EXHIBIT 10.55
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (the "Agreement") is made as of October 5, 2001 (the
"Effective Date") by and between ARIAD Pharmaceuticals, Inc., a Delaware
corporation (the "Company"), and Xxxxx X. Xxxxxx (the "Consultant").
WITNESSETH THAT:
WHEREAS, the Company is engaged in the business of discovering, developing and
commercializing pharmaceutical products;
WHEREAS, the Consultant previously served as a financial executive officer of a
company in the biotechnology industry and is familiar with the business in which
the Company is engaged and otherwise has experience and expertise which is
useful to the Company; and
WHEREAS, the Company wishes to retain the Consultant, and the Consultant is
willing to be retained by the Company to provide the Company with consulting
services in the financial operation of its business, subject to the terms and
conditions and for the consideration hereinafter set forth.
NOW THEREFORE, the Company and the Consultant hereby agree as follows:
1. Consulting Term; Termination
1.1 The term of this Agreement shall commence on the Effective Date
and shall end on April 30, 2002 (the "Initial Term"); provided,
that the Term (as defined below) shall be automatically renewed
for successive 30-day terms (the Initial Term and, if the
consulting period is so renewed, such additional consulting
period(s) are collectively referred to herein as the "Term"),
unless either the Company or the Consultant terminates this
Agreement earlier pursuant to the terms of Section 1.2 hereof or
either the Company or the Consultant commits a material breach of
the terms of this Agreement.
1.2 Notwithstanding the provisions of Section 1.1 hereof, the Company
or the Consultant may terminate this Agreement, with or without
cause in its sole discretion, prior to the end of the Initial Term
or any subsequent applicable Term by providing not less than
fifteen (15) days prior written notice to the other party.
2. Consulting Services
2.1 The Company hereby engages the Consultant to provide consulting
services related to financial matters of the Company generally as
directed by the Chief Executive Officer of the Company, unless
otherwise agreed to by the Company and the Consultant. The
specific services to be performed by the Consultant, number of
hours required to perform such services, and schedule of
performance shall be agreed from time to time by the Company and
the Consultant based on the needs of the Company and the
reasonable availability of the Consultant.
2.2 In addition to the services described in Section 2.1 hereof, the
Consultant agrees to be elected as the Interim Chief Financial
Officer of the Company and to assist the Chief Executive Officer,
the Controller and other members of Company's management in
managing the financial affairs of the Company.
2.3 The Consultant hereby accepts such engagement as a consultant to
the Company and agrees to use his best efforts to render the
services described above.
2.4 The Consultant shall perform the services for the Company
contemplated by this Agreement principally at the Company's
corporate offices located at 00 Xxxxxxxxxx Xxxxxx, Xxxxxxxxx,
Xxxxxxxxxxxxx.
3. Compensation. In consideration for the performance of the services to be
rendered by the Consultant to the Company pursuant to Section 2.1 hereof,
the Company shall compensate the Consultant at a rate of One Thousand Six
Hundred Dollars ($1,600.00) per day, payable on a bi-weekly basis
promptly after receipt of an invoice detailing such days, or portions
thereof, served; provided, however, that the aggregate compensation paid
to the Consultant by the Company in any one (1) month period shall not
exceed the total sum of Twenty Four Thousand Dollars ($24,000.00). The
Company and the Consultant agree that the Company shall not withhold any
amounts on account of any withholding or employment taxes from any
payments to the Consultant under this section and that it shall be the
sole responsibility of the Consultant to report and pay all applicable
income or other taxes on all such payments made to him.
4. Expenses
The Company shall pay or reimburse the Consultant for all reasonable
travel and other expenses (excluding commuting expenses) incurred by the
Consultant in the course of performing the consulting services requested
by the Company and performed by the Consultant hereunder, upon
presentation of appropriate documentation substantiating such expenses in
accordance with the usual policies and procedures of the Company. The
Company will provide the consultant with parking at no expense.
5. No Employment Relationship
Nothing in this Agreement shall create or shall be deemed to create any
contract or relationship of employment between the Company and the
Consultant or render or be construed to render the Consultant an employee
of the Company or to provide the Consultant with any rights or benefits,
including, but not limited to health insurance, dental care insurance,
life insurance, long-term disability insurance, accidental death and
dismemberment insurance, deferred compensation awards, performance
bonuses or 401(k) plan participation benefits, to which any employee of
the Company or any of its Affiliates may be entitled.
