Exibit 10.22
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (the "Agreement"), made this 27th day of
October, 2003, is entered into by NITROMED INC., a Delaware corporation having a
principal place of business at 00 Xxx Xxxx Xxxxx, Xxxxxxx, XX 00000 (the
"Company"), and XXXXXX XXXXXXXX, M.D., Ph.D., Boston University of
Massachusetts, Boston Medical Center, 000 Xxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxx, XX
00000 (the "Consultant").
INTRODUCTION
The Company desires to retain the services of the Consultant and the
Consultant desires to perform certain services for the Company. In consideration
of the mutual covenants and promises contained herein and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged by the parties hereto, the parties agree as follows:
1. SERVICES. The Consultant agrees to perform such consulting, advisory
and related services to and for the Company as may be reasonably requested from
time to time by the Company. These services include those required as a Chairman
of NitroMed's Scientific Advisory Board. During the Consultation Period (as
defined below), the Consultant shall not engage in any activity that has a
conflict of business interest with the Company, without prior disclosure to the
Company.
2. TERM.
2.1 INITIAL TERM. The initial term of this Agreement is for ten (10)
calendar years shall commence on October 1, 2003, and shall expire on September
30, 2013 (such period, as it may be extended, being referred to as the
"Consultation Period"), unless sooner terminated in accordance with the
provisions of Section 4.
2.2 TERM EXTENSION. This Agreement may be extended for additional
periods of two (2) calendar years each if Company gives Consultant written
notice of such extension at least sixty (60) days prior to the expiration date
of the initial term. Company may not extend this Agreement more than five (5)
times. The terms and conditions of this Agreement shall remain the same during
each extension period.
3. COMPENSATION.
3.1 CONSULTING FEES. The Company shall pay to the Advisor an annual
advisory fee of $70,000.00, payable quarterly in arrears.
3.2 BENEFITS. The Consultant shall not be entitled to any benefits,
coverages or privileges, including, without limitation, social security,
unemployment, medical or pension payments, made available to employees of the
Company.
4. TERMINATION. The Company may, without prejudice to any right or remedy
it may have due to any failure of the Consultant to perform his obligations
under this Agreement,
Consulting Agreement--NitroMed Inc. and Xxxxxx Xxxxxxxx Page 2 of 4
terminate the Consultation Period upon 30 days' prior written notice to the
Consultant. Notwithstanding the foregoing, the Company may terminate the
Consultation Period, effective immediately upon receipt of written notice, if
the Consultant breaches or threatens to breach any provision of Section 6.
5. COOPERATION. The Consultant shall use his best efforts in the
performance of his obligations under this Agreement. The Company shall provide
such access to its information and property as may be reasonably required in
order to permit the Consultant to perform his obligations hereunder. The
Consultant shall cooperate with the Company's personnel, shall not interfere
with the conduct of the Company's business and shall observe all rules,
regulations and security requirements of the Company concerning the safety of
persons and property.
6. INVENTIONS AND PROPRIETARY INFORMATION.
6.1 INVENTIONS.
All inventions, discoveries, computer programs, data,
technology, designs, innovations and improvements (whether or not patentable and
whether or not copyrightable) ("Inventions") related to the business of the
Company which are made, conceived, reduced to practice, created, written,
designed or developed by the Consultant, solely or jointly with others and
whether during normal business hours or otherwise, during the Consultation
Period or thereafter if resulting or directly derived from Proprietary
Information (as defined below), shall be the sole property of the Trustees of
Boston University (the "University"). All Inventions related to the business of
the Company and any and all related patents, copyrights, trademarks, trade
names, and other industrial and intellectual property rights and applications
therefore, in the United States and elsewhere, shall be assigned to the
University pursuant to the patent policy of the University and the Research and
License Agreement between the University and NitroMed, Inc., effective June 1,
1993.
6.2 PROPRIETARY INFORMATION.
(a) The Consultant acknowledges that his relationship with the
Company is one of high trust and confidence and that in the course of his
service to the Company he will have access to and contact with Proprietary
Information. The Consultant agrees that he will not, during the Consultation
Period or at any time thereafter, disclose to others, or use for his benefit or
the benefit of others, any Proprietary Information or Invention.
