Consulting Agreement



 






Exhibit 10.4









                    , 2005



Christopher Kiritsy

2217 Columbus Boulevard

Coral Gables, Fl 33134


Re: Consulting Arrangement




Dear Chris:



     This letter will confirm the terms under which you will provide certain consulting services to
Kos Pharmaceuticals, Inc. (the “Company”). Upon the effective date of this agreement, the Company
retains you to provide transitional services to the Company as and when requested by the Company
and in accordance with the Company’s instructions (the “Services”). In consideration for your
Services, you shall be entitled to receive $5,000 per year during the term of this letter
agreement, payable within 30 days following the completion of each calendar year. You will pay for
all of your own expenses in providing the Services, except as may be specifically approved in
writing by the Company in advance.



     You agree to provide the Services under this letter agreement for two years from the effective
date, which will be the day after the date of termination of your employment with the Company. The
Company acknowledges that during the term of this letter agreement, any stock options that may have
been previously awarded to you under the Company’s stock option plans will continue to vest in
accordance with the terms of the respective stock option award, subject to the following sentence.
Notwithstanding Section 9(c) of your existing stock option award agreements and Section 6(d) and 6
(f) (3) of the Company’s stock option plan, any such stock options previously awarded to you will
continue to survive until the date of expiration specified in the first sentence of Section 9 of
your existing stock option award agreements.



     For all purposes of this letter agreement, and the transactions contemplated hereby, you are
and shall be deemed to be an independent contractor and you shall not have the right, without the
prior written consent of the Company, to enter into any agreement on behalf of the Company or any
of its affiliates or to do any other act which may subject the Company or any of its affiliates to
liability or obligate the Company or any of its affiliates in any manner whatsoever. Nothing in
this letter agreement shall be deemed or construed (i) to create a partnership or joint venture
between you and the Company, (ii) to cause you to be responsible in any way for the debts,
liabilities or obligations of the Company, or (iii) to constitute you as an employee, officer or
agent of the Company. You agree that upon request of the Company you will immediately resign from
all positions held with the Company and any of its affiliates, which shall include, without
limitation, the tendering of your resignation from all



 









 




offices and directorships you hold with the Company and its affiliates. For purposes of this
paragraph only, Triad Pharmaceuticals, Inc. shall not be deemed an affiliate of Company.




     You recognize and acknowledge that you will have access to certain confidential information of
the Company, of its affiliates and of corporations with whom the Company does business and that
such information constitutes valuable, special and unique property of the Company and such other
corporations. During the term of this letter agreement and for a period of ten (10) years
following the expiration or termination of this letter agreement, you agree not to misuse or
misappropriate, directly or indirectly, or disclose or use any confidential information except as
is required in connection with your engagement by the Company, including, without limitation,
information regarding research, development, product designs or specifications, manufacturing
processes, know-how, prices, suppliers, customers, costs, business plans, budgets, any other
information relating to the Company, its affiliates, their products, pipelines, actual or
potential business, development and licensing activities (including without limitation, targets,
plans or transactions), any Company related litigation, information related to potential settlement
thereof or plans to protect the Company or its affiliates therefrom, the Company’s or its
affiliates’ businesses generally or otherwise any knowledge or information with respect to
confidential or trade secrets of the Company or any of its affiliates. You acknowledge and agree
that all notes, records, reports, sketches, plans, unpublished memoranda or other documents held by
you concerning any information relating to the Company’s or any of its affiliates’ business,
whether confidential or not, are the property of the Company and will be promptly delivered to it
upon the expiration or termination of this letter agreement.



     The provisions of the preceding paragraph shall survive the termination of this letter
agreement, regardless of the circumstances or reasons for such termination, and inure to the
benefit of the Company and its affiliates. The restrictions set forth in such paragraphs are
considered to be reasonable for the purposes of protecting the business of the Company. The Company
and you acknowledge that the Company would be irreparably harmed and that monetary damages would
not provide an adequate remedy to the Company if the covenants contained in such paragraphs were
not complied with in accordance with their terms. Accordingly, you agree that the Company shall be
entitled to injunctive and other equitable relief to secure the enforcement of these provisions, in
addition to any other remedy which may be available to the Company subject to a maximum limit of
the amounts paid under this letter agreement. If any legal action is necessary to enforce or
interpret the terms of this letter agreement, the prevailing party shall be entitled to recover
reasonable attorneys’ fees, costs, and necessary disbursements in addition to any other relief to
which that party may be entitled. This provision shall be construed as applicable to the entire
letter agreement.



     This letter agreement sets forth the entire agreement and understanding of the parties hereto
with respect to the subject matter hereof and supersedes any prior agreement, proposal, negotiation
or discussion relating thereto. No amendment or modification to the terms of this letter agreement
shall be effective unless in writing and signed by the parties hereto. You



 









 




acknowledge that the Services to be rendered by you are unique and personal; accordingly, you
may not assign any of your rights or delegate any of your duties or obligations under this letter
agreement. The Company shall have the right to assign this letter agreement without your consent.




     This letter agreement may be executed in any number of counterparts, which may be by
facsimile, each of which shall constitute an original and all of which together shall constitute
one and the same instrument.


NOW THEREFORE, the parties have executed this letter agreement as of the date first above written.




	 	 	 	 	 
	 	 	KOS PHARMACEUTICALS, INC.
	 
	 	 	 	 
	

	 	By:	 	 
	

	 	 	 	

	

	 	Name:	 	 
	

	 	Title:	 	 
	 
	 	 	 	 
	Agreed to and accepted:
	 	 	 	 
	 
	 	 	 	 
	

Christopher Kiritsy