Exhibit 10.47
CONSULTING SERVICES AGREEMENT
This Agreement is made as of November 15, 2004 (the "Effective Date"), by
and between Neurocrine Biosciences, Inc., 00000 Xx Xxxxxx Xxxx, Xxx Xxxxx,
Xxxxxxxxxx 00000 (the "Company") and Xxxxx X. Xxxx, Ph.D., the Salk Institute
for Biological Studies, 00000 Xxxxx Xxxxxx Xxxxx Xxxx, Xx Xxxxx Xxxxxxxxxx 00000
(the "Consultant").
The Consultant has been involved in scientific research of particular
interest to the Company. The Company wishes to retain the Consultant in a
consulting capacity, and the Consultant desires to perform such consulting
services. Accordingly, the parties agree as follows:
1. Services. The Consultant will advise the Company's management, employees
and agents, at reasonable times, in matters related to the relevant field of
interest, as requested by the Company as set forth below. The field of interest
for consulting hereunder involves the advisory oversight of the Company's
research and development programs including the review of the research programs,
research support for development programs, priorities, staffing and advising the
scientific directors and the Company's President & CEO ("Field of Interest").
2. Compensation. For services rendered by Consultant to the Company
hereunder, the Company will pay the Consultant $50,000 per year payable
quarterly in advance.
3. Term. This Agreement supercedes the Consulting Agreement dated November
15, 2003 by and between Consultant and Company. The term of this Agreement will
begin on the Effective Date and will end on November 15, 2005, unless extended
by mutual consent.
4. Certain other Contracts.
4.1 Consultant is an employee of The Salk Institute for Biological
Studies, 00000 Xxxxx Xxxxxx Xxxxx Xxxx, Xx Xxxxx, XX 00000 ("The Salk
Institute").
4.2 Consultant is conducting research at The Salk Institute (the "Salk
Research"), which Salk Research may, in part, overlap with the consulting
services.
4.3 Consultant is required under The Salk Institute's policies to assign
to The Salk Institute rights to any inventions which are (i) conceived,
developed, made, produced or reduced to practice by Consultant during the course
of the Salk Research, or (ii) involve the use of laboratories, equipment,
materials or other resources, information or trade secrets or other intellectual
property belonging to The Salk Institute.
4.4 Except for disclosures made pursuant to a confidentiality agreement,
The Salk Institute's scientists are prohibited from disclosing to any commercial
company any information generated in their laboratories at The Salk Institute
prior to publication or to making such information generally available to
members of the research community. The foregoing restriction does not preclude a
scientist from consulting within the general area of research being conducted in
his or her laboratory provided that the assistance and information supplied is
limited to published information and information which is within the general
knowledge of scientists outside The Salk Institute.
4.5 Consultant acknowledges that he may obtain access to confidential
information regarding research, product developments, preclinical and clinical
studies and results thereof, formulations, inventions, trade secrets, know-how
and other information which is developed by him or by others at The Salk
Institute as proprietary and confidential information (the "Salk Information"),
and that his obligations under his agreement with The Salk Institute prevent him
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from disclosing such Salk Information to Company, except pursuant to a
confidentiality agreement between Company and The Salk Institute.
4.6 The Consultant has disclosed and, during the Term, will disclose to
the Chief Executive Officer of the Company any conflicts between this Agreement
and any other agreements binding the Consultant.
5. Exclusive Services During the Term. Subject to written waivers that may be
provided by the Company upon request, the Consultant agrees that during the term
of this Agreement he will not directly or indirectly without the prior written
approval of the Company (i) provide any services in the Field of Interest to any
other business or commercial entity, (ii) participate in the formation of any
business or commercial entity in the Field of Interest, or (iii) solicit or hire
away any employee or consultant of the Company. Consultant shall notify the
Company of all other consulting agreements which Consultant has entered into, or
any consulting services which Consultant may provide, to any third party.
6. Inventions Discovered by the Consultant While Performing Services
Hereunder.
6.1 Subject to the terms of paragraph 6.2, below, the Consultant hereby
assigns to the Company any right, title, and interest he may have in any
invention, discovery, improvement, or other intellectual property which (i) the
Consultant, alone or with others, develops as a direct result of performing
consulting services for the Company under this Agreement and (ii) is not
developed in the course of Consultant's activities as a Salk Institute employee
and is not owned by or assignable to The Salk Institute. Any intellectual
property assignable to the Company pursuant to the preceding sentence is
hereinafter referred to as "Company Intellectual Property". Upon the request of
the Company, the Consultant shall execute such further assignments, documents,
and other instruments as may be necessary to assign Company Intellectual
Property to the Company and to assist the Company in applying for, obtaining and
enforcing patents or other rights in the United States and in any foreign
country with respect to any Company Intellectual Property. The Company will bear
the cost of preparation of all patent or other applications and assignment, and
the cost of obtaining and enforcing all patents and other rights to Company
Intellectual Property.
