Exhibit

10.2




 




CONSULTING

AGREEMENT




 




This CONSULTING

AGREEMENT (this “Agreement”) is entered into as of the 16th

day of August, 2002 (the “Effective Date”) by and between ENCHIRA BIOTECHNOLOGY CORPORATION, a

Delaware corporation (the “Company”), and Paul G. Brown, III (“Consultant” or

“Mr. Brown”).




 




WHEREAS, the Company and Mr. Brown entered into that

certain Employment Agreement dated July 18, 1995, as amended by that certain

First Amendment to Employment Agreement dated April 18, 2000, as further

amended by that certain Second Amendment to Employment Agreement dated April 2,

2002, to be effective as of January 1, 2002 (collectively, the “Employment

Agreement”); and




 




WHEREAS, the Company and Mr. Brown entered into that

certain 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, forgo

certain severance obligations set forth in his Employment Agreement; and




 




WHEREAS, concurrently with the execution of the

Original Release, the Company paid to Mr. Brown an initial payment of $75,000

and deposited with the Southwest Bank of Texas, N.A., a Texas banking

corporation, 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 set

forth in Section 1B. of the Original Release, including, but not limited to,

the termination of the Employment Agreement and the execution of a settlement

and release agreement containing terms substantially similar to those provided

in the Original Release (the “Settlement and Release Agreement”); and




 




WHEREAS, the Company and Mr. Brown entered into the

Settlement and Release Agreement dated of even date herewith which waives the

requirement of Mr. Brown’s resignation as an officer and/or director of the

Company as a condition to his receipt of the Second Payment, and instead, the

Company desires to engage Mr. Brown as a consultant, and Mr. Brown desires to

accept such engagement as a consultant in accordance with the terms of this

Agreement;




 




NOW, THEREFORE, the Company and Consultant hereby

agree as follows:




 




1.             Consulting Services.  Consultant is hereby engaged by the Company

as an independent contractor, and not as an employee, to carry out the project

specified in the Description of Work attached hereto as Exhibit A, on the terms

and conditions set forth in such Description of Work.




 




2.             Term.  This Agreement shall commence on the

Effective Date, and continue until terminated by the Company or

Consultant.  This Agreement may be

terminated by Consultant or Company, with or without “cause” (as defined

below), by giving ten (10) days advance written




 





























 




notice thereof to the other party hereto.  In addition, this Agreement may be terminated by the Company

immediately for “cause.”  For purposes

of this Agreement, “cause” shall be deemed to exist for termination of this

Agreement by the Company in the event (i) Consultant is not performing in

compliance with the Description of Work, (ii) Consultant has engaged in

personal conduct which (in the good faith determination of the Company) would

materially injure the goodwill or reputation of the Company or otherwise

materially adversely affect the interests of the Company or (iii) of any breach

by Consultant of the obligations contained in this Agreement or any other

agreement between the Company and Consultant.




 




In the event of any termination of this Agreement

prior to completion of the term of this Agreement pursuant to the above

provisions (whether with or without “cause”), the Company’s sole liability

thereupon will be to pay Consultant any unpaid balance due for work performed

up to and including the date of termination, if applicable.




 




3.             Independent Contractor.  It is agreed that Consultant’s services are

made available to the Company on the basis that Consultant will retain

Consultant’s individual professional status and that Consultant’s relationship

with the Company is that of an independent contractor and not that of an

employee.  Consultant will not be

eligible for any employee benefits, nor will the Company make deductions from

its fees to Consultant for taxes, insurance, bonds or any other subscription of

any kind.  Consultant will use

Consultant’s own discretion in performing the tasks assigned, within the scope

of work specified by the Company. 

Consultant agrees to indemnify and hold the Company harmless from and

against any claim made by any third party against the Company based in whole or

in part upon any action by Consultant or any of Consultant’s employees,

associates, consultants, agents, representatives, assignees or successors in

interest, which occurs pursuant to or in connection with this Agreement or the

relationship or relationships contemplated by this Agreement.




