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ILEX Oncology - Consulting Services Agreement for Physician Services - Dr. Von Hoff
EXHIBIT 10.18
CONSULTING AGREEMENT
THIS AGREEMENT is made and entered into as of this 1st day of January, 2003, ("Effective Date") by and between ILEX(TM) Products, Inc. with place of business at 4545 Horizon Hill Blvd., San Antonio, Texas 78229 (ILEX Products, Inc. and its parent and affiliated corporations and partnerships collectively referred to as "ILEX") and Daniel D. Von Hoff., M.D., and his solely owned legal entity known as NDA, LLC, located at 4951 N. Avenida de Vizcaya, Tucson, AZ 85718 (hereinafter referred to as "Consultant").
THE PARTIES AGREE as follows:
1. Services
ILEX hereby engages Consultant to serve as a consultant to ILEX, and Consultant hereby accepts such engagement, upon and subject to the terms and conditions set forth herein.
From and following the Effective Date of this Agreement, Dr. Von Hoff shall update ILEX on a monthly basis as to any other consulting or advisory board agreements that are made. Dr. Von Hoff warrants and represents to ILEX that Dr. Von Hoff has no affiliations in any capacity with any persons or entities other than ILEX, except those listed on EXHIBIT A attached hereto.
The parties understand and acknowledge that potential conflicts or duality of interest, or the appearance of such conflict or duality of interest, may arise during Dr. Von Hoff's performance of those duties and services as a result of Dr. Von Hoff's other affiliations. Both parties recognize the importance of avoiding both actual conflicts and the appearance of conflicts of interest. The parties will therefore mutually develop procedures for identifying and evaluating actual, potential and apparent conflicts of duality of interests. In discharging his duties and responsibilities hereunder, Dr. Von Hoff will advise ILEX when and if an actual or potential conflict arises. The parties will then mutually work at attempting to resolve the conflict.
During the term of this Agreement, Consultant agrees to provide services to ILEX as set forth in Exhibit B, and other activities as may be requested by senior management of ILEX from time to time (collectively "Services").
2. Compensation
A. In exchange for Consultant's providing Services as described above, during the term of this Agreement, ILEX shall pay Consultant and Consultant agrees to accept
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for Consultant's Services an annual fee of $275,000.00 USD paid at a monthly rate of $22,916.66 by the 15th of each month.
B. ILEX shall also reimburse Consultant for all reasonable and necessary travel in accordance with ILEX's corporate policy and will reimburse other reasonable and necessary out-of-pocket documented direct expenses such as postage, facsimile, printing and long distance incurred in connection with the Services. ILEX shall make these expense payments to Consultant in accordance with this Agreement within thirty (30) days of receipt of each detailed invoice with any receipts from Consultant indicating payment, including travel as well as any reasonable and necessary incidental expenses incurred in rendering such Services
C. All payments, including reimbursements for actual expenditures, shall be included in Consultant's gross income as compensation for services rendered and accordingly reported on Consultant's IRS Form 1099. Consultant is responsible for payment of all local, state and federal taxes (including FICA taxes) on income earned under this Agreement, as none will be withheld by ILEX. Consultant is not relying upon ILEX for advice regarding tax aspects of this Agreement.
3. Independent Contractor
A. It is agreed that Consultant is to have complete freedom of action as to the details, methods, and means of performing the consulting Services. It is further understood that Consultant has contracted with ILEX only for the purposes and to the extent set forth in this Agreement and Consultant's relation to ILEX is that of an independent contractor, and Consultant shall be free to dispose of any portion of his entire time, energy, and skill beyond that Consultant is obligated to devote to ILEX in such a manner as Consultant sees fit and to such persons or entities as Consultant deems advisable so long as any such other work by Consultant does not conflict with the interest of ILEX.
B. Consultant acknowledges that this Agreement creates a relationship of special trust and confidence and imposes on him fiduciary duties to act for the benefit of ILEX and its affiliated entities. By this Agreement, ILEX retains Consultant only for the purposes and to the extent set forth herein. As an independent contractor, Consultant does not have the authority to bind ILEX or any of its affiliates to any third person, unless expressly agreed to in writing by the President of ILEX.
