Exhibit 10.48
CONSULTING SERVICES AGREEMENT
This Consulting Services Agreement (this "Agreement") is made November 15,
2004 ("Effective Date") by and between Xxxxxxxx Xxxxxxxx, M.D., Department of
Neurology & Neurological Sciences, 000 Xxxxxxx Xxxxx, X000 Xxxxxxx Xxxxxx,
Xxxxxxxx, Xxxxxxxxxx 00000-0000 ("Consultant") and Neurocrine Biosciences, Inc.,
00000 Xx Xxxxxx Xxxx, Xxx Xxxxx, Xxxxxxxxxx 00000 ("Neurocrine").
WHEREAS, Neurocrine is engaged in the research and development of human
pharmaceutical products;
WHEREAS, Consultant has experience in research and development (the
"Field");
WHEREAS, Neurocrine wishes to engage the Consultant to provide the
Services set forth below on the terms and conditions set forth herein and the
Consultant wishes to be so retained;
NOW THEREFORE, in consideration of the premises and of the mutual
covenants, conditions and agreements contained herein, the parties agree as
follows:
ARTICLE ONE
CONSULTING SERVICES
1.1 ENGAGEMENT. Neurocrine hereby agrees to engage the Consultant to perform
the Services set forth in paragraph 1.2 hereof for the benefit of Neurocrine and
the Consultant agrees to perform such Services on the terms and conditions set
forth herein.
1.2 SERVICES TO BE PERFORMED BY CONSULTANT. During the term of this Agreement,
Consultant shall, under the direction of Xxxxxxx Xxxxxxxx, Executive Vice
President, Research and Development, perform the Services set forth below
(collectively, the "Services"). Consultant shall:
(a) as a founding member of Neurocrine's Scientific Advisory Board,
consult on matters relating to research and development; and
(b) such additional Services as mutually agreed upon by the parties.
1.3 REPORTING. Neurocrine shall have the right to request written reports at
any time during the term of this Agreement describing the progress, status of,
data, costs and other matters pertaining to the Services as Neurocrine shall
request. All such information arising out of the performance of the Services
under this Agreement may be freely utilized by Neurocrine in any manner desired.
1.4 LOCATION. The Services shall be performed at such place or places and at
such time or times as Neurocrine and Consultant shall reasonably agree.
-1-
ARTICLE TWO
COMPENSATION
2.1 COMPENSATION. The Consultant will be paid forty thousand dollars
($40,000.00) per year for all services rendered hereunder payable. This fee will
be payable on installments of ten thousand dollars ($10,000) per quarter in
advance on the first day of each calendar quarter.
2.2 REIMBURSEMENT. Neurocrine will reimburse Consultant for any and all
reasonable travel related expenses incurred by Consultant in connection with
Consultant's performance of the Services, provided, however, that all such
expenses must be preapproved by Neurocrine in writing. Reimbursement for travel
related expenses will not include routine travel to and from work. Reimbursable
travel expenses shall include automobile rental and other transportation
expenses, hotel expenses and meals. All requests for reimbursement for
travel-related expenses must be accompanied by documentation in form and detail
sufficient to meet the requirements of the taxing authorities with respect to
recognition of business-related travel expenses for corporate tax purposes.
ARTICLE THREE
WARRANTIES AND COVENANTS
3.1 CONSULTANT'S WARRANTIES. The Consultant represents and warrants:
(a) Consultant has not entered into any agreement, whether written or
oral, in conflict with this Agreement; and
(b) Consultant has the full power and authority to enter into this
Agreement.
3.2 CONSULTANT'S COVENANTS. Consultant:
(a) shall act as an independent contractor with no authority to obligate
Neurocrine by contract or otherwise and not as an employee or officer of
Neurocrine;
(b) shall exercise only such powers and perform such duties as may from
time to time be vested in Consultant or assigned to Consultant by Neurocrine;
(c) shall perform the Services and promote the interests of Neurocrine to
the best of Consultant's skill and ability;
(d) shall comply with all standards of safety, take due regard and comply
with the safety regulations of Neurocrine and all statutory provisions in effect
and report to Neurocrine any incident which could give rise to unsafe working
conditions or practices;
(e) shall not assign or subcontract performance of this Agreement or any
of the Services to any person, firm, company or organization without
Neurocrine's prior written consent;
(f) shall not recruit, solicit or induce any Neurocrine employee, client,
customer or account to terminate their employment or relationship with
Neurocrine;
-2-
(g) shall not initiate or participate in any communications with the
United States Food and Drug Administration, other governmental agency or foreign
equivalent concerning the subject matter hereof unless required by law or
requested to do so by Neurocrine and ,then, only upon prior consultation with
Neurocrine;
(h) shall not, during the term of this Agreement, enter into any other
agreement, whether written or oral, which would conflict with Consultant's
obligations hereunder or engage in any activity which relates to a business
directly competing or attempting to directly compete with Neurocrine; and
(i) provided, however, that the above shall not prevent the Consultant
from engaging in any academic research, teaching or related non-commercial
activity.
