Exhibit 10.22
CONSULTANT: - Xxxx X. Xxxxxx, M.D.
ACTIVBIOTICS CONTACT: - Xxxxxx X. Xxxxxx, Ph.D.
EFFECTIVE DATE: - January 1, 2006
[ACTIVBIOTICS(R) LOGO]
CONSULTING AGREEMENT
This Consulting Agreement (together with its attachments, this "Agreement")
made as of the date written above (the "Effective Date") is between
ActivBiotics, Inc., a Delaware corporation having an address at 000 Xxxxxxxx
Xxxxxx, Xxxxxxxxx, XX 00000 (together with its affiliates and subsidiaries,
"ActivBiotics"), and the consultant named on the signature page ("Consultant")
ActivBiotics desires to have the benefit of Consultant's knowledge and
experience, and Consultant desires to provide Consulting Services (defined
below) to ActivBiotics, all as provided in this Agreement.
1 CONSULTING SERVICES. ActivBiotics retains Consultant and Consultant agrees to
provide Consulting Services to ActivBiotics (the "Consulting Services") as it
may from time to time reasonably request and as specified in the business terms
exhibit attached to this Agreement ("Business Terms Exhibit"). Any changes to
the Consulting Services (and any related compensation adjustments) must be
agreed upon in writing between Consultant and ActivBiotics prior to commencement
of the changes. Consultant understands and agrees that it is not the intent of
ActivBiotics that this Agreement or any actions of ActivBiotics be construed as
imposing any duty or obligation, express or implied, on Consultant to use,
purchase, prescribe, or recommend any product of ActivBiotics.
1.1 PERFORMANCE. Consultant agrees to render the Consulting Services to
ActivBiotics, or to its designee, (a) at such reasonably convenient
times and places as ActivBiotics may direct, (b) under the general
supervision of ActivBiotics, and (c) on a best efforts basis
Consultant will comply with all rules, procedures and standards
promulgated from time to time by ActivBiotics with regard to
Consultant's access to and use of ActivBiotics' property, information,
equipment and facilities. Consultant agrees to furnish ActivBiotics
with written reports with respect to the Consulting Services if and
when requested by ActivBiotics.
1.2 THIRD PARTY CONFIDENTIAL INFORMATION. Consultant agrees not to use any
trade secrets or other confidential information of any other person,
firm, corporation, institution or other entity in connection with any
of the Consulting Services.
1.3 NO CONFLICTS. Consultant is under no contractual or other obligation
or restriction which is inconsistent with Consultant's execution of
this Agreement or the performance of the Consulting Services During
the Term (defined below), Consultant will not enter into any
agreement, either written or oral, in conflict with Consultant's
obligations under this Agreement. Consultant will arrange to provide
the Consulting Services in such manner
and at such times that the Consulting Services will not conflict with
Consultant's responsibilities under any other agreement, arrangement
or understanding or pursuant to any employment relationship Consultant
has at any time with any third party.
1.4 COMPLIANCE WITH POLICIES. If Consultant is a faculty member at or
employee of a university or hospital ("Institution") 01 of another
company, Consultant represents and warrants that pursuant to
Institution's or company's policies concerning professional consulting
and additional workload, Consultant is permitted to enter into this
Agreement. If Consultant is required by Consultant's Institution to
disclose to it any proposed agreements with industry, Consultant has
made such disclosure. If Institution's prior approval of this
Agreement is required by Institution policies, Consultant has obtained
or will obtain and deliver to ActivBiotics, Institution's consent on
the form attached to this Agreement prior to beginning the Consulting
Services.
1.5 ABSENCE OF DEBARRMENT. Consultant represents that neither Consultant
nor any Consultant Personnel (defined below) has been debarred, and to
the best of Consultant's knowledge, is not under consideration to be
debarred, by the U.S. Food and Drug Administration from working in or
providing consulting services to any pharmaceutical or biotechnology
company under the Generic Drug Enforcement Act of 1992.
1.6 CONSULTANT PERSONNEL. In the event that others are, or may hereafter
become, associated with Consultant or are used by Consultant in
connection with the Consulting Services ("Consultant Personnel"),
Consultant agrees to procure from them agreements containing
obligations substantially identical in form and substance to those in
this Agreement, and Consultant agrees to cooperate with ActivBiotics
in procuring execution by them of assignments and other papers as may
be required by the terms of this Agreement.
2. COMPENSATION.
2.1 PAYMENT. In consideration for the Consulting Services rendered by
Consultant to ActivBiotics, ActivBiotics agrees to pay Consultant the fees set
forth in the Business Terms Exhibit. Unless otherwise specified in the Business
Terms Exhibit, payments are due net thirty (30) days from ActivBiotics' receipt
of Consultant's invoice. Invoices will contain such detail as ActivBiotics may
reasonably require and will be payable in U S Dollars.