6.2 The Company shall have no rights by reason of this Agreement in any
publication, invention, discovery, improvement, or other intellectual property
whatsoever, whether or not publishable, patentable, or copyrightable, which is
developed as a result of a program of research financed, in whole or in part, by
funds provided by or under the control of The Salk Institute. The Company also
acknowledges and agrees that it will enjoy no priority or advantage as a result
of the consultancy created by this Agreement in gaining access, whether by
license or otherwise, to any proprietary information or intellectual property
that arises from any research undertaken by the Consultant in his capacity as an
employee of The Salk Institute.
7. Confidentiality.
7.1 The Consultant acknowledges that, during the course of performing
his services hereunder, the Company will be disclosing information to the
Consultant, and the Consultant will be developing information related to the
Field of Interest, Company Intellectual Property, projects, products, potential
customers, personnel, business plans, and finances, as well as other
commercially valuable information (collectively "Confidential Information"). The
Consultant acknowledges that the Company's business is extremely competitive,
dependent in part upon the maintenance of secrecy, and that any disclosure of
the Confidential Information would result in serious harm to the Company.
7.2 The Consultant agrees that the Confidential Information will be used
by the Consultant only in connection with consulting activities hereunder, and
will not be used in any way that is detrimental to the Company.
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7.3 The Consultant agrees not to disclose, directly or indirectly, the
Confidential Information to any third person or entity, other than
representatives or agents of the Company. The Consultant will treat all such
Confidential Information as confidential and proprietary property of the
Company.
7.4 Confidential Information subject to paragraphs 7.1-7.3 do not
include information that: (i) is or later becomes available to the public
through no breach of this Agreement by the Consultant; (ii) is obtained by the
Consultant from a third party who had the legal right to disclose the
information to the Consultant; (iii) is already in the possession of the
Consultant on the date this Agreement becomes effective; or (iv) is required to
be disclosed by law, government regulation, or court order. In addition,
Confidential Information subject to paragraphs 7.1-7.3 do not include
information generated by the Consultant, alone or with others, unless the
information (I) is generated solely as a direct result of the performance of the
consulting services under this Agreement and (II) is not generated in the course
of the Consultant's activities as a Salk Institute employee.
7.5 The Consultant may disclose to the Company any information that the
Consultant would normally freely disclose to other members of the scientific
community at large, whether by publication, by presentation at seminars, or in
informal scientific discussions. However, the Consultant shall not disclose to
the Company information that is proprietary to The Salk Institute and is not
generally available to the public other than through formal technology transfer
procedures.
7.6 Upon termination of this Agreement, if requested to do so by the
Company, the Consultant will promptly return to the Company all materials
containing Confidential Information as well as data, records, reports and other
property, furnished by the Company to the Consultant or produced by the
Consultant in connection with services rendered hereunder, together with all
copies of any of the foregoing. Notwithstanding any such return, the Consultant
shall continue to be bound by the terms of the confidentiality provisions
contained in this Section 7 for a period of five years after the termination of
this Agreement.
8. Freedom to Publish and Academic Obligations.
8.1 Company acknowledges that Consultant is conducting and will in the
future conduct Salk Research. Company agrees that the provisions of this
Agreement will not restrict Consultant's right to lecture upon, publish or
otherwise disseminate results of the Salk Research (collectively referred to as
"Permitted Disclosures"), even though the Permitted Disclosures may be related
to the subject matter of this Agreement; provided that such Permitted Disclosure
includes no Confidential Information of Company. However, Consultant will review
with The Salk Institute in advance of such publication or dissemination said
Permitted Disclosures in order to evaluate the need to file a patent
application.
8.2 It is understood that Consultant is a member of the faculty of The
Salk Institute and that, as such, Consultant must fulfill certain obligations to
The Salk Institute, including, among other things, teaching, conducting Salk
Research, publishing and interacting with investigators at other academic,
research and commercial institutions. Accordingly, it is agreed that
Consultant's consulting obligations to Company will be subject to the foregoing
obligations to The Salk Institute. Company recognizes and acknowledges that
Consultant is currently employed by, and Consultant's primary responsibilities
are to, The Salk Institute. Company further acknowledges that, in connection
with such employment, Consultant has entered into certain agreements with The
Salk Institute relating to the ownership of intellectual property rights,
conflicts of interest and other matters and are subject to certain policy
statements of The Salk Institute (the "Institutional Agreements"). Company and
Consultant both recognize and acknowledge that Consultant remains obligated to
comply with such Institutional Agreements and written regulations and policies
of The Salk Institute. Consultant hereby represents that nothing in the
Institutional Agreements are in conflict with the terms of this Agreement.
