CONSULTING AGREEMENT
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This Consulting Agreement, made as of this the first day of July, 1986, is
between ATHENA NEUROSCIENCES, INC., a Delaware corporation, (hereinafter
"COMPANY"), having principal offices in care of Fairfield Venture Partners,
000 Xxxx Xxxxxx Xxxxx, Xxxxx 000, Xxxxx Xxxx, Xxxxxxxxxx 00000, and XXXXXX X.
XXXXXX, M.D., (hereinafter "CONSULTANT"), having an address at 000 Xxxx Xxxx
Xxxx, Xxxxxxx Xxxxx, Xxxxxxxxxxxxx 00000.
The following terms and conditions will govern the parties to this
Agreement:
1. Prior and Other Work of Consultant.
(a) CONSULTANT is a member of the Professional Staff of Xxxxxxx and
Women's Hospital ("Xxxxxxx"), is a member of the Faculty of
Medicine of Harvard University ("Harvard"), is responsible for a
variety of clinical and research duties, and is subject to all
requirements imposed by the following instruments, warranted by
CONSULTANT to be in force on the Effective Date (as hereinafter
defined), a copy of each of which is attached hereto and made a
part hereof: (a) Xxxxxxx and Women's Hospital Patent Policy, (b)
Brigham's Statement of Policy on Consulting Agreements, and (c) a
certain Xxxxxxx and Women's Hospital Participation Agreement,
dated March 16, 1986 between Brigham and the CONSULTANT (all of
which individually or collectively are referred to hereinafter as
"instruments").
(b) Subject to his obligations under the instruments, the CONSULTANT
hereby warrants that he is free to enter into this Agreement with
the COMPANY and to provide the consulting services required
hereunder and the CONSULTANT represents that he is not a party to
any existing agreement which would prevent his entering into this
Agreement or which would affect the COMPANY'S rights or the
CONSULTANT'S duties under this Agreement.
(c) The CONSULTANT advises the COMPANY that the CONSULTANT is a
member of the professional staff of Brigham and the faculty of
Harvard, as described above, and that to his best knowledge and
belief, this Agreement is not in conflict with the patent and
copyright policy of Brigham or Harvard, if any, or in conflict
with the instruments or any of the CONSULTANT'S commitments
thereunder. The CONSULTANT agrees to use his best efforts to (i)
segregate work done under this Agreement from his work done for
Brigham or Harvard, as the case may be, so as to minimize any
questions of disclosure of, or rights under, any inventions to
Brigham or Harvard, as the case may be, and (ii) assist the
COMPANY and Brigham or Harvard, as the case may
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be, in fairly resolving any such questions which may arise.
(d) The CONSULTANT agrees that for the term of this Agreement, and
for a period of six (6) months thereafter, the CONSULTANT will
not, without the prior written consent of the COMPANY, enter into
any agreement with anyone other than the COMPANY to consult or
otherwise render services in the Field (as hereinafter defined),
provided that this Agreement shall not abrogate the CONSULTANT'S
obligations to Brigham or Harvard. During the term of this
Agreement, and for a period of six (6) months thereafter,
CONSULTANT will not (i) own, manage, operate or control, or
participate in the ownership, management, operation or control of
(except that, for purposes of this subparagraph, an ownership
interest of one percent (1%) or less of a corporation with a
class of securities registered under the Securities Act of 1934,
as amended, shall not be prohibited), or (ii) be associated with
as a director, officer, employee, partner or consultant (whether
or not for compensation), or (iii) permit the use of his name in
connection with any corporation, partnership, joint venture, sole
proprietorship or any other form of business which is or will be,
directly or indirectly,
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selling products or services in the Field (as hereinafter
defined). Before performing any services for others, as a
consultant or otherwise, in the Field other than the services
required by his principal employment, CONSULTANT shall, during
the term of this Agreement, and for a period of six (6) months
thereafter, notify the COMPANY of the general nature of the
services to be performed and the party for whom they will be
performed, in order that the COMPANY may determine whether a
conflict of interest may arise.
(e) The CONSULTANT agrees not to disclose to the COMPANY any trade
secrets or other information which he does not have the right to
disclose, and which the COMPANY is not free to use without
liability of any kind. The CONSULTANT further agrees to inform
the COMPANY of any patents, known to him, which the COMPANY may
be in a position to violate as a result of information provided
by the CONSULTANT. Consistent with and during the term of this
Agreement, the CONSULTANT agrees to inform the COMPANY of any
other research he is involved in which is or becomes directly
within the scope of the work described on Appendix A attached
hereto and related to the
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subject matter of this Agreement. It is understood and agreed
that as a member of the professional staff of Brigham, CONSULTANT
is responsible to disclose to Brigham any discovery or inventions
made by him as defined in the Xxxxxxx Participation Agreement and
to file this present Consulting Agreement with Brigham, before
execution hereof, in order that Brigham can fully comply with its
contractual obligations and commitments.
