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EXHIBIT 10.58
THIRD AMENDMENT TO CONSULTING AGREEMENT
This THIRD AMENDMENT TO CONSULTING AGREEMENT (the "Amendment") is made
as of the 1st day of January 1997 (the "Effective Date"), by and between JOHN
M. PIETRUSKI, an individual residing at 27 Paddock Lane, Colts Neck, New Jersey
07722 ("Consultant"), and TEXAS BIOTECHNOLOGY CORPORATION, a Delaware
corporation located at 7000 Fannin Street, Suite 1920, Houston, Texas 77030
(the "Corporation").
WHEREAS, the Corporation and Consultant have entered into that certain
Consulting Agreement, dated January 1, 1992 (the "Agreement"), as set forth in
Exhibit "A" attached hereto and incorporated herein by reference; and
WHEREAS, pursuant to the Agreement, the Corporation has retained
Consultant to provide consulting services to the Corporation with respect to
corporate governance, business development and other such matters; and
WHEREAS, the Corporation and Consultant desire to amend the Agreement
as herein set forth.
NOW, THEREFORE, for and in consideration of the foregoing and of the
mutual covenants contained herein, the parties hereto agree as follows:
1. Definitions. If not otherwise defined herein, all capitalized
terms used herein shall have their respective meaning assigned to them in the
Agreement.
2. Amendment to Section 2. Effective as of the date hereof, Section
2 of the Agreement is hereby amended by deleting paragraph (a) in its entirety
and substituting the following in lieu thereof:
"(a) Consultant's retention under this agreement shall
commence on the date hereof (the "Commencement Date") and shall end on
the earliest of: (i) the death or disability (as defined herein) of
Consultant; (ii) the termination of Consultant's retention by the
Corporation for cause (as defined herein); or (iii) two years after
the Effective Date. After the expiration of such two-year period,
this Agreement may be renewed for additional periods on all the
remaining terms and conditions set forth herein upon mutual agreement
of Consultant and the Corporation."
3. The terms and provisions set forth in this Amendment shall modify
and supersede all inconsistent terms and provisions set forth in the Agreement
and except as expressly modified and superseded by this Amendment, the terms
and provisions of the Agreement are ratified and confirmed and shall continue
in full force and effect. Corporation and Consultant agree that the Agreement
as amended shall continue to be legal, valid, binding and enforceable in
accordance with its terms.
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4. Except as expressly modified or amended hereby, the terms and
provisions of the Agreement shall remain in force and effect in accordance with
the terms hereof; provided, however, that from and after the date hereof any
reference to the Agreement shall be deemed and construed as meaning the
Agreement as amended and modified hereby.
IN WITNESS WHEREOF, the parties have executed this Amendment as of the
day and year first written above.
CONSULTANT:
/s/ JOHN M. PIETRUSKI
----------------------------------------
John M. Pietruski
CORPORATION:
TEXAS BIOTECHNOLOGY CORPORATION
/s/ DAVID B. MCWILLIAMS
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David B. McWilliams
President and Chief Executive Officer
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(EXHIBIT A)
TEXAS BIOTECHNOLOGY CORPORATION
CONSULTING AGREEMENT
with
JOHN M. PIETRUSKI
AGREEMENT, dated as of January 1, 1992, between JOHN M. PIETRUSKI
("Consultant"), residing at 3 Bruce Court, Edison, New Jersey 08820, and TEXAS
BIOTECHNOLOGY CORPORATION (the "Corporation"), a Delaware corporation, having
an address at Doctors Center, 7000 Fannin, Suite 1920, Houston, Texas 77030.
W I T N E S S E T H:
WHEREAS, the Corporation desires to retain Consultant, and Consultant
desires to accept such retention by the Corporation, on the terms and
conditions set forth below.
NOW, THEREFORE, in consideration of the premises and mutual agreements
hereinafter contained, the parties hereto do agree as follows:
1. Retention. Subject to the terms and conditions set forth herein, the
Corporation hereby retains Consultant as a consultant to the Corporation to
provide certain consulting services to the Corporation and Consultant hereby
accepts such retention.
2. Term. (a) Consultant's retention under this Agreement shall
commence on the date hereof (the "Commencement Date") and shall end on the
earliest of: (i) the death or disability (as defined herein) of Consultant;
(ii) the termination of Consultant's retention by the Corporation for cause (as
defined herein); or (iii) one year after the Commencement Date. After the
expiration of such one-year
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period, this Agreement may be renewed for an additional one-year period on all
the remaining terms and conditions set forth herein upon the mutual agreement
of Consultant and the Corporation.
(b) For the purpose of this Section 2, "disability" shall mean any
physical or mental illness or injury as a result of which Consultant fails to
devote at least fifty-two working days per year (roughly equivalent on average
to one day per week) to the rendition of consulting services hereunder for a
continuous period of 90 days during any 365-day period. Disability shall
occur upon the end of such 90-day period.
