1
Confidential Materials omitted and filed separately with
the Securities and Exchange Commission. Asterisks denote omissions.
EXHIBIT 10.9
CONSULTING AGREEMENT
INNOVEX INC. AND THE MEDICINES COMPANY
(PROJECT #8138)
This Consulting Agreement ("Agreement"), dated December 1, 1998 is by and
between Innovex Inc. ("Innovex"), whose principal office is at Waterview
Corporate Center, 00 Xxxxxxxxx Xxxxxxxxx, Xxxxxxxxxx, Xxx Xxxxxx 00000, and The
Medicines Company ("The Medicines Company"), whose principal office is located
at Xxx Xxxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxxxxx 00000.
In consideration of the following covenants, promises and obligations, The
Medicines Company and Innovex agree as follows:
1. SERVICES
In accordance with the terms and conditions of this Agreement, The
Medicines Company retains Innovex for the purpose of providing consulting,
marketing and sales services set forth in Schedule A attached to this Agreement
(the "Services").
2. AUTHORIZATION FOR PROCUREMENT SERVICES
The Medicines Company shall be the beneficiary of all services performed by
outside service providers and all agreements for such services shall be subject
to the authorization requirements set forth in Schedule B to this Agreement.
3. COMPENSATION AND EXPENSES
The Medicines Company shall pay Innovex for services performed at the
following rates:
Director of Marketing $ [**] Per Hour
Product Manager $ [**] Per Hour
All expenses billed by outside service providers shall be passed through to
The Medicines Company. Innovex shall receive a [**] administrative fee for all
expenses passed through to The Medicines Company.
The Medicines Company will reimburse Innovex for reasonable out of pocket
costs and expenses that are necessary and actually incurred by Innovex pursuant
to the implementation of this Agreement. Request for reimbursement of expenses
and costs will be submitted at the end of each month. Each invoice shall be
supported by appropriate documentation of expenses. Notwithstanding the
foregoing, Innovex shall not incur total costs and expenses in excess of $[**]
per month without the prior written approval of the Medicines Company.
All invoices are strictly net of any taxes, and payment in full must be
made within thirty (30) days of the date of the invoice, after which time
interest shall be due and payable on all unpaid balances at the rate of 1.5% per
month.
Payment by check should be mailed to the following address:
Innovex lnc.
Waterview Corporate Center
00 Xxxxxxxxx Xxxxxxxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
Innovex's Federal Employment ID Number is 00-0000000.
2
4. TERM & TERMINATION
The period of performance of this Agreement will begin on December 1, 1998,
and will continue until terminated by the parties, in the manner provided by
this Agreement.
A party may terminate this Agreement if the other party is in material
breach of the Agreement and has not cured the breach within fifteen (15) days of
written notice specifying the breach. Consent to extend the cure period shall
not be unreasonably withheld, so long as the breaching party has commenced cure
during the fifteen (15) day notice period and pursues cure of the breach in good
faith.
Either party may terminate this Agreement without cause with thirty days
written notice. Upon termination without cause by The Medicines Company, The
Medicines Company will pay Innovex all fees earned as of the date of
termination, all reasonable costs and expenses incurred prior to termination,
and all reasonable documented non-cancelable costs and expenses.
Termination of this Agreement for whatever reason shall not affect the
accrued rights of either Innovex, or The Medicines Company arising under or out
of this Agreement and all provisions which expressly or by the implication
survive this Agreement shall remain in full force and effect.
5. RELATIONSHIP OF THE PARTIES.
Innovex is an independent contractor and shall have no authority to act as
an agent of The Medicines Company or to create or assume any binding obligation
in The Medicines Company's name, except as expressly provided herein. Each party
will be solely responsible for payment of all compensation owed to its employees
as well as employment related taxes, worker's compensation, and general
liability insurance.
Under no circumstances shall Innovex be liable to an outside service
provider for any direct or indirect, special or consequential damages caused by
the fault or negligence of The Medicines Company, its employees or agents and
Innovex shall under no circumstances be a guarantor of commitments made by The
Medicines Company.
6. CONFIDENTIAL INFORMATION.
Innovex and The Medicines Company agree that all information whether or not
in writing relating to the research, products, business affairs or finances of
the other, or of any suppliers, agents, distributors, licensees or customers of
the other which comes into possession of Innovex or The Medicines Company under
this Agreement shall be Confidential Information ("Confidential Information").
