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EXHIBIT 10.6
CONSULTING AGREEMENT
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THIS CONSULTING AGREEMENT (the "Agreement"), made as of this 1st day of
April, 1996 is entered into by Ascent Pharmaceuticals, Inc., a Delaware
corporation with its principal place of business at 0 Xxxxxxx Xxxxxx,
Xxxxxxxxx, Xxxxxxxxxxxxx 00000 (the "Company"), and Xxxxxx X. Xxxxxxx,
residing at 0 Xxxx Xxxxxxxxxx Xxxx, Xxxxxxx, Xxx Xxxxxx 00000 (the
"Consultant").
INTRODUCTION
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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, at the offices of the Company or such
other location as the Company may reasonably request, as may be requested from
time to time by the Company, including, but not limited to, the services
specified on SCHEDULE A to this Agreement and that time is of the essence with
respect to such performance. During the Consultation Period (as defined below),
the Consultant shall not engage in any activity that has a conflict of interest
with the Company.
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2. TERM. This Agreement shall commence effective as of April 1, 1996 and
shall continue until April 1, 2000 (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.
3. Compensation.
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3.1 CONSULTING FEES. The Company shall pay to the Consultant
consulting fees of $1,500 per day, payable in arrears on the last day of each
month.
3.2 REIMBURSEMENT OF EXPENSES. The Company shall reimburse the
Consultant for all reasonable and necessary expenses incurred or paid by the
Consultant in connection with, or related to, the performance of his services
under this Agreement. The Consultant shall submit to the Company itemized
monthly statements, in a form satisfactory to the Company, of such expenses
incurred in the previous month. The Company shall pay to the Consultant amounts
shown on each such statement within 30 days after receipt thereof.
3.3. STOCK OPTION. The Company shall grant to the Consultant an option
to acquire an aggregate of 100,000 shares of the common stock of the Company,
$.00004 par value per share, pursuant to the Company's 1992 Equity Incentive
Plan, as amended (the "Plan") such option grant shall be made subject to the
terms of the Plan and pursuant to a duly executed option agreement a definitive
option agreement.
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3.4 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, terminate the Consultation Period upon 30 days' prior
written notice to the Consultant. In the event of such termination, the
Consultant shall be entitled to payment for services performed and expenses paid
or incurred prior to the effective date of termination, subject to the
limitation on reimbursement of expenses set forth in Section 3.2. Such payments
shall constitute full settlement of any and all claims of the Consultant of
every description against the Company. 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
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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.
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6.1 Inventions.
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(a) All inventions, discoveries, 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 (i) the Consultation Period or (ii) thereafter, if
resulting or directly derived from Proprietary Information (as defined below),
shall be the sole property of the Company. The Consultant hereby assigns to the
Company 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 the Company as his duly authorized attorney to execute, file,
prosecute and protect the same before any government agency, court or authority.
Upon the request of the Company and at the Company's expense, the Consultant
shall execute such further assignments, documents and other instruments as may
be necessary or desirable
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to fully and completely assign all Inventions to the Company and to assist the
Company in applying for, obtaining and enforcing patents or copyrights or other
rights in the United States and in any foreign country with respect to any
Invention.
(b) The Consultant shall promptly disclose to the Company all
Inventions and will maintain adequate and current written records (in the form
of notes, sketches, drawings and as may be specified by the Company) to document
the conception and/or first actual reduction to practice of any Invention. Such
written records shall be available to and remain the sole property of the
Company at all times.
6.2 Proprietary Information.
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(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,
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customer information, materials, developments, 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,
planned or otherwise acquired by the Consultant in the course of his service as
a consultant to the Company.
(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
written authorization of the Board of Directors of the Company.
(d) Consultant agrees that (i) all Proprietary Information
generated by, furnished to or obtained by Consultant in the performance of its
obligations hereunder shall remain the sole and exclusive property of the
Company, and (ii) upon termination of this Agreement or at any other time upon
request by the Company, the Consultant shall promptly deliver to the Company all
records, files, memoranda, notes, designs, data, reports, price lists, customer
lists, drawings, plans, computer programs,
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software, software documentation, sketches, laboratory and research notebooks
and other documents (and all copies or reproductions of such materials) relating
to the business of the Company.
(e) The Consultant represents that (i) 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 and (ii) the Consultant has all requisite power and authority to
execute this Agreement and any other ancillary documents or instruments
contemplated hereby. The Consultant shall not disclose to the Com- pany 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.
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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 for which the Company cannot be adequately compensated by monetary
damages alone. The Consultant agrees, therefore, that, in addition to any other
remedy it may have, the Company shall be entitled to enforce the specific
performance of this Agreement by the Consultant and to seek both temporary and
permanent injunctive relief (to the extent permitted by law) without the
necessity of proving actual damages.
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. The parties agree that it
is the obligation of Consultant to report as income all compensation received by
Consultant pursuant to this Agreement. Consultant shall indemnify the Company
and hold it harmless from any obligation imposed by law on the Company to pay
any federal, state or local withholding taxes, social security, medical, dental,
workers compensation or other similar items.
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
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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.
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. The obligations imposed by 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,
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that the obligations of the Consultant are personal and shall not be assigned by
him.
14. EFFECT OF TERMINATION. The following sections of this Agreement shall
survive the termination of this Agreement: Section 6 (Inventions and Proprietary
Information), Section 7 (Independent Contractor Status), Section 8 (Notices),
Section 12 (Governing Law), Section 13 (Successors and Assigns), and Section 14
(Effect of Termination).
15. Miscellaneous.
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15.1 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.
15.2 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.
15.3 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.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year set forth above.
ASCENT PHARMACEUTICALS, INC.
By: /s/ Xxxxxx Xxxxxxxx
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Xxxxxx Xxxxxxxx
Title: President
CONSULTANT
/s/ Xxxxxx X. Xxxxxxx
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Xxxxxx X. Xxxxxxx
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Schedule A - Services
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Evaluate and negotiate licensing proposals.
Participate in creating and directing a marketing and sales
organization.
Assist in the formulation of product strategies.
Assess the quality and progress of the product development
efforts of the Company.
Engage in general corporate matters such as
investor-related activities and senior management
recruitment.
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