a5964878ex10_108.htm


    Exhibit 10.108

     

    Professional
Services Agreement

     

    This
Professional Services Agreement (“Agreement”)
is entered into by Ore
Pharmaceuticals Inc. (“Ore”)
having an address at 610 Professional Drive, Suite 101, Gaithersburg, MD 20879
and Dudley Staples,
(“Consultant”)
having an address at 9806 Mahogany Run, Ijamsville, MD 21754. 

     

    The
parties hereto agree as follows:

     

    1.           Term of
Agreement.  This agreement will begin on the later of January
19, 2009 or the first business day after Consultant’s last day of full-time
employment by Ore (the “Effective
Date”) and shall terminate on June 30, 2009.

     

    2.           Scope of
Work.  Consultant will, on an advisory basis for review by
appropriate Ore staff, draft, prepare and review draft documents and memos and
perform such other tasks comparable to those he previously performed as
Secretary, General Counsel and Senior Vice President, Administration of Ore that
may be requested by Ore and that are acceptable to Consultant (collectively the
“Services”).  Any
request must be in writing or e-mail and specify the projects being
requested.  Either party may suspend performance of the Services in
whole or as to specific projects upon written notice to the other, provided that
Ore shall pay Consultant for all work performed through the date that notice of
any such suspension is received by the recipient.  Consultant will
perform Services only as requested by Ore’s General Counsel.

     

    3.           Compensation.  Ore
shall pay Consultant a consulting fee for the performance of the Services as
follows:

     

    
      	
              · 
        

            	
              Ore
      shall pay Consultant for documented and invoiced Services performed
      hereunder at an hourly rate of $300 per hour for
      Services. In no event will Consultant work more than 40 hours per calendar
      month without the prior written or e-mail consent of Ore’s Chief Financial
      Officer or General Counsel. Consultant shall be responsible for ensuring
      that he does not exceed such limits without an appropriate
      consent.  However nothing herein is intended to agree to use any
      specific number of hours of Services or to guarantee any minimum number of
      hours of Services will be requested.  If Consultant is requested
      to assist in a change of control transaction as defined in Ore’s Executive
      Severance Plan, then, if such change of control transaction is
      consummated, Consultant shall be entitled to an additional $50 per hour
      for all Services provided related to such transaction, which amount shall
      be due and payable within 15 days after the later of consummation of such
      a transaction or receipt of an itemized statement showing time spent in
      providing such Services. If Consultant is requested to travel to corporate
      offices in Gaithersburg, Consultant may charge a minimum charge of one
      hour even if he spends less than one hour at such site.  If
      other travel is requested, travel time will count as work
      time.

            


    

     

    
      	
              ·  
       

            	
              Reasonable
      expenses, with itemized receipts, incurred by Consultant in performance of
      the Services will be reimbursed. Consultant is familiar with Ore’s
      policies on reasonable travel and other business expenses and will comply
      with such policies.

            


    

     

    
      	
              ·    

            	
              Consultant
      shall maintain a record of hours worked, Services performed and expenses
      incurred and shall submit such record to Ore monthly. Ore shall make
      payment of all properly documented undisputed charges to Consultant within
      thirty (30) days from Ore’s receipt of an accurate
  invoice.

            


    

     

    
      	
              ·    

            	
              Ore
      will make available an office and computer facilities for use by
      Consultant when Consultant is at Ore’s offices. Ore will also provide at
      its expense any other office equipment, telecommunication capabilities or
      other resources that Consultant may need to provide the
      Services.

            


    

     

    4.           Manner of
Performance.  Consultant will perform such Services in an
efficient manner with diligence and care.  EXCEPT WITH RESPECT TO THE
PARTIES’ OBLIGATIONS UNDER SECTION 7 (CONFIDENTIALITY), IN NO EVENT SHALL EITHER
PARTY BE LIABLE TO THE OTHER FOR ANY SPECIAL, INDIRECT, INCIDENTAL, OR
CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT, EVEN IF
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

     

    
      
        
        

      

      
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    All work
requiring interaction with Ore staff shall be scheduled to occur during normal
working hours or at other mutually convenient and acceptable times and
Consultant is not obligated to perform Services that interfere with his other
planned vacation or activities.

