Exhibit 10.9
EXECUTION COPY
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT, dated as of November 1, 2001 (the
"Agreement"), by and between EYETECH PHARMACEUTICALS, INC., a Delaware
corporation (the "Company), and XXXXX XXXXX (the "Consultant").
RECITALS
WHEREAS, Consultant is a founder of the Company, a member of the
Company's Board of Directors, and a significant shareholder in the Company.
WHEREAS, prior to the execution of this Agreement, Consultant served as
an employee of the company in the role of Chief Medical Officer pursuant to an
Employment Agreement between the Company and Consultant, dated May 24, 2001 (the
"Prior Employment Agreement").
WHEREAS, the Consultant and the Company (the "Parties") wish to modify
their relationship, terminate the Prior Employment Agreement as of the
Commencement Date (as defined below) and arrange for the Consultant to serve the
Company in the role of "Senior Consultant - Medical Affairs" in accordance with
the terms and provision of this Agreement.
WHEREAS, the Parties wish to set forth their understanding and
agreement with respect to the terms and conditions of such consultancy;
NOW, THEREFORE, in consideration of the premises and the agreements and
provisions hereinafter set forth, and for other good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged, the Parties hereto
agree as follows:
SECTION 1. Engagement of Consultant; Independent Contractor and Not
Employee; Termination of Prior Employment Agreement. The Company hereby engages
the Consultant to provide the consulting services set forth below (the
"Services") for the benefit of the Company and the Consultant hereby agrees to
provide such Services. Consultant acknowledges and agrees that at all times
during the Term (as defined in Section 4 below) of this consultancy, Consultant
will be an independent contractor and not an employee of the Company for any
purposes whatsoever and under any applicable law. As an independent contractor,
Consultant acknowledges and agrees that Consultant will be solely responsible
for the payment of all federal, state and other taxes applicable to Consultants
role as an independent contractor performing consulting services.
(b) Consultant hereby represents and warrants to the Company that no
other party has exclusive rights to Consultant's services in the areas described
in Section
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2 below and that Consultant's performance of all the terms of this Agreement
does not and will not (i) breach or conflict with any prior Agreement to which
Consultant is bound, (ii) compromise any right or trust relationship between
Consultant and a third party or (iii) create a conflict of interest for the
Consultant or the Company. Consultant shall promptly disclose to the Company any
circumstance or relationship with any third party that constitutes a conflict of
interest or breach of this Agreement. Notwithstanding to the foregoing, the
Consultant shall retain rights to any services outside the "Field" (as such term
is defined below). "Field" shall mean any activity, occupation, employment or
pursuit which provides, either directly or indirectly (including, without
limitation, in the role of a consultant, employee, officer, director, partner or
joint venturer or majority shareholder of any entity that provides) advice on
the manufacturing, marketing, fill-and-finish or clinical production of
pharmaceuticals with ophthalmic applications. In addition, the Company
acknowledges and agrees that Consultant has a private medical practice and
faculty and teaching assignments (the "Outside Activities"). Consultant
represents and warrants that the Outside Activities will not conflict or
interfere with the discharge the Services.
(c) Consultant and Company hereby agree that each of the Prior
Employment Agreement and the Non-Disclosure and Proprietary Information
Agreement entered into in connection with the execution of the Prior Employment
Agreement, are terminated as of the Commencement Date.
SECTION 2. Nature of Services. Effective November 1, 2001, Consultant's
title shall change from "Chief Medical Officer" to "Senior Consultant - Medical
Affairs," which latter title he shall retain during the Term. Consultant shall
provide advice and consultations to the Company's employees, management and
Board of Directors relating to the implementation of the Company's development,
clinical investigation and commercialization of EYE001 (the anti-VEGF aptamer)
and its application for indications of macular degeneration and diabetic
retinopathy, including, without limitation, the development and
commercialization of EYE001 in accordance with the Company's goals and
objectives (collectively, the "Services"). The Consultant will report to the
Company's Chief Executive Officer, Xxxxx X. Xxxxx, or such other person or
persons as the Chief Executive may designate. The Consultant shall be available
to attend meetings and consultations with the company in the discharge of the
Services at mutually agreed times and places upon the request of the President
and Chief Operating Officer, provided however Consultant shall not be required
to travel more than 5 days per month unless Consultant and Company otherwise
agree.
SECTION 3. Hours; Attention to Services. Travel Requirement. The
Consultant agrees to devote at least five (5) eight (8) hour days per month, for
a total of forty (40) hours per month, to the provision of the Services (the
"Minimum Time Commitment"). Consultant acknowledges that he may need to spend
more than the Minimum Time Commitment in any given month to perform the Services
to Company's satisfaction. In connection with his provision of the Services,
Consultant shall not be required to travel more than 5 days per month unless
Consultant and Company otherwise
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agree. Any travel conducted in connection with consultant's performance of the
Services shall be subject to the expense reimbursement procedures as set forth
below.