 




4.             Confidential Information.  Consultant agrees that he shall keep in

strictest 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, marketing

plans and markets of the Company and all other confidential knowledge, data and

information related to the business or affairs of the Company or any of its

clients, customers, consultants, licensors, licensees or affiliates

(collectively, “Confidential Information”) that may be acquired pursuant to or

in connection with this Agreement or the relationship or  relationships contemplated by this

Agreement.  During and after the term of

this Agreement, Consultant will not, without the prior written consent of an

officer of the Company, publish, communicate, disclose or use for any purpose

any of such Confidential Information. 

Upon termination of this Agreement, Consultant will return to the

Company all records, data, notes, reports, printouts, sketches, material,

equipment and other documents or property, and all reproductions of any of the

foregoing, furnished by the Company or developed or prepared pursuant to the

relationship hereunder.




 




Notwithstanding the foregoing, it is agreed that

Confidential Information shall not include (i) any information which is or

becomes through no fault of Consultant generally known to the public, and (ii)

Consultant’s skill, knowledge, know-how and experience.




 




2





























 




5.             Assignment of Intellectual Property.  Consultant agrees to transfer and assign and

hereby does transfer and assign to the Company the entire right, title and

interest 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 or

reduced to practice by Consultant (i) in the course of accomplishing the work

described on the Description of Work attached as Exhibit A hereto, (ii) in the

course of accomplishing other work performed pursuant to the relationship established

by this Agreement, or (iii) with the use of materials or facilities of the

Company.




 




Consultant agrees that he will sign, execute and

acknowledge, or cause to be signed, executed and acknowledged, at the expense

of the Company, any and all documents, and will perform any and all acts, as

may be necessary, useful or convenient for the purpose of securing to the

Company or its nominee patent, trademark or copyright protection throughout the

world upon all such Inventions.




 




6.             License Rights.  In the event that Consultant recommends to

the Company that the Company make use of devices and/or processes covered by

patents and/or patent applications which Consultant may own or control,

Consultant will then so inform the Company, and in the event that the Company

shall follow Consultant’s recommendation and Consultant has the right to grant

a license under such patents and/or patent applications, then Consultant will

grant to the Company a license on reasonable terms which are no less favorable

than those granted by Consultant to any other licensee.




 




7.             Representations of Consultant and the

Company.




 




(a)           Consultant represents

and warrants to the Company that (i) this Agreement is a valid and binding

obligation of Consultant, enforceable against Consultant in accordance with its

terms, and (ii) his execution and delivery of, and performance of his services

and other obligations under, this Agreement will not result in the breach or

violation of applicable law or any agreement to which he is a party.




 




(b)           The Company represents

and warrants to Consultant that (i) this Agreement has been duly and validly

authorized by the Company and is a valid and binding obligation of the Company,

enforceable against the Company in accordance with its terms, and (ii) its

execution and delivery of, and performance of its obligations under, this

Agreement will not result in the breach or violation of applicable law or any

agreement to which it is a party.




 




8.             Miscellaneous.




 




(a)           Effective Date.  This Agreement shall be effective

as of the effective date specified in the introductory paragraph, and it is

expressly agreed to by Consultant and the Company that all the provisions

hereof shall apply as if this Agreement had been entered into on such date.




 




3





























 




(b)           Survival of Terms.  The provisions of paragraphs 4, 5 and 6

hereof shall survive termination of this Agreement.




 




(c)           Successors and Assigns. This Agreement

may not be assigned by Consultant without the written consent of the Company.  This Agreement shall be binding on all of

Consultant’s heirs, executors, administrators and legal representatives and all

of Consultant’s successors in interest and assigns, and shall be for the

benefit of the Company, its successors and its assigns.




 




(d)           Governing Law.  This Agreement shall be governed by and

construed and enforced in accordance with the laws of the State of Texas as

they 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 deemed

void by law, then the remaining provisions will continue in full force and

effect.




 




(f)            Amendment.  Neither this Agreement nor the Description

of Work may be amended except by a written agreement modifying the appropriate

document duly executed by Consultant and an officer of the Company.