The Confidential Information shall be marked as confidential or otherwise
represented by the disclosing party as confidential either before or within a
reasonable time of the disclosure. Innovex and The Medicines Company agree to
hold Confidential Information in strict confidence, use such Confidential
Information only for the purposes of performing their respective obligations
under the Agreement and disclose it only on a need-to-know basis to
subcontractors and employees who are under a written obligation to maintain the
confidentiality of the information. By way of illustration, but not limitation.
Confidential Information may include inventions, products, processes, methods,
techniques, formulas, compositions,
3
compounds, projects, developments, plans, research data, clinical data,
financial data, personnel data, computer programs, customer and supplier lists
and contacts at or knowledge of customers or prospective customers of the
Medicines Company.
The obligations of the parties in this Section 6 shall not extend to any
Confidential Information: (i) which can be shown by written documentation to
have been known by the recipient prior to its receipt from the other; (ii) which
is generally known to the public at the time of the disclosure or becomes
generally known through no wrongful act on the part of the receiving party;
(iii) becomes known to the receiving party through disclosure by sources other
than the disclosing party having the legal right to disclose such Confidential
Information; (iv) which by mutual written agreement is released from a
confidential status; or (v) which is required to be disclosed under any
statutory, regulatory or judicial requirement, and in that event,
confidentiality will be preserved and protected to the extent possible;
additionally, notice will be provided to the other party prior to any such
disclosure.
The obligations of Innovex and The Medicines Company under this Section 6
shall survive the termination or expiration of this Agreement for a period of
five (5) years.
7. LIABILITY
The liability of Innovex for any loss or damage suffered by The Medicines
Company as a result of any breach of the Agreement or of any other liability of
Innovex in connection with the performance of the Services shall be limited to
an amount which shall not exceed the total amount of any payments made to the
Innovex under this Agreement by The Medicines Company to the date the liability
arose.
Innovex shall not be liable for the following losses or damages howsoever
incurred (even if foreseeable or in the contemplation of Innovex or The
Medicines Company): (i) loss of profits, business or revenue, whether suffered
by The Medicines Company or any other person; or (ii) special, indirect, or
consequential loss, whether suffered by The Medicines Company or any other
person.
The Medicines Company agrees to defend, indemnify and hold Innovex harmless
from and against any and all claims, damages, costs, expenses or other
liabilities, including reasonable attorneys fees, arising out of the use or
publication of any data or work product generated or produced by Innovex as a
result of this Agreement, or as a result of any breach by The Medicines Company
of any of the terms ~f this Agreement, provided this indemnity shall not extend
to any claim, demand or legal action arising as a result of any breach of this
Agreement by Innovex or resulting form the gross negligence or intentional
misconduct of Innovex.
8. DOCUMENTS AND RECORDS
Upon the written request of The Medicines Company, Innovex will destroy or
return at the expense of The Medicines Company all materials belonging to The
Medicines Company.
9. ASSIGNMENT
Neither party may assign this Agreement without the prior written consent
of the other party.
4
10. NOTICES
All notices under this Agreement shall be in writing and shall be deemed
duly given (i) when received if personally delivered or sent by facsimile
transmission, or (ii) three (3) business days (Saturdays, Sundays, Bank and
public holidays excluded) after the date mailed, if sent by registered or
certified mail return receipt requested and postage prepaid, and addressed to
the parties at the following addresses:
If to The Medicines Company to:
Xxxxx Xxxxxxxx, CEO
Xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Phone: (000) 000-0000
Fax: (000) 000-0000 -
If to Innovex to:
Xxxxx Xxxxx, President
Waterview Corporate Center
00 Xxxxxxxxx Xxxxxxxxx
Xxxxxxxxxx, XX 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
or to such other destination as either party may hereafter notify the other
party in accordance with this section.
11. REPRESENTATIONS & WARRANTIES
Each party warrants and represents to the other that it has the full right
and authority to enter into this Agreement, and that it is not aware of any
impediment that would inhibit its ability to perform its obligations under this
Agreement.
Innovex and The Medicines Company agree to undertake all of their
respective obligations under this Agreement in conformance with generally
accepted business standards, and in material conformance with all applicable
local, state and federal laws and regulations.
