This CONSULTING AGREEMENT (the
“Agreement”) is hereby entered into by and between
Dr. J. Claude Bennett (“Consultant”) and BioCryst
Pharmaceuticals, Inc., a Delaware Corporation, 2190 Parkway Lake
Drive, Birmingham, Alabama 35244 (“BioCryst”), and
shall be effective as of June 13, 2008 (the “Effective
Date”).
In consideration of the services rendered by
Consultant to BioCryst, the compensation to be paid to Consultant
by BioCryst, and the mutual promises and agreements hereinafter set
forth, the parties hereto agree as follows:
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1.
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Term . This Agreement will commence on
the Effective Date, and continue in effect for five (5) years,
(the “Term”) unless terminated earlier pursuant to
Section 10 of this Agreement.
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2.
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Services . Consultant agrees to render the
requested services (“Services”) to BioCryst for the
term of this Agreement. The Services shall include, but are not
limited to, those set forth in Exhibit A hereto and the
provision to BioCryst of Consultant’s knowledge, experience,
skill and judgment in the areas set forth on Exhibit A.
Consultant also agrees to submit to BioCryst, in a timely manner,
any and all Results of Consultant’s work under this
Agreement. The term “Results” means the work product
resulting from Consultant’s performance of Services under
this Agreement and, includes, without limitation, all deliverables
described in Exhibit A and all “Developments” (as
defined in Section 5 below) and all documentation of work
performed under this Agreement. Consultant agrees to keep complete,
accurate and authentic accounts, notes, data and records of all
Results and Developments made by Consultant in the course of this
Agreement, and in the manner and form requested by BioCryst.
Consultant shall not utilize any third party in the performance of
the Services without the prior written consent of
BioCryst.
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The
Services rendered under this Agreement constitute services in
accordance with the terms of the BioCryst Stock Incentive Plan
(“the Plan”) and therefore Consultant’s stock
options received while in the employment of BioCryst will continue
to vest during the term of this Agreement in accordance with the
provisions of the Plan. Without limiting the foregoing, the parties
agree that there has not been and will not be any lapse of
“Services” rendered to BioCryst with respect to the
transition of Consultant from an Employee of BioCryst immediately
prior to the effectiveness of this Agreement to a consultant or
independent contractor pursuant to this Agreement, and the
existing, outstanding stock options heretofore granted to
Dr. J. Claude Bennett shall remain in full force and effect,
notwithstanding the transition of Consultant from Employee status
to Consultant or independent contractor status. As a condition
precedent to this Agreement the Audit Committee of the Board of
Directors of BioCryst shall authorize and approve this Consulting
Agreement. It is contemplated that Consultant will tender his
resignation as an officer and director of BioCryst, effective
June 13, 2008, upon the due approval by the Audit Committee of
the Board of Directors, and this Agreement shall become effective
on June 13, 2008, simultaneously with effectiveness of such
resignations as officer and director.
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3.
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Payment and Expenses
. During this term of
Agreement, Consultant shall be paid a fee of Three Thousand Dollars
($3,000) per month for the Services under this Agreement and as
described in Exhibit A, beginning as of the Effective Date of
this Agreement. In addition, BioCryst shall reimburse Consultant
for actual and reasonable out-of-pocket expenses that have been
approved by BioCryst in advance, and incurred in the performance of
the Services. The foregoing fees and expense reimbursements are
Consultant’s sole compensation for rendering Services to
BioCryst. Consultant shall provide BioCryst with monthly invoices
detailing the fees and expense reimbursements that Consultant
believes are due under this Agreement, and shall itemize and
provide receipts for all expenses. BioCryst agrees to pay approved
invoices within thirty (30) days of receipt. Consultant will
not be reimbursed for individual expenses exceeding $25.00 without
a corresponding receipt. Consultant may be eligible to receive
options to purchase stock of BioCryst at the sole discretion of the
Compensation Committee. BioCryst will provide Consultant with a
desk at its Birmingham offices during the term of this Agreement.
During the term of this Agreement BioCryst will permit Consultant
to keep the existing cell phone and blackberry (and will provide
for replacement devices as appropriate) and will pay the normal
monthly charges for same; provided, however, in no event will
BioCryst be obligated to pay more than $250.00 per month with
respect to such telephone and Blackberry in the aggregate.
