Exhibit 10.5


 


Consultant Agreement dated
July 1, 2005

between Lpath Therapeutics
Inc.

and William Garland


 





















 





 


CONSULTANT
AGREEMENT


 


THIS CONSULTANT AGREEMENT (“Agreement”)
is entered into as of July 1, 2005 (“Effective Date”), by and between
William Garland (“Consultant”) with Social Security number ###-##-#### and
Lpath Therapeutics, Inc., a Delaware corporation (the “Company”). In
consideration of the retention of Consultant as scientific Consultant and
private contractor to the Company, and of the compensation received by
Contractor from the Company, the Company and Contractor hereby agree as
follows:


 


1.                                       Description of Services.


 


(a)                                  Consultant will advise the Company as an independent contractor in the area of
scientific advice on drug discovery and development.


 


(b)                                 Exclusivity. Consultant will work exclusively with the Company on matters relating
to sphingolipids in human disease. Consultant represents that (i) all of
his/her current consulting or Consultanty obligations, and (ii) all
restrictions or policies of his/her employer limiting or restricting Consultant’s
Consultanty or consulting activities or limiting rights to inventions resulting
from such activities are in no way conflicting with this Agreement. Consultant
agrees that he/she has not entered into, and will not enter into, any written
or oral agreement with any entity, company or person which is or may be (or has
the potential to be) a competitor of the Company relating to his/her
Consultanty services unless specifically noted or unless the Company is
notified of such agreement in advance. Consultant understands that while he/she
is a Consultant to the Company, he/she is not to breach any obligation of
confidentiality that he/she has to others.


 


2.                                       Time Commitment. The Consultant will be engaged on July 1,
2005; this contract will end on June 30, 2006. Compensation for activities
beyond the scope and timeframe of this contract will be negotiated as deemed
necessary. The Company has the option of terminating this contract prior to June 30,
2006, if sufficient progress is not made, leading the Company to conclude that
the Project is not viable. Consultant also will from time to time provide
scientific counsel on a reasonable basis to personnel working on projects on
behalf of the Company; such counsel, which will consist primarily of advice on
interpreting scientific or data and planning experiments or trials, will be at
Consultant’s convenience and will be limited to matters that are compatible
with Consultant’s faculty or other employment responsibilities and other oral
and written agreements disclosed to the Company to which Consultant is a party.


 


3.                                       Compensation.


 


(a)                                  Cash Compensation. For all services rendered, the Consultant
will be paid


 


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$3,000.00 per month. The Consultant understands that
he/she is not a salaried employee of the Company, and that there are no fringe
benefits offered by the Company. The Consultant is responsible for reporting
his/her activities to the relevant governmental agencies.


 


(b)                                 Other Compensation. At the Company’s discretion, it may
recommend to its Board of Directors that the Company grant the Consultant
additional compensation in the form of stock options.


 


(c)                                  Sole Compensation. The foregoing fees, other compensation and
reimbursement of expenses are Consultant’s sole compensation for rendering
services to the Company.


 


4.                                       Independent Contractor. Consultant’s relationship with the Company
will be that of an independent contractor and nothing in this Agreement will be
construed to create an employer-employee relationship between the Company and
Consultant. Consultant has no authority to act on behalf of or to enter into
any contract, incur any liability or make any representation on behalf of the
Company. The Company agrees that during the term of this Agreement, or any
extension or renewal thereof, Consultant may be employed by other persons,
firms or corporations; provided, however, that the provisions of
this Agreement will be strictly observed by Consultant with respect to such
other persons, firms or corporations. Since Consultant will not be an employee
of the Company, it is understood that Consultant will not be entitled to any of
the benefits under the Company’s retirement or group insurance plans or any
other employee benefits. Consultant is solely responsible for all taxes,
withholdings and other similar U. S. or international statutory obligations,
including, without limitation, Workers Compensation Insurance, Social Security,
federal, state or any other employee payroll taxes; and Consultant agrees to
defend, indemnify and hold the Company harmless from any and all claims made by
any entity on account of an alleged failure by Consultant to satisfy any such
tax or withholding obligations. In the performance of all services hereunder,
Consultant will comply with all applicable laws and regulations.


 


5.                                       No Conflict with Existing Agreements. The Company hereby acknowledges that it
does not desire to acquire from Consultant any secret or confidential know-how
or information which Consultant may have acquired from others. Accordingly,
Consultant represents and warrants that Consultant is free to divulge to the
Company, without any obligation to, or violation of any right of others, any
and all information, practice or techniques which Consultant will describe,
demonstrate, divulge or in any other manner make known to the Company during
Consultant’s performance of services hereunder.