ARTICLE FOUR
CONFIDENTIAL INFORMATION
4.1 CONFIDENTIALITY. Consultant shall, during the term of this Agreement and
for a period of five (5) years thereafter, keep all Neurocrine Confidential
Information confidential and use such information only for the purposes
expressly set forth herein. Neurocrine Confidential Information shall mean all
information concerning Neurocrine or the Field which is disclosed to Consultant
by Neurocrine or which results from, or in connection with, any Services
performed pursuant to this Agreement. Such information includes, but is not
limited to, confidential or proprietary information, materials, know-how and
other data, both technical and nontechnical.
4.2 ACCESS. Consultant agrees to limit the access to Neurocrine Confidential
Information to only those persons under Consultant's direct control who, with
Neurocrine's knowledge and consent, are responsible for performing the Services
set forth in Article One.
4.3 AUTHORIZED DISCLOSURE. Consultant shall have no obligation of
confidentiality and non-use with respect to any portion of Neurocrine
Confidential Information which (i) is or later becomes generally available to
the public by use, publication or the like, through no act or omission of
Consultant; (ii) is obtained from a third party who had the legal right to
disclose the information to Consultant; or (iii) Consultant already possesses as
evidenced by Consultant's written records predating receipt thereof from
Neurocrine.
4.4 RETURN OF INFORMATION. Upon the termination of this Agreement, Consultant
will promptly return to Neurocrine all materials, records, documents, and other
Neurocrine Confidential Information in tangible form. Consultant shall retain no
copies of such materials and information and, if requested by Neurocrine, will
delete all Neurocrine Confidential Information stored in any magnetic or optical
disc or memory.
4.5 THIRD PARTY INFORMATION. Consultant shall not, in connection with the
Services to be performed under this Agreement, disclose to Neurocrine any
information which is confidential or proprietary to Consultant or any third
party.
-3-
ARTICLE FIVE
INTELLECTUAL PROPERTY
5.1 OWNERSHIP. Consultant agrees that any information, including but not
limited to discoveries, inventions, copyright, design rights, patents,
innovations, suggestions, know-how, ideas and reports made by Consultant to
Neurocrine which result from, or are related to, information disclosed by
Neurocrine to Consultant or which are developed as a result of, or in connection
with, Consultant's Services under this Agreement shall be promptly disclosed to
Neurocrine and treated by Consultant as the sole property of Neurocrine
("Neurocrine Intellectual Property").
5.2 ASSIGNMENT. Consultant agrees to assign to Neurocrine any rights that
Consultant may acquire, any Neurocrine Intellectual Property, and further agrees
to assist Neurocrine (at Neurocrine's expense) in obtaining, enforcing and
maintaining Neurocrine's rights in and to the Neurocrine Intellectual Property
and irrevocably appoints Neurocrine and its duly authorized officers and agents
as his agents and attorneys for such purpose.
ARTICLE SIX
RELATIONSHIP OF THE PARTIES
6.1 RELATIONSHIP. The relationship of Consultant to Neurocrine will be one of
independent contractor and at no time will Contractor hold itself out to be an
employee of Neurocrine or represent itself, either directly or indirectly, as
being connected with or interested in the business of Neurocrine.
6.2 NO WITHHOLDING. No amount will be deducted or withheld from Neurocrine's
payment to Consultant for state, federal or local taxes. No FICA, FUTA, SDI or
state unemployment taxes will be payable by Neurocrine on Consultant's behalf
and Consultant will be solely responsible for and will pay such taxes.
6.3 BENEFITS. Consultant shall not claim the status, prerequisites or benefits
of an Neurocrine employee. Consultant agrees that Consultant is not eligible for
coverage or to receive any benefit under any Neurocrine employee benefit plan or
employee compensation arrangement, including without limitation, any and all
medical and dental plans, bonus or incentive plans, retirement benefit plans,
stock plans, disability benefit plans, life insurance and any and all other such
plans or benefits. Even if Consultant were to become or be deemed to be a
common-law employee of Neurocrine, Consultant still shall not be eligible for
coverage or to receive any benefit under any Neurocrine employee benefit plan or
any employee compensation arrangement with respect to any period during which
Neurocrine classified the individual as a Consultant.
