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Exhibit 10.1
CONFIDENTIAL TREATMENT
LEUKON, INC.
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT, entered into as of this 22nd day of January,
1993 (this "Agreement"), is between Leukon, Inc., a Delaware corporation
(hereinafter called the "Company"), and Xxxxxxx X. Xxxxxxxx, of Cambridge,
Massachusetts (hereinafter called the "Consultant").
1. Consulting Services.
(a) Subject to and upon the terms and conditions set forth in
this Agreement, the Company hereby retains the Consultant, and the
Consultant hereby agrees, during the term of this Agreement, to serve
as Chairman of the Scientific Advisory Board of the Company and to
provide to the Company such consulting and technical advisory services
as may be required by the Company from time to time. Such services
shall be rendered exclusively to the Company in the healthcare field
except that such services shall not include (i) operational or
managerial responsibilities, (ii) responsibilities, or service as a
member of the Board of Directors of the Company (although Consultant
shall, during the term of this Agreement, receive all notices of
meetings of such Board of Directors and may, at his option, observe at
such meetings), or (iii) Clinical Research as defined in the Harvard
University ("Harvard") Faculty of Medicine Policy on Conflicts of
Interest and Commitment dated March 22, 1990 (the "Harvard Conflicts
Policy"), or (iv) the conduct of research externally that would
ordinarily be conducted within or for Harvard or the Center for Blood
Research, Inc. and/or its for profit subsidiary CBR Laboratory, Inc.,
both hereinafter the "CBR", or (v) research conducted at or utilizing
the resources or facilities of Harvard, the CBR or any other
Harvard-affiliated institution, including such research and services
for third parties through CBR (which may be rendered to commercial, for
profit companies, or others) which, now, or at any time, sponsor, or
have sponsored research, or work with CBR and/or Harvard in the
healthcare field or otherwise.
In rendering consulting services hereunder, the Consultant
shall act solely as an independent contractor and this Agreement shall
not be construed to create any employee/employer relationship between
the Consultant and the Company.
*Confidential treatment requested: material has been omitted and filed
separately with the Commission
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It is understood and agreed that Consultant is an employee of
CBR and has and will have existing and future obligations to CBR,
including rendering services, and assigning rights to certain
inventions, developments and discoveries (whether patentable or not),
which obligations shall not be diminished by anything in this
agreement.
(b) During the term of this Agreement, the Consultant agrees
to ************************************************** to the
performance of consulting services hereunder, including attendance at
meetings of the Company's Scientific Advisory Board; provided, however,
that he shall not be required to devote more time than is permitted by
the policies or regulations of Harvard or the CBR. If such policies or
regulations are amended or later determined to permit less than two
days per month of services hereunder there shall be an appropriate
reduction in the compensation payable to the Consultant hereunder. If
in connection with the performance of the services, the Consultant is
required to travel for over one hour to or from a metropolitan area
where the Consultant does not reside, time spent in travel shall be
considered to be time spent performing services. Services performed by
Consultant as the Chairman of the Scientific Advisory Board in addition
to preparation for and attendance at meetings shall also be considered
to be time spent performing services hereunder.
(c) The Consultant shall provide his consulting services
hereunder at such times and locations as are mutually agreed upon by
the Consultant and the Company; provided, however, that such times and
locations shall not interfere with Consultant's obligations to Harvard
and the CBR, the principal employer of the Consultant.
(d) The Company recognizes that the Consultant's activities
are or will be subject to the rules and regulations of Harvard and the
CBR, now or in the future, and the Company agrees that the Consultant
shall be under no obligation to perform services hereunder if such
performance would conflict with such rules and regulations, or
constitute a Category I activity under the Harvard Conflicts Policy.