2.2 EXPENSES. ActivBiotics will reimburse Consultant for all reasonable
travel and other expenses incurred by Consultant in rendering the Consulting
Services, provided that such expenses are consistent with ActivBiotics' Travel
and Expense Policy, are agreed upon in advance, and are confirmed by appropriate
written expense statements and other supporting documentation.
3. INVENTIONS.
3.1 DEFINITION. Consultant will promptly disclose in confidence to
ActivBiotics all inventions, discoveries, improvements, ideas,
designs, processes, products, computer programs, works of authorship,
databases, mask works, trade secrets, know-how, research and creations
(whether or not patentable or subject to copyright or trade secret
protection) that Consultant makes, conceives or reduces to
practice, either alone or jointly with others, and that (a) result
from the performance of the Consulting Services,
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and/or (b) result from use of facilities, equipment, supplies,
Research Materials (defined below), or Confidential Information
(defined below) of ActivBiotics ("Inventions")
3.2 OWNERSHIP. All Inventions will be the exclusive property of
ActivBiotics. For purposes of the copyright laws of the United States,
all Inventions will constitute "works made for hire", except to the
extent such Inventions cannot by law be "works made for hire". To the
extent Inventions have not been previously assigned to ActivBiotics,
Consultant hereby assigns and, to the extent any such assignment
cannot be made at present, hereby agrees to assign to ActivBiotics,
without further compensation, all right, title and interest in and to
all Inventions and any and all related patents, patent applications,
copyrights, copyright applications, trademarks, trade names, trade
secrets and other proprietary rights in the United States and
throughout the world.
3.3 RESEARCH MATERIALS. If the Consulting Services entail laboratory work
or experiments, "Research Materials" means all materials furnished by
ActivBiotics, all materials developed by Consultant in connection with
the Consulting Services and all materials, the cost of which are
reimbursed to Consultant by ActivBiotics hereunder. Research Materials
include, in the case of biological materials, all progeny and
unmodified derivatives of those materials, and in the case of chemical
materials, all analogs, formulations, mixtures and compositions of
those materials. Research Materials are the sole property of
ActivBiotics and at ActivBiotics' option, are either to be disposed of
or delivered to ActivBiotics upon request, but in any event within
thirty (30) days after the expiration or termination of this Agreement
Consultant agrees that Consultant will not use or evaluate Research
Materials for any purpose other than as directed by ActivBiotics, nor
transfer the Research Materials to any third party without the prior
consent of ActivBiotics. Consultant will use the Research Materials in
compliance with all laws and regulations. Consultant will be
responsible for any claims or liabilities which arise as the result of
Consultant's use, handling or storage of the Research Materials, and
will hold ActivBiotics and its employees, officers and agents harmless
from any loss, claim, damage or liability which may arise from or in
connection with Consultant's use, handling or storage of Research
Materials.
3.4 RECORDS. Consultant will maintain adequate and current written records
(in the form of notes, sketches, drawings and as may be specified by
ActivBiotics), properly corroborated, to document the conception
and/or first actual reduction to practice of any Invention. Those
written records will be available to and remain the sole property of
ActivBiotics at all times. If the Consulting Services entail
laboratory work or experiments, the details of such work or
experiments performed will be recorded in laboratory notebooks used
only for recording work done on behalf of ActivBiotics. This will be
of sufficient detail that other skilled persons, without reference to
other material, could directly repeat the experiments. Results of all
experiments will be documented, whether deemed to have been successful
or not. All raw data will be included in the laboratory notebooks and
will be available for inspection upon request. Data will be fully
annotated such that cross-reference with records in laboratory
notebooks is easily achieved. Laboratory notebooks (which will be the
property of ActivBiotics) will be non-loose leaf and have numbered
consecutive pages, the date to be filled in on each page. Consultant
will sign and date each page at the end of each day on which work is
performed and such signature will be countersigned or witnessed by
another researcher each day.
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3.5 AGREEMENT WITH INSTITUTION. This Agreement is made subject to the
understanding that Consultant, if affiliated with an Institution, may
be required to fulfill certain obligations, including teaching,
directing laboratory operations, conducting research, and publishing
work. It is further understood that Consultant may have signed an
agreement concerning inventions with Institution, under which
Consultant may be obligated to assign to Institution certain
inventions which arise out of or otherwise relate to Consultant's work
at or for Institution or from Consultant's use of certain of its
facilities or intellectual property. In performing the Consulting
Services, Consultant agrees not to utilize Institution facilities or
intellectual property if the result of such use is that any Inventions
will not be assignable solely to ActivBiotics. Use of Institution's
telephone, fax machines or computers for communication purposes,
however, will not constitute use of Institution's facilities under
this Agreement.