(b) Delegation; Supervision. Consultant may not delegate or subcontract
all or any part of Consultant's obligations to perform the Services hereunder
without the prior written consent of the Company. However, Consultant may, at
Consultant's own expense, hire and use assistants and employees under
Consultants direct supervision to perform the Services; provided, however, at
all times Consultant shall be responsible to the Company for the satisfactory
performance of the Services.
SECTION 4. Term and Termination. (a) This Agreement will be deemed to
be effective on and as of January 1, 2002 (the "Commencement Date") and, unless
earlier terminated pursuant to the termination provisions hereunder, will
terminate on December 31, 2003 (the "Two-Year Anniversary"). The Parties
acknowledge that it is Eyetech's intent to retain Consultant for the diabetic
eye disease clinical program after the Two-Year Anniversary. Accordingly, the
Parties agree that, unless this Agreement shall have been terminated earlier
pursuant to the termination provisions hereunder, they will enter into
good-faith negotiations to determine the extent to which Consultant will be
available to assist the Company in connection with the Company's diabetic eye
disease clinical program in the period following the Two-Year Anniversary (the
"Extension Period") and the terms for compensation, time commitment, etc. for
Consultant's Services during that Extension Period. These negotiations shall
begin on a date that is at least two months prior to the Two Year Anniversary.
This Agreement will terminate on the earlier of (i) the Two-Year Anniversary;
(ii) upon mutual agreement of the Parties; (iii) a Termination Event (as defined
below) and (iv) the end of the Extension Period. The actual date upon which this
Agreement terminates is referred to as the "Termination Date." The "Term" is the
period beginning on the Commencement Date and ending on the Termination Date.
(b) Termination Events. The following shall constitute Termination
Events:
(i) Death or Disability. This Agreement, and Consultant's obligations
under this Agreement, shall terminate immediately upon Consultant's death or
long-term disability. In the event of Consultant's death or long-term
disability, Consultant or Consultant's estate shall be entitled to receive the
amount of any daily fees earned as of as of the death or disability date as well
as reimbursement of all reasonable Expenses incurred on or prior to such date.
(ii) Cause. The Company's obligations under this Agreement shall
terminate if Consultant engages in gross negligence, willful misconduct or
malfeasance. Consultant shall forfeit all unvested options and any unearned fees
as of the date of Termination.
(iii) Material Breach. A material breach of either Party's obligations,
upon 30 days' notice by the non-breaching Party, which has not been cured by the
end of the 30 day after receipt by the breaching Party of such notice.
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SECTION 5. Compensation. (a) In consideration of the Consultant's
performance of the Services, the Company will pay Consultant $85,000 per year
(the "Compensation"), effective as of the Commencement Date. The Compensation
will be paid bi-weekly (i.e., in two installments per month) in accordance with
the Company's payroll procedures. From the date hereof through December 31,
2001, Consultant shall continue to receive the compensation he was receiving
under the Prior Employment Agreement, pro rated for the actual number of days
from the date hereof through December 31, 2001.
(b) Nothing herein shall affect any of Consultant's ownership, vesting,
or other rights in common stock or options of the Company or otherwise affect
any rights that Consultant may have as a result of his role as a founder of the
Company and a member of its Board of Directors, which equity and other rights
are set forth in other agreements or documents between and among the Company,
the Consultant and other investors.
SECTION 6. Expense Reimbursement. Consultant shall be entitled to
reimbursement for reasonable and necessary traveling expenses as well as
reasonable disbursements incurred by Consultant in connection with such travel
as is required for Consultant's performance of the services; provided that such
expenses (i) are incurred for or on behalf of the Company in the performance of
the Consultant's duties under this Agreement; and (ii) are documented in
compliance with the Company's expense reimbursement procedures so as to verify
the amount, nature and date of such expenses. The Company will promptly
reimburse Consultant for such expenses upon receipt of the supporting
documentation referred to above and in accordance with the Company's
reimbursement policies and procedures.
SECTION 7. Continuing Obligations after Termination. Notwithstanding
any termination of this Agreement and the consultancy created hereunder,
Consultant, in consideration of the terms and conditions of this Agreement,
shall remain bound by the provisions of the non-disclosure and confidentiality
obligations hereunder.