(c) For the purpose of this Section 2, "cause" shall exist if Consultant
(i) without the prior written consent of the Corporation, assigns, pledges or
otherwise disposes of his rights or obligations under this Agreement, or
attempts to do the same, (ii) breaches any of the material terms or conditions
hereof including, without limitation, any of the terms of Sections 8, 9, 10 or
11; (iii) engages in willful misconduct or acts in bad faith; or (iv) commits a
felony or perpetrates a common law fraud against the Corporation.
3. Compensation. During the term hereof, and subject to the performance
of the services required to be performed hereunder by Consultant, the
Corporation shall pay to Consultant for all services rendered by Consultant
under this Agreement fees at a rate of $75,000 per annum. The fees due
Consultant under this Agreement shall be payable quarterly on January 15, April
15, July 15 and October 15. In addition, promptly after Consultant executes
this Agreement he will be granted an option to purchase up to 150,000 shares of
the Corporation's common stock, at a purchase price of $.50 per share, in
accordance with the Corporation's 1990 Incentive Stock Option Plan.
4. Services. (a) Consultant shall provide consulting services to the
Corporation with respect to corporate governance and business development and
such other matters, within the unique experience
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and expertise of Consultant, as may be mutually agreed upon provided, that,
Consultant shall not be required to provide any professional medical services.
(b) In furtherance of his obligations hereunder, Consultant will devote
approximately 52 working days per year (roughly equivalent, on average, to one
working day per week) to his services hereunder and shall provide such services
at such places and on such days as may be mutually agreed upon. In addition,
Consultant shall also generally make his services available to the Corporation
over the telephone.
5. Expenses. The Corporation shall reimburse Consultant, in accordance
with the Corporation's standard policy, for the travel expenses of Consultant
incurred at the request of the Corporation for travel and other related
reasonable expenses. Except as aforesaid or unless otherwise agreed to with
respect to the rendition of specific services, the Corporation shall have no
liability to reimburse Consultant for any expenses incurred by Consultant in
connection with this Agreement.
6. Status of Parties. Consultant will at all times act as an
independent contractor and not as an employee of the Corporation. The manner
in which Consultant renders services to the Corporation will be within his sole
control and discretion. However, Consultant will cooperate with the
Corporation's personnel and use his best efforts on behalf of the Corporation.
7. Indemnification. During the term of this Agreement and for a period
of three years thereafter, the Corporation shall indemnify Consultant and hold
him harmless for any loss, claim, demand, damages or otherwise, including
reasonable attorney's fees, with respect to any threatened or pending action or
proceeding arising out of or in connection with Consultant's carrying out his
duties hereunder.
8. Proprietary Rights. Any and all patentable and unpatentable
inventions, discoveries, ideas or applications conceived, originated or
developed by Consultant, or developed by others for or on behalf of
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the Corporation of which Consultant becomes informed, during the term hereof
and relating to the Corporation's business shall be the sole and exclusive
property of the Corporation throughout the world. Consultant, at the request
and sole expense of the Corporation, shall execute such documents and perform
such acts as the Corporation or its counsel may deem necessary or advisable to
confirm in the Corporation all right, title and interest throughout the world
in and to any such invention, discovery or idea, and all patent applications,
patents and copyrights thereon, and to enable and assist the Corporation in
procuring, maintaining, enforcing and defending patents, copyrights and other
applicable statutory protection throughout the world on any such invention,
discovery, idea or application which may be patentable or copyrightable.
9. Secrecy and Nondisclosure. Without the prior written consent of the
Corporation in each instance, Consultant agrees to treat as secret and
confidential all of the processes, methods, formulas, procedures, techniques,
software, designs, data, drawings and other information which are not of public
knowledge or record pertaining to the Corporation's business of which
Consultant becomes informed, and Consultant agrees not to disclose, use,
publish, or in any other manner reveal, directly or indirectly, at any time
during or after the term of this Agreement, any such processes, methods,
formulas, procedures, techniques, software, designs, data, drawings and other
information pertaining to the Corporation's business.
10. Non-Competition. (a) Consultant agrees that, unless consented to
in writing by the Corporation after complete disclosure by Consultant of his
proposed activities, during the term of this Agreement and for a period of six
(6) months after the termination of his consulting services to the Corporation
he
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will not directly or indirectly, for his own account or as an employee,
officer, director, partner, joint venturer, shareholder, investor, consultant
or otherwise:
(i) Anywhere in the world interest himself in or engage in any
projects which are competitive with significant projects in which
the Corporation is engaged or is actively contemplating engaging
during the term of this Agreement or at the time of such
termination;
(ii) Hire, engage or employ or solicit, contact or communicate
with for the purposes of hiring, employing-or engaging, any person
who is then or was an employee of the Corporation at any time within
the 12-month period immediately prior thereto.
