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Exhibit 10.1
CONSULTING AGREEMENT, dated as
of July 27, 2007, (this “ Agreement ”) by and
between ELITE PHARMACEUTICALS, INC., a Delaware corporation with
its principal place of business located at 165 Ludlow Avenue,
Northvale, NJ 07467 (the “ Company ”), and
Willstar Consultants, Inc. (the “ Consultant ”).
WHEREAS, the Company desires to obtain the services and
advice of the Consultant and the Consultant desires to render such
services and advice to the Company.
NOW, THEREFORE, in consideration of the premises and the
covenants and agreements contained herein, and for other good and
valuable consideration, the parties agree as follows:
1. S
ERVICES
The Consultant agrees to perform such consulting and
advisory services as may be requested by the Chief Executive
Officer of the Company or his designee and as the Company and the
Consultant shall agree from time to time, including, without
limitation, provide advice with respect to overall strategic
planning, business opportunities, acquisition policy, commercial
and investment banking relationships, stockholder matters, and such
other related services as may be mutually agreed upon by Consultant
and the Company. The Consultant shall render such services either
in person (at the Company’s facilities or at such other
location as is reasonably acceptable to the Company and the
Consultant) or by telephone, as the Company may reasonably request.
The parties hereto agree that Diane Will shall deliver all of the
services on behalf of the Consultant hereunder.
2. T
ERM
The term of this Agreement shall commence on the date
hereof and continue for a period of one hundred twenty (120) days
from the date hereof (the “ Term ”), subject to
earlier termination by the Company under Section 4
hereof.
3. C
OMPENSATION
3.1. Cash
Compensation
During the Term, the Company will pay the Consultant,
collectively, consulting fees in the amount of Fifty Thousand
Dollars (US$50,000), of which Twelve Thousand Five Hundred Dollars
(US$12,500) shall be paid upon the date hereof, and of which three
subsequent payments, each payment to be made per calendar month
(“ Monthly Consulting
Fee ”) shall be made in the
amount of Twelve Thousand Five Hundred Dollars (US$12,500), each on
the thirtieth (30 th
), sixtieth (60 th ), and ninetieth
(90 th ) day from the date hereof. The Consultant will invoice the
Company for consulting fees on a monthly basis, and the Company
agrees to pay such invoices on a monthly basis after receipt
thereof. Consulting fees for any partial period shall be
prorated.
3.2. Equity
Compensation
Upon the execution of this Agreement, the Company shall
grant to the Consultant options (the “ Options ”) to purchase,
in the aggregate, up to ninety thousand (90,000) shares (the
“ Option Shares
”) of Common Stock, par value $0.01 per
share, of the Company pursuant to the terms and provisions of the
Company’s stock option plan and the form of stock option
agreement (the “ Option
Agreement ”) attached hereto as
Exhibit A. The Options shall vest according to the following
schedule: (i) thirty thousand (30,000) Option Shares shall vest
upon the first anniversary of the date of grant of the Options,
(ii) another thirty thousand (30,000) Option Shares shall vest upon
the second anniversary of the date of grant of the Options, and
(iii) the remaining thirty thousand (30,000) Option Shares shall
vest upon the third anniversary of the date of grant of the
Options.
4. T
ERMINATION
This Agreement may be terminated by either party to this
Agreement upon thirty (30) days prior written notice. If this
Agreement is terminated by the Company without Cause (as defined
below), the remaining payments due to Consultant under Section 3.1
shall be accelerated, and shall be due and payable in full within
ten (10) days after notification of the Company’s intention
to terminate this Agreement. If this Agreement is terminated by the
Company for Cause, or by the Consultant for any reason, all
remaining payments otherwise due to the Consultant under Section
3.1 shall terminate.
For purposes hereof, “ Cause ” shall mean, (i)
the Consultant’s breach of or default under the terms of this
Agreement (including a failure to perform her duties and
responsibilities with respect to the Company), which breach or
default continues beyond fifteen (15) days after a written demand
for performance or compliance is delivered to the Consultant by the
Company; (ii) the violation of any securities law by the
Consultant; (iii) gross negligence or willful misconduct by the
Consultant, in each case that has a material adverse effect upon
the Company; (iv) the Consultant’s commission of, or pleading
guilty or nolo contendere
to, a felony or a crime involving moral
turpitude, fraud, or embezzlement; or (v) the Consultant's breach
of any provision of Section 5 of this Agreement.
5. P
ROPRIETARY I NFORMATION
(a) The Consultant agrees
that all information, whether or not in writing, of a private,
secret or confidential nature concerning the Company’s
products, business, business relationships or financial affairs
(collectively, “ Proprietary
Information ”) is and shall be
the exclusive property of the Company. By way of illustration, but
not limitation, Proprietary Information may include inventions,
products, processes, methods, techniques, formulas, compositions,
compounds, projects, developments, plans, research data, clinical
data, financial data, personnel data, computer programs, customer
and supplier lists and contacts at or knowledge of customers or
prospective customers of the Company. The Consultant will not
disclose any Proprietary Information to any person or entity other
than employees of the Company or use the same for any purposes
(other than in the performance of its duties as a
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consultant of the Company)
without written approval by an officer of the Company, either
during or after the Term.
(b) The Consultant agrees that all files, letters,
memoranda, reports, records, data, sketches, drawings, laboratory
notebooks, program listings or other written, photographic or other
tangible material containing Proprietary Information, whether
created by the Consultant or others, which shall come into its
custody or possession, shall be and are the exclusive property of
the Company to be used by the Consultant only in the performance of
its duties for the Company.
(c) The Consultant’s obligations under this Section 5
shall not apply to any information that (i) is generally known to
the public at the time of disclosure or becomes generally known
without the Consultant violating this Agreement, (ii) is in the
Consultant’s possession at the time of disclosure without the
Consultant violating this Agreement, (iii) becomes known to the
Consultant through disclosure by sources other than the Company
without such sources violating any confidentiality obligations to
the Company, or (iv) is independently developed by the Consultant
without reference to or reliance upon the Company’s
Proprietary Information.
(d) Upon termination of this Agreement or at any other time
upon request of the Company, the Consultant shall promptly deliver
to the Company all records, files, memoranda, notes,
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