EXHIBIT 10.2
2/2/04 DRAFT
CONSULTING AGREEMENT
EFFECTIVE DATE: February 9, 2004
CONSULTANT: The Investor Relations Group, Inc. ("Consultant")
CONSULTANT'S ADDRESS: 11 Stone Street, 3rd Floor
New York, NY 10004
TERM: Six (6) months, renewable at the option of the Company
SERVICES: Investor relations and public relations services that, at the
sole and exclusive discretion of the Company, may include, without
limitation, overall management of the corporate communications program;
designing a corporate fact sheet that can readily be mass-produced for
distribution to brokers, analysts and other industry personnel; securing
one-on-one and group appointments with industry professionals for
presentations by, for, and about Company management; targeted mailings;
assistance with compiling promotional materials; writing and editing news
releases and other corporate materials; advice on packaging the Company's
story; writing pitch letters to and solicitation of the appropriate media
and press; syndicated stories; and daily update reports.
FEE: $12,000 per month. In addition, the Company shall deliver to
Consultant, for investment purposes, 100,000 restricted shares of the
Company's Common Stock (the "Stock"). In the event that the Company
elects, in writing, to renew this Agreement, it shall deliver to
Consultant an additional 100,000 restricted shares of the Company's Common
Stock. Consultant acknowledges and agrees that any shares issued pursuant
to this Agreement may not be resold into the public market for a period of
at least twelve (12) months.
The foregoing terms are defined as indicated in the Consulting Agreement.
This Consulting Agreement ("Agreement") is made as of the Effective Date
between Consultant and CytRx Corporation, a Delaware corporation (the "Company,"
and together with the Consultant, the "Parties").
RECITAL
WHEREAS, the Company desires, during the Term to engage the Consultant to
provide certain services to the Company, and the Consultant is willing to
provide such services as requested by the Company.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing premises and for the
promises hereinafter set forth and for other good and valuable consideration,
the adequacy of which is specifically acknowledged, the Parties agree as
follows:
1. TERM AND TERMINATION.
(a) CONSULTING TERM. The Consultant's engagement hereunder shall
commence on the Effective Date and shall continue for the Term unless extended
in writing by mutual agreement between the Parties.
(b) TERMINATION OF ENGAGEMENT. The Company may terminate this
Agreement, with or without cause or explanation, at any time effective upon ten
(10) calendar days' written notice to the Consultant.
2. ENGAGEMENT.
(a) THE ENGAGEMENT. The Company hereby engages the Consultant, and
the Consultant hereby accepts such engagement, as an independent contractor to
be available to perform the duties set forth in this Agreement during the
Consulting Term.
(b) DUTIES OF THE CONSULTANT. During the Consulting Term, the
Consultant shall provide such services as the Company may reasonably request
with regard to the Services. The Consultant shall not represent, consult, or
agree to represent or consult any direct competitors identified by the Company,
including without limitation other companies providing services similar to or
competitive with those of the Company.
3. COMPENSATION AND EXPENSES.
(a) The Company shall pay the Fee to the Consultant as full
compensation for the services provided during the Consulting Term. The first
such installment shall be paid within five (5) business days of the date hereof.
The Company's compensation obligation shall cease upon the earlier of the
termination of this Agreement or the conclusion of the Term.
(b) In addition to any compensation received pursuant hereto, the
Company will reimburse the Consultant for all reasonable automobile, travel,
entertainment and miscellaneous expenses incurred in connection with the
performance of its duties under this Agreement, upon submission, within ten (10)
days of the end of the month to which any such expenses are incurred, of
reasonable documentation sufficient for the Company to sustain an income tax
deduction under Section 274 of the Internal Revenue Code of 1986, as amended,
and the Treasury Regulations promulgated thereunder. Such reimbursement will be
made in accordance with policies and procedures of the Company in effect from
time to time relating to reimbursement of consultants. Notwithstanding anything
to the contrary set forth herein, no individual expenses over $500 shall be
incurred without prior written approval of the Company. The Company agrees to
remit, within ten (10) business days after the execution of this Agreement, a
check for $5,000, to be placed on deposit with Consultant and credited to the
Company against expenses incurred, on a permanent basis, throughout the program.
From time to time, at the request of Consultant, the Company will replenish the
expense account, as
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necessary, to maintain a balance of $2,500. The balance of said deposit is fully
refundable in the event that this Agreement is terminated.