12. NON-EXCLUSIVE ARRANGEMENT
This Agreement is not to be interpreted as an exclusive consulting
agreement. Nothing stated herein shall prevent Innovex or any affiliate of the
Innovex from accepting other assignments during the term of this Agreement.
Notwithstanding the foregoing, it is specifically understood and agreed that
Innovex and affiliates of the Innovex, from time to time, may enter into
consulting and other agreements with competitors of The Medicines Company
without incurring any liability for breach of this Agreement.
13. GENERAL PROVISIONS
This Agreement shall be governed by and construed in accordance with the
laws of the State of New Jersey, without giving effect to the principles of
conflict laws.
Neither party's waiver of the other's breach of any term, covenant or
condition contained in this Agreement shall be deemed to be a waiver of any
subsequent breach of the same or any other term, covenant or condition in this
Agreement.
If any part or parts of this Agreement are held to be invalid, the
remaining parts of the Agreement will continue to be valid and enforceable.
The covenants contained in this Agreement which by their terms, require
their performance after the expiration or termination of this Agreement shall be
5
enforceable notwithstanding the expiration or termination of this Agreement.
This Agreement, and the materials incorporated herein by reference,
constitute the entire agreement of the parties and supersedes all prior
contracts, agreements and understandings relating to the same subject matter
between the parties. The parties intend this Agreement to be a complete
statement of the terms of their agreement, and no change or modification of any
of the provisions of this Agreement shall be effective unless it is in writing
and signed by a duly authorized representative of the party against which it is
to be enforced.
This Agreement may be executed in several counterparts, each of which shall
be deemed an original but all of which shall constitute one and the same
instrument.
6
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
INNOVEX INC. THE MEDICINES COMPANY
By: /s/ Xxxx Xxxxx By: /s/ Xxxxxxx Xxxxxxx
------------------------------- ---------------------------------------
Name: Xxxx Xxxxx Name: Xxxxxxx Xxxxxxx
Title: President Title: Chief Operating Officer
February 17, 1999
7
SCHEDULE A
SERVICES
A. MARKETING AND STRATEGIC SERVICES
Innovex shall develop and implement marketing and sales strategies for The
Medicines Company. Such marketing and strategic services will include, but are
not limited to, assisting The Medicines Company in developing and implementing
marketing and sales strategies for Hirulog pursuant to The Medicines Company's
Business Plan (the "Business Plan"); participating as a member of marketing
teams established by The Medicines Company pursuant to the Business Plan;
coordinating communication with service providers in implementing marketing and
sales strategies; and other marketing and strategic services as mutually agreed
from time to time.
B. PROCUREMENT SERVICES
Innovex shall identify service providers to execute marketing and sales
strategies on behalf of The Medicines Company. Innovex shall, upon authorization
from The Medicines Company as set forth in Schedule B, have the authority on
behalf of The Medicines Company to procure and negotiate agreements with service
providers for all reasonable or necessary outside services in connection with
implementing the marketing and sales strategies. Innovex shall monitor and
manage the performance of such service providers under these agreements.
8
SCHEDULE B
AUTHORIZATION FOR PROCUREMENT SERVICES
Prior to entering into any agreements with service providers or entering
into any legal commitments on behalf of The Medicines Company, Innovex shall (A)
comply with provisions (i) and (ii) below and with any written policy of The
Medicines Company concerning the procurement of bids or proposals and (B) make a
good faith determination that The Medicines Company has not elected to provide
or procure such goods or services itself.
(i) Prior to agreeing to any specific purchase of goods or services which
exceed $1,000, Innovex shall obtain bids from one or more suppliers and
recommend to The Medicines Company the supplier from which the procurement of
goods or services would be most appropriate. The Medicines Company shall then
notify Innovex as to which supplier to use.
(ii) Innovex shall maintain and on request, in a timely and reasonable
manner, provide The Medicines Company with complete documentation for all
procurement of goods and services. Innovex will negotiate terms of a written
agreement with the service providers, including, without limitation, provisions
addressing the specific duties and standards for performance, deliverables,
payment schedule, confidentiality, ownership of intellectual property, insurance
and indemnification. Innovex will engage legal counsel, as needed, to draft
service provider agreements. The final terms of such written agreements shall be
subject to the consent of the Medicines Company, such consent shall not be
unreasonably withheld.
(iii) The Medicines Company shall be responsible for executing written
agreements with service providers and for payment of all fees in connection with
agreements with service providers.