SECTION 8. Non-Disclosure and Confidentiality. Inventions, Patents and
Technology. Consultant agrees that any and all discoveries, inventions,
improvements, trade secrets, know-how, works of authorship or other intellectual
property conceived, created, written, developed or first reduced to practice by
the Consultant, alone or jointly with others, in the Field and in the
performance of the Services under this Agreement ("Consultant Inventions") shall
be the sole and exclusive property of the Company. Consultant acknowledges that
all original works of authorship protectable by copyright which are produced by
Consultant in the performance of services under this Agreement are "works made
for hire," as defined in the United States Copyright Act (17 U.S.C. Section
101). Consultant shall promptly and fully disclose to the Company all Consultant
Inventions, shall treat all Consultant Inventions as Confidential Information of
the Company subject to the confidentiality provisions of this Agreement, and
hereby assigns to the Company without further consideration all of Consultant's
right,
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title and interest in and to any and all Consultant Inventions, whether or not
patentable or copyrightable. Consultant shall execute all papers, including
patent applications, invention assignments and copyright assignments, and
otherwise shall assist the Company as reasonably required to perfect in the
Company the rights, title and other interests granted to the Company under this
Agreement. The Company shall pay for costs related to such assistance if it is
required.
(b) Confidentiality. In the course of Consultant's performance under
this Agreement, Consultant may be exposed to confidential proprietary
information relating to the Company's technologies, strategies and business
practices; information which has commercial value to the Company and which the
Company treats as confidential ("Confidential Information"). By way of
illustration, but not limitation, Confidential Information includes (i) all
ideas, discoveries, inventions, improvements, trade secrets, formulas, know-how,
works of authorship or other intellectual property, (ii) all Consultant
Inventions and other material produced or compiled by Consultant in performing
services under this Agreement, (iii) information labeled "Confidential" or
"Proprietary" or similarly identified by the Company as confidential, (iv)
information regarding plans for research, development, new products, marketing
and selling, business plans, budgets and unpublished financial statements,
licenses, prices and costs, (v) information concerning suppliers and customers
and (vi) information regarding the skills and compensation of employees of the
Company. Confidential Information shall not include any information that (a) is
or becomes generally known or available to the public through no fault of
Consultant, (b) is known to Consultant as evidenced by the reduction in writing
to tangible form of such information by Consultant prior to the time it is
disclosed to Consultant in connection with Consultant's services under this
Agreement, (c) is independently developed by Consultant without reference to
information disclosed to Consultant in connection with Consultant's services
under this Agreement or (d) is legally acquired from a third party who has the
right to disclose the information.
Consultant acknowledges the confidential and proprietary character of
the Confidential Information and agrees, during the term of this Agreement and
for a period of five (5) years after its termination, not to use, reproduce or
disclose in any form all or any part of the Confidential Information without the
written consent of the Company, except as may be required in the ordinary course
of performing services under this Agreement. Upon termination of this Agreement
for any reason, including expiration of the term, Consultant agrees to cease
using and to return to the Company all whole or partial copies and derivatives
of the Confidential Information (including material compiled by Consultant
pursuant to this Agreement), whether in Consultant's possession or under
Consultant's direct or indirect control. Consultant may keep one copy of
Confidential Information for legal purposes for the sole purpose of ensuring
compliance with this Section. Consultant shall not disclose or otherwise make
available to the Company in any manner any confidential information known to
Consultant or received by Consultant from third parties.
(c) Cooperation. Consultant agrees, from time to time during the Term,
to cooperate with the Company to execute and deliver such other reasonable
documentation
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as the Company may require in order to comply with requests of inventors,
Suppliers, third parties and others to evidence Consultant's confidentiality and
non-disclosure obligations; provided, however, Consultant shall not be required
to enter into non-disclosure and confidentiality provisions more onerous than
those to which the Company's directors and senior executives are bound.
SECTION 9. Remedies. Consultant acknowledges that a violation on
Consultant's part of any of the covenants set forth in the non-disclosure and
confidentiality provisions of this Agreement could cause immeasurable and
irreparable damage to the Company. Consultant accordingly agrees that in
addition to any other remedies available to the Company at law or in equity, the
Company shall be entitled to specific performance of the non-disclosure and
confidentiality provisions of this Agreement as well as any and all other
remedies available to the Company.
SECTION 10. Notices. All notices and other communications made in
connection with this Agreement shall be in writing and shall be deemed to have
been duly given if (a) mailed by first-class, registered or certified mail,
return receipt requested, postage prepaid, (b) transmitted by hand delivery, (c)
sent by next-day or overnight mail or delivery, or (d) sent by fax, telecopy or
telegram, addressed as follows:
if to the Company,
Eyetech Pharmaceuticals, Inc.
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: (000) 000-0000
Phone: (000) 000-0000
Attn: Xxxxx X. Xxxxx, Chief Executive Officer
if to Consultant:
Xxxxx Xxxxx, M.D.
0000 X. Xxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Fax: 000-000-0000
Phone: 000-000-0000
or, in each case, at such other address as may be specified in writing to the
other parties hereto.