 




(g)           Entire Agreement. 

This Agreement, together with the Description of Work attached hereto

and any other confidentiality agreement previously or subsequently entered into

by the Company and Consultant, constitute the sole and complete agreement of

the parties with respect to the matters included herein, and supersedes any

previous oral or written agreement, if any, relating to the subject matters

included herein.




 




(h)           No Conflict. 

Consultant represents and warrants that this Agreement does not conflict

with any other agreement or term of employment applicable to or binding upon

the Consultant as of the date hereof and that Consultant will promptly notify

the Company in the event that any such conflict does arise during the term

hereof.




 




(i)            Construction.  Each party to this Agreement has had the opportunity to review

this Agreement with legal counsel.  This

Agreement shall not be construed or interpreted against any party on the basis

that such party drafted or authored a particular provision, parts of or the

entirety of this Agreement.




 




(j)            Counterparts.  This Agreement may be executed in one or more counterparts, each

of which shall be deemed an original and all of which, taken together, constitute

one and the same instrument.




 




[Remainder of page left

blank intentionally.]




 




4





























 




IN WITNESS WHEREOF, this Agreement has been executed

to be effective as of the Effective Date.




 




	

  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


  	

   


  
									





 




5





























 




EXHIBIT

A




 




ENCHIRA

BIOTECHNOLOGY CORPORATION




 




DESCRIPTION

OF WORK




 




(Consulting

Agreement Dated Effective August 16, 2002)




 




1.                                      DETAILED

DESCRIPTION OF WORK:




 




Consultant will perform the following duties under this Agreement:  All duties associated with the position of

President and Chief Financial Officer that are necessary to sell the assets and

wind up the affairs and liquidate the Company (a “Sale”).




 




2.                                      START

DATE:  August 16, 2002




 




COMPLETION DATE: The first to occur of

(i) a Sale of the Company or (ii) termination of the Agreement by either the

Company or Consultant.




 




3.                                      PERSON(S)

WHO ARE TO PERFORM THE WORK: Paul G. Brown, III




 




4.                                      AUTHORIZED

REPRESENTATIVE OF THE COMPANY:




 




The character of Consultant’s services shall be

subject to the assignment and direction of William E. Nasser, Chairman of the

Board, who will be designated as the “Director.”  Further, the character and scope of Consultant’s services may be

revised by mutual agreement between Consultant and the Company and such

revision will be evidenced by a formal bilateral modification to the Consulting

Agreement or this Description of Work signed between Consultant and an

authorized officer of the Company.  The

Director and the Chief Executive Officer of the Company shall be the only

individuals authorized to designate any project to be covered by this

Agreement, sign any modification or addendum to this Agreement or the

Description of Work, and direct the activities of Consultant under this

Agreement.




 




5.                                      SCHEDULE

PERFORMANCE:




 




If at any time during the performance of this contract

any phase of the required tasks appear to be impossible of execution or if any

phase cannot be completed on schedule, it is agreed that Consultant will notify

the Company within one (1) day of such determination.  At the time of such notification Consultant shall explain to the

Company why a particular task is impossible to complete and propose alternative

procedures for achieving the desired result.




 




6.                                      REPORT

SCHEDULE:




 




Reports, if any, to be as specified in an addendum to

this Agreement.




 




7.                                      PAYMENT:




 




As consideration for all services to be rendered and performed under

this Agreement and for assigning the rights to inventions, designs, patents,

trademarks, and copyrights as provided in the




 





























 




Consulting Agreement, Consultant will be paid a consulting fee of

$93.00 per hour.  To enable the Company

to determine the amount of compensation to be paid to Consultant, Consultant

will provide the Company with statements outlining the services performed by

Consultant under this Agreement and the number of hours spent by Consultant in

providing such services, in reasonable and customary detail.




 




8.                                      EXPENSES:




 




The Company agrees to reimburse Consultant for the following expenses

incurred in connection with the performance of Consultant’s services under this

Agreement:




 








	

   


  	

   


  	

  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)


  	

   


  	

   


  	

   


  	

   


  
									





 




A-2