 


6.                                       Consultant Inventions. Consultant will promptly disclose and
assign to the Company, or any persons designated by it, all improvements,
inventions, formulae, processes, techniques, know-how and data, whether or not
patentable, made or conceived or reduced to practice or learned by Consultant,
either alone or jointly with others, during the period of his/her retention as
an Consultant which (a) arise from services provided by Consultant under
this Agreement and related to or useful in the business of the Company, or (b) result
from tasks assigned Consultant by the Company, or (c) funded by the
Company, or (d) result from use of premises owned, leased or contracted
for by the Company (all said improvements, inventions, formulae, processes,
techniques, know-how and data shall be collectively hereinafter called “Inventions”).
Such disclosure shall continue for one year after termination of this Agreement


 


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with respect to anything that would be an Invention
if made, conceived, reduced to practice or learned during the term hereof.


 


Consultant further agrees as
to all Inventions to assist the Company at any time, and not just during the
term of this Agreement, in any and all countries, which assistance shall
include the execution of documents and any assignments to the Company or
persons designated by it. In the event that the Company is unable for any
reason whatsoever to secure Consultant’s signature to any lawful and necessary
document required to apply for or execute any patent application with respect
to an invention(s) (including reissues, renewals, extensions, continuations,
divisions or continuations in part thereof), Consultant hereby irrevocably
designates and appoints the Company and its duly authorized officers and
agents, as Consultant’s agents and attorneys-in-fact to act for and in
Consultant’s behalf and instead of Consultant, to execute and file any such
application and to do all other lawful acts to further the prosecution and
issuance of patents thereon with the same legal force and effect as if executed
by Consultant.


 


7.                                       Non-Disclosure and Non-Use. The parties hereto acknowledge that the
Company possesses and will possess information that has been created,
discovered or developed by, or has otherwise become known to, the Company
(including without limitation, information created, discovered, developed or
made known by or to Consultant arising specifically out of his/her retention as
an Consultant by the Company), and/or in which property rights have been
assigned or otherwise conveyed or disclosed to the Company, which information
has commercial value in the business in which the Company is engaged or intends
to engage. All of the aforementioned information is hereinafter called “Proprietary
Information.” By way of illustration, but not limitation, Proprietary
Information includes trade secrets, research results, processes, formulae, data
and know-how, improvements, inventions, techniques, marketing plans,
strategies, forecasts and customer lists. Proprietary Information also includes
any information which the Company has received from a third party which the
Company is obligated to treat as confidential or proprietary.


 


All Proprietary Information
shall be the sole property of the Company and its assigns, and the Company and
its assigns shall be the sole owner of all patents and other rights in
connection therewith. Consultant hereby assigns to the Company any rights
Consultant may have or acquire in all Proprietary Information. At all times
during his/her retention as an Consultant by the Company and at all times after
termination of such retention as an Consultant, Consultant will keep in
confidence and trust all Proprietary Information and will not disclose, sell,
use, lecture upon or publish any bonafide or potentially Proprietary
Information without the written consent of the Company, except as may be
necessary in the ordinary course of performing his/her duties as an Consultant
of the Company.


 


8.                                       Company Materials. All documents, data, records, apparatus,
equipment, chemicals, molecules, organisms and other physical property, whether
or not pertaining to Proprietary Information, furnished to Consultant by the
Company or a third party or produced by Consultant or others in connection with
Consultant’s retention as an Consultant shall be and remain the sole property
of the Company and shall be returned promptly to the Company as and when
requested by the Company. Should the Company not so request, Consultant shall
return and deliver all such property upon termination of his/her retention as
an Consultant by Consultant or by the Company for any reason and Consultant
will not take with him/her any such property or


 


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any reproduction of such property upon such
termination.


 


9.                                       Company Property. All Proprietary Information and all title,
patents, patent rights, copyrights, mask work rights, trade secret rights, and
other intellectual property and rights anywhere in the world (collectively “Rights”)
in connection therewith will be the sole property of the Company. Consultant
hereby assigns to the Company any Rights Consultant may have or acquire in such
Proprietary Information. At all times, both during the term of this Agreement
and after its termination, Consultant will keep in confidence and trust and
will not use or disclose any Proprietary Information without the prior written
consent of an officer of the Company appropriate in the ordinary course of
performing the services under this Agreement.