3.6 WORK AT THIRD PARTY FACILITIES. Consultant agrees not to make any use
of any funds, space, personnel, facilities, equipment or other
resources of a third party in performing the Consulting Services not
take any other action that would result in a third party owning or
having a right in any Inventions, unless agreed upon in writing in
advance by ActivBiotics.
4. CONFIDENTIAL INFORMATION.
4.1 DEFINITION. "Confidential Information" means all trade secrets and
confidential or proprietary information owned, possessed or used by
ActivBiotics, learned of by Consultant or developed by Consultant in
connection with the Consulting Services, whether or not labeled
"Confidential", including but not limited to (a) all Inventions,
marketing plans, business strategies, scientific data, financial
information, forecasts, personnel information and customer lists of
ActivBiotics, (b) all information of third parties that ActivBiotics
has an obligation to keep confidential, and (c) the terms and
conditions of this Agreement (including the compensation paid to
Consultant pursuant to Section 2). Confidential Information does not
include information which (i) is in the public domain or which becomes
part of the public domain through no wrongful act on Consultant's part
but only after it becomes so publicly known, (ii) is already in
Consultant's possession at the time of disclosure by ActivBiotics,
other than by previous disclosure by ActivBiotics, as evidenced by
written or electronic records, or (iii) that becomes known to
Consultant through disclosure by a third party having the right to
disclose the information, as evidenced by written or electronic
records.
4.2 OBLIGATIONS OF CONFIDENTIALITY. During the Term and thereafter,
Consultant will not directly or indirectly publish, disseminate or
otherwise disclose, use for Consultant's own benefit or for the
benefit of a third party, deliver or make available to any third party
any Confidential Information, other than in furtherance of the
purposes of this Agreement, and only then with the prior written
consent of ActivBiotics. If required, Consultant may disclose the
Confidential Information to a governmental authority or by order of a
court of competent jurisdiction, provided that such disclosure is
subject to all applicable governmental or judicial protection
available for like material and reasonable advance notice is given to
ActivBiotics. Consultant will exercise all reasonable precautions to
physically protect the integrity and confidentiality of the
Confidential Information and will not remove any Confidential
Information or copies thereof from
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ActivBiotics' premises except to the extent necessary to fulfill the
Consulting Services, and then only with ActivBiotics' prior consent.
Consultant may disseminate or permit access to Confidential
Information only to Consultant Personnel who have a need to know such
Confidential Information in the course of the performance of their
duties and who are bound to protect the confidentiality of the
Confidential Information consistent with the terms of this Agreement.
5. PUBLICATION. Consultant agrees to submit to ActivBiotics a copy of any
proposed manuscript or other materials to be published or otherwise publicly
disclosed which contains information or any discussion relating to ActivBiotics
or the Consulting Services, in sufficient time to enable ActivBiotics to
determine if patentable Inventions or any Confidential Information of
ActivBiotics would be disclosed Consultant will cooperate with ActivBiotics in
this respect and will delete from the manuscript or other disclosure any
Confidential Information if requested by ActivBiotics, and will assist
ActivBiotics in filing for patent protection for any patentable Inventions prior
to publication or other disclosure.
6. TERM AND TERMINATION.
6.1 TERM. This Agreement will commence on the Effective Date and continue
for the term specified on the Business Terms Exhibit (the "Term"),
unless sooner terminated pursuant to the express terms of this Section
6 or extended by mutual agreement of the parties.
6.2 TERMINATION FOR BREACH. If either party breaches in any material
respect any of its material obligations under this Agreement, in
addition to any other right or remedy, the non-breaching party may
terminate this Agreement in the event that the breach is not cured
within thirty (30) days after receipt by that party of written notice
of the breach.
6.3 TERMINATION BY ACTIVBIOTICS. ActivBiotics may terminate this Agreement
(a) immediately at any time upon written notice to Consultant in the
event of a breach of this Agreement by Consultant which cannot be
cured (i.e. breach of the confidentiality obligation) and/or (b) at
any time without cause upon not less than thirty (30) days' prior
written notice to Consultant.
6.4 EFFECT OF EXPIRATION/TERMINATION. Upon expiration or termination,
neither ActivBiotics nor Consultant will have any further obligations
under this Agreement, except (a) the liabilities accrued through the
date of termination, and (b) the obligations under, sections 3, 4, 6
and 7 will survive. Upon expiration or termination, and in any case
upon ActivBiotics' request, Consultant will return immediately to
ActivBiotics all tangible Confidential Information, including all
copies and reproductions thereof, except for one (1) copy which may be
retained solely for archival purposes.
