VIA PHARMACEUTICALS,
INC.
This Consulting
Agreement (“ Agreement ”) is entered into as of
January 29, 2009 by and between VIA Pharmaceuticals, Inc. (the
“ Company ”) and Adeoye Olukotun, MD (“
Consultant ”). The Company desires to retain
Consultant as an independent contractor to perform consulting
services for the Company, and Consultant is willing to perform such
services, on the terms described below. In consideration of the
mutual promises contained herein, the parties agree as
follows:
1
. Services and Compensation . Consultant agrees to perform
for the Company the services described in Exhibit A
(the “ Services ”), and the Company agrees to
pay Consultant the compensation described in Exhibit A
for Consultant’s performance of the Services.
A
. Definition . “ Confidential Information
” means any non-public information that relates to the actual
or anticipated business or research and development of the Company,
technical data, trade secrets or know-how, including, but not
limited to, research, product plans or other information regarding
Company’s products or services and markets therefore,
customer lists and customers (including, but not limited to,
customers of the Company on whom Consultant called or with whom
Consultant became acquainted during the term of this Agreement),
software, developments, inventions, processes, formulas,
technology, designs, drawing, engineering, hardware configuration
information, marketing, finances or other business information.
Confidential Information does not include information that
(i) is known to Consultant at the time of disclosure to
Consultant by the Company as evidenced by written records of
Consultant, (ii) has become publicly known and made generally
available through no wrongful act of Consultant or (iii) has
been rightfully received by Consultant from a third party who is
authorized to make such disclosure.
B.
Nonuse and Nondisclosure . Consultant will not, during or
subsequent to the term of this Agreement, (i) use the
Confidential Information for any purpose whatsoever other than the
performance of the Services on behalf of the Company or
(ii) disclose the Confidential Information to any third party.
Consultant agrees that all Confidential Information will remain the
sole property of the Company. Consultant also agrees to take all
reasonable precautions to prevent any unauthorized disclosure of
such Confidential Information.
C.
Former Client Confidential Information . Consultant agrees
that Consultant will not, during the term of this Agreement,
improperly use or disclose any proprietary information or trade
secrets of any former or current employer of Consultant or other
person or entity with which Consultant has an agreement or duty to
keep in confidence information acquired by Consultant, if any.
Consultant also agrees that Consultant will not bring onto the
Company’s premises any unpublished document or proprietary
information belonging to any such employer, person or entity unless
consented to in writing by such employer, person or
entity.
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D.
Third Party Confidential Information . Consultant recognizes
that the Company has received and in the future will receive from
third parties their confidential or proprietary information subject
to a duty on the Company’s part to maintain the
confidentiality of such information and to use it only for certain
limited purposes. Consultant agrees that, during the term of this
Agreement and thereafter, Consultant owes the Company and such
third parties a duty to hold all such confidential or proprietary
information in the strictest confidence and not to disclose it to
any person, firm or corporation or to use it except as necessary in
carrying out the Services for the Company consistent with the
Company’s agreement with such third party.
E.
Return of Materials . Upon the termination of this
Agreement, or upon Company’s earlier request, Consultant will
deliver to the Company all of the Company’s property,
including but not limited to all electronically stored information
and passwords to access such property, or Confidential Information
that Consultant may have in Consultant’s possession or
control.
A.
Assignment . Consultant agrees that all copyrightable
material, notes, records, drawings, designs, inventions,
improvements, developments, discoveries and trade secrets
conceived, discovered, developed or reduced to practice by
Consultant, solely or in collaboration with others, during the term
of this Agreement that relate in any manner to the business of the
Company that Consultant may be directed to undertake, investigate
or experiment with or that Consultant may become associated with in
work, investigation or experimentation in the Company’s line
of business in performing the Services under this Agreement
(collectively, “ Inventions ”), are the sole
property of the Company. Consultant also agrees to assign (or cause
to be assigned) and hereby assigns fully to the Company all
Inventions and any copyrights, patents, mask work rights or other
intellectual property rights relating to all Inventions.
B.
Further Assurances . Consultant agrees to assist Company, or
its designee, at the Company’s expense, in every proper way
to secure the Company’s rights in Inventions and any
copyrights, patents, mask work rights or other intellectual
property rights relating to all Inventions in any and all
countries, including the disclosure to the Company of all pertinent
information and data with respect to all Inventions, the execution
of all applications, specifications, oaths, assignments and all
other instruments that the Company may deem necessary in order to
apply for and obtain such rights and in order to assign and convey
to the Company, its successors, assigns and nominees the sole and
exclusive right, title and interest in and to all Inventions, and
any copyrights, patents, mask work rights or other intellectual
property rights relating to all Inventions. Consultant also agrees
that Consultant’s obligation to execute or cause to be
executed any such instrument or papers shall continue after the
termination of this Agreement.
C.
Pre-Existing Material s. Subject to Section 3.A
, Consultant agrees that if, in the course of performing the
Services, Consultant incorporates into any Invention developed
under this Agreement any pre-existing invention, improvement,
development, concept, discovery or other proprietary information
owned by Consultant or in which Consultant has an interest,
(i) Consultant will inform Company, in writing before
incorporating such invention, improvement, development, concept,
discovery or other proprietary information into any
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Invention, and
(ii) the Company is hereby granted a nonexclusive,
royalty-free, perpetual, irrevocable, worldwide license to make,
have made, modify, use and sell such item as part of or in
connection with such Invention. Consultant will not incorporate any
invention, improvement, development, concept, discovery or other
proprietary information owned by any third party into any Invention
without Company’s prior written permission.
D.
Attorney-in-Fact . Consultant agrees that, if the Company is
unable because of Consultant’s unavailability, dissolution,
mental or physical incapacity, or for any other reason, to secure
Consultant’s signature for the purpose of applying for or
pursuing any application for any United States or foreign patents
or mask work or copyright registrations covering the Inventions
assigned to the Company in Section 3.A , then
Consultant hereby irrevocably designates and appoints the Company
and its duly authorized officers and agents as Consultant’s
agent and attorney-in-fact, to act for and on Consultant’s
behalf to execute and file any such applications and to do all
other lawfully permitted acts to further the prosecution and
issuance of patents, copyright and mask work registrations with the
same legal force and effect as if executed by
Consultant.
4.
Conflicting Obligations .
A.
Conflicts . Consultant certifies that Consultant has no
outstanding agreement or obligation that is in conflict with any of
the provisions of this Agreement or that would preclude Consultant
from complying with the provisions of this Agreement. Consultant
will not enter into any such conflicting agreement during the term
of this Agreement. Consultant’s violation of this Section 4.A
will be considered a material breach under Section 6.B
.
B.
Substantially Similar Designs . In view of
Consultant’s access to the Company’s trade secrets and
proprietary know-how, Consultant agrees that Consultant will not,
without Company’s prior written approval, design identical or
substantially similar designs as those developed under this
Agreement for any third party during the term of this Agreement and
for a period of 12 months after the termination of this
Agreement. Consultant acknowledges that the obligations in this
Section 4 are ancillary to Consultant’s
nondisclosure obligations under Section 2 .
5.
Reports . Consultant also agrees that Consultant will, from
time to time during the term of this Agreement or any extension
thereof, keep the Company advised as to Consultant’s progress
in performing the Services under this Agreement. Consultant further
agrees that Consultant will, as requested by the Company, prepare
written reports with respect to such progress. The Company and
Consultant agree that the time required to prepare such written
reports will be considered time devoted to the performance of the
Services.
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