The Consultant's obligations under this Agreement shall be subject to
his compliance with such rules and regulations, and, in the event of a
conflict, such rules and regulations shall control. In the event such
rules and regulations shall in the Company's opinion substantially
interfere with the performance of services by the Consultant hereunder,
the Company
*Confidential treatment requested: material has been omitted and filed
separately with the Commission
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may terminate this Agreement upon ninety (90) days notice to the
Consultant. Subject to the obligations of Section 10, the Consultant
shall not be restricted in his ability to publish or formally present
research results, or provide expert commentary on any subject relating
to his activities for Harvard or the CBR.
(e) The Consultant shall not serve on or participate in any
way with respect to the scientific advisory board of any other company
or consult or become an officer or employee of any other for profit
company without the prior written consent of the Board of Directors of
the Company except for such participation or consulting as may be
required by Consultant's obligations to CBR. The Board of Directors may
condition any consent upon a reduction in the Consulting Fee (as
defined below) with respect to any payments received by the Consultant
for such other activities.
2. Freedom to Contract. The Consultant represents that he is free to
enter into this Agreement, he has not made and will not make (except as may be
contemplated by Section 1 (d)) any agreements in conflict with this Agreement,
and he will not disclose to the Company, or use for the Company's benefit, any
trade secrets or confidential information which is the property of any other
party. Without limiting the generality of the foregoing, the Consultant shall
have no obligation to disclose to the Company, and shall not use for the
Company's benefit, any information relating to or arising out of his research
conducted at Harvard or the CBR, or utilizing the funds, personnel, facilities,
materials or other resources of Harvard or the CBR, until such information has
been published; provided, however, that the Consultant shall have an obligation
to disclose to the Company, and shall use for the Company's exclusive benefit,
any and all such information to the extent that the Company shall be legally
entitled to the exclusive use of such information pursuant to any license
granted by Harvard or the CBR to the Company.
3. Compensation.
(a) So long as the Consultant is providing consulting services
to the Company under this Agreement, the Company agrees to pay the
Consultant a consulting fee in the amount of ************** per year
(the "Consulting Fee"), subject to possible adjustment as provided in
this Section, Section 1(b) and (e), payable in equal monthly
installments. The Consulting Fee shall be the exclusive form of
compensation by the Company to the Consultant regarding services
rendered to the Company by the Consultant. Beginning on January 1,
1994, the Consulting Fee shall be adjusted
*Confidential treatment requested: material has been omitted and filed
separately with the Commission
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upward by the same percentage as the percentage increase in the
"Consumer Price Index for Urban Wage Earners and Clerical Workers - for
the City of Boston - All Items - Series A" published by the Bureau of
Labor Statistics, United States Department of Labor, or any index which
may in the future be submitted in place of such index (the "Index"),
from the index figure for the month of January, 1993 to the index for
the month of January, 1994. For each successive year, the Consulting
Fee shall be adjusted in the same manner, that is, by the percentage by
which the Consumer Price Index for January of that year exceeds the
index for the preceding January.
(b) The Company hereby acknowledges that the Consultant has
been rendering consulting services to the Company since August 3, 1992,
and, within ten (10) days of the Effective Date (as defined in Section
6) of this Agreement, agrees to compensate the Consultant for such
consulting services, in accordance with Section 3(a) above, to the same
extent as if the Consultant had rendered such consulting services after
the Effective Date.
(c) The Company will not withhold any tax or Social Security
payments due from the Consultant to any governmental taxing authority.
The Consultant hereby agrees that he will timely pay all taxes and fees
upon the compensation he is paid by the Company.
4. Expenses. The Company shall reimburse the Consultant for any actual
expenses incurred by the Consultant while rendering services under this
Agreement so long as such expenses are reasonable and necessary, appropriately
documented, and, where feasible, approved in advance by the Company.
5. Representation of Consultant. The Consultant hereby represents and
warrants to the Company that he has provided a copy of this Agreement to the CBR
and the CBR has not objected to his entering into and performing this Agreement,
that he will file a copy with Harvard in accordance with the Harvard Conflicts
Policy and that the terms of this Agreement and the services contemplated
hereunder do not conflict with any of the Consultant's current or anticipated
obligations to, or with any of the policies, procedures or regulations of,
Harvard or the CBR.
