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Exhibit
10.04
CONSULTING
AGREEMENT
THIS CONSULTING AGREEMENT
(the “Agreement”) is made and entered into as of this
26 th
day of July, 2007 (the
“Effective Date”) by and between Point Therapeutics,
Inc., a Delaware corporation (the “Company”), and
Richard N. Small (the “Consultant”).
The Company wishes to engage
the Consultant to provide assistance and expertise for the Company
and otherwise to render consulting services upon the terms and
conditions contained in this Agreement.
NOW THEREFORE, in
consideration of the foregoing and for other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, accepted and agreed to, the Company and the
Consultant hereby agree as follows:
1. TERM; SERVICES
.
1.1 Commencing as of the
Effective Date and continuing until terminated by either party
hereto upon thirty (30) days written notice to the other party
(the “Term”), the Consultant agrees that he will
provide certain consulting services to the Company as from time to
time requested by the Company (the
“Services”).
1.2 The Consultant represents
and warrants to the Company that he is under no contractual or
other restriction or obligation which is inconsistent with the
execution of this Agreement, or which will materially interfere
with the performance of his duties hereunder.
2. CONSULTING FEE
.
2.1 The Company shall pay the
Consultant a consulting fee of Two Hundred Fifty Dollars ($250.00)
per hour to be billed to the Company by the Consultant in quarter
hour increments not to exceed an aggregate of Two Thousand Dollars
($2,000.00) per day for services performed during the Term (the
“Consulting Fee”). The Consultant shall be compensated
promptly upon the Company’s receipt of a weekly or bi-weekly
time sheet in the form attached hereto as Exhibit A
.
2.2 The Consultant shall be
entitled to prompt reimbursement for all pre-approved travel and
other out-of-pocket expenses incurred in the performance of his
duties hereunder, upon submission and approval of written
statements and bills.
2.3 The Consultant agrees
that all services hereunder will be rendered by him as an
independent contractor and that this Agreement does not create an
employer-employee relationship between the Consultant and the
Company. The Consultant shall have no right to receive any employee
benefits, including, but not limited to, health and accident
insurance, life insurance, sick leave and/or vacation.
3. PROPRIETARY RIGHTS
.
3.1 Trade Secrets .
The Consultant acknowledges and agrees that rendering of Services
to the Company will necessarily involve understanding of and access
to “trade secrets” of the Company as hereinafter
defined, and “confidential and proprietary information”
of the Company. The Consultant agrees during the Term of this
Agreement and for a period of five (5) years thereafter, not
to disclose to any unauthorized third party or use for the
Consultant’s own benefit any of the trade secret or
confidential or proprietary information belonging to the Company.
For the purposes hereof, “trade secret” is information
not generally known to the trade, which gives the Company an
advantage over its competitors. Trade secrets include without
limitation, research being planned and developed, research methods
and processes, materials used in research, inventions, information
concerning the filing or pendency of patent applications and the
Company’s business and legal plans, finances, competitive
position, customers and vendors.
3.2 Concepts and Ideas
. Those concepts and ideas disclosed by the Company to the
Consultant or which are first developed by the Consultant during
the course of performance of Services hereunder and which relate to
the Company’s present, past or prospective activities,
services and products, all of which shall remain the sole and
exclusive property of the Company. The Consultant shall have no
publication rights and all of the same shall belong exclusively to
the Company.
3.3 Confidential
Information . That secret or proprietary information of
whatever kind or nature disclosed to the Consultant (whether or not
invented, discovered or developed by the Consultant) or first
developed by the Consultant in the course of performance of
Services hereunder. Such secret or proprietary information shall
include (unless such information is generally available to the
public or known in the industry through no action of the
Consultant) information relating to the design, manufacture,
application, know-how, research and development relating to the
Company’s products, materials, operating and other cost data,
price lists and data relating to pricing of the Company’s
products. Such secret or proprietary information shall specifically
include, without limitation, all secret or proprietary information
contained in the Company’s manuals, memoranda, plans,
drawings and designs, specifications, supply sources, customer
lists and records legended or otherwise identified by the Company
or the Board of Directors (the “Board”) as Confidential
Information.
3.4 Non-Confidential
Information . The Consultant’s obligations under this
Section 3 do not apply to any confidential and proprietary
material which (a) is or becomes publicly known under
circumstances involving no breach by the Consultant of the terms;
and/or (b) is generally disclosed to third parties; and/or
(c) was generally known by the Consultant prior to receipt of
confidential or proprietary material by the Consultant; and/or
(d) was or is approved for release by written authorization of
an authorized representative of the Company.
3.5 Non-Disclosure to
Third Parties . Except
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