, conceive, create, discover, invent or
reduce to practice any invention, modification, discovery, design, development,
improvement, process, software program, work of authorship, documentation,
formula, data, whether or not patentable or registrable under copyright,
trademark or similar statutes (including but not limited to the Semiconductor
Chip Protection Act) or subject to analogous protection (herein called
"Developments") that:
(a) relates to the business of IBAH or any client of or supplier of
IBAH or any of the products or services being developed, manufactured
or sold by IBAH or which may be used in relation therewith;
(b) results from tasks assigned by IBAH; or,
(c) results from the use of premises or personal property (whether
tangible or intangible) owned, leased or contracted for by IBAH,
such Developments and the benefits thereof are and shall immediately become the
sole and absolute property of IBAH and its assigns, as "work made for hire" or
otherwise, and Consultant shall promptly disclose to IBAH (or any persons
designated by it) each such Development and, as may be necessary to ensure
IBAH's ownership of such Developments. Consultant hereby assigns any rights
(including, but not limited to, any copyrights and trademarks) Consultant may
have or acquire in the Developments and benefits and/or rights resulting
therefrom to IBAH and its assigns without further compensation and shall
communicate, without cost or delay, and without disclosing to others the same,
all available information relating thereto (with all necessary plans and models)
to IBAH.
Consultant will, during the term of this Agreement and at any time thereafter,
at the request and cost of IBAH, promptly sign, execute, make and do all such
deeds, documents, acts and things as IBAH and its duly authorized agents may
reasonably require:
(a) to apply for, obtain, register and vest in the name of IBAH alone
(unless IBAH otherwise directs) letters patent, copyrights, trademarks or
other analogous protection in any country throughout the world and when so
obtained or vested to renew and restore the same; and
(b) to defend any judicial, opposition or other proceedings in respect of
such applications and any judicial, opposition or other proceedings or
petitions or applications for revocation of such letters patent, copyright,
trademark or other analogous protection.
In the event that IBAH is unable, after reasonable effort, to secure
Consultant's signature on any application for letters patent, copyright or
trademark registration or other documents regarding any legal protection
relating to a Development, whether because of Consultant's physical or mental
incapacity or for any other reason whatsoever, Consultant hereby irrevocably
designates and appoints IBAH and its duly authorized officers and agents as
Consultant's agent and attorney-in-fact, to act for and in Consultant's behalf
and stead to execute and file any such application or applications or other
documents and to do all other lawfully permitted acts to further the prosecution
and issuance of letters patent, copyright or trademark registrations or any
other legal protection thereon with the same legal force and effect as if
executed by Consultant.
8.0 MODIFICATIONS TO THIS AGREEMENT
-------------------------------
Modifications to this Agreement may only be made with the written agreement of
both parties.
9.0 CONSULTANT'S RELATIONSHIP WITH IBAH
-----------------------------------
Consultant's relationship with IBAH under this Agreement shall be that of an
independent contractor, and nothing in the Agreement or the arrangement for
which it is made shall constitute Consultant, or anyone furnished or used by
Consultant in the performance of the services contemplated by this Agreement, as
an employee, joint venture partner or servant of IBAH.
Consultant will not participate in IBAH employee benefit plans nor receive any
other compensation beyond that stated above. Consultant will not have power or
authority to bind IBAH or to assume or create any obligation or responsibility,
express or implied, on IBAH's part or in IBAH's name except as otherwise set
forth in this Agreement and Consultant will not represent to any person or
entity that Consultant has such power or authority.
10.0 INSURANCE
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Consultant understands that, since Consultant is an independent contractor, any
personal injury or property damage suffered by Consultant in the course of
carrying out any duties under this Agreement will be Consultant's sole
responsibility. No insurance shall be obtained by IBAH concerning Consultant.
11.0 DEBARMENT
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Consultant represents that he has never been (i) debarred or convicted of a
crime for which a person can be debarred under 21 U.S.C. (S) 335a ((S) "335a")
or any other applicable law nor (ii) threatened to be debarred or indicted for a
crime or otherwise engaged in conduct for which a person can be debarred under
(S) 335a. Consultant will promptly notify IBAH in the event of any such
debarment, conviction, threat or indictment occurring during the term of this
Agreement.
12.0 RELEASE
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12.1 In consideration for entering into this Agreement, consideration
which Consultant hereby acknowledges, Consultant does hereby release
and forever discharge IBAH and its present and former subsidiaries,
affiliates, divisions, officers, directors, partners, principals,
employees, agents, predecessors, assigns, servants, attorneys and
insurers and each of them, and their respective successors, assigns,
heirs, administrators and personal representatives of and from all
actions and causes of action, suits, claims, debts and demands
whatsoever in law or equity, which Consultant may have or claim to
have against IBAH as a result of his employment or separation from
employment, and does hereby covenant not to file a lawsuit to assert
such claims. Consultant is not being asked to, and does not release,
any claim which is nonwaivable as a matter of law.
12.2 By this release, Consultant knowingly and voluntarily waives any
rights under any and all laws which provide legal restrictions on
IBAH's right to terminate the Employment Agreement and/or the
Employment relationship with Consultant, and under any federal,
state, or other governmental statute, regulation, or ordinance,
including, without limitation: (1) Title VII of the Civil Rights Act
of 1964 and 1991; (2) the Age Discrimination in Employment Act of
1967; and (3) Pennsylvania Human Relations Act. Consultant also
waives any claim against IBAH for personal injury or any other action
against IBAH before any body (except for compensable injuries under
the Pennsylvania Workers Compensation Act). Consultant is not waiving
any rights or claims that may arise after the date this waiver is
executed.
12.3 Consultant forever waives and relinquishes all right to assert any
claim for recall, reemployment, or tenure with IBAH.
13.0 COVENANT NOT TO COMPETE
-----------------------
Consultant and IBAH agree that paragraph 8 of the Employment Agreement (Covenant
Not to Compete) shall be made a part of and be incorporated into this Agreement.
14.0 WAIVER
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The failure of either party to enforce any provision of this Agreement shall not
be construed as a waiver or limitation of that party's right to subsequently
enforce and compel strict compliance with every provision of this Agreement.
IBAH, Inc.
/s/ John M. Cullen By: /s/ Geraldine A. Henwood
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John M. Cullen, Ph.D., J.D. Geraldine A. Henwood
Chief Executive Officer
WITNESS:
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