EXHIBIT 10.26
CONSULTING AGREEMENT
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This Consulting Agreement (the "Agreement") effective as of February 1, 2001,
by and between Antares Pharma, Inc., (hereinafter referred to as "Principal")
161 Cheshire Lane, Suite 100, Minneapolis, MN 55441 USA, and JG Consulting AG,
Hauptstrasse 16, P.O. Box 333, CH-4132, Muttenz, Switzerland (hereinafter
referred to as "Consultant") (both, Principal and Consultant hereinafter
sometimes referred to as "Party" or "Parties", respectively).
WHEREAS, Consultant has experience in and offers consulting services in the
areas of Marketing, Promotion, Financing, Investor Relations, Business
Development, License Negotiations and Joint Ventures Activities; and
WHEREAS, Principal is interested in utilizing such consulting services of
Consultant in the USA, Switzerland and France (such countries hereinafter
collectively referred to as the "Territory") in accordance with the terms and
under the conditions set forth below;
NOW THEREFORE the Parties agree as follows:
1. Services of Consultant
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1.1 Generally. During the term of this Agreement Consultant shall provide
services to Principal in the area of Principal's interests in the
Territory, such services to include without limitation (i) the promotion
of Principal's pharmaceutical technology to suitable companies located in
the Territory; and (ii) the follow-up of leads generated from Principal's
other commercial activities (congresses, ad-hoc contacts etc.); and (iii)
to assist Principal in negotiations of development and licensing
contracts with potential customers in the Territory; and (iv) to assist
and advise Principal in potential acquisitions in the Territory; and (v)
to assist the Principal in its funding and financing activities, in
particular to locate potential investors and to negotiate with such
investors, and (vi) to advise Principal in all aspects of doing business
in the Territory, in particular to maintain the awareness of, and up-date
Principal regularly, on competitive activities, market conditions and the
regulatory environment which may have an effect on Principal's business
activities in the Territory.
1.2 Personnel. Services of Consultant will be provided by Dr. Jacques Gonella
and by other qualified managers and employees of Consultant (hereinafter
"Employees").
Dr. Jacques Gonella. Services provided by Dr. Jacques Gonella shall
include assistance to Principal for marketing, promotion, financing,
investor relations, business development, license negotiations, joint
venture activities and potential acquisitions.
Managers and other Employees. Services provided by the other Managers and
Employees shall consist of assistance to Principal for organizational and
administrative functions and assistance in business development.
1.3 Reporting. Consultant shall report on its services, activities and
contacts under this Agreement by providing Principal oral or written
summary reports from time to time.
2. Consideration
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2.1 During the term of this Agreement, Principal shall pay to Consultant as
consideration for the services to be provided under this Agreement a
monthly flat fee of USD 4'500.- (four-thousand-five-hundred US Dollars)
for all the services rendered by Dr. Jacques Gonella and USD 11'000.-
(eleven-thousand US Dollars) for the services rendered by the other
managers and employees (both fees the ,,Monthly Fees"), payable each
month in arrears by bank transfer to the Consultants bank account
specified by Consultant from time to time. The Monthly Fees shall be
revised by the Parties by mutual agreement on the basis of the actual
activity and performance of the Consultant at the end of the Initial Term
(as defined in Section 6.1 below), and thereafter upon the end of each
Subsequent Term (as defined in Section 6.2 below)
2.2 In addition to the Monthly Fees referred to above, Principal undertakes
to reimburse to Consultant monthly in arrears all reasonable travel,
accommodation, mobile phone (line rental and call charges) and other
out-of-pocket expenses incurred by Consultant in connection with
providing services under this Agreement, upon presentation of respective
receipts, all to the extent that all such expenses have been incurred in
line with Principal's usual policy and are within an expense budget
agreed upon by the Parties from time to time, or have been approved by
Principal in advance.
2.3 For the avoidance of doubt, Consultant hereby acknowledges and agrees
that the Monthly Fees and the reimbursement of expenses in accordance
with Sections 2.1 and 2.2 above shall be the total and sufficient
remuneration of
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Consultant under this Agreement, and that no other payments are due to
Consultant by Principal under this Agreement (including commission,
success, royalty or other payments for any business of Principal directly
or indirectly emerging from Consultants services rendered under this
Agreement).
3. Confidentiality
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3.1 During the term of this Agreement, Principal will disclose, otherwise
make available or provide to Consultant proprietary and highly
confidential material, data, documents and other information, in written,
oral or any other form, related to, without limitation, Principal's
technologies, patents, know-how, products, customers, suppliers,
personnel, marketing and pricing (collectively hereinafter referred to as
"Confidential Information"). Consultant hereby undertakes and agrees to
hold in strict confidence and not to use, disclose, give access to,
otherwise make available to third parties or copy any of the Confidential
Information, except to the extent allowed under, and required for the
purposes of, this Agreement and/or with the prior written consent of
Principal.
3.2 In addition to, and not in limitation of the foregoing, Confidential
Information shall not be disclosed to any potential customer or potential
business partner of Principal or any other third party, without such
third party(ies) having previously entered into a written confidentiality
agreement with Principal, provided however, that Principal may identify
certain parts of Confidential Information which may be disclosed to such
third parties prior to the execution of a confidentiality agreement
exclusively for the purpose of contacting such third parties in order to
evaluate eventual projects involving Principal's technologies or
products.
3.3 In the event of any termination or expiration of this Agreement for
whatsoever reason, Consultant undertakes to return to Principal
immediately upon such termination or expiration all of the Confidential
Information, including every and all copies made thereof.
3.4 The obligations of confidentiality and non-use contained in this Section
3. shall survive the expiration or termination of this Agreement for
whatsoever reason for an indefinite period of time, in any event as long
as any of the Confidential Information has not entered the public domain
without a breach of this Agreement.
