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EXHIBIT 10.38
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Consultant: Tamar Howson Company's Representative:
Hunter Jackson , President and CEO
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Address: 128 St. Georges Road NPS Pharmaceuticals, Inc.
Ardmore, PA 19003 420 Chipeta Way
Salt Lake City, Utah 84108
Social Security Number or Employer I.D. #:
CONSULTANT SERVICES AGREEMENT
Effective Date: July 3, 2000
This Consultant Services Agreement (hereinafter "Agreement") is entered into by
the above-referenced party (hereinafter "Consultant") whose address is as shown
above, and NPS PHARMACEUTICALS, INC., a Delaware corporation (hereinafter the
"Company"). Consultant and the Company are collectively designated herein as
the "Parties" and the term "Party" shall mean either one of the Parties as the
text may require.
The "Effective Date" of this Agreement is as shown above.
WHEREAS, Company requires a party such as Consultant to perform services as
defined in Exhibit "A" hereto (the "Services");
WHEREAS, Consultant represents that she is qualified to perform said Services
and desires to perform said Services for and on behalf of the Company on the
terms and conditions set forth herein;
NOW THEREFORE, for and in consideration of the foregoing and the promises,
covenants, terms, conditions, and obligations hereinafter set forth, the Parties
agree as follows:
I. REPRESENTATIVE AND NOTICE. The Company's Representative for the purposes
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of this Agreement shall be as shown above. All notices from Consultant to
the Company shall be directed to the attention of the Company
Representative at the Company's address shown above.
II. SCOPE OF SERVICES. The Services to be performed by Consultant pursuant to
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the terms and conditions of this Agreement shall include, but are not
limited to, the work, activities and services set forth in Exhibit "A."
III. ASSIGNMENT AND DELEGATION. The Parties agree that the Services as defined
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herein are unique personal services that are to be performed only by
Consultant.
IV. COMPENSATION AND EXPENSES. Compensation for Services shall be cash and
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stock options as set forth in Exhibit "B."
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V. DURATION OF SERVICES.
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1. Consultant shall perform Services for the benefit of the Company
from time to time or for such other period as shall be stated on
Exhibit "A" hereto.
2. The Parties, by their mutual written consent, may extend the period
for performing Services under this Agreement.
3. Either Party may terminate Consultant's performance of Services by
giving thirty (30) days advance written notice to the other Party.
4. The Company's obligations under Section IV shall terminate upon
expiration of the above period or upon termination by either Party
of Consultant's performance of the Services as provided in this
Section V.
5. Except for Consultant's obligation to perform Services, Consultant's
obligations under this Agreement shall survive expiration of the
above period and/or termination of Consultant's performance of
Services for a period of two years.
VI. COMPLIANCE WITH STATE AND FEDERAL LAWS. Consultant shall comply with all
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requirements of any applicable federal, state, or local law, rule or
regulation. Consultant represents that she has all licenses or other
authorizations required to enable him/her to perform Services hereunder
in the jurisdiction where the Services are to be performed.
VII. INDEPENDENT CONTRACTOR. Consultant is and shall be in the performance of
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Services hereunder as an independent contractor. Consultant shall be
available as a qualified professional consultant in the field identified
on Exhibit "A."
VIII. PROFESSIONAL RESPONSIBILITY.
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1. Consultant agrees to provide, in connection with performance of all
Services under this Agreement, the standards of care, skill, and
diligence normally provided by competent professionals in the
performance of services similar to that contemplated by this
Agreement.
2. Consultant represents that to the best of her knowledge she has no
conflicts of interest in rendering professional services to the
Company. Upon request from the Company, Consultant will disclose, to
the extent Consultant is lawfully permitted to do so, the general
nature of previous work performed for others in the "Area of
Technology of Possible Interest to Consultant or Others" defined in
Exhibit "C" herein.
IX. INSURANCE. Consultant is not required to provide proof of insurance, nor
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to provide any insurance naming the Company as an additional insured.
X. DEFINITION OF "CONFIDENTIAL INFORMATION" AND "INTELLECTUAL PROPERTY."
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1. "Confidential Information" shall mean:
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(a) any and all Intellectual Property or information whether
business, financial, technical or otherwise, of any type
whatsoever, in any form whatsoever, which is (i) proprietary to
the Company; or (ii) submitted or disclosed to the Company by a
third party.
(b) Confidential Information (whether or not reduced to writing and
in any and all stages of development) includes, but is not
limited to: discoveries, ideas, inventions, designs, formulas,
test results, test procedures, protocols, concepts, drawings,
specifications, techniques, models, data, software, research,
processes, procedures, works of authorship, formulas,
improvements, trade secrets, know-how, marketing plans and
supplies, product plans, customer names (and other information
relating to customers), supplier names (and other information
relating to suppliers), and financial information.
(c) Confidential Information shall not include anything that is
publicly known or generally employed by the trade at or after the
Effective Date of this Agreement.
2. "Intellectual Property" shall mean, without limitation, all
copyrights, discoveries, inventions, improvements (whether or not
patentable), patents, patent applications, trademarks, service marks,
trade secrets, know-how, and all other Intellectual Property rights of
any type whatsoever.