     

    5.           Independent
Contractor.  Notwithstanding the fact that Consultant is a
former employee of Ore, Consultant is now an independent contractor, and nothing
in this agreement or otherwise shall be deemed to confer upon Consultant the
status of full-time or part-time employee or agent of Ore.  Nothing in
this Agreement shall authorize or empower Consultant to obligate Ore in any
way.  The relationship created by this Agreement is non-exclusive and
Ore shall be free to acquire services similar to the Services from alternative
sources without obligation to Consultant.

     

    6.           Conflicts of
Interest.  Consultant represents that he is not a party to any
relationship with third parties, including competitors of Ore, which would
present a conflict of interest with the rendering of the Services, or which
would prevent Consultant from carrying out the terms of this Agreement or which
would present a significant opportunity for the disclosure of confidential
information.  During the term of this Agreement, Consultant agrees not
to provide services similar to the Services provided hereunder for any
competitor of Ore.

     

    7.           Confidentiality.  Consultant
entered into a Proprietary Information and Inventions Agreement with Ore dated
May 30, 2002, a copy of which is attached hereto as Exhibit A, and hereby
agrees that Sections 1, 2, 7 and 8 of said Proprietary Information and
Inventions Agreement shall continue in effect during the term of this Agreement,
including any extensions or renewals of this Agreement, and shall apply to
additional information that, during the course of performing Services under this
Agreement, Consultant may learn of and that Ore regards as confidential or
proprietary.

     

    At the
termination of this Agreement, unless otherwise agreed by Ore’s General Counsel,
Consultant will return to Ore all non-public documents, drawings,
specifications, manuals and other printed or reproduced material provided to
Consultant related to the Services contemplated herein and any copies of such
information made by Consultant, except that Consultant may keep one copy of any
memo or legal document prepared by him  as an archive or, subject to
removal of any information specifically about Ore or any third party, for use as
a form.

     

    8.           Work Product.  All
work product generated by Consultant pursuant to the Services shall be deemed,
to the maximum extent permitted by applicable law, a “work for hire” and, to the
extent it does not qualify as a “work for hire”, Consultant hereby assigns all
right, title and interest to the work product to Ore.  Such work
product may include without limitation computer software or firmware,
multi-media content, images, algorithms, protocols, diagrams, documents,
letters, memoranda, writings, technical data, and records of any sort, as well
as ideas, expressions, inventions, discoveries, improvements, or other
information (whether or not patentable, copyrightable, or subject to trademark
protection).  Such work product shall be the sole and exclusive
property of Ore, and Ore shall have the unilateral and unrestricted right to use
or permit others to use such work product in any way.  Consultant
shall perform all lawful acts requested by Ore to: (a) perfect Ore’s title to
such work product, including the execution of any assignments; and (b) enable
Ore or its nominee to obtain and maintain patent, copyright, trademark, trade
secret, or other legal protection of such work product anywhere in the world.
Notwithstanding the above, the wording of legal documents, forms and memoranda
shall not be deemed works for hire if used by Consultant as forms in a different
context not related to Ore and with no reference to Ore or proprietary
information of Ore in any such document.

     

    9.           Termination.  Notwithstanding
the specified term of this Agreement, either of Consultant or Ore may terminate
this Agreement without cause by giving the other party five (5) business days
prior written notice.  In addition, either party may terminate this
Agreement effective the day of notice by giving the other party written notice
of termination if the other party materially breaches any obligations under the
Agreement.  Ore may terminate this Agreement effective the day of
notice by giving Consultant written notice of termination if Consultant fails to
provide the standard of performance of Services that substantially meets Ore’s
reasonable expectations.  The provisions set forth in Section 7
(Confidentiality), and Section 8 (Work Product), as well as any other provision
of this Agreement that reasonably may be expected to survive, shall survive the
expiration or termination of this Agreement.

