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Exhibit 10.37
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CONSULTING AGREEMENT
This Consulting Agreement ("AGREEMENT"), effective as of October 1, 1995,
is between SEPRACOR INC. ("SEPRACOR"), a Delaware corporation having its
principal office at 00 Xxxxx Xxxxx, Xxxxxxxxxxx, Xxxxxxxxxxxxx 00000, and Digby
X. Xxxxxxx, 00 Xxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxxx 00000 ("CONSULTANT").
WHEREAS, SEPRACOR wishes to engage the services of the CONSULTANT in the
area of business development ("FIELD"); and,
WHEREAS, the CONSULTANT wishes to provide consulting services to SEPRACOR
on the terms herewith set forth;
THEREFORE, SEPRACOR and CONSULTANT agree that:
1. TERM
The term of this AGREEMENT shall be one year, commencing on October 1,
1995, however, it is automatically renewed, unless sooner terminated in
accordance with the provisions of Section 9.
2. SERVICES
During the term of this AGREEMENT, CONSULTANT agrees to diligently and
conscientiously use his best efforts to discharge projects in the FIELD as may
be reasonably requested from time to time by SEPRACOR. Responsibilities of
CONSULTANT include providing such advice and information relating to the FIELD
as SEPRACOR may reasonably request from time to time, and communicating with
various third parties on behalf of SEPRACOR on matters relating to the FIELD.
During the term of this AGREEMENT, CONSULTANT shall not take part in any
activity in the FIELD which is a conflict of interest with his activities on
behalf of SEPRACOR, and he shall not assist any other person or organization
that competes, or intends to compete with SEPRACOR in this FIELD.
Notwithstanding the provisions of this Section 2, nothing in this AGREEMENT
shall preclude CONSULTANT from providing consulting services to any other person
or entity for such projects which SEPRACOR and CONSULTANT have mutually agreed
are not within the FIELD.
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3. COMPENSATION
SEPRACOR shall pay CONSULTANT at the rate of $1,500 per month in
consideration for consulting services provided on behalf of SEPRACOR. SEPRACOR
shall also reimburse CONSULTANT for all travel, office and related expenses
reasonably incurred in connection with the performance of duties as a consultant
to SEPRACOR.
In a monthly invoice, CONSULTANT shall document the time spent and
expenses incurred in connection with providing consulting service to SEPRACOR.
SEPRACOR shall pay such invoice within thirty (30) days of its receipt.
The CONSULTANT shall not be entitled to any benefits, coverages, or
privileges, including, without limitation, social security, unemployment,
workers' compensation, medical or pension payments, or holiday/vacation pay or
other such benefits made available to employees of SEPRACOR.
4. INDEPENDENT CONTRACTOR
CONSULTANT shall be considered to be an independent contractor and not an
agent or employee of SEPRACOR and has no authority to bind SEPRACOR.
5. RECORDS AND REPORTS
CONSULTANT agrees to keep records, in such form as the parties may agree,
to make reports in writing to SEPRACOR at SEPRACOR's reasonable request and to
deliver to SEPRACOR upon termination of the AGREEMENT or at any other time upon
request by SEPRACOR all records, files, memoranda, notes, designs, data,
reports, drawings, plans, software, software documentation, sketches, laboratory
and research notebooks and other documents (and all copies or reproduction of
such materials) relating to the business of SEPRACOR. Such written records shall
be available to and remain the sole property of SEPRACOR.
6. REPRESENTATIONS AND WARRANTEES
CONSULTANT represents and warrants that CONSULTANT is free to enter into
this AGREEMENT and perform the consulting services provided for in this
AGREEMENT. CONSULTANT agrees that all information CONSULTANT discloses to
SEPRACOR shall be received by SEPRACOR without further obligation to CONSULTANT
than as provided herein. CONSULTANT also represents that, except as he has
disclosed in writing to SEPRACOR, he is not bound by the terms of any agreement
with any previous employer or other party to refrain from using or disclosing
any trade secret or confidential or proprietary information in the course of his
performance of services under this AGREEMENT or to refrain from competing,
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directly or indirectly, with the business of such previous employer or any other
party. CONSULTANT further represents that his performance of all the terms of
this AGREEMENT does not and will not breach any agreement to keep in confidence
proprietary information, knowledge or data acquired by him in confidence or in
trust prior to the commencement of this AGREEMENT, and he will not disclose to
SEPRACOR or induce SEPRACOR to use any confidential or proprietary information
or material belonging to any previous employer or others.