6. Term. This Agreement shall take effect as of the date hereof (the
"Effective Date") and, unless sooner terminated pursuant to Sections 7 or 1(d)
hereof or renewed as set forth below, shall expire two years from the Effective
Date. Unless either the Company or the Consultant gives
*Confidential treatment requested: material has been omitted and filed
separately with the Commission
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written notice at least sixty (60) days prior to the initial or any successive
expiration date, the term of this Agreement shall be automatically extended for
successive renewal terms of one year each.
7. Termination.
(a) This Agreement (i) shall terminate immediately upon the
Consultant's death, (ii) may be terminated by either the Company or the
Consultant upon the permanent disability of the Consultant by giving
written notice of such termination to the other party and (iii) may be
terminated by the Company by giving written notice to the Consultant if
the Company and CBR do not, within ninety (90) days of the Effective
Date, enter into one or more written license agreements satisfactory to
the Company relating to the technology and inventions of Xx. Xxxxxxxx.
(b) This Agreement may be terminated by the Consultant, by
giving written notice of such termination to the Company, in the event
that HealthCare Investment Corporation ("HealthCare") and/or Dr. Xxxxxx
Xxxxxx ("Xx. Xxxxxx"), and/or other investors or designees who may
participate with them, fail to make the first of two $5,000,000.00
installments as contemplated by the terms of that certain Term Sheet,
dated December , 1992, relating to the Company's proposed Convertible
Preferred Stock Financing.
(c) This Agreement may be terminated immediately by the
Company or the Consultant for Cause at any time during the initial term
of this Agreement (or during any renewal term) by giving the other
party written notice of such termination. For purposes of this
Agreement, the meaning of the term "Cause" shall include, but not be
limited to, dishonesty, embezzlement, theft, fraudulent misconduct, any
use of an illegal substance, or any breach of this Agreement which
remains uncured 30 days after the breaching party receives written
notice of such breach from the nonbreaching party. If the Company gives
notice of termination or non-renewal pursuant to Section 6 hereof, it
shall be treated as a termination without Cause (unless the notice of
termination specifically provides that it is a for Cause termination).
If the Consultant terminates this Agreement on account of a material
(uncured) breach by the Company, it shall be treated as a termination
without Cause.
8. Agreement not to Compete. Except as otherwise provided below, during
the term of this Agreement and for a period of one (1) year thereafter, the
Consultant shall not, directly or indirectly, engage or participate in any way
in any business, commercial activity or commercial
*Confidential treatment requested: material has been omitted and filed
separately with the Commission
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enterprise which competes or is competitive with any product, process or service
that (in the case of a termination, at the date of termination) the Company is
researching, developing, marketing, licensing or selling or that the Company is
intending within two (2) years from the date of termination to research,
develop, market, license or sell; provided, however, that nothing in this
Section 8 shall be construed to limit the ability of the Consultant to conduct
research or engage in research-related activities for or administered by Harvard
and the CBR; and provided, however, that the holding by the Consultant of any
investment in the equity of a publicly traded entity (registered under
Section12(g) of the Securities Exchange Act of 1934 and traded on a recognized
national securities exchange or the NASDAQ National Market System) shall not be
deemed to be a violation of this section if such investment does not constitute
over one percent (1%) of all of the equity of such entity. The Consultant also
shall not solicit any other employee, customer, supplier, or franchisee of, or
consultant or adviser to, the Company to terminate such party's relationship
with the Company during the term of this Agreement and for a period of one (1)
year thereafter. The time periods provided for in this section shall be extended
for a period of time in which the Consultant is in violation of any provision of
this section. Notwithstanding anything in this Agreement to the contrary
(including, without limitation, the provisions of Section 13 hereof), the
provisions of this Section 8 shall not be applicable from and after any
termination of this Agreement pursuant to Section 7(b) hereof.