4. INDEPENDENT CONTRACTOR.
(a) In the performance of the services to be rendered under this
Agreement, the Consultant in all respects and at all times shall be an
independent contractor to the Company. As an independent contractor, the
Consultant agrees and represents that it (i) has the right to control and direct
the means and methods of performing the services rendered hereunder; (ii) is
entitled to receive compensation from the Company only as set forth in this
Agreement and does not participate in benefits of any sort which the Company may
offer to its employees; and (iii) shall, to the extent practicable, keep its
equipment, materials and the like separate from the Company property and will
not remove any Company property from the Company's premises without the prior
written approval of an authorized representative of the Company.
(b) Except as otherwise set forth herein, nothing contained herein
shall be construed so as to create an agency relationship, a partnership or
joint venture between the Company and the Consultant. Neither the Company on one
hand nor the Consultant on the other hand shall guarantee the obligations of the
other or in any way become obligated for the debts or expenses of the other
unless expressly agreed in writing. Except as otherwise set forth in this
Agreement, the Consultant agrees not to represent itself as the Company's agent
for any purpose to any party unless specifically authorized in advance in
writing to do so, and then only for the limited purpose stated in such
authorization.
(c) Neither the Consultant, nor any of its employees, shall be
treated as an employee of the Company for federal or state tax purposes as a
result of any services rendered under this Agreement. The Consultant hereby
agrees to be solely responsible for, and indemnify the Company against, any and
all employee or employer taxes (including withholding taxes), interest and
penalties, and all employee and welfare benefits related to the services it may
be asked to provide hereunder.
5. CONSULTANT REPRESENTATIONS AND WARRANTIES.
(a) The Consultant represents and warrants to the Company that it
has been represented by legal counsel in the preparation, negotiation, execution
and delivery of this Agreement.
(b) The Consultant represents, warrants and covenants to the
Company that, as of the date hereof, the Consultant has full power and authority
to execute, deliver and perform this Agreement, and this Agreement is the valid
and legally binding obligation of Consultant in accordance with its terms.
(c) The Consultant covenants to the Company that, in the course of
performing Services, it shall comply with all applicable laws, including,
without limitation, all state and federal securities laws.
(d) In connection with Consultant's acquisition of the Stock,
Consultant represents to the Company the following:
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(i) Consultant is acquiring the Stock for investment for
Consultant's own account only and not with a view to, or for resale in
connection with, any "distribution" thereof within the meaning of the Securities
Act of 1933 (the "Act").
(ii) Consultant understands that the Stock, if any, has not
been registered under the Act by reason of a specific exemption therefrom, which
exemption depends upon, among other things, the bona fide nature of Consultant's
investment intent as expressed herein.
(iii) Consultant further acknowledges and understands that the
Stock must be held indefinitely unless it is subsequently registered under the
Act or an exemption from such registration is available. Consultant understands
that the certificate evidencing the Stock will be imprinted with a legend which
prohibits its transfer unless it is registered or such registration is not
required in the opinion of counsel for the Company.
(iv) Consultant is familiar with the provisions of Rule 144,
under the Act, as in effect from time to time, which, in substance, permits
limited public resale of "restricted securities" acquired, directly or
indirectly, from the issuer thereof (or from an affiliate of such issuer), in a
non-public offering subject to the satisfaction of certain conditions including,
among other things: (A) the availability of certain public information about the
Company and (B) the resale occurring following the required holding period under
Rule 144 after the Purchaser has purchased, and made full payment of (within the
meaning of Rule 144), the securities to be sold.
(v) Consultant further understands that at the time
Consultant wishes to sell the Stock there may be no public market upon which to
make such a sale, and that, even if such a public market then exists, the
Company may not be satisfying the current public information requirements of
Rule 144, and that, in such event, Consultant would be precluded from selling
the Stock under Rule 144 even if the minimum holding period requirement had been
satisfied.
(vi) Consultant is a "qualified institutional buyer" as that
term is defined in Rule 144A under the Act.
6. NONDISCLOSURE. The Consultant confirms that it is subject to the
Confidentiality, Intellectual Property and Non-Disclosure Agreement, a copy of
which is attached hereto as Exhibit A.