If CONSULTANT is aware of circumstances under which SEPRACOR may not be
free to use CONSULTANT's information without liability of any kind, or the use
of which by SEPRACOR would result in a possible infringement of one or more
unexpired patents or other proprietary rights known to CONSULTANT, then
CONSULTANT agrees to disclose such circumstances to SEPRACOR and, upon
disclosure of such circumstance, CONSULTANT shall be under no obligation to
disclose further related information to SEPRACOR.
7. NON-DISCLOSURE AND OTHER RESTRICTIONS
While serving as a CONSULTANT to SEPRACOR, CONSULTANT may obtain
knowledge or private information belonging to, or possessed or used by, SEPRACOR
and its business. This knowledge or information (the "PROPRIETARY INFORMATION")
may include, but is not limited to, knowledge or information in the form of
proprietary, confidential or trade secret processes, plans, materials, formulas,
and the like relating to SEPRACOR's business, products and other activities.
CONSULTANT agrees to treat such knowledge or information as confidential.
CONSULTANT agrees that he will not, without the prior written consent of
SEPRACOR, at any time during the term of this AGREEMENT or extension thereof as
provided in Section 1, and for a period of five (5) years after termination of
this AGREEMENT, directly or indirectly reveal, furnish or make known to any
person or use for CONSULTANT's benefit or the benefit of others any PROPRIETARY
INFORMATION of SEPRACOR, disclosed to, learned of, developed, or otherwise
acquired by CONSULTANT while performing services for SEPRACOR. CONSULTANT is
permitted to disclose the information obtained under the terms of this AGREEMENT
to third parties only on a need-to-know basis related to the performance of work
under this AGREEMENT, provided that SEPRACOR has approved the disclosure in
advance, and only if such persons are bound to protect the confidentiality of
such information to the same extent as the CONSULTANT pursuant to this
AGREEMENT.
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This obligation is specifically qualified and limited by the
understanding that CONSULTANT will not have any obligation or liability of any
kind with respect to any PROPRIETARY INFORMATION which:
(a) is generally known to the public at the time of disclosure or
becomes generally known through no wrongful act on the part of the
CONSULTANT;
(b) becomes known to the CONSULTANT through disclosure by sources
other than SEPRACOR having the legal right to disclose such
PROPRIETARY INFORMATION;
(c) has been independently developed by the CONSULTANT without
reference to or use of the PROPRIETARY INFORMATION; or
(d) is required to be disclosed by the CONSULTANT to comply with
applicable laws or governmental regulations, PROVIDED THAT the
CONSULTANT provides prior written notice of such disclosure to
SEPRACOR and takes reasonable and lawful actions to avoid and/or
minimize the extent of such disclosure.
8. PROPRIETARY PROPERTY
CONSULTANT agrees that all inventions, data, works, discoveries, designs,
technology and improvements, (whether or not protectable by a patent or a
copyright) ("INVENTIONS") related to the business of the SEPRACOR, which are
conceived of, made, reduced to practice, created, written, designed or
developed, authored or made by CONSULTANT, alone or in combination with others,
in the course of the performance of services under this AGREEMENT or thereafter
if resulting or directly derived from PROPRIETARY INFORMATION, shall be the sole
and exclusive property of SEPRACOR. The inventions are to be promptly reported
to SEPRACOR but otherwise maintained in confidence by CONSULTANT. All works
authored by the CONSULTANT under this AGREEMENT shall be deemed "works made for
hire" to the extent permitted by the copyright law.
CONSULTANT hereby assigns to SEPRACOR all INVENTIONS and any and all
related patents, copyrights, trademarks, trade names, and other industrial and
intellectual property rights and applications therefor, in the United States and
elsewhere, and appoints any officer of SEPRACOR as duly authorized agent to
execute, file, prosecute and protect the same before any government agency,
court or authority.