(b) Nothing in this Section 11 shall be construed to prevent Consultant
from holding stock as an investor in a corporation whose stock is publicly
traded and in which Consultant holds less than 5% of the outstanding shares.
(c) Consultant acknowledges that the restricted period of time and
geographical area specified under Section 11(a) hereof are reasonable, in view
of the nature of the business in which the Corporation is engaged and
Consultant's knowledge of the Corporation's business.
(d) Notwithstanding anything contained in this Section 11 to the
contrary, if the period of time or the geographical area specified under
Section 11(a) hereof should be determined to be unreasonable in any judicial
proceeding, then the period of time and area of the restriction shall be
reduced so that this Agreement may be enforced in such area and during such
period of time as shall be determined to be reasonable.
11. Mutual Representations. Each party hereto represents and warrants
to the other that:
(a) The execution and delivery of this Agreement and the fulfillment of
the terms hereof (i) will not constitute a default under or conflict with any
agreement or other instrument to which he or it is a
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party or by which he or it is bound and (ii) do not require the consent of any
person, or entity; and
(b) This Agreement constitutes the valid and binding obligation of such
party enforceable against such party in accordance with its terms subject to
applicable bankruptcy, insolvency, moratorium and similar laws affecting
creditors rights generally, and subject, as to enforceability, to general
principles of equity (regardless if enforcement is sought in a proceeding in
equity or at law).
12. Waiver. Failure to insist upon compliance with any of the terms,
covenants, or conditions hereof shall not be deemed a waiver of such term,
covenant, or condition, nor shall any waiver or relinquishment of any right or
power hereunder at any one time or more times be deemed a waiver or
relinquishment of such right or power at any other time or times.
13. Severability. The invalidity or unenforceability of any provision
hereof shall in no way affect the validity or enforceability of any other
provision. The parties to this Agreement agree and intend that this Agreement
shall be enforced as fully as it may be enforced consistent with applicable
statutes and rules of law.
14. Benefit. Except as otherwise herein expressly provided, this
Agreement shall inure to the benefit of and be binding upon the Corporation,
its successors and assigns, including, without limitation, any corporation
which may acquire all or substantially all of the Corporation's assets or
business or with or into which the Corporation may be consolidated or merged,
and to the benefit of, and be binding upon, Consultant, his heirs, executors,
administrators and legal representatives.
15. Entire Agreement. This Agreement constitutes the entire
understanding and agreement between the parties hereto, supersedes any and all
prior discussions, agreements and correspondence with
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regard to the subject matter hereof, and may not be amended, modified or
supplemented in any respect, except by a subsequent writing executed by both
parties hereto.
16. Notices. Any notice or other communication required or
permitted hereunder shall be in writing and shall be delivered personally,
telegraphed, telexed, sent by facsimile transmission or sent by certified,
registered or express mail, postage prepaid. Any such notice shall be deemed
given when so delivered personally, telegraphed, telexed or sent by facsimile
transmission or, if mailed, five days after the date of deposit in the United
States mails, as follows:
(i) if to Consultant, to:
John M. Pietruski
3 Bruce Court
Edison, New Jersey 08820
(ii) if to the Corporation, to:
Texas Biotechnology Corporation
Doctors Center
7000 Fannin
Suite 1920
Houston, Texas 77030
Attention: President
with a copy to:
Cahill Gordon & Reindel
80 Pine Street
New York, New York 10005
Attention: Jonathan I. Mark, Esq.
Any party may by notice given in accordance with this Section to the other
parties designate another address or person for receipt of notices hereunder.
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17. Applicable Law. This Agreement shall be governed by, and construed
and enforced in accordance with, the laws of the State of New York without
giving effect to principles of conflicts of law.
18. Jurisdiction. The parties agree that the federal and state courts
located in the State of New York shall have jurisdiction to settle any disputes
that may arise out of or in connection with this Agreement and that,
accordingly, any suit, action or proceeding arising out of or in connection
with this Agreement may be brought in such courts. In connection with any
such litigation, each party waives all rights to a trial by jury and personal
service of any summons, complaint or other process and agrees that the service
thereof may be made by certified or registered mail. In the alternative, any
such service may be effected in any other form or manner permitted by law.
19. Counterparts. This Agreement may be executed in one or more
counterparts but all such separate counterparts shall constitute but one and
the same instrument; provided that, although executed in counterparts, the
executed signature pages of each of such counterparts may be affixed to a
single copy of this Agreement which shall constitute an original.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
WITNESSED BY: TEXAS BIOTECHNOLOGY CORPORATION
/s/ Catherine W. Ortlieb By: /s/ David W. Ortlieb
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/s/ Stephanie McClure By: /s/ John M. Pietruski
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JOHN M. PIETRUSKI