2. Term. Effective as of the date this Consulting Agreement is executed
by CONSULTANT ("Effective Date"), and continuing for the next following year
(365 days), CONSULTANT shall serve as a consultant and scientific advisor to
COMPANY within the field of research and clinical practice pertaining to
diagnostic strategies relating to Alzheimer's Disease, as and to the extent
described on the attached Appendix A (hereinafter "Field"), and also including
such other work as hereinafter from time to time may be designated by the
parties in writing to be part of the Field, to the extent his commitments to
Brigham and Harvard do not preclude such engagement. This Agreement shall renew
automatically for consecutive one-year (365 day) terms, unless either party
notifies the other at least 60 days prior to any anniversary of the Effective
Date hereof of an intent not to renew under the terms hereof.
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3. Role. CONSULTANT shall make himself personally available to COMPANY to
the extent set forth in Appendix A during the term of this Agreement for the
purpose of providing services hereunder at the request of COMPANY. Such
consultations shall be held at such times and locations as may be designated by
the COMPANY.
4. Compensation.
(a) As compensation for the services to be performed hereunder,
COMPANY shall pay CONSULTANT a fee in an amount to be fixed
annually by agreement between COMPANY and CONSULTANT. Such
Compensation shall be in accordance with a budget prepared by
CONSULTANT and approved by the COMPANY, such budget to be
approved at least sixty (60) days prior to the commencement of
any renewal term thereof.
(b) COMPANY shall also reimburse CONSULTANT for all reasonable travel
and other expenses incurred upon its behalf and when authorized
in advance by COMPANY. Such expenses shall be confirmed by
appropriate receipts and shall be submitted in accordance with
COMPANY'S standard expense account procedure.
5. Duties of CONSULTANT. The responsibilities of CONSULTANT shall consist
of:
(a) providing the services in the Field described in
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Appendix A toward the objective of developing inventions of
commercial value to COMPANY, and reporting thereon as requested
by COMPANY; and
(b) refraining, during the term of this Agreement and for a period of
one (1) year thereafter, from recruiting or otherwise soliciting
or inducing any employees of COMPANY or any of its affiliates to
terminate their relationship with the COMPANY or any of its
affiliates.
Nothing under this paragraph 5 shall:
(i) be construed to permit or require the CONSULTANT to
disclose, and the CONSULTANT shall not disclose, to COMPANY
any information, including without limitation any advice or
suggestions regarding any product, product development,
formula, or technological or manufacturing process, whether
or not relating to the Field, which the CONSULTANT shall be
under any duty, express or implied, to Brigham, Harvard or
any other person or persons to keep secret, develop or
otherwise to deal with; or
(ii) grant to COMPANY any license under any patent or patent
application not expressly assigned or assignable to COMPANY
in accordance herewith.
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6. Inventions, Trade Secrets, Confidential Information. Except as may be
determined otherwise in accordance with sections (a) and (c) of paragraph 1
above:
(a) The CONSULTANT agrees to keep confidential, and not to use, other
than for the purposes of the Agreement, all information furnished
by the COMPANY and all information developed by the CONSULTANT
pursuant to this Agreement, except to the extent that such
information was already known to the CONSULTANT or is, or later
becomes, publicly known under circumstances involving no breach
of this Agreement, or other fault of the CONSULTANT, or is
lawfully furnished to CONSULTANT without restriction or
disclosure by a third party.
(b) The CONSULTANT agrees to keep, separate and segregated from other
work, all documents, records, notebooks, correspondence, deposits
of micro-organisms, cells or parts thereof, cell lines, parts and
progeny thereof, and all products produced thereby, including
modified or unmodified compounds such as DNA or parts thereof
whether or not included in a vector or host system which directly
relate to his consulting work under this Agreement. Subject to
paragraphs 1 and 5 hereof, all rights, title and interest therein
shall be in the COMPANY, and upon
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expiration or other termination of this Agreement, all documents,
records, notebooks, and similar repositories of or containing
confidential information (the CONSULTANT may retain all copies
thereof but he will not, except to the extent permitted in
paragraph 6(a) or with the prior written consent of the COMPANY,
provide such information to anyone other than the COMPANY for a
period of three years after the termination of this Agreement,
unless the COMPANY shall terminate this Agreement) then in
CONSULTANT'S possession or subject to his control, whether
prepared by him or others, will be turned over to the COMPANY.