7. [INTENTIONALLY LEFT BLANK]
8. MISCELLANEOUS.
(a) NOTICES. Notices and all other communications
contemplated by this Agreement shall be in writing and
shall be deemed to have been duly given when personally
delivered or when sent by U.S.
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Certified Mail, return receipt requested and postage
prepaid, or overnight courier, or by telecopier.
If to the Consultant, addressed as indicated above.
If to the Company, addressed to:
CytRx Corporation
11726 San Vicente Blvd., Suite 650
Los Angeles, CA 90049
Attn: General Counsel
(b) WAIVER. No provision of this Agreement shall be modified,
waived or discharged unless the modification, waiver or discharge is agreed to
in writing and signed by the Consultant and an authorized officer of the
Company. No waiver by either party or any breach of, or compliance with, any
condition or provision of this Agreement by any other party shall be considered
a waiver of any other condition or provision or of the same condition or
provision at another time.
(c) ENTIRE AGREEMENT. This Agreement, including the exhibits
attached hereto, constitutes the entire and exclusive agreement between the
Consultant and the Company concerning the subject matter herein, and supersedes
any prior or contemporaneous oral or written agreements or understandings.
(d) AMENDMENTS. No amendment to this Agreement shall be effective
unless in writing and signed by both of the Parties.
(e) ASSIGNABILITY. The rights and obligations of the Company and
its affiliates under this Agreement shall inure to the benefit of and be binding
upon the successors and assigns of the Company and its affiliates. For the
purposes of this Agreement the term "affiliate" shall mean any entity
controlling, controlled by or under common control with the named party. The
Consultant may not make any assignment of its rights and obligations hereunder,
and any attempt to do so shall be void.
(f) BINDING NATURE OF AGREEMENT. This Agreement shall be binding
upon and inure to the benefit of the Parties hereto and, to the extent expressly
provided herein, assigns, and no other person shall acquire or have any right
under or by virtue of this Agreement.
(g) SEVERABILITY. The invalidity or unenforceability of any
provision of this Agreement shall not affect the validity or enforceability of
any other provision hereof which shall remain in full force and effect.
(h) DIRECTION OF BUSINESS. Nothing in this Agreement shall be
deemed to limit or restrict, directly or indirectly, the discretion of the Board
of Directors of the Company in directing the capitalization, financing,
strategy, development, operations or business of the Company.
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(i) PAYMENTS. All payments provided for in this Agreement shall be
paid by check from the Company's general funds. No special or separate fund and
no other segregation of the Company's assets shall be made with respect to any
such payment.
(j) GOVERNING LAW. The validity, interpretation, construction and
performance of this Agreement and any disputes or controversies arising
hereunder or related to the transactions contemplated hereby shall be governed
by the laws of the state of California without regard for its conflict of laws
principles that would apply the law of any other jurisdiction.
(k) PARAGRAPH HEADINGS. The paragraph headings in this Agreement
are for convenience only; they form no part of this Agreement and shall not
affect its interpretation.
(l) COUNTERPARTS. This Agreement may be executed in counterparts,
each of which shall be an original and both of which, taken together, shall
constitute one and the same instrument.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement
as of the date first written above and agree to be bound by its terms.
CONSULTANT
/s/ DIAN GRIESEL
----------------------------------
By: Dian Griesel
President
CYTRX CORPORATION
By: /s/ STEVEN A. KRIEGSMAN, CEO
----------------------------------
Steven A. Kriegsman, CEO
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2/2/04 DRAFT
EXHIBIT A
CONFIDENTIALITY, INTELLECTUAL PROPERTY AND NON-
DISCLOSURE AGREEMENT
This Confidentiality, Intellectual Property and Non-Disclosure Agreement
(this "Agreement") is entered into by and between CytRx Corporation, a Delaware
corporation (the "Company") and Consultant as of the Effective Date. In
consideration of the compensation paid or to be paid to the Consultant, and for
other good and valuable consideration, the adequacy of which is hereby
acknowledged, the Company and the Consultant agree as follows:
1. Protection of Confidential Information.
(a) The Consultant acknowledges that, during the consulting
engagement with the Company, the Consultant will learn and will have access to
Confidential Information regarding the Company or its affiliates, including
without limitation (i) confidential or secret plans, programs, documents,
agreements or other material relating to the business, services or activities of
the Company or their affiliates and (ii) trade secrets, market reports, customer
investigations, customer lists and other similar information that is proprietary
information of the Company or their affiliates (collectively referred to as
"Confidential Information"). The Consultant acknowledges that such Confidential
Information as is acquired and used by the Company or their affiliates is a
special, valuable and unique asset. The Consultant shall not, during the period
of the consulting engagement with the Company or any time thereafter
(irrespective of the circumstances under which the Consultant's consulting
engagement with the Company terminates), for any reason, use for their own
benefit or the benefit of any person or entity with which they may be associated
or, subject to the following sentence, disclose any such Confidential
Information to any person, firm, corporation, association or other entity for
any reason or purpose whatsoever without the prior written consent of an
executive officer of the Company, unless such Confidential Information
previously shall have become public knowledge through no action by or omission
of the Consultant. Notwithstanding the foregoing, the Consultant may disclose
such information if, in the written opinion of counsel, such disclosure is
required by law and then only with as much prior written notice to the Company
as is practical under the circumstances.
(b) All records, files, materials and Confidential Information
obtained by the Consultant in the course of the consulting engagement with the
Company are confidential and proprietary and shall remain the exclusive property
of the Company or their affiliates, as the case may be. Upon termination of the
Consultant's consulting engagement with the Company, all documents, records,
notebooks and similar repositories of or containing Confidential Information,
including copies thereof, then in Consultant's possession or under its control,
whether prepared by it or others, will be returned to the Company.
2. Intellectual Property.
(a) The parties foresee that the Consultant may make, discover or
create Intellectual Property (as defined) in the course of the consulting
engagement with the Company and agree that in this respect the Consultant has a
special obligation to further the interests of the
Company. For the purposes of this Agreement, "Intellectual Property" includes
patents (including design patents), trademarks (whether registered or
unregistered), copyrights, applications for any of the foregoing and the right
to apply for them in any part of the world, software, designs or drawings, trade
secrets, discoveries, creations, inventions or improvements upon or additions to
an invention, Confidential Information, know-how and any research effort
relating to any of the above-mentioned business names, whether registrable or
not, moral and any similar rights in any country.
(b) Consultant has attached, as Exhibit I, a complete list of all
Intellectual Property to which Consultant claims ownership and that Consultant
desires to remove from the operation of this Agreement (the "Consultant's
Intellectual Property"), and Consultant acknowledges and agrees that such list
is complete and the Company agrees that Consultant's Intellectual Property shall
not be subject to the terms of this Agreement.
(c) Subject to the provisions of applicable law, if in the course
of the consulting engagement with the Company, the Consultant creates or
discovers or participates in the creation or discovery of any Intellectual
Property relating to or capable of being used in the business for the time being
carried on by the Company or any of its affiliates, full details of the
Intellectual Property shall be immediately communicated by the Consultant to the
Company and shall be the absolute property of the Company. Any copyrightable
Intellectual Property which is originated or produced by the Consultant during
the consulting engagement with the Company that relates to or is capable of
being used in the Company's business shall be considered a "work made for hire"
as defined by the U.S. Copyright Act (17 U.S.C. Section 101; a copy of the
definition is attached hereto as Exhibit II). At the request and expense of the
Company, both during and subsequent to the Consultant's consulting engagement
with the Company, the Consultant shall give and supply all such information,
data, drawings and assistance as may be requisite to enable the Company to
utilize such Intellectual Property to the Company's best advantage and shall
execute all documents and do all things which may be necessary or desirable for
obtaining appropriate rights in, and protection for, the Intellectual Property
in such parts of the world as may be specified by the Company. The Consultant
shall treat any Intellectual Property that is the subject of this paragraph as
Confidential Information.
(d) If at any time during the consulting engagement with the
Company but outside of the course of the consulting engagement with the Company,
the Consultant creates or discovers or participates in the creation or discovery
of any Intellectual Property relating to or capable of being used in the
business for the time being known to the Consultant to be carried on by the
Company or any of its affiliates, the Consultant shall immediately communicate
to the Company such details as are reasonably necessary for the Company to
evaluate the usefulness of such Intellectual Property to the Company, which
details shall be treated by the Company as Confidential Information in
accordance with the provisions of Paragraph 1 hereinabove.