9. Inventions; Assignments. Except to the extent that the Consultant's
employer, Harvard or the CBR now or in the future, may have pre-existing or
superior rights by reason of such employment and/or by agreement, all
inventions, improvements, developments, ideas, names, patents, trademarks,
copyrights, and innovations (including all data and records pertaining thereto),
whether or not reduced to writing, which the Consultant may, either alone or
with others and whether or not during working hours or by the use of facilities
of the Company, originate, make or conceive, at any time during the term of this
Agreement and for a period of twelve (12) months thereafter, and which arise out
of or are based upon any services rendered hereunder and/or any Confidential
Information of the Company shall be the exclusive property of the Company. The
Consultant agrees to give the Company prompt written notice of any such
invention,
*Confidential treatment requested: material has been omitted and filed
separately with the Commission
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improvement, development, idea, name, patent, trademark, copyright or innovation
and agrees to execute such instruments of transfer, assignment, conveyance or
confirmation and such other documents (including, without limitation, patent
applications) as the Company may reasonably request to transfer, confirm and
perfect in the Company all legally protectable rights in any such invention,
improvement, development, idea, name, patent, trademark, copyright or
innovation. By this Agreement the Consultant hereby irrevocably constitutes and
appoints during the period commencing on the Effective Date and ending three
years following the date of termination of the Consultant's services for any
reason the Company as his attorney-in-fact for the purpose of executing, in the
Consultant's name and on his behalf, such instruments or other documents as may
be necessary to transfer, confirm and perfect all rights which the Company may
have or be entitled to assert under this Section 9. In no event, however, shall
the Consultant's obligations hereunder relate to any right, title or interest
the Consultant may have in inventions, discoveries, developments, methods and
processes (whether or not patentable or copyrightable or constituting trade
secrets) conceived, made or discovered by the Consultant (whether alone or with
others) that the Consultant is now or may in the future be legally required to
assign to Harvard or the CBR pursuant to the rules and regulations of Harvard or
the CBR or to assign to third parties in connection with employment by Harvard
or CBR.
10. Confidential Information.
(a) The Consultant acknowledges that all information disclosed
to or acquired by the Consultant relating directly or indirectly to the
present or contemplated business of the Company (including, without
limitation, any information of the Company relating to DNA sequences
and derivatives thereof, assays, vectors, calls, antibodies, other
biological and/or chemical substances, formulations, techniques,
processes, methodology, equipment, data, reports, know-how, technology,
computer software, sources of supply, information regarding patent
position, products, business plans, or customer lists), as well as such
other information as may be designated by the Company as confidential
(all of the foregoing information being hereinafter referred to,
collectively, as "Confidential Information"), is a valuable, special,
and unique asset of the Company and is to be held in trust by the
Consultant for the Company's sole benefit. Without limiting the
generality of the foregoing, the Consultant hereby acknowledges and
agrees that Confidential Information shall include any and all
inventions, know-how, technology, processes, techniques, methodology,
information and intellectual property licensed by one or more written
license agreements to the Company by Harvard and/or the CBR, provided
however that, the restrictions as to non-disclosure and non-use of such
information shall be controlled only by the terms of such license
agreement or agreements. Except as otherwise provided in Section 10(b)
or (c) hereof, the Consultant
*Confidential treatment requested: material has been omitted and filed
separately with the Commission
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shall not, at any time during or after the term of this Agreement, use
for himself or others, or disclose or communicate to any person for any
reason, any Confidential Information without the prior written consent
of the Company; provided, however, that the Consultant may use
Confidential Information with respect to his services hereunder.