XI. ASSIGNMENT OF RIGHTS IN "INTELLECTUAL PROPERTY."
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1. Consultant hereby assigns to the Company all of Consultant's rights in
all Intellectual Property rights which are made, discovered,
developed, assembled, created, or conceived, in whole or in part, by
Consultant during the course of and within the scope of Services
performed under this Agreement.
2. All of Consultant's Intellectual Property assigned to the Company
hereunder shall be deemed Confidential Information except for anything
that is publicly known or generally employed by the trade, without the
fault of Consultant, at or after the Effective Date of this Agreement.
3. Consultant hereby agrees to disclose promptly and fully to the Company
all Intellectual Property which arises in the performance of services
hereunder by Consultant.
4. Consultant shall, upon the Company's reasonable request and at the
Company's expense, execute all documents and take such other action as
may be necessary or desirable, to protect, enhance, exploit or vest in
the Company any and all of Consultant's Intellectual Property rights
assigned to Company hereunder.
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XII. CONFIDENTIALITY.
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1. Consultant understands that Confidential Information is confidential
and secret and agrees to respect the confidentiality and secrecy of
the same. Consultant also understands that all Confidential
Information is the property of the Company or of a third party which
has submitted the same to the Company. Consultant agrees to treat
Confidential Information submitted to the Company by third parties as
if confidential and proprietary to the Company. Consultant further
understands and agrees that the relationship between Consultant and
the Company is of a confidential nature and imposes an affirmative
obligation upon Consultant to protect, foster and respect the
confidentiality of Confidential Information.
2. Except as lawfully authorized or as may be required in the performance
of Consultant's responsibilities for the Company, Consultant agrees:
(a) not to directly or indirectly disclose, reveal, report, publish,
or transfer possession of, or access to, any Confidential
Information to any person or entity;
(b) at the expense of the Company, promptly at all times hereafter to
execute and deliver any and all acts and instruments as may be
necessary or desirable to perfect and protect the Company's
interest in the Confidential Information; and
(c) not to directly or indirectly use the Confidential Information
except for the benefit of the Company in the performance of
Consultant's Services for the Company and the discharge of
Consultant's obligations herein.
3. Upon and in accordance with the Company's instructions, Consultant
shall return or dispose of all Confidential Information received or
generated hereunder. Consultant shall, whenever requested by the
Company, give a prompt and full accounting of all Confidential
Information given to Consultant and all copies or reproductions
thereof. Confidential Information shall remain the property of the
Company even if Consultant is in possession thereof.
XIII.PREVIOUS WORK OR SERVICES.
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1. If Consultant has previously been exposed to proprietary information
of the Company, such disclosure is deemed incorporated herein and
controlled by the terms hereof, and if Consultant has executed an
agreement regarding non-disclosure and non-competition, such agreement
is continued and deemed incorporated herein by reference, except that
any such agreement shall be deemed amended hereby to the extent the
Company's rights hereunder extend beyond the Company's rights as
specified therein.
2. Consultant, to the best of her knowledge, represents to the Company
that Consultant has not brought and has not used, and agrees not to
bring to the Company and will not
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use in the performance of any Services for the Company, any
information, materials or the like which are confidential and are
proprietary to a third party without written authorization from said
third party.
XIV. AREAS OF TECHNOLOGY SUBJECT TO POSSIBLE INTEREST TO CONSULTANT OR OTHERS.
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In the event and to the extent Consultant has previously performed
services for another and to the extent Consultant has developed personal
proprietary interests in areas of interest to the Company within the
"Area of Technology of Possible Interest to Consultant or Others"
identified by Consultant on Exhibit "C" hereto, Consultant, to the extent
Consultant is lawfully permitted to do so, has advised the Company of the
nature of such service, the general nature of the parties for whom such
services were rendered, and the particular aspects of any facts
supporting a claim that any of the "Area of Interest" is in the public
domain or owned by Consultant or some other party, or under any
obligation of confidence or non-use.
XV. MISCELLANEOUS.
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1. This Agreement may only be amended in writing, signed by each Party
hereto. The terms of this Agreement shall be interpreted under the
laws of the State of Utah. This Agreement constitutes the entire
Agreement between the Parties with respect to the subject matter
hereof.
2. Consultant agrees to execute such additional documents and do such
further acts and deeds as may be necessary or desirable to
effectuate the purposes hereof or the perfection of the rights and
interests of the Company expressed herein.
3. Consultant may be, or has been, invited to serve on the Board of
Directors of Company. Neither the payment for, nor the performance
of, Services hereunder is tied to service or appointment to the
Board.
4. Consultant agrees that any breach of this contract or threatened
breach hereof could subject the Company to substantial, immediate
and irreparable damages and consents that the Company may be
entitled to equitable relief in the event thereof. Consultant agrees
that Utah law applies and that any adjudication of interests
hereunder be proved in Utah courts
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the
date first above written.
CONSULTANT: NPS PHARMACEUTICALS, INC.:
By:
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Tamar Howson Its:
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Date: Date:
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