7. MISCELLANEOUS.
7.1 INDEPENDENT CONTRACTOR. All Consulting Services will be rendered by
Consultant as an independent contractor and this Agreement does not
create an employer-employee relationship between ActivBiotics and
Consultant. Consultant will have no rights to receive any employee
benefits, such as health and accident insurance, sick leave or
vacation which are accorded to regular ActivBiotics employees.
Consultant will not in any way represent himself to be an employee,
partner, joint venturer, or agent of ActivBiotics.
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7.2 TAXES. Consultant will pay all required taxes on Consultant's income
from ActivBiotics under this Agreement. Consultant will provide
ActivBiotics with Consultant's taxpayer identification number or
social security number, as applicable
7.3 ASSIGNABILITY AND BINDING EFFECT. The Consulting Services to be
rendered by Consultant are personal in nature. Consultant may not
assign or transfer this Agreement or any of Consultant's rights or
obligations hereunder except to a corporation of which Consultant is
the sole stockholder. In no event will Consultant assign or delegate
responsibility for actual performance of the Consulting Services to
any other natural person except to Consultant Personnel as provided
for under this Agreement. This Agreement will be binding upon and
inure to the benefit of the parties and their respective legal
representatives, heirs, successors and permitted assigns.
7.4 HEADINGS. The section headings are included solely for convenience of
reference and will not control or affect the meaning or interpretation
of any of the provisions of this Agreement.
7.5 NOTICES. Any notices or other communications from one party to the
other will be in writing and will be given by addressing the same to
the other at the address or facsimile number set forth in this
Agreement. Notices to ActivBiotics will be marked "ATTENTION: CHIEF
FINANCIAL OFFICER". Notice will be deemed to have been duly given when
(a) deposited in the United States mail with proper postage for first
class Registered or Certified Mail prepaid, return receipt requested,
(b) sent by any reputable commercial courier, delivery confirmation
requested, (c) delivered personally, or (d) if promptly confirmed by
mail or commercial courier as provided above, when dispatched by
facsimile.
7.6 NO MODIFICATION. This Agreement may be changed only by a writing
signed by authorized representatives of both parties.
7.7 SEVERABILITY. In the event that any one or more of the provisions
contained in this Agreement will, for any reason, be held to be
invalid, illegal or unenforceable in any respect, such invalidity,
illegality or unenforceability will not affect any other provisions of
this Agreement, and all other provisions will remain in full force and
effect. If any provision of this Agreement is held to be excessively
broad, it will be reformed and construed by limiting and reducing it
so as to be enforceable to the maximum extent permitted by law.
7.8 ENTIRE AGREEMENT. This Agreement constitutes the entire agreement of
the parties with regard to its subject matter, and supersedes all
previous written or oral representations, agreements and
understandings between the parties.
7.9 GOVERNING LAW. This Agreement will be governed by, and construed and
enforced in accordance with, the laws of the Commonwealth of
Massachusetts applicable to contracts made and to be performed
therein, without giving effect to the principles thereof relating to
the conflict of laws.
7.10 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which will be deemed an original, but all of
which together will constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement
under seal as of the Effective Date.
ACTIVBIOTICS INC.
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------------------
Name: Xxxxxx X. Xxxxxx, Ph.D.
Title: President and Chief Executive Officer
CONSULTANT:
By: /s/ Xxxx X. Xxxxxx
---------------------------------------------
Name: Xxxx X. Xxxxxx, MD
Address: 00 Xxxxxxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Telephone: (000)000-0000
FAX: (000) 000-0000
Tax ID/SS No. (redacted)
-----------------------------------
(required for payment)
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BUSINESS TERMS EXHIBIT
1. CONSULTING SERVICES:
Consulation on business or legal proceedings outside the normal course of
efforts as a Board Member and Chairman of the Board of ActivBiotics, Inc
2. COMPENSATION:
As full compensation for the Consulting Services, ActivBiotics will pay
Consultant $250.00 per hour ($2000/day), not to exceed $25,000 during the
Term, without ActivBiotics' specific written consent. [A full day will
consist of a minimum of eight (8) hours of Consulting Services.]
On the last day of each calendar month, Consultant will invoice
ActivBiotics for Consulting Services rendered and travel expenses incurred
during the preceding month.
Invoices should reference this Agreement and be forward to:
ActivBiotics, Inc
Attn: Accounts Payable Dept.
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
3. TERM:
This Agreement will be for an initial term of one (1) year beginning on the
Effective Date, and may be extended for additional periods, at
ActivBiotics' option and with Consultant's consent.
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