6. Confidentiality
6.1 The Consultant acknowledges and agrees that during the course of
performing services for the Company, the Company will furnish,
disclose or make available to the Consultant confidential and
proprietary information relating to the Company's business,
including, but not limited to, inventions, projects and business
plans (collectively, "Confidential Information"). The Consultant
further acknowledges and agrees that such Confidential Information
has been developed and will be developed by the Company through
the expenditure by the Company of substantial time, effort and
money, that the Company's business is extremely competitive, that
the Company's business is dependent in part upon the maintenance
of secrecy, and that any disclosure of the Confidential
Information would result in serious harm to the Company.
6.2 The Consultant agrees that the Confidential Information shall only
be used by the Consultant in connection with his activities
hereunder as a consultant to the Company and shall not be used in
any way that is detrimental to the Company.
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6.3 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 shall
treat all such information as confidential and proprietary
property of the Company.
6.4 The term "Confidential Information" does not include information
that (a) is or becomes generally available to the public other
than by disclosure in violation of this Agreement, (b) was within
the Consultant's possession prior to being furnished to such
Consultant, (c) becomes available to the Consultant on a
non-confidential basis or (d) was independently developed by the
Consultant without reference to the information provided by the
Company.
6.5 The Consultant may disclose any Confidential Information that is
required to be disclosed by law, government regulation or court
order. If disclosure is required, the Consultant shall give the
Company advance notice so that the Company may seek a protective
order or take other action reasonable in light of the
circumstances.
6.6. Upon termination of this Agreement, the Consultant shall 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.
Notwithstanding such return or any of the provisions of this
Agreement, the Consultant shall continue to be bound by the terms
of the confidentiality provisions contained in this Section 6 for
a period of five (5) years after the termination of this
Agreement.
6.7 The Consultant acknowledges receipt of a copy of the Company's
policies regarding trading in the Company's securities and agrees
to comply with such policies, as well as other SEC regulations
regarding xxxxxxx xxxxxxx and disclosure of material non-public
information.
7. Non-Competition and Non-Solicitation. During the Term and for a period of
six (6) months following the expiration or termination of this Agreement:
(a) the Consultant shall not in the United States or in any country in
which the Company shall then be doing business, directly or indirectly,
enter the employ of, or render any services to, any person, firm or
corporation engaged in any business competitive with the business of the
Company or of any of its subsidiaries or affiliates; he shall not engage
in such business on his own account; and he shall not become interested
in any such business, directly or indirectly, as an individual, partner,
shareholder, director, officer, principal, agent, employee, trustee,
consultant, or any other relationship or capacity; provided, however,
that nothing contained in this Section 7 shall be deemed to prohibit the
Consultant from acquiring, solely as an investment, shares of capital
stock of any public corporation; (b) neither the Consultant nor any
Affiliate of the Consultant shall solicit or utilize, or assist any
person in any way to solicit or utilize, the services, directly or
indirectly, of any of the Company's directors, consultants, members of
the Board of Scientific and Medical Advisors, officers or employees
(collectively, "Associates of the Company"). This non-solicitation and
non-utilization provision shall not apply to Associates of the Company
who have previously terminated their relationship with the Company.
7.1 If the Consultant commits a breach, or threatens to commit a
breach, of any of the provisions of this Section 7, the Company
shall have the following rights and remedies:
7.1.1 The right and remedy to have the provisions of this
Agreement specifically enforced by any court having equity
jurisdiction, it being acknowledged and agreed that any
such breach or threatened breach shall cause irreparable
injury to the Company and that money damages shall not
provide an adequate remedy to the Company.
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7.1.2 The right and remedy to require the Consultant to account
for and pay over to the Company all compensation, profits,
monies, accruals, increments or other benefits
(collectively "Benefits") derived or received by the
Consultant as the result of any transactions constituting a
breach of any of the provisions of the preceding paragraph,
and the Consultant hereby agrees to account for and pay
over such Benefits to the Company. Each of the rights and
remedies enumerated above shall be independent of the
other, and shall be severally enforceable, and all of such
rights and remedies shall be in addition to, and not in
lieu of, any other rights and remedies available to the
Company under law or in equity.
7.2. If any of the covenants contained in Section 6 or 7, or any part
thereof, is hereafter construed to be invalid or unenforceable,
the same shall not affect the remainder of the covenant or
covenants, which shall be given full effect without regard to the
invalid portions.