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8.3 Nothing in this Agreement shall be deemed to give Company any rights
in or to any intellectual property rights of The Salk Institute. Company
acknowledges that any commercialization of any intellectual property resulting
from the Salk Research would require Company to obtain rights to such
intellectual property developed or to be developed by Consultant or others in
Consultant's laboratory at The Salk Institute, the rights to which are held by
The Salk Institute.
8.4 The Company acknowledges and agrees that nothing in this Agreement
shall affect the Consultant's obligations to, or research on behalf of, The Salk
Institute, including, without limitation, obligations or research of the
Consultant in connection with a transfer by The Salk Institute of materials or
intellectual property developed in whole or in part by the Consultant, or in
connection with research collaborations.
9. No Conflict: Valid and Binding. The Consultant represents that neither the
execution of this Agreement nor the performance of the Consultant's obligations
under this Agreement will result in a violation or breach of any other agreement
by which the Consultant is bound. The Company represents that this Agreement has
been duly authorized and executed and is a valid and legally binding obligation
of the Company, subject to no conflicting agreements.
10. Defense and Indemnification. The Company agrees, at its sole expense, to
defend the Consultant against, and to indemnify and hold the Consultant harmless
from, any claims or suits by a third party against the Consultant or any
liabilities or judgments based thereon, either arising from this Agreement, the
Consultant's performance of services for the Company under this Agreement, or
any Company products which result from the Consultant's performance of services
under this Agreement.
11. Notices. Any notice provided under this Agreement shall be in writing and
shall be deemed to have been effectively given (i) upon receipt when delivered
personally, (ii) one day after sending when sent by private express mail service
(such as Federal Express), or (iii) 5 days after sending when sent by regular
mail to the following address:
In the case of the Company:
Xxxxx X. Xxxxxx, Ph.D.
Vice President Business Development
Neurocrine Biosciences, Inc.
00000 Xx Xxxxxx Xxxx
Xxx Xxxxx XX 00000
cc: Corporate Secretary
In the case of the Consultant:
Xx. Xxxxx Vale
The Xxxxxxx Foundation Laboratories
The Salk Institute
00000 X. Xxxxxx Xxxxx Xxxx
Xx Xxxxx, XX 00000
or to other such address as may have been designated by the Company or the
Consultant by notice to the other given as provided herein.
12. Independent Contractor: Withholdings. The Consultant will at all times be
an independent contractor, and as such will not have authority to bind the
Company. The
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Consultant will not act as an agent nor shall he be deemed to be an employee of
the Company for the purposes of any employee benefit program, unemployment
benefits, or otherwise. The Consultant recognizes that no amount will be
withheld from his compensation for payment of any federal, state, or local taxes
and that the Consultant has sole responsibility to pay such taxes, if any, and
file such returns as shall be required by applicable laws and regulations.
Consultant shall not enter into any agreements or incur any obligations on
behalf of the Company.
13. Assignment. Due to the personal nature of the services to be rendered by
the Consultant, the Consultant may not assign this Agreement. The Company may
assign all rights and liabilities under this Agreement to a subsidiary or an
affiliate or to a successor to all or a substantial part of its business and
assets without the consent of the Consultant. Subject to the foregoing, this
Agreement will inure to the benefit of and be binding upon each of the heirs,
assigns and successors of the respective parties.
14. Severability. If any provision of this Agreement shall be declared
invalid, illegal or unenforceable, such provision shall be severed and the
remaining provisions shall continue in full force and effect.
15. Remedies. The Consultant acknowledges that the Company would have no
adequate remedy at law to enforce Section 7 of this Agreement. In the event of a
violation by the Consultant of this Section, the Company shall have the right to
obtain injunctive or other similar relief, as well as any relevant damages,
without the requirement of posting bond or other similar measures.
16. Governing Law; Entire Agreement. This Agreement shall be governed by the
laws of the State of California applicable to agreements made and to be
performed within such State, represents the entire understanding of the parties,
supersedes all prior agreements between the parties, and may only be amended in
writing.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
dates set forth below.
NEUROCRINE BIOSCIENCES, INC. CONSULTANT
/s/ Xxxxx Xxxx
By: /s/ Xxxx X. Xxxxx --------------------------
------------------------------- Xxxxx Xxxx, Ph.D.
Xxxx X. Xxxxx
Title: President & CEO
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