(e) The Consultant irrevocably appoints the Company to be its
attorney in fact and authorizes the Company to sign and execute any such
instrument and do any such thing on its behalf, and generally to use its name
for the purpose of giving to the Company (or its nominee) the full benefit of
the provisions of this Section 2, and a certificate in writing signed by any
director or the secretary of the Company that any instrument or act falls within
the authority conferred by this clause shall be conclusive evidence that such is
the case. At least one week
2
prior to taking any action as attorney in fact for the Consultant pursuant to
this paragraph (e), the Company will notify the Consultant of its intent to take
such action, provided that, if the Consultant takes such actions on its own
behalf as are necessary to give the Company (or its nominee) the full benefit of
the provisions of this clause, the Company will not take such action.
(f) Rights and obligations under this Section 2 shall continue in
force after termination of this Agreement in respect of Intellectual Property
made during the Consultant's consulting engagement with the Company and shall be
binding upon its representatives.
3. Non-Solicitation of Employees, Customers and Clients.
The Consultant agrees that during the term of the consulting engagement,
and for a period of one year following the termination of the consulting
engagement (without regard to the reason for the termination of such
engagement), neither it, nor any of its employees, officers, directors or
agents, shall directly or indirectly, for whatever reason whatsoever,
individually or on behalf of persons not now parties to this Agreement, for its
own account or for the benefit of any other person:
(a) attempt to divert or take away, the business or patronage of
any of the customers or accounts, or prospective customers or accounts of the
Company which were contacted, solicited or served by the Company during the
course of the consulting engagement;
(b) interfere with the relationship between the Company and any
customers or accounts, or prospective customers or accounts of the Company which
were contacted, solicited or served by the Company during the course of the
consulting engagement; or
(c) recruit, or attempt to recruit, induce or solicit, or assist
in recruiting, inducing or soliciting the Company employees to terminate their
employment with the Company.
4. Prior Information and Contractual Obligations.
(a) Intellectual Property and Confidential Information. Except as
otherwise provided in Section 1 and Section 2 hereinabove, the Consultant
represents that it does not possess, has not brought, will not bring to the
Company, and will not use in the course of the performance of the consulting
duties at the Company, any intellectual property or Confidential Information of
any former employer or third party which is in violation of any agreement
between Consultant and such former employer or third party without its written
authorization.
(b) Prior Contractual Obligations. The Consultant represents that
in performing its consulting duties for the Company, the Consultant will not be
in breach of any agreement to keep in confidence intellectual property or
Confidential Information acquired by the Consultant in confidence or in trust
prior to the Consultant's engagement with the Company. The Consultant has not
entered into, and the Consultant agrees it will not enter into, any agreement,
either written or oral, that is in conflict with any term of this Agreement, or
that would conflict with the Consultant's engagement with the Company.
3
5. Miscellaneous.
(a) Assignability. The rights and obligations of the Company and
its affiliates under this Agreement may, without the consent of the Consultant,
be assigned by the Company, in its sole discretion, to any person, firm,
corporation or other business entity which at any time and from time to time,
whether by purchase, merger, or otherwise, directly or indirectly, acquires all
or substantially all of the stock, assets or business of the Company. The rights
and obligations of the Company and its affiliates under this Agreement shall
inure to the benefit of and be binding upon the successors and assigns of the
Company and its affiliates. The Consultant's rights and obligations hereunder
may not be assigned or alienated and any attempt to do so by the Consultant will
be void.
(b) Governing Law. This Agreement and any disputes or
controversies arising hereunder or related to the transactions contemplated
hereby shall be governed by and construed and enforced in accordance with the
laws of the state of California other than conflicts of laws principles that
would apply the law of any other jurisdiction.
(c) Amendment; Waiver. No amendment or modification of this
Agreement shall be binding unless it is in writing signed by the Company and the
Consultant. The waiver by any party to this Agreement of a breach of any
provision hereof by any other party shall not be construed as a waiver of any
subsequent breach by any party.
(d) Not A Consulting Contract. This Agreement is not a consulting
contract, and nothing in this Agreement shall confer upon the Consultant any
right to continue the consulting engagement with the Company or shall affect the
right of the Company or the Consultant to terminate the engagement in accordance
with the terms of Consultant's separate Consulting Agreement. The Consultant's
obligations under this Agreement shall continue whether or not the Consultant's
consulting engagement with the Company has been terminated.