7.3 If any of the covenants contained in Section 6 or 7, or any part
thereof, is held to be unenforceable because of the duration of
such provision or the area covered thereby, the parties agree that
the court making such determination shall have the power to reduce
the duration and/or area of such provision and, in its reduced
form, such provision shall then be enforceable.
7.4 The parties hereto intend to and hereby confer jurisdiction to
enforce the covenants contained in Sections 6 and 7 upon the
courts of any state within the geographical scope of such
covenants. In the event that the courts of any one or more of such
states shall hold any such covenant wholly unenforceable by reason
of the breadth of such scope or otherwise, it is the intention of
the parties hereto that such determination not bar or in any way
affect the Company's right to the relief provided above in the
courts of any other states within the geographical scope of such
covenants, as to breaches of such covenants in such other
respective jurisdictions, the above covenants as they relate to
each state being, for this purpose, severable into diverse and
independent covenants.
7.5 The Company and the Consultant hereby acknowledge and agree that
the Company may waive, on a case-by-case basis, the terms and
covenants of this Section 7 upon the request of the Consultant in
accordance with the provisions of Section 10.4 hereof, which such
waiver shall not be unreasonably withheld.
8. Indemnification
The Company shall indemnify the Consultant, to the maximum extent
permitted by applicable law, against all costs, charges and expenses
incurred or sustained by him in connection with, and to hold him harmless
from, any action, suit or proceeding by a third party to which he may be
made a party by reason of his being a consultant of the Company or of any
Subsidiary or Affiliate of the Company, or arising from his performance
of services under this Agreement.
9. Notices
All notices, requests, consents and other communications required or
permitted to be given hereunder shall be in writing and shall be deemed
to have been duly given if sent by private overnight mail service
(delivery confirmed by such service), registered or certified mail
(return receipt requested), or delivered personally, as follows (or to
such other address as either party shall designate by notice in writing
to the other in accordance herewith):
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If to the Company:
ARIAD Pharmaceuticals, Inc.
00 Xxxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxx, M.D.
Chief Executive Officer
Telephone: (000) 000-0000
Fax: (000) 000-0000
If to the Consultant:
Xxxxx X. Xxxxxx
0 Xxxxxxxxx Xxxxx
Xxxxxx, XX 00000
(000) 000-0000
10. General
10.1 This Agreement shall be governed by and construed and enforced in
accordance with the laws of the Commonwealth of Massachusetts
applicable to agreements made and to be performed entirely in
Massachusetts.
10.2 The Section headings contained herein are for reference purposes
only and shall not in any way affect the meaning or interpretation
of this Agreement.
10.3 This Agreement and the Consultant's rights and obligations
hereunder may not be assigned by the Consultant or the Company;
provided, however, the Company may assign this Agreement and its
rights and obligations hereunder to a successor-in-interest.
10.4 This Agreement may be amended, modified, superseded, canceled,
renewed or extended, and the terms or covenants hereof may be
waived, only by a written instrument executed by the parties
hereto, or in the case of a waiver, by the party waiving
compliance. The failure of a party at any time or times to require
performance of any provision hereof shall in no manner affect the
right at a later time to enforce the same. No waiver by a party of
the breach of any term or covenant contained in this Agreement,
whether by conduct or otherwise, in any one or more instances,
shall be deemed to be, or construed as, a further or continuing
waiver of any such breach, or a waiver of the breach of any other
term or covenant contained in this Agreement.
10.5 This Agreement may be executed in one or more counterparts, and by
different parties hereto on separate counterparts, each of which
shall be deemed an original, but all of which together shall
constitute one and the same instrument.
11. Definitions
As used herein the following terms have the following meaning:
(a) "Affiliate" means and includes any corporation or other business
entity controlling, controlled by or under common control with the
corporation in question.
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(b) "person" means any natural person, corporation, partnership, firm,
joint venture, association, joint stock company, trust,
unincorporated organization, governmental body or other entity.
(c) "Subsidiary" means any corporation or other business entity
directly or indirectly controlled by the corporation in question.
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IN WITNESS WHEREOF, the Company and the Consultant have executed this Agreement
as of the date first above written.
ARIAD PHARMACEUTICALS, INC.
By: /s/ Xxxxxx X. Xxxxxx
--------------------
Name: Xxxxxx X. Xxxxxx, M.D.
Title: Chairman and Chief Executive Officer
CONSULTANT
/s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx
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