Consulting Agreement - Aastrom Biosciences Inc. and Stephen G. Emerson
CONSULTING AGREEMENT
This Consulting Agreement (the "Agreement") is entered into as of July 1,
1995, by and between AASTROM BIOSCIENCES, INC., a Michigan corporation
("Company") and STEPHEN G. EMERSON, M.D., Ph.D. ("Consultant"), with respect to
the following facts:
RECITALS
A. Consultant is an employee of the University of Pennsylvania
("Employer").
B. Company desires to obtain the consulting services of Consultant, and
Consultant desires to provide such consulting services, as set forth
in this Agreement.
AGREEMENT
NOW, THEREFORE, the parties agree as follows:
1. ENGAGEMENT. Company hereby appoints Consultant, and Consultant
hereby accepts such appointment, upon the terms and conditions
set forth herein.
2. ASSIGNMENT. Consultant is engaged as a consultant for the
following described assignments:
2.1 Assist Company in the planning, design, direction,
supervision and implementation of Company's research
programs and clinical trials.
2.2 Assist Company with investor relations, financing and other
needed presentations.
2.3 Assist Company in such other matters and areas as may be
mutually approved by Consultant and Company.
Consultant shall perform such consulting services at times and
places which are mutually convenient to Company and Consultant,
with Consultant making himself available for at least
approximately eight (8) hours per month at Company's facility.
3. RESTRICTIONS. Consultant shall not perform any consulting or
other services for any other commercial party which is engaged in
research, development, technology, or products which are similar
to or competing with that of Company.
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4. COMPENSATION. As compensation for Consultant performing the
consulting services pursuant to this Agreement, Company shall pay
to Consultant a consulting fee of $3,125 (Three Thousand One
Hundred Twenty Five Dollars) per calendar quarter, payable
quarterly in arrears, as of the last day of the months of
September, December, March and June. Consultant shall be
entitled to reimbursement for necessary out-of-pocket
expenditures incurred in the performance of his consulting
services, but subject to Consultant's obtaining the preapproval
of Company prior to Consultant incurring said expenditures.
5. TERM. The term of this Agreement shall commence on July 1, 1995,
and shall continue until June 30, 1996, unless sooner terminated
in accordance with the provisions hereof.
6. TERMINATION.
6.1 Termination Without Cause. Either party may terminate this
Agreement without cause upon not less than thirty (30) days'
prior written notice delivered to the other. The death of
Consultant shall automatically terminate this Agreement.
6.2 Termination for Cause. The non-defaulting party shall have
the right to terminate this Agreement upon the occurrence of
any of the following events, and the expiration of any
applicable period of cure: (a) the failure of Company to
make any payment within ten (10) days after the date of
receipt of a written notice from Consultant stating that a
payment is past due; (b) the failure of Consultant to
perform the assignment to the reasonable satisfaction of
Company; (c) the failure of a party to comply with any other
term or condition of this Agreement, and the expiration of
ten (10) days after written notice thereof, specifying the
nature of such default, without cure; and (d) any attempt by
Consultant to assign or otherwise transfer Consultant's
rights hereunder.
7. INDEPENDENT CONTRACTOR. The parties expressly intend and agree
that Consultant is acting as an independent contractor and not as
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an employee of Company. Consultant retains sole and absolute
discretion, control, and judgment in the manner and means of
carrying out the assignment, except as to the policies and
procedures set forth herein. Consultant understands and agrees
that Consultant shall not be entitled to any of the rights and
privileges established for Company's employees (if any),
including but not limited to
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the following: retirement benefits, medical insurance coverage,
life insurance coverage, disability insurance coverage, severance
pay benefits, paid vacation and sick pay, overtime pay, or any of
them. Consultant understands and agrees that Company will not pay
or withhold from the compensation paid to Consultant pursuant to
this Agreement any sums customarily paid or withheld for or on
behalf of employees for income tax, unemployment insurance,
social security, workers' compensation or any other withholding
tax, insurance, or payment pursuant to any law or governmental
requirement, and all such payments as may be required by law are
the sole responsibility of Consultant. Consultant agrees to hold
Company harmless against and indemnify Company for any of such
payments of liabilities for which Company may become liable with
respect to such matters. This Agreement shall not be construed as
a partnership agreement. Company shall have no responsibility for
any of Consultant 's debts, liabilities or other obligations or
for the intentional, reckless or negligent acts or omissions of
Consultant or Consultant's employees or agents.