(e) Entire Agreement. This Agreement and the Consultant Agreement
represent the entire understanding between the parties regarding the subject
matter of this Agreement.
(f) Binding Effect. This Agreement shall be binding upon and shall
inure to the benefit of the parties hereto and, to the extent expressly provided
and permitted herein, to their respective successors and assigns, and no other
person shall acquire or have any right under or by virtue of this Agreement.
(g) Right To Injunctive Relief. The Consultant agrees that it
would be impossible or inadequate to calculate the Company's damages from any
breach of the covenants set forth in paragraphs 1, 2, 3 and 4 of this Agreement.
In the event of Consultant's breach, or a threatened breach, of the terms of
such paragraphs, the Company will have, in addition to any other right or remedy
available, the right to obtain an injunction from a court of competent
jurisdiction restraining such breach or threatened breach, and to specific
performance of any such provisions, without showing or proving any actual
damages.
(h) Severability of Provisions. If any provision or any portion of
any provision of this Agreement, or the application of any such provision or any
portion thereof to
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any person or circumstance, shall be held invalid or unenforceable, the
remaining portion of such provision and the remaining provisions of this
Agreement, and the application of such provision or portion of such provision as
is held invalid or unenforceable to persons or circumstances other than those as
to which it is held invalid or unenforceable, shall not be thereby affected.
(i) Arbitration and Attorneys Fees. Except as provided in
paragraph 5(g) above, in the event of a dispute concerning application,
interpretation or enforcement of any provision or aspect of this Agreement, each
party agrees that any such dispute shall be submitted to final and binding
arbitration in lieu of proceeding before a state or federal agency or court of
law. Such arbitration will take place in the City of New York, State of New
York, and shall be conducted by an arbitrator mutually agreed upon between the
parties from a panel of 11 arbitrators from the American Arbitration
Association. The arbitration will be conducted in accordance with the American
Arbitration Association's rules then in effect. The parties further agree that,
notwithstanding any American Arbitration Association rule to the contrary, the
arbitrator shall be vested with the discretion and authority to award the
prevailing party the costs and expenses incurred in connection with the
arbitration, including reasonable attorneys' fees. This mandatory arbitration
provision is not intended to limit in any way the Company's right to seek
injunctive relief as provided in paragraph 5(g).
(j) Affiliates. For the purposes of this Agreement, the term
"affiliate" shall mean any entity controlling, controlled by or under common
control with the named party.
(k) Counterparts. This Agreement may be executed in counterparts,
each of which shall be deemed an original, but all of which taken together shall
constitute one and the same agreement.
IN WITNESS WHEREOF, the Company and Consultant have duly executed this
Agreement as of the date first set forth above and agree to be bounds by its
terms.
CONSULTANT
/s/ DIAN GRIESEL
---------------------------------
By: Dian Griesel
President
CYTRX CORPORATION
By: /s/ STEVEN A. KRIEGSMAN
-----------------------------
Steven A. Kriegsman, CEO
5
EXHIBIT I
Consultant's Prior Intellectual Property (if any)
________________________________________________________________________________
N/A
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
This is a true and complete list.
CONSULTANT
/s/ DIAN GRIESEL
---------------------------------
Printed Name: Dian Griesel
--------------------
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EXHIBIT II
From 17 U.S.C. Section 101. Definition of "work made for hire"
A "work made for hire" is (1) a work prepared by a employee within the
scope of his or her employment; or (2) a work specially ordered or commissioned
for use as a contribution to a collective work, as a part of a motion picture or
other audiovisual work, as a sound recording, as a translation, as a
supplementary work, as a compilation, as an instructional text, as a test, as
answer material for a test, or as an atlas, if the parties expressly agree in a
written instrument signed by them that the work shall be considered a work made
for hire. For the purpose of the foregoing sentence, a "supplementary work" is a
work prepared for publication as a secondary adjunct to a work by another author
for the purpose of introducing, concluding, illustrating, explaining, revising,
commenting upon, or assisting in the use of the other work, such as forewords,
afterwords, pictorial illustrations, maps, charts, tables, editorial notes,
musical arrangements, answer material for tests, bibliographies, appendixes, and
indexes, and an "instructional text" is a literary, pictorial, or graphic work
prepared for publication and with the purpose of use in systematic instructional
activities.
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