(b) The Consultant's obligations under Section 10(a) hereof
not to use, disclose or communicate Confidential Information shall not
apply to any Confidential Information which (i) is or becomes publicly
known under circumstances involving no breach by the Consultant of this
Agreement, (ii) was generally known by the Consultant prior to the date
hereof, (iii) was or is disclosed to the Consultant by a third party
who is not under any obligation of confidentiality to the Company,
and/or (iv) was or is approved for release by written authorization of
an authorized representative of the Company; provided, however, that
clauses (ii) and (iii) above in this Section 10(b) shall in no event
exempt the Consultant from the restrictions imposed by Section 10(a)
hereof on the use, disclosure and communication of Confidential
Information with respect to any Confidential Information which relates
to the subject matter of any license granted to the Company by Harvard
and/or the CBR.
(c) The Consultant agrees to submit to the Company in
sufficient time to enable the Company to ascertain whether a manuscript
to be published (orally or in writing) contains Confidential
Information and/or discloses a potentially patentable invention to
which the Company has rights an early draft of such manuscript if such
manuscript contains information regarding any area of the business or
contemplated business of the Company. The Consultant shall cooperate
with the Company in this respect, and shall delete from the manuscript,
any Confidential Information as requested by the Company and shall
assist the Company as requested by the Company in filing for patent
protection (prior to publication of such manuscript) for any inventions
in and to which the Company has rights. Notwithstanding the foregoing,
the obligations of the Consultant under this Section 10(c) shall not
apply to the publication of information relating to inventions,
discoveries, development, methods and processes that the Consultant is
not required to assign to the Company.
11. Return of Documents. All originals, copies and summaries of
manuals, memoranda, notes, notebooks, records, reports, plans, drawings, and
other documents or items of any kind concerning any matters
*Confidential treatment requested: material has been omitted and filed
separately with the Commission
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affecting or relating to the present or contemplated business of the Company,
whether or not they contain Confidential Information, are and shall continue to
be the property of the Company, and all of such documents or items, other than
material belonging to Harvard or the CBR, in the actual or potential possession
or control of the Consultant shall be delivered to the Company by the Consultant
immediately upon termination of this Agreement.
12. Unique Nature of Agreement; Specific Enforcement. The Company and
the Consultant agree and acknowledge that the rights and obligations set forth
in this Agreement are of a unique and special nature and that the Company is,
therefore, without an adequate legal remedy in the event of the Consultant's
violation of any of the covenants set forth in this Agreement. The Company and
the Consultant agree, therefore, that, in addition to all other rights and
remedies, at law or in equity or otherwise (including termination of the
Consultant's consultancy), that may be available to the Company, each of the
covenants made by the Consultant under this Agreement shall be specifically
enforceable in equity.
13. Survival. The provisions of Sections 8, 9, 10, 11 and 15 hereof
shall survive the termination of this Agreement.
14. Miscellaneous.
14.1. Entire Agreement. This Agreement represents the entire Agreement
of the parties with respect to the arrangements contemplated hereby. No prior
agreement, whether written or oral, shall be construed to change, amend, alter,
repeal or invalidate this Agreement. This Agreement may be amended only by a
written instrument executed in one or more counterparts by the parties.
14.2. Waiver. No consent to or waiver of any breach or default in the
performance of any obligations hereunder shall be deemed or construed to be a
consent to or waiver of any other breach or default in the performance of any of
the same or any other obligations hereunder. Failure on the part of either party
to complain of any act or failure to act of the other party or to declare the
other party in default, irrespective of the duration of such failure, shall not
constitute a waiver of rights hereunder and no waiver hereunder shall be
effective unless it is in writing, executed by the party waiving the breach or
default hereunder.
14.3. Assignment. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns. This
Agreement may be assigned by the Company to a successor
*Confidential treatment requested: material has been omitted and filed
separately with the Commission
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of its business to which this Agreement relates (whether by purchase or
otherwise). The Consultant may not assign or transfer any or all of his rights
or obligations under this Agreement.