(b) For purposes of this Agreement, Proprietary Information
shall mean, by way of illustration and not limitation, all information (whether
or not patentable and whether or not copyrightable) owned, possessed or used by
the Company, including, without limitation, any Invention, formula, vendor
information, customer information, apparatus, equipment, trade secret, process,
research, report, technical data, know-how, computer program, software, software
documentation, hardware design, technology, marketing or business plan,
forecast, unpublished financial statement, budget, license, price, cost and
employee list that is communicated to, learned of, developed or otherwise
acquired by the Consultant in the course of his service as a consultant to the
Company.
Consulting Agreement--NitroMed Inc. and Xxxxxx Xxxxxxxx Page 3 of 4
(c) The Consultant's obligations under this Section 6.2 shall
not apply to any information that (i) is or becomes known to the general public
under circumstances involving no breach by the Consultant or others of the terms
of this Section 6.2, (ii) is generally disclosed to third parties by the Company
without restriction on such third parties, or (iii) is approved for release by
the Company.
(d) Upon termination of this Agreement or at any other time
upon request by the Company, the Consultant shall promptly deliver to the
Company copies of all related files, memoranda, data, reports, and other
documents relating to the projects funded by the Company.
(e) The Consultant represents that his retention as a
consultant with the Company and his performance under this Agreement does not,
and shall not, breach any agreement that obligates him to keep in confidence any
trade secrets or confidential or proprietary information of his or of any other
party or to refrain from competing, directly or indirectly, with the business of
any other party. The Consultant shall not disclose to the Company any trade
secrets or confidential or proprietary information of any other party.
(f) The Consultant acknowledges that the Company from time to
time may have agreements with other persons or with the United States
Government, or agencies thereof, that impose obligations or restrictions on the
Company regarding inventions made during the course of work under such
agreements or regarding the confidential nature of such work. The Consultant
agrees to be bound by all such obligations and restrictions that are known to
him and to take all action necessary to discharge the obligations of the Company
under such agreements.
6.3 REMEDIES. The Consultant acknowledges that any breach of the
provisions of this Section 6 shall result in serious and irreparable injury to
the Company. The Consultant agrees that the Company shall be entitled to seek
both temporary and permanent injunctive relief.
7. INDEPENDENT CONTRACTOR STATUS. The Consultant shall perform all
services under this Agreement as an "independent contractor" and not as an
employee or agent of the Company. The Consultant is not authorized to assume or
create any obligation or responsibility, express or implied, on behalf of, or in
the name of, the Company or to bind the Company in any manner.
8. NOTICES. All notices required or permitted under this Agreement shall
be in writing and shall be deemed effective upon personal delivery or upon
deposit in the United States Post Office, by registered or certified mail,
postage prepaid, addressed to the other party at the address shown above, or at
such other address or addresses as either party shall designate to the other in
accordance with this Section 8.
9. PRONOUNS. Whenever the context may require, any pronouns used in this
Agreement shall include the corresponding masculine, feminine or neuter forms,
and the singular forms of nouns and pronouns shall include the plural, and vice
versa.
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10. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between the parties and supersedes all prior agreements and understandings,
whether written or oral, relating to the subject matter of this Agreement.
11. AMENDMENT. This Agreement may be amended or modified only by a
written instrument executed by both the Company and the Consultant.
12. GOVERNING LAW. This Agreement shall be construed, interpreted and
enforced in accordance with the laws of the Commonwealth of Massachusetts.
13. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon, and
inure to the benefit of, both parties and their respective successors and
assigns, including any corporation with which, or into which, the Company may be
merged or which may succeed to its assets or business, provided, however, that
the obligations of the Consultant are personal and shall not be assigned by him.
14. MISCELLANEOUS.
14.1 No delay or omission by the Company in exercising any right
under this Agreement shall operate as a waiver of that or any other right. A
waiver or consent given by the Company on any one occasion shall be effective
only in that instance and shall not be construed as a bar or waiver of any right
on any other occasion.
14.2 The captions of the sections of this Agreement are for
convenience of reference only and in no way define, limit or affect the scope or
substance of any section of this Agreement.
14.3 In the event that any provision of this Agreement shall be
invalid, illegal or otherwise unenforceable, the validity, legality and
enforceability of the remaining provisions shall in no way be affected or
impaired thereby.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year set forth above.
NITROMED INC.
By: /s/ L. XXXXXX XXXXX
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L. Xxxxxx Xxxxx, Ph.D.
Title: SENIOR VP R&D, CSO
XXXXXX XXXXXXXX
By: /s/ XXXXXX XXXXXXXX,
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Xxxxxx Xxxxxxxx, M.D. Ph.D
Social Security No.:
xxx-xx-xxxx