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4. Term and Termination
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4.1 This Agreement is entered into for a initial period of eleven (11) months
as of the effective date first written above (the "Initial Term").
During the last month of such Initial Term, the Parties shall review the
performance and activities of Consultant during such Initial Term as well
as the terms of this Agreement.
4.2 After the initial period, the Parties may terminate this Agreement by
giving one month prior written notice, effective the end of the month
following the month of the notice.
4.3 Notwithstanding the provision of Sections 4.1 and 4.2 above, Principal
may terminate this Agreement at any time by giving written notice to
Consultant with immediate effect in the case of any substantial breach of
this Agreement by Consultant, including any breach of the confidentiality
and non-use or the non-competition obligations contained in Section 3.
above.
4.4 The termination or expiration of this Agreement shall not terminate or in
any way reduce any rights or obligations of either Party accrued prior to
the effective date of such termination or expiration. It is understood
and agreed that Sections 3., 6. and 7. of this Agreement shall survive
any expiration or termination of this Agreement for whatsoever reason.
5. Miscellaneous
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5.1 Independent Contractors. It is expressly agreed that the Parties shall be
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independent contractors, and that the relationship between the Parties
shall not constitute an employment of Consultant or a partnership, joint
venture or agency. Neither Party shall have the authority to make any
statements, representations or commitments of any kind, or to take any
action, which shall be binding upon the other Party, without the express
prior written consent of the other Party to do so
5.2 Entire Agreement. This Agreement, together with Appendix A hereto, sets
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forth all the promises, agreements, conditions and understandings between
the Parties hereto and constitutes the entire Agreement between the
Parties on the subject matter and no subsequent alterations, amendments,
changes or additions hereto shall be binding and valid unless reduced in
writing and signed by each Party.
5.3 Assignment. This Agreement and the rights and obligations hereunder shall
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not be assignable by Consultant to any third party without the prior
written consent of Principal.
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5.4 Notices. All notices required to be given or submitted pursuant to this
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Agreement shall be in writing, in English language and delivered
personally or by international courier services or by confirmed facsimile
transmission to the addresses first written above, or to such other
address as either Party may from time to time designate to the other
Party in accordance with this Section 5.4.
5.5 Invalidity of Provisions. In the event that any of the terms or
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provisions of this Agreement should be in conflict with any applicable
rule of law or statutory provision, or should be otherwise unenforceable
under any applicable laws or regulations of any government or
sub-division thereof, such terms and provisions shall be stricken from
the Agreement without effect on the validity of all other terms and
provisions of this Agreement which shall remain in full force. The
Parties agree to substitute any such invalid provision by valid terms or
provisions which, to the extent possible, maintain the commercial intent
of the invalid terms on an equitable basis.
5.6 Value Added Tax. The services to be rendered by Consultant hereunder may
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be subject to VAT in Switzerland. Any such VAT, if any, shall be borne by
Principal and shall not reduce the Monthly Fee due to Consultant
hereunder.
6. Governing Law
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6.1 This Agreement shall be governed by and construed in accordance with the
laws of the United States of America and the State of Minnesota without
regard to choice of law provisions that would cause the application of
the law of another jurisdiction.
7. Arbitration
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7.1 The Parties shall attempt in good faith to resolve any dispute arising
out of or relating to this Agreement, the breach, termination or validity
hereof, or the transactions contemplated herein (including without
limitation with respect to any claim for indemnification hereunder)
promptly by negotiation between one representative of Principal and one
representative of Consultant that have authority to settle the
controversy. Either Principal or Consultant may give to the other party
written notice that a dispute exists (a "Notice of Dispute"). The Notice
of Dispute shall include a statement of such party's position and the
name and title of the representative who will represent such party.
Within 14 days of the delivery of the Notice of Dispute, the
representative of Principal and the representative of Consultant shall
meet at a mutually acceptable time and place, and thereafter as long as
they reasonably deem necessary, to attempt to resolve the dispute. All
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reasonable requests for information by one Party to the other shall be
honored.
7.2 Any controversy or claim arising out of or relating to this Agreement,
the breach, termination or validity hereof, or the transactions
contemplated herein (including without limitation with respect to any
claim for indemnification hereunder), if not settled by negotiation as
provided in Section 7.1 above, shall be settled by binding arbitration in
Minneapolis, Minnesota in accordance with the CPR Rules for
Non-Administered Arbitration of Business Disputes, by a single
arbitrator. Either party may initiate arbitration 30 days following the
delivery of a Notice of Dispute if the dispute has not then been settled
by negotiation, or sooner if the other party fails to participate in
negotiation in accordance with Section 7.1 above. The parties shall each
use their best efforts so that any arbitration that is initiated shall be
concluded within 30 days. The arbitrator shall be appointed by CPR from
the CPR panel of neutrals (in accordance with any criteria upon which the
parties have been able to agree). In any such arbitration, each of the
parties hereto shall pay its own costs and expenses and the fees, costs
and expenses of the arbitrator shall be paid 50% by Principal and 50% by
Consultant. The arbitration shall be governed by the United States
Arbitration Act, 9 U.S.C. (S)(S) 1-16, and the award rendered by the
arbitrators shall be final and binding on the parties and may be entered
by any court having jurisdiction thereof and may include equitable
relief.
IN WITNESS WHEREOF, the Parties have executed this Agreement effective as of the
date first written above.
THE PRINCIPAL: THE CONSULTANT:
ANTARES PHARMA, INC.
/s/ Lawrence Christian /s/ J. Gonella
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By: Lawrence Christian By: By: Dr. Jacques Gonella
Vice President -
Finance/CEO
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