14.4. Disputes and Costs. In case of any dispute hereunder, the parties
will submit to the exclusive jurisdiction and venue of any court of competent
jurisdiction sitting in Suffolk County, Massachusetts, and will comply with all
requirements necessary to give such court jurisdiction over the parties and the
controversy. Each party waives any right to a jury trial and to claim or recover
punitive damages.
14.5. Severability. All headings and subdivisions of this Agreement are
for reference only and shall not affect its interpretation. In the event that
any provision of this Agreement should be held unenforceable by a court of
competent jurisdiction, such court is hereby authorized to amend such provision
so as to be enforceable to the fullest extent permitted by law, and all
remaining provisions shall continue in full force without being impaired or
invalidated in any way.
14.6. Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the Commonwealth of Massachusetts.
14.7. Notices. All notices and other communications hereunder shall be
delivered or sent by registered or certified mail, return receipt requested,
hand delivery or confirmed telecopy addressed to each party at the address set
forth below, or to such other address as such party may designate in writing to
the other:
If to the Consultant:
Xx. Xxxxxxx X. Xxxxxxxx
The Center for Blood Research
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Fax: 000-000-0000
with a copy simultaneously to:
Xxxxxxxx X. Xxxxx, Esq.
Ropes & Xxxx
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Fax: 000-000-0000
*Confidential treatment requested: material has been omitted and filed
separately with the Commission
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If to the Company:
Xxxx X. Xxxxxxxxxxx, Vice Chairman
HealthCare Investment Corp.
000 Xxxxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxxxxxx 00000
Fax: 000-000-0000
with a copy simultaneously to:
Xxxxxx X. Xxxxxxxx, Esq.
Xxxxxxx, Xxxx & Xxxxx
000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Fax: 000-000-0000
15. To the extent permitted by law, the Company shall indemnify and
hold the Consultant harmless from and against expenses (including reasonable
attorneys' fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by him in connection with any threatened, pending or
completed action, suit or proceeding (whether civil, criminal, administrative or
investigative) to which he becomes a party or is threatened to be made a party
by reason of any status, service, action or failure to act on his part in his
capacity as Chairman of the Scientific Advisory Board of the Company, as a
consultant hereunder to, or an agent or promoter of, or otherwise on behalf of
the Company, whether before or after the date hereof. The Consultant shall not,
without the prior written consent of the Company, settle an action, suit or
proceeding as to which the Company has undertaken to indemnify the Consultant.
The Company shall not unreasonably withhold payment of expenses incurred by the
Consultant in the defense of an action, suit or proceeding subject to this
Section 15 or of amounts paid in settlement of such an action, suit or
proceeding in accordance with this Section 15. Without limiting or expanding the
foregoing, the Company shall indemnify and hold the Consultant harmless from any
expenses (including reasonable attorneys' fees), judgments, fines and amounts
paid in settlement actually and reasonably incurred by him as a result of
product liability claims arising from the use by the Company of any inventions
transferred by the Consultant to the Company or services rendered to the Company
by the Consultant hereunder. The Consultant agrees to promptly notify the
Company of any claim or action subject to the indemnification provisions of this
Section 15 and to cooperate with the Company in the defense thereof. The Company
shall have the right to settle any such claim for which the Consultant is to be
fully indemnified.
*Confidential treatment requested: material has been omitted and filed
separately with the Commission
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The provisions of this Section 15 shall not apply to the extent the Consultant
has been finally determined by a court of competent jurisdiction to have acted
with gross negligence or willful misconduct with respect to the action or
failure to act with respect to which indemnification is being sought hereunder.
IN WITNESS WHEREOF, the parties have signed this Consulting Agreement
as of the date written above as a sealed instrument.
LEUKON, INC.
By:________________________________
Title:
___________________________________
Xxxxxxx X. Xxxxxxxx
*Confidential treatment requested: material has been omitted and filed
separately with the Commission
