**Exhibit10.2**

 

**CONSULTINGAGREEMENT**

 

This CONSULTINGAGREEMENT (this “Agreement”) is entered into as of the 16thday of August, 2002 (the “Effective Date”) by and between ENCHIRA BIOTECHNOLOGY CORPORATION, aDelaware corporation (the “Company”), and Paul G. Brown, III (“Consultant” or“Mr. Brown”).

 

WHEREAS, the Company and Mr. Brown entered into thatcertain Employment Agreement dated July 18, 1995, as amended by that certainFirst Amendment to Employment Agreement dated April 18, 2000, as furtheramended by that certain Second Amendment to Employment Agreement dated April 2,2002, to be effective as of January 1, 2002 (collectively, the “EmploymentAgreement”); and

 

WHEREAS, the Company and Mr. Brown entered into thatcertain Settlement and Release Agreement (the “Original Release”) dated May 7,2002 whereby in exchange for certain retention payments by the Company to Mr.Brown, which Mr. Brown accepted, Mr. Brown agreed to, among other things, forgocertain severance obligations set forth in his Employment Agreement; and

 

WHEREAS, concurrently with the execution of theOriginal Release, the Company paid to Mr. Brown an initial payment of $75,000and deposited with the Southwest Bank of Texas, N.A., a Texas bankingcorporation, a second payment in the amount of $75,000 to be held in escrow(the “Second Payment”) payable to Mr. Brown under certain conditions as setforth in Section 1B. of the Original Release, including, but not limited to,the termination of the Employment Agreement and the execution of a settlementand release agreement containing terms substantially similar to those providedin the Original Release (the “Settlement and Release Agreement”); and

 

WHEREAS, the Company and Mr. Brown entered into theSettlement and Release Agreement dated of even date herewith which waives therequirement of Mr. Brown’s resignation as an officer and/or director of theCompany as a condition to his receipt of the Second Payment, and instead, theCompany desires to engage Mr. Brown as a consultant, and Mr. Brown desires toaccept such engagement as a consultant in accordance with the terms of thisAgreement;

 

NOW, THEREFORE, the Company and Consultant herebyagree as follows:

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**1.*****             Consulting Services.***  Consultant is hereby engaged by the Companyas an independent contractor, and not as an employee, to carry out the projectspecified in the Description of Work attached hereto as Exhibit A, on the termsand conditions set forth in such Description of Work.

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**2.*****             Term.***  This Agreement shall commence on theEffective Date, and continue until terminated by the Company orConsultant.  This Agreement may beterminated by Consultant or Company, with or without “cause” (as definedbelow), by giving ten (10) days advance written

 

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notice thereof to the other party hereto.  In addition, this Agreement may be terminated by the Companyimmediately for “cause.”  For purposesof this Agreement, “cause” shall be deemed to exist for termination of thisAgreement by the Company in the event (i) Consultant is not performing incompliance with the Description of Work, (ii) Consultant has engaged inpersonal conduct which (in the good faith determination of the Company) wouldmaterially injure the goodwill or reputation of the Company or otherwisematerially adversely affect the interests of the Company or (iii) of any breachby Consultant of the obligations contained in this Agreement or any otheragreement between the Company and Consultant.

 

In the event of any termination of this Agreementprior to completion of the term of this Agreement pursuant to the aboveprovisions (whether with or without “cause”), the Company’s sole liabilitythereupon will be to pay Consultant any unpaid balance due for work performedup to and including the date of termination, if applicable.

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**3.*****             Independent Contractor.***  It is agreed that Consultant’s services aremade available to the Company on the basis that Consultant will retainConsultant’s individual professional status and that Consultant’s relationshipwith the Company is that of an independent contractor and not that of anemployee.  Consultant will not beeligible for any employee benefits, nor will the Company make deductions fromits fees to Consultant for taxes, insurance, bonds or any other subscription ofany kind.  Consultant will useConsultant’s own discretion in performing the tasks assigned, within the scopeof work specified by the Company. Consultant agrees to indemnify and hold the Company harmless from andagainst any claim made by any third party against the Company based in whole orin part upon any action by Consultant or any of Consultant’s employees,associates, consultants, agents, representatives, assignees or successors ininterest, which occurs pursuant to or in connection with this Agreement or therelationship or relationships contemplated by this Agreement.

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**4.*****             Confidential Information.***  Consultant agrees that he shall keep instrictest confidence all information relating to the products, materials,programs, algorithms, designs, trade secrets, secret processes, techniques,structures, formulas, data and know-how, improvements, inventions, strategies,forecasts, equipment, patent position, sources of supply, customers, marketingplans and markets of the Company and all other confidential knowledge, data andinformation related to the business or affairs of the Company or any of itsclients, customers, consultants, licensors, licensees or affiliates(collectively, “Confidential Information”) that may be acquired pursuant to orin connection with this Agreement or the relationship or  relationships contemplated by thisAgreement.  During and after the term ofthis Agreement, Consultant will not, without the prior written consent of anofficer of the Company, publish, communicate, disclose or use for any purposeany of such Confidential Information. Upon termination of this Agreement, Consultant will return to theCompany all records, data, notes, reports, printouts, sketches, material,equipment and other documents or property, and all reproductions of any of theforegoing, furnished by the Company or developed or prepared pursuant to therelationship hereunder.