     

    
      
        
        

      

      
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    10.           Responsibility for Work, Limitation
of Liability and Indemnification.  Consultant entered into an
Indemnity Agreement with Ore dated May 30, 2002, a copy of which is attached
hereto as Exhibit
B.  The parties agree said Indemnification Agreement shall
continue in effect during the term of this Agreement, including any extensions
or renewals of this Agreement, and shall apply to the performance of Services by
Consultant under this Agreement to the same extent as if Consultant had remained
an employee of Ore.  Notwithstanding the previous, any documents
prepared or other Services provided by Consultant are advisory drafts,
recommendations or suggestions only.  Ore shall determine whether to
accept such drafts, recommendations and suggestions or to modify or reject them
and shall be responsible for any and all consequences
thereof.  Therefore, Ore agrees that Consultant shall not have any
liability to Ore or anyone claiming by, through or for Ore with respect to the
Services or anything resulting from the Services, except to the extent it is
finally judicially determined to have resulted from Consultant’s intentional
wrongdoing.  Ore further hereby agrees to indemnify and hold harmless
Consultant from and against any claim, action, suit, proceedings (including
those of shareholders), loss, cost, damage or expense resulting from claims,
action suit or proceeding by any third parties, including stockholders, with
regard to the Services or anything resulting from the Services, and to advance
legal fees and expenses necessary to defend against such claims if any such
claims are made. Ore agrees that it will not, without Consultant’s prior written
consent, settle, compromise or consent to entry of any judgment in any matter
for which Consultant may seek indemnification.  Ore acknowledges that
the fees charged hereunder would have been higher and the Services provided
would have been more limited had Ore not agreed to this provision and that this
provision is therefore reasonable.

     

    11.           General.

     

    
      	
              ·  
       

            	
              Consultant
      may not assign, transfer, or delegate any of its rights or obligations
      under this Agreement.

            


    

     

    
      	
              ·  
       

            	
              This
      Agreement
      shall be governed by and construed in accordance with the laws of the
      State of Maryland, without reference to any conflict of laws
      principles.

            


    

     

    
      	
              ·  
       

            	
              If
      any term of this Agreement
      is found to be unenforceable in any jurisdiction, then such term shall be
      enforced to the maximum extent permitted by law, rather than voided, and
      the remaining terms of this Agreement
      shall remain in full force and
effect.

            


    

    
       

      
        	
                ·  
       

              	
                
                  This
      Agreement
      and all Exhibits and other documents incorporated herein shall constitute
      the complete, final, and exclusive statement of the terms of the agreement
      between Consultant and Ore regarding the subject matter hereof, and shall
      supersede all prior or contemporaneous representations, understandings,
      and communications relating
thereto.

                

              


      

    

     

    
      	
              ·  
       

            	
              Consultant
      has read this Agreement
      carefully and understands and accepts the obligations that it imposes on
      Consultant without reservation.  No promises or representations
      have been made to induce Consultant to sign this Agreement.  Consultant
      signs this Agreement
      voluntarily and freely.

            


    

     

    
      
        
        

      

      
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    IN WITNESS
WHEREOF, the undersigned as authorized representatives of the parties have
caused this Agreement
to be executed on the dates set forth below.

     

    
      
        
          
            
              
                
                  
                    
                      
                        
                          
                            
                              
                                
                                  
                                    
                                      
                                        
                                          
                                            
                                              	Ore
      Pharmaceuticals Inc.	 	Dudley
      Staples 
	 
      	 
      	 
      
	
                                                      /s/
      Philip L. Rohrer, Jr.

                                                    	 
      	
                                                      /s/
      Dudley Staples

                                                    
	
                                                      Signature

                                                    	
                                                       

                                                    	 Signature
	
                                                      Philip
      L. Rohrer, Jr.

                                                    	 
      	
                                                      February
      26, 2009

                                                    
	
                                                      Printed
      Name

                                                    	
                                                       

                                                    	
                                                      Date 
      

                                                    
	
                                                      Chief
      Financial Officer

                                                    	 
      	 
      
	
                                                      Title

                                                    	 
      	 
      
	
                                                      February
      26, 2009

                                                    	 
      	 
      
	
                                                      Date

                                                    	 
      	 
      


                                            

                                          

                                        

                                      

                                    

                                  

                                

                              

                            

                          

                        

                      

                    

                  

                

              

            

          

        

      

    

                             

    
      
        
        

      

      
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    EXHIBIT
A

     

    Copy of
Proprietary Information and Inventions Agreement of Consultant

     

    
      
        
        

      

      
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    EXHIBIT
B

     

    Copy of
Indemnity Agreement of Consultant

     

     

    6