6.4 INDEMNIFICATION. This Agreement constitutes a contract for the provision
of Services and not a contract for employment and, accordingly, Consultant will
be fully responsible for and will indemnify Neurocrine for and in respect of any
state, local or federal taxes or fees including without limitation, income tax
withholding, employment and self-employment taxes, FUTA, SDI and state
unemployment taxes together with any other liability, deduction, contribution,
assessment or claim arising from or made in connection with the performance by
Neurocrine of its obligations under this Agreement or the performance by the
Consultant of the
-4-
Services. The Consultant will further indemnify Neurocrine against all
reasonable costs and expenses and any penalty, fine or interest incurred or
payable by Neurocrine in connection with or in consequence of such liability,
deduction, contribution, assessment or claim. Neurocrine may, at its option,
satisfy such indemnity (in whole or in part) by way of deduction from the fees
and/or expenses payable by Neurocrine to Consultant hereunder.
6.5 WORKER'S COMPENSATION. Consultant acknowledges that if Consultant is
injured while performing work for Neurocrine hereunder, Consultant will not be
covered for such injury under Neurocrine's insurance policies, including under
any Worker's Compensation coverage provided for Neurocrine's employees and
further acknowledges that Consultant is solely responsible for providing
Worker's Compensation insurance for Consultant and Consultant's employees.
ARTICLE SEVEN
TERM AND TERMINATION
7.1 TERM. This Agreement shall terminate one (1) year from the Effective Date.
At the end of the one (1) year term, this Agreement may be renewed on equivalent
terms and conditions upon the mutual written consent of the parties.
7.2 TERMINATION. This Agreement may be terminated by either party at any time
upon written notice to the other party. In the event this Agreement shall be so
terminated by either party, upon submission to Neurocrine by Consultant of
reasonable documentation of all work performed by Consultant to such date,
Consultant shall be entitled to recover payment for all work actually performed
prior to the date of termination.
7.3 EFFECT OF TERMINATION. Upon the termination of this Agreement, each party
shall be released from all obligations and liabilities hereunder except those
arising under Articles Four and Five.
ARTICLE EIGHT
MISCELLANEOUS
8.1 WAIVER. None of the terms of this Agreement may be waived except by an
express agreement in writing signed by the party against whom enforcement of
such waiver is sought. The failure or delay of either party in enforcing any of
its rights under this Agreement shall not be deemed a continuing waiver of such
right.
8.2 ENTIRE AGREEMENT. This Agreement constitutes the entire agreement among
the parties with respect to the subject matter hereof and supersedes all prior
agreements and understandings among the parties (whether written or oral)
relating to said subject matter.
8.3 AMENDMENTS. This Agreement may not be released, discharged, amended or
modified in any manner except by an instrument in writing signed by Consultant
and a duly authorized officer of Neurocrine.
-5-
8.4 ASSIGNMENT. Neurocrine has specifically contracted for the Services of
Consultant and, therefore, Consultant may not assign or delegate Consultant's
obligations under this Agreement, either in whole or in part, without the prior
written consent of Neurocrine. Neurocrine may assign this Agreement at any time
without the prior consent of Consultant.
8.5 SEVERABILITY. If any provision of this Agreement is, becomes, or is deemed
invalid, illegal or unenforceable in any jurisdiction, such provision shall be
deemed amended to conform to the applicable laws so as to be valid and
enforceable, or, if it can not be so amended without materially altering the
intention of the parties hereto, it shall be stricken and the remainder of this
Agreement shall remain in full force and effect.
8.6 HEADINGS. Article and Section headings contained in the Agreement are
included for convenience only and are not to be used in construing or
interpreting this Agreement.
8.7 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be an original and all of which together shall
constitute one and the same document, binding on all parties notwithstanding
that each of the parties may have signed different counterparts.
8.8 GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the state of California and the parties to this
Agreement hereby submit to the exclusive jurisdiction of the California courts,
both state and federal.
8.9 PUBLIC ANNOUNCEMENTS. Consultant may not make any press release, statement
or public announcement that mentions or refers to Neurocrine without
Neurocrine's prior written consent.
8.10 EMPLOYMENT. Consultant certifies that Services furnished under this
Agreement have been furnished in full compliance with all applicable federal and
state laws and regulations relating to nondiscrimination in employment.
Consultant certifies that it does not maintain any segregated facilities.
8.11 OTHER. This Agreement supersedes the Agreement dated November 15, 2003
between Neurocrine and the Consultant.
IN WITNESS WHEREOF, the parties have entered into this Agreement on the date
first above written.
CONSULTANT
/s/ Xxxxxxxx Xxxxxxxx, M.D.
-------------------------------------
Xxxxxxxx Xxxxxxxx, M.D.
NEUROCRINE BIOSCIENCES, INC.
/s/Xxxxxxxx Valeur-Xxxxxx
-------------------------------------
By: Xxxxxxxx Valeur-Xxxxxx
Title: Senior Vice President
-6-