 

Notwithstanding the foregoing, it is agreed thatConfidential Information shall not include (i) any information which is orbecomes through no fault of Consultant generally known to the public, and (ii)Consultant’s skill, knowledge, know-how and experience.

 

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**5.*****             Assignment of Intellectual Property.***  Consultant agrees to transfer and assign andhereby does transfer and assign to the Company the entire right, title andinterest for the entire world in and to all data, materials, software, designs,models, algorithms, writings, drawings, notebooks, documents, photographs,inventions and discoveries (collectively, “Inventions”) made or conceived orreduced to practice by Consultant (i) in the course of accomplishing the workdescribed on the Description of Work attached as Exhibit A hereto, (ii) in thecourse of accomplishing other work performed pursuant to the relationship establishedby this Agreement, or (iii) with the use of materials or facilities of theCompany.

 

Consultant agrees that he will sign, execute andacknowledge, or cause to be signed, executed and acknowledged, at the expenseof the Company, any and all documents, and will perform any and all acts, asmay be necessary, useful or convenient for the purpose of securing to theCompany or its nominee patent, trademark or copyright protection throughout theworld upon all such Inventions.

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**6.*****             License Rights.***  In the event that Consultant recommends tothe Company that the Company make use of devices and/or processes covered bypatents and/or patent applications which Consultant may own or control,Consultant will then so inform the Company, and in the event that the Companyshall follow Consultant’s recommendation and Consultant has the right to granta license under such patents and/or patent applications, then Consultant willgrant to the Company a license on reasonable terms which are no less favorablethan those granted by Consultant to any other licensee.

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**7.*****             Representations of Consultant and theCompany.***

 

(a)           Consultant representsand warrants to the Company that (i) this Agreement is a valid and bindingobligation of Consultant, enforceable against Consultant in accordance with itsterms, and (ii) his execution and delivery of, and performance of his servicesand other obligations under, this Agreement will not result in the breach orviolation of applicable law or any agreement to which he is a party.

 

(b)           The Company representsand warrants to Consultant that (i) this Agreement has been duly and validlyauthorized by the Company and is a valid and binding obligation of the Company,enforceable against the Company in accordance with its terms, and (ii) itsexecution and delivery of, and performance of its obligations under, thisAgreement will not result in the breach or violation of applicable law or anyagreement to which it is a party.

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**8.*****             Miscellaneous.***

 

(a)           *Effective Date. *This Agreement shall be effectiveas of the effective date specified in the introductory paragraph, and it isexpressly agreed to by Consultant and the Company that all the provisionshereof shall apply as if this Agreement had been entered into on such date.

 

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(b)           *Survival of Terms.*  The provisions of paragraphs 4, 5 and 6hereof shall survive termination of this Agreement.

 

(c)           *Successors**and Assigns.* This Agreementmay not be assigned by Consultant without the written consent of the Company.  This Agreement shall be binding on all ofConsultant’s heirs, executors, administrators and legal representatives and allof Consultant’s successors in interest and assigns, and shall be for thebenefit of the Company, its successors and its assigns.

 

(d)           *Governing Law.*  This Agreement shall be governed by andconstrued and enforced in accordance with the laws of the State of Texas asthey apply to contracts entered into and wholly to be performed in Texas.

 

(e)           *Severability*.  If one or more of the provisions in this Agreement are deemedvoid by law, then the remaining provisions will continue in full force andeffect.

 

(f)            *Amendment.*  Neither this Agreement nor the Descriptionof Work may be amended except by a written agreement modifying the appropriatedocument duly executed by Consultant and an officer of the Company.

 

(g)           *Entire Agreement.* This Agreement, together with the Description of Work attached heretoand any other confidentiality agreement previously or subsequently entered intoby the Company and Consultant, constitute the sole and complete agreement ofthe parties with respect to the matters included herein, and supersedes anyprevious oral or written agreement, if any, relating to the subject mattersincluded herein.

 

(h)           *No Conflict.* Consultant represents and warrants that this Agreement does not conflictwith any other agreement or term of employment applicable to or binding uponthe Consultant as of the date hereof and that Consultant will promptly notifythe Company in the event that any such conflict does arise during the termhereof.

 

(i)            *Construction.*  Each party to this Agreement has had the opportunity to reviewthis Agreement with legal counsel.  ThisAgreement shall not be construed or interpreted against any party on the basisthat such party drafted or authored a particular provision, parts of or theentirety of this Agreement.

 

(j)            *Counterparts.*  This Agreement may be executed in one or more counterparts, eachof which shall be deemed an original and all of which, taken together, constituteone and the same instrument.

 

[Remainder of page leftblank intentionally.]

 

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IN WITNESS WHEREOF, this Agreement has been executedto be effective as of the Effective Date.