8. CONFIDENTIALITY.
8.1 Acknowledgment of Proprietary Interest. Consultant
recognizes the proprietary interest of Company in any Trade
Secrets of Company. As used herein, the term "Trade
Secrets" includes all of Company's confidential or
proprietary information, including without limitation any
confidential information of Company encompassed in any
reports, investigations, experiments, research or
developmental work, inventions, technology, experimental
work, work in progress, drawings, designs, plans, proposals,
codes, marketing and sales programs, financial projections,
cost summaries, pricing formula, and all concepts or ideas,
materials or information related to the business, products
or sales of the Company or the Company's customers which has
not previously been released to the public at large by duly
authorized representatives of the Company, whether or not
such information would be enforceable as a trade secret or
the copying of which would be enjoined or restrained by a
court as constituting unfair competition. Consultant
acknowledges and agrees that any and all Trade Secrets of
Company, learned by Consultant during the course of the
engagement by Company or otherwise, whether developed by
Consultant alone or in conjunction with others or otherwise,
shall be and is the property of Company.
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8.2 Ownership of Work. All inventions, patents, discoveries,
reports and ideas arising from Consultant's services to
Company hereunder shall be the sole property of Company and
shall be Company's Trade Secrets. Consultant agrees to
assign and hereby assigns to Company, its successors or
assigns, all Consultant's right, title and interest in and
to said Trade Secrets, inventions or discoveries and any
patent application or letters parent thereon. Consultant
agrees to reasonably cooperate with Company, at no expense
to Consultant, to effect such ownership rights. Consultant
hereby irrevocably appoints Company and its officers as his
agent and attorney-in-fact to execute and file any patent
applications and related documents pertaining to said Trade
Secrets if he is deemed to be an "inventor" of an invention
which is part of Company's Trade Secrets.
8.3 Publication. Any publications and reports by Consultant
concerning Consultant's scientific work may be released in
accordance with Employer's customary practices, policies and
agreements. Provided, however, Consultant shall not publish
any manuscript or other document, solely or in co-authorship
with others, pertaining to Company's Trade Secrets or
Company's other information attributable to any project
undertaken by Company, without Company's prior written
consent.
8.4 Covenant Not to Divulge Trade Secrets. Consultant
acknowledges and agrees that Company is entitled to prevent
the disclosure of Trade Secrets of Company. As a portion of
the consideration for the appointment of Consultant and for
the compensation being paid to Consultant by company,
Consultant agrees at all times during the term of the
engagement with Company and thereafter to hold in strictest
confidence, and not to disclose or allow to be disclosed to
any person, firm or corporation, other than to persons
engaged by Company to further the business of Company, and
not to use except in the pursuit of the business of Company,
Trade Secrets of Company, without the prior written consent
of Company, including Trade Secrets developed by Consultant.
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8.5 Return of Materials at Termination. In the event of any
termination of Consultant's appointment, with or without
cause, Consultant will promptly deliver to Company all
materials, property, documents or other information, or any
reproduction or excerpt thereof, belonging to Company or
containing or pertaining to any Trade Secrets.
8.6 Remedies Upon Breach. In the event of any breach of this
Agreement by Consultant, Company shall be entitled, if it so
elects, to institute and prosecute proceedings in any court
of competent jurisdiction, either in law or in equity, to
enjoin Consultant from violating any of the terms of this
Agreement, to enforce the specific performance by Consultant
of any of the terms of this Agreement, and to obtain
damages, or any of them, but nothing herein contained shall
be construed to prevent such remedy or combination of
remedies as Company may elect to invoke. The failure of
Company to promptly institute legal action upon any breach
of this Agreement shall not constitute a waiver of that or
any other breach hereof.
9. MISCELLANEOUS.
9.1 Governing Law. This Agreement shall be interpreted,
construed, governed and enforced according to the laws of
the State of Michigan.
9.2 Attorneys' Fees. In the event of any litigation concerning
any controversy, claim or dispute between the parties
hereto, arising out of or relating to this Agreement or the
breach hereof, or the interpretation hereof, the prevailing
party shall be entitled to recover from the losing party
reasonable expenses, attorneys' fees, and costs incurred
therein or in the enforcement or collection of any judgment
or award rendered therein.
9.3 Amendments. No amendment or modification of the terms or
conditions of this Agreement shall be valid unless in
writing and signed by the parties hereto.
9.4 Successors and Assigns. The rights and obligations of
Company under this Agreement shall inure to the benefit of
and shall be binding upon the successors and assigns of
Company. Consultant shall not be
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entitled to assign any of Consultant's rights or obligations
under this Agreement.
9.5 Entire Agreement. This Agreement constitutes the entire
agreement between the parties with respect to the
appointment of Consultant.
9.6 Employer Policies. Consultant represents, warrants and
covenants that Consultant's performance of the obligations
under this Agreement does not and will not violate the terms
of any of Consultant's agreements with Employer or any other
party.
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date set forth above.
COMPANY: CONSULTANT:
AASTROM BIOSCIENCES, INC.
By: /s/ R. DOUGLAS ARMSTRONG /s/ STEPHEN G. EMERSON
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R. Douglas Armstrong, Ph.D. Stephen G. Emerson, M.D., Ph.D.
President and CEO