(c) CONSULTANT shall promptly disclose any and all concepts, ideas,
inventions, discoveries or developments, whether or not
patentable, relating to the Field which become known during the
term of, or by virtue of, this Consulting Agreement. CONSULTANT
shall assign to COMPANY or any person or organization designated
in writing by the COMPANY, at no additional consideration other
than the consideration for this Consulting Agreement, all of
CONSULTANT'S right, title and interest in any invention, whether
or not patentable, in the Field that is conceived or
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first reduced to practice during the provision of the services of
CONSULTANT to COMPANY during the term of this Consulting
Agreement, or for a period of 90 days thereafter, whether
conceived and/or reduced to practice either solely or jointly
with others. In addition, CONSULTANT shall render all assistance
reasonably requested by COMPANY, and not of such a nature as to
impair his obligations to Brigham and Harvard, in order to enable
COMPANY to file, obtain and enforce any Letters Patent, whether
foreign or domestic, on said invention, including the execution
of such papers and documents as may be necessary to obtain
patents in the United States and abroad, and shall otherwise
provide full cooperation to COMPANY in obtaining those patents in
which CONSULTANT is named as an inventor or co-inventor, even
though such cooperation may be required to take place at a time
following the expiration and/or termination of this Agreement.
COMPANY shall promptly reimburse CONSULTANT in providing the
assistance required by this paragraph upon the submission to
COMPANY of an itemized statement of such expenses.
(d) Nothing contained in this Agreement shall prevent CONSULTANT from
publishing the results of his
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work in the Field, provided that such publication is made in
accordance with the procedures set forth in this paragraph 6.
CONSULTANT shall submit to COMPANY a copy of any early draft of
any manuscript to be published by CONSULTANT, solely or in
co-authorship with others, or with scientists in COMPANY'S
employ, containing information developed during any project
undertaken pursuant to this Agreement, at least sixty (60) days
prior to the submission thereof for publication, and to delay
submission thereof upon written notice from COMPANY for a
reasonable period not to exceed sixty (60) days to allow COMPANY
to perfect its interest in any patentable subject matter
disclosed therein, or otherwise protect the property rights of
the subject information, in a manner to be determined by the
COMPANY. At the end of said period the CONSULTANT at his sole
discretion, shall have the right to submit the manuscript for
publication.
(e) It is understood and agreed that CONSULTANT shall receive the
principal scientific credit for any inventions, ideas,
developments or research results conceived or reduced to practice
by CONSULTANT, or by COMPANY in consultation with the CONSULTANT,
relating to an immuno-diagnostic
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test or a DNA probe for Alzheimer's Disease, and the primary
authorship of any articles, abstracts or other publications by
the COMPANY or any of its employees relating thereto. The
scientific responsibility and credit will, however, be shared by
CONSULTANT and, if appropriate, Xx. Xxxxx.
(f) CONSULTANT, shall use all reasonable efforts to ensure that any
invention by CONSULTANT which is conceived or reduced to practice
during the term of this Agreement, which invention relates both
to CONSULTANT'S work under this Agreement and to CONSULTANT'S
research is defined under the aforesaid Participation Agreement,
shall be vested in the COMPANY.
7. Miscellaneous.
(a) The CONSULTANT shall be deemed to be an independent contractor of
the COMPANY and not an employee or agent of the COMPANY; the
CONSULTANT shall have no power to bind or subject the COMPANY to
liability in any way.
(b) Any previous agreements, oral or written, between the COMPANY and
the CONSULTANT are superseded to the extent that this Agreement
is inconsistent therewith.
(c) This Agreement is to be governed by and construed in accordance
with the laws of the Commonwealth of Massachusetts.
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(d) If any one or more of the provisions of this Agreement are held
to be invalid, illegal or unenforceable in any respect, the
validity, legality, and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby;
but such provisions and/or this Agreement shall be reformed and
construed so as to be valid, operative, and enforceable to the
maximum effect allowed in law or in equity.
(e) All notices given pursuant to this Agreement shall be in writing
and shall be deemed to have been sufficiently given if delivered
by hand or sent by certified or registered mail, postage prepaid,
addressed to either party hereto at the respective addresses set
forth at the beginning of this Agreement.
(f) COMPANY may assign all rights under this Agreement to any
successors or assigns of all or substantially all of the business
of the COMPANY.
(g) The COMPANY shall have the right to obtain injunctive relief,
including, without limitation, specific performance, for breach
or threatened breach of the terms of paragraphs 1 or 6, and the
obligations of the CONSULTANT under those paragraphs will survive
the termination for any reason of this Agreement. It is expressly
understood and agreed that nothing herein
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contained shall be construed as prohibiting the COMPANY from
pursuing any other remedies available for such breach or
threatened breach, including, without limitation, the recovery of
damages by the COMPANY.
Agreed to and Accepted:
CONSULTANT ATHENA NEUROSCIENCES, INC.
/s/ Xxxxxx X. Xxxxxx By: /s/ Authorized Signatory
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Xxxxxx X. Xxxxxx
Effective Date: July 1, 1986
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