CONSULTANT agrees to cooperate fully with SEPRACOR and its nominees to
obtain patents or register copyrights in any and all countries for these
INVENTIONS,
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and to execute all papers for use in applying for and obtaining such protection
thereon as SEPRACOR may desire, together with assignments thereof to confirm
SEPRACOR's ownership thereof, all at SEPRACOR's expense.
No rights are hereby given to SEPRACOR in any inventions conceived and
evidenced in an invention record or disclosure, or under any patents or patent
applications that CONSULTANT may own prior to the effective date of this
AGREEMENT or may subsequently acquire which do not arise out of the work
performed by CONSULTANT during the term of this AGREEMENT.
9. TERMINATION
Either SEPRACOR or CONSULTANT may terminate this AGREEMENT upon seven (7)
days written notice to the other party. Such termination will be without
prejudice to any right or remedy either SEPRACOR or CONSULTANT might have as a
result of this AGREEMENT or due to a failure of the other to perform its
obligations under this AGREEMENT.
If this AGREEMENT is terminated by SEPRACOR, CONSULTANT shall be entitled
to full payment for all expenses already incurred and for performance of
consulting services prior to the date of termination, for which SEPRACOR is
obligated to pay as described in Section 3 of this AGREEMENT, subject to the
limitations on reimbursement of expenses paid or incurred prior to the effective
date of termination. Such payments shall constitute full settlement of any and
all claims of CONSULTANT of every description against SEPRACOR. Notwithstanding
the foregoing, SEPRACOR may terminate this AGREEMENT, effective immediately upon
receipt of written notice, if CONSULTANT breaches or threatens to breach any
provision of this AGREEMENT.
10. NOTICES
Notices, and other communications required to be given hereunder shall be
deemed given when sent by either party by registered or certified mail to the
other party at the address set forth below or to such other address as one party
may from time-to-time designate by written notice to the other.
Xxxxxxx X. Xxxxxxxxx Digby X. Xxxxxxx
Sepracor Inc.
President & CEO
00 Xxxxx Xxxxx 00 Xxxx Xxxxxx
Xxxxxxxxxxx, XX 00000 Xxxxxxxxxx, XX 00000
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Invoices are to be sent directly to:
ACCOUNTS PAYABLE
Sepracor Inc.
00 Xxxxx Xxxxx
Xxxxxxxxxxx, XX 00000
Invoices must be submitted with full letterhead information. They must be
signed, and clearly marked as an "INVOICE." If appropriate, invoices should also
reference either a protocol or purchase order number.
11. IMPOSSIBILITY OF PERFORMANCE
Neither of the parties hereto shall be liable in damages for any delay or
default which is caused by conditions beyond its control, including but not
limited to Acts of God, governmental restrictions, continuing domestic or
international problems such as war or insurrections, strikes, fires, floods,
work stoppages, embargoes, and/or lack of materials; provided however that any
party hereto shall have the right to terminate this AGREEMENT if the other party
is unable to fulfill its obligations hereunder due to any of the above-mentioned
causes.
12. CONSTRUCTION
This AGREEMENT shall be construed in accordance with the laws of the
Commonwealth of Massachusetts.
13. SEPARABILITY AND WAIVER
If any of the terms, provisions, or conditions of this AGREEMENT or the
application thereof to any circumstances shall be ruled invalid or
unenforceable, the validity or enforceability of the remainder of this AGREEMENT
shall not be affected thereby, and each of the other terms, provisions, and
conditions of this AGREEMENT shall be valid and enforceable to the fullest
extent permitted by law.
A waiver or consent regarding any term, provision, or condition of this
AGREEMENT given by SEPRACOR 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. AMENDMENT
This AGREEMENT may be amended or modified only by a written instrument
executed by both SEPRACOR and CONSULTANT.
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15. 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, SEPRACOR may be merged or which may succeed to its
assets or business, provided, however, that the obligations of CONSULTANT are
personal and shall not be assigned by CONSULTANT.
16. 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.
IN WITNESS WHEREOF, the parties hereto have caused this six (6) page AGREEMENT
to be executed in duplicate.
SEPRACOR INC.
By: /s/ Xxxxxxx X. Xxxxxxxxx By: /s/ Digby X. Xxxxxxx
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Title: Title: Consultant
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Date: Date: October 27, 1995
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