Consultant shall be permitted to attend professional society
clinical/scientific meetings during the term of this Agreement and
BioCryst shall reimburse Consultant for the reasonable costs of
attending such meetings; provided, that BioCryst shall not be
responsible for any amounts in excess of $10,000.00 in any calendar
year.
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4.
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Proprietary
Information .
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a. Definition of
“Proprietary Information” . Consultant
understands that BioCryst possesses and will possess Proprietary
Information that is important to its business. In addition,
BioCryst frequently receives information from third parties that is
confidential in nature, and which BioCryst is obligated to keep
confidential. For purposes of this Agreement, “Proprietary
Information” is all information, whether or not in writing or
other tangible form, that was or will be developed, created, or
discovered by or on behalf of BioCryst, or which became or will
become known by, or was or is conveyed to BioCryst (including,
without limitation, “Results” as defined above), which
has commercial value to BioCryst or which BioCryst is obligated to
keep confidential. “Proprietary Information” includes,
but is not limited to, business, financial, marketing and customer
information, product development plans, forecasts, inventions
(whether patentable or not) technology, know-how, processes, data,
ideas, techniques, inventions, trade secrets, chemical materials,
biological materials, genetic sequences, data, technical
information, information about software programs and subroutines,
source and object code, databases, database criteria, processes,
designs, methodologies, internal documentation, works of
authorship, the salaries and terms of compensation of other
individuals, client and supplier lists, contacts at or knowledge of
clients or prospective clients of BioCryst, and other information
concerning the actual or anticipated products or services,
business, research or development, or any information which is
received in confidence by or for BioCryst from any other
person.
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b. Definition of
“BioCryst Materials” . Consultant understands
that BioCryst possesses or will possess “BioCryst
Materials” which are important to its business. For purposes
of this Agreement, “BioCryst Materials” are documents
or other media or tangible items that contain or embody Proprietary
Information or any other information concerning the business,
operations or plans of BioCryst or clients, whether such documents
have been prepared by Consultant or by others. “BioCryst
Materials” include, but are not limited to, blueprints,
drawings, photographs, charts, graphs, notebooks, customer lists,
computer disks, tapes or printouts, sound and video recordings and
other printed, typewritten or handwritten documents, sample
products, prototypes and models.
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c. Ownership of
Proprietary Information; Assignment . All Proprietary
Information and all title, patents, patent rights, copyrights,
trade secret rights, sui generis database rights and other
intellectual or industrial property rights of any sort anywhere in
the world (collectively “Rights”) in connection
therewith shall be the sole property of BioCryst. Consultant hereby
assigns to BioCryst any Rights Consultant may have or acquire in
such Proprietary Information. At all times, both during the term of
this Agreement and after its termination, Consultant will keep in
confidence and trust and will not use or disclose any Proprietary
Information or anything related to it without the prior written
consent of an officer of BioCryst. Consultant acknowledges that any
disclosure or unauthorized use of Proprietary Information will
constitute a material breach of this Agreement and cause
substantial harm to BioCryst for which monetary damages would not
be a fully adequate remedy and, therefore, in the event of any such
breach, in addition to other available remedies, BioCryst shall
have the right to injunctive relief.
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d. Ownership of BioCryst
Materials . All BioCryst Materials shall be the sole
property of BioCryst. Consultant agrees that during the term of
this Agreement, Consultant will not remove any BioCryst Materials
from the business premises of BioCryst or deliver any BioCryst
Materials to any person or entity outside BioCryst, except as
required to do in connection with performance of the Services under
this Agreement. Consultant further agrees that, immediately upon
BioCryst’s request and in any event upon completion of the
Services or termination of this Agreement, Consultant shall deliver
within fifteen (15) days to BioCryst all BioCryst Materials, any
document or media which contains Results, apparatus, equipment and
other physical property or any reproduction of such property,
excepting only Consultant’s copy of this
Agreement.
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5.
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Developments
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a. Disclosure of
Developments to BioCryst . Consultant will promptly
disclose in writing to BioCryst, or to any persons designated by
BioCryst from time to time, all “Developments” (which
term includes, without limitation, inventions, data, chemical
materials, biological materials, works of authorship, discoveries,
improvements, designs, source and software code, trade secrets,
technology, algorithms, computer programs, audio, video or other
files or other content,
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