 


10.                                 Term and Termination. The initial term of this Agreement will be
for a three and one half (3.5) month period following the Effective Date. At
the Company’s option, this Agreement will also terminate upon notice to
Consultant in the event of Consultant’s inability for any reason to perform
Consultant’s services. Upon termination of this Agreement, the Company’s
obligation to pay any compensation, except for services or expenses already
accrued or incurred under Section 2, will immediately cease and terminate.
Termination of this Agreement for any reason will not affect Consultant’s obligations
under Sections 4, 6, 7, 8, 9 and 10.


 


11.                                 Responsibility of Consultant. The Company agrees not to hold Consultant
responsible for any inaccuracies, errors or omissions in the information or
advice given, or for loss or damage resulting for the use of such information
or advice given.


 


12.                                 Remedies. Consultant acknowledges and agrees that a breach of this Agreement
will result in immediate, irreparable and continuing damage to the Company for
which there will be no adequate remedy at law; and agrees that in the event of
any such breach or violation or any threatened or intended breach or violation
of this Agreement, the Company and its successors and assigns will be entitled
to temporary, preliminary and permanent injunctive relief and/or restraining orders
enjoining and restraining such breach or violation or such threatened or
intended breach or violation and/or other equitable relief (without needing to
post any bond or other security) in addition to such other and further relief
as may be proper.


 


13.                                 Amendments and Waivers. This Agreement may be modified, amended or
supplemented only by a written instrument duly executed by Consultant and the
President of the Company. No term or condition or the breach thereof will be
deemed waived, unless it is waived in writing and signed by the party against
whom the waiver is claimed. Any waiver or breach of any term or condition will
not be deemed to be a waiver of any preceding or succeeding breach of the same
or any other term or condition. The failure of any party to insist upon strict
performance of any term or condition hereunder will not constitute a waiver of
such party’s right to demand strict compliance therewith in the future.


 


If
to the Company:                                             Lpath Therapeutics, Inc.

Attn: Scott Pancoast


 


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6335 Ferris Sq., Suite A

San Diego, CA 92121


 


If to Consultant, the
address set forth below his signature.


 


14.                                 Governing Law: Jurisdiction and Venue. This Agreement will be governed by and
construed in accordance with the laws of the State of California, without
regard to principles of conflicts of law. The parties agree that any dispute
regarding the interpretation or validity of this Agreement will be subject to
the exclusive jurisdiction of the state and federal courts in and for the
County of San Diego, California, and each party hereby agrees to submit to the
personal and exclusive jurisdiction and venue of such courts.


 


15.                                 Counterparts. This Agreement may be executed in multiple
copies, each of which will be deemed an original and all of which will
constitute a single agreement binding on all parties.


 


16.                                 Entire Agreement. This Agreement (together with documents and
agreements entered into herewith) constitutes the entire agreement between the
parties hereto with respect to the subject matter hereof and supersedes all
prior and contemporaneous agreements and understandings. Each party to this
Agreement acknowledges that no representations, inducements, promises or
agreements have been made by any party, or any one acting on behalf of any
party, that are not embodied in this Agreement with respect to the subject
matter hereof.


 


17.                                 Representation. By executing this Agreement, Consultant
acknowledges that he/she understands and agrees that he/she has been encouraged,
and had the opportunity to, consult with his/her own personal attorney in
connection with this Agreement.


 


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IN WITNESS WHEREOF, the
parties hereto have executed this Agreement as of the day and year first above
written.


 


	
   

  	
  CONSULTANT

  	
   

  	
   

  	
   

  	
  THE COMPANY

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  LPATH THERAPEUTICS, INC.

  	
   

  
	
   

  	
   

  	
   

  	
  a Delaware corporation

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  /s/ W.A. Garland

  	
   

  	
  By:

  	
  /s/ Scott Pancoast

  	
   

  
	
  Signature

  	
   

  	
   

  	
  Signature

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  William Garland

  	
   

  	
   

  	
  Scott Pancoast, President & CEO

  	
   

  
	
  Printed Name

  	
   

  	
   

  	
  Printed Name and Title

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   7/1/05

  	
   

  	
   

  	
  7/1/05

  	
   

  
	
  Date

  	
   

  	
   

  	
  Date

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Consultant’s Address:

  	
   

  	
   

  	
   

  	
   

  
	
  310 Via Colibri

  	
   

  	
   

  	
   

  	
   

  
	
  San Clemente, CA 92672

  	
   

  	
   

  	
   

  	
   

  



 


[SIGNATURE PAGE TO
CONSULTANT AGREEMENT]


 


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