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| ***Consultant:***              |            | ***Company:***                        |
|--------------------------------|-----------------|---------------------------------------|
|                           |            |                                  |
|                           |            |                                  |
| **Paul G. Brown, III**         |            | **Enchira Biotechnology Corporation** |
|                           |            |                                  |
|   /s/ Paul G.  Brown, III |            | By:                                   | /s/ William E.  Nasser |   |
| (Signature)                    |            |                                  | (Signature) |   |
|                           |            |                                  |   |   |
|                           |            | Name:                                 | William E.  Nasser |   |
|                           |            |                                  |   |   |
|                           |            | Title:                                | Chairman of the Board |   |
| Date:                          | August 16, 2002 |                                  | Date: | August 16, 2002 |   |
|                                |                 |                                       |  |  |  |  |  |  |

 

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**EXHIBITA**

 

**ENCHIRABIOTECHNOLOGY CORPORATION**

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**DESCRIPTIONOF WORK**

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**(ConsultingAgreement Dated Effective August 16, 2002)**

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**1.****                                      DETAILEDDESCRIPTION OF WORK:**

 

Consultant will perform the following duties under this Agreement:  All duties associated with the position ofPresident and Chief Financial Officer that are necessary to sell the assets andwind up the affairs and liquidate the Company (a “Sale”).

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**2.****                                      STARTDATE:**  August 16, 2002

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**COMPLETION DATE**: The first to occur of(i) a Sale of the Company or (ii) termination of the Agreement by either theCompany or Consultant.

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**3.****                                      PERSON(S)WHO ARE TO PERFORM THE WORK:** Paul G. Brown, III

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**4.****                                      AUTHORIZEDREPRESENTATIVE OF THE COMPANY:**

 

The character of Consultant’s services shall besubject to the assignment and direction of William E. Nasser, Chairman of theBoard, who will be designated as the “Director.”  Further, the character and scope of Consultant’s services may berevised by mutual agreement between Consultant and the Company and suchrevision will be evidenced by a formal bilateral modification to the ConsultingAgreement or this Description of Work signed between Consultant and anauthorized officer of the Company.  TheDirector and the Chief Executive Officer of the Company shall be the onlyindividuals authorized to designate any project to be covered by thisAgreement, sign any modification or addendum to this Agreement or theDescription of Work, and direct the activities of Consultant under thisAgreement.

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**5.****                                      SCHEDULEPERFORMANCE:**

 

If at any time during the performance of this contractany phase of the required tasks appear to be impossible of execution or if anyphase cannot be completed on schedule, it is agreed that Consultant will notifythe Company within one (1) day of such determination.  At the time of such notification Consultant shall explain to theCompany why a particular task is impossible to complete and propose alternativeprocedures for achieving the desired result.

 

**6.****                                      REPORTSCHEDULE:**

 

Reports, if any, to be as specified in an addendum tothis Agreement.

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**7.****                                      PAYMENT:**

 

As consideration for all services to be rendered and performed underthis Agreement and for assigning the rights to inventions, designs, patents,trademarks, and copyrights as provided in the

 

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Consulting Agreement, Consultant will be paid a consulting fee of$93.00 per hour.  To enable the Companyto determine the amount of compensation to be paid to Consultant, Consultantwill provide the Company with statements outlining the services performed byConsultant under this Agreement and the number of hours spent by Consultant inproviding such services, in reasonable and customary detail.

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**8.****                                      EXPENSES:**

 

The Company agrees to reimburse Consultant for the following expensesincurred in connection with the performance of Consultant’s services under thisAgreement:

 

|   |                                                                | **Yes** |   | **No** |
|--------|---------------------------------------------------------------------|---------|--------|--------|
| -      | Routine out-of-pocket expense                                       | ý  |   |   |
| -      | Local travel                                                        |    |   | ý |
| -      | Long distance  travel at the direction of the Director or President | ý  |   |   |
| -      | Other - as approved in advance                                      | ý  |   |   |

 
| ***Consultant:***              |               | ***Company:***                        |
|--------------------------------|--------------------|---------------------------------------|
|                           |               |                                  |
| **Paul G. Brown, III**         |               | **Enchira Biotechnology Corporation** |
|                           |               |                                  |
|   /s/ Paul G.  Brown, III |               | By:                                   | /s/ William E.  Nasser |   |
| (Signature)                    |               |                                  | (Signature) |   |
|                           |               |                                  |   |   |
| Name:                          | Paul G. Brown, III |                                  | Name: | William E.  Nasser |   |
|                           |               | Title:                                | Chairman of the Board |   |
| Date:                          | August 16, 2002    |                                  | Date: | August 16, 2002 |   |
|                           |               |                                  |   |   |   |
|                           |               |                                  |   |   |   |
| 10 Los Encinos  Court          |               |                                  |   |   |
|                           |               |                                  |   |   |   |
| Magnolia, Texas  77354         |               |                                  |   |   |
|                           | (Address)          |                                  |   |   |   |
|                                |                    |                                       |  |  |  |  |  |  |

 

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