C. Neither Consultant nor Consultant's employees, agents and/or subcontractors shall be considered, under the provisions of this Agreement or otherwise, as having a status as an employee of ILEX nor shall Consultant or his employees, agents and/or subcontractors be entitled hereafter to participate in any plans, arrangements, or distributions by ILEX relating to any pension, deferred compensation, bonus, stock bonus, hospitalization,
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insurance, or other benefits extended to employees, since Consultant is performing the consulting service hereunder as an independent contractor.
4. Term and Termination
A. This Agreement shall come into being on its Effective Date and will continue in effect until December 31, 2004 unless sooner terminated. Either Consultant or ILEX may terminate this Agreement at any time during its term by giving ninety (90) days notice of termination to the other party.
B. Sixty (60) days prior to the end of the term of this Agreement, the parties shall enter into negotiations regarding the renewal of this Agreement or the execution of a new agreement, which renewal or new agreement shall contain such terms and conditions as may be agreed by the parties.
C. Regardless of whether this Agreement terminates at the end of the agreed period above or as extended by supplemental agreement or by any of the methods of early termination provided for herein, Consultant's obligations set forth in Paragraphs 6, 7 and 8 below shall continue.
5. Representations and Warranties
A. Consultant represents and warrants that Consultant is free to enter into this Agreement and perform the Services provided for in this Agreement and will perform the Services in compliance with all applicable laws, rules and regulations. Consultant agrees that all information Consultant discloses to ILEX shall be received by ILEX without further obligation to Consultant than as provided herein.
B. Consultant further represents that performance of all the terms of this Agreement do not and will not breach any duties or obligations owed under applicable law to third parties nor any agreement to keep in confidence proprietary information, knowledge or data acquired in confidence or in trust prior to the commencement of this Agreement and will not disclose to ILEX or induce ILEX to use any confidential or proprietary information or material belonging to any previous employer or others.
C. If Consultant is aware of circumstances under which ILEX may not be free to use Consultant's information without liability of any kind, or the use of which by ILEX would result in a possible infringement of one or more unexpired patents or other proprietary rights known to Consultant, then Consultant agrees to disclose such circumstances to ILEX and, upon disclosure of such circumstance, Consultant shall be under no obligation to disclose further related information to ILEX.
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6. Ownership of Work Product
All work performed for ILEX by Consultant hereunder (including but not limited to all data compiled by Consultant or reports, working notes, drawings, design, and specifications developed or prepared by Consultant in connection with such work) shall become the sole property of ILEX, unless specifically otherwise agreed upon in writing by ILEX and Consultant. Consultant hereby assigns to ILEX all rights related thereto, including copyright.
7. Non-Disclosure
A. Consultant shall protect, guard, and maintain the confidentiality of Confidential Information (as defined in Paragraph 11), Except as required in performance of Consultant's services for ILEX, Consultant will never directly, indirectly, or otherwise, use, permit others to use, disseminate, disclose, lecture upon, or publish articles concerning Confidential Information, without ILEX's prior written consent. Further, Consultant agrees to return Confidential Information supplied by ILEX and any copies thereof upon completion of services relating to the Confidential Information or upon ILEX's written request to do so. The obligations of confidentiality and non-use set forth in this Agreement shall continue for a period often (10) years after expiration or other termination of this Agreement.
B. Consultant may disclose Confidential Information to persons within their direct employment who have a need to receive the Confidential Information in order to further the purposes of this Agreement and who are bound to protect the confidentiality of the Confidential Information. Consultant agrees that all employees who are permitted access to Confidential Information under this Agreement are bound to protect the confidentiality of such information to the same extent as Consultant pursuant to this Agreement.
C. In the event that Consultant receives a subpoena, order, or other process of any court or other governmental body seeking disclosure of Confidential Information, Consultant shall notify ILEX immediately so that ILEX shall have a reasonable amount of time prior to any court-ordered disclosure to object to disclosure. Subject to the foregoing notice requirement, if required by subpoena, order, or other process of any court or other governmental body, Consultant may disclose the Confidential Information to a governmental authority or by order of a court of competent jurisdiction, provided that such disclosure is subject to all applicable governmental or judicial protection available for like confidential or trade secret information.
D. Consultant hereby acknowledges that Consultant is aware that the United States and other applicable securities laws prohibit any person who has material, non-public information about a c