SECTION 11. Miscellaneous. No provision of this Agreement may be
modified, waived or discharged unless such waiver, modification or discharge is
agreed to in writing, and is signed by Consultant and the Company. No agreements
or representations, oral or otherwise, express or implied, with respect to the
subject matter hereof has been made by any party hereto which is not set forth
expressly in this
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Agreement. This Agreement supersedes all prior agreements between the parties
hereto with respect to the subject matter hereof.
SECTION 12. Governing Law. This Agreement shall be governed in all
respects, including as to validity, interpretation and effect, by the internal
laws of the State of New York without giving effect to the conflict of laws
rules thereof.
SECTION 13. JURISDICTION; WAIVER OF JURY. (A) EACH PARTY TO THIS
AGREEMENT HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF THE COURTS OF THE
STATE OF NEW YORK LOCATED IN THE SECOND FEDERAL CIRCUIT AND THE SOUTHERN
DISTRICT OF NEW YORK SOLELY IN RESPECT OF THE INTERPRETATION AND ENFORCEMENT OF
THE PROVISIONS OF THIS AGREEMENT AND IN RESPECT OF THE TRANSACTIONS CONTEMPLATED
BY THIS AGREEMENT. EACH PARTY TO THIS AGREEMENT HEREBY WAIVES AND AGREES NOT TO
ASSERT, AS A DEFENSE IN ANY ACTION, SUIT OR PROCEEDING FOR THE INTERPRETATION
AND ENFORCEMENT OF THIS AGREEMENT, OR IN RESPECT OF ANY TRANSACTION CONTEMPLATED
BY THIS AGREEMENT, THAT SUCH ACTION, SUIT OR PROCEEDING MAY NOT BE BROUGHT OR IS
NOT MAINTAINABLE IN SUCH COURTS OR THAT THE VENUE THEREOF MAY NOT BE APPROPRIATE
OR THAT THIS AGREEMENT OR ANY SUCH DOCUMENT MAY NOT BE ENFORCED IN OR BY SUCH
COURTS. EACH PARTY TO THIS AGREEMENT HEREBY CONSENTS TO AND GRANTS ANY SUCH
COURT JURISDICTION OVER SUCH PARTY AND OVER THE SUBJECT MATTER OF ANY SUCH
DISPUTE AND AGREES THAT THE MAILING OF PROCESS OR OTHER PAPERS IN CONNECTION
WITH ANY SUCH ACTION OR PROCEEDING IN THE MANNER PROVIDED IN THE NOTICES SECTION
OF THIS AGREEMENT OR IN SUCH OTHER MANNER AS MAY BE PERMITTED BY LAW, SHALL BE
VALID AND SUFFICIENT SERVICE THEREOF
(B) EACH PARTY TO THIS AGREEMENT ACKNOWLEDGES AND AGREES THAT ANY
CONTROVERSY THAT MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED
AND DIFFICULT ISSUES AND, THEREFORE, EACH PARTY HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN
RESPECT OR ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO
THIS AGREEMENT, OR THE BREACH, TERMINATION OR VALIDITY OF THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. EACH PARTY TO THIS AGREEMENT
CERTIFIES AND ACKNOWLEDGES THAT (I) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD
NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (II) EACH
SUCH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (III)
EACH SUCH PARTY MAKES THIS WAIVER VOLUNTARILY, AND (IV) EACH SUCH PARTY HAS
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BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL
WAIVERS AND REPRESENTATIONS IN THIS SECTION.
SECTION 14. Successors and Assigns; Assignment. This Agreement shall
bind and inure to the benefit of and be enforceable by the Company and
Consultant and their respective successors and assigns. However, neither Party
may assign this Agreement without the prior written consent of the other.
SECTION 15. Amendments; Waivers. This Agreement may be amended from
time to time only by written agreement of the Company and the Consultant. No
terms or provisions of this Agreement may be waived or modified unless such
waiver or modification is in writing and signed by the party against whom such
waiver or modification is sought to be enforced. No failure or delay on the part
of either party hereunder in exercising, any right, power or remedy under this
Agreement shall operate as a waiver thereof; nor shall any single or partial
exercise of any right under this Agreement preclude any other or further
exercise thereof or the exercise of any other right. The remedies provided in
this agreement are cumulative and not exclusive of any remedies provided by law.
SECTION 16. No Agency; No Partnership; No Joint Venture. Neither the
Company nor Consultant is the agent or representative of the other and nothing
in this Agreement shall be construed to make either the Company or Consultant
liable to any third party for services performed by such third party or for
debts or claims accruing to such third party against either the Company or
Consultant. Nothing contained in this Agreement or the acts of the parties
hereto shall be construed to create a partnership, agency or joint venture.
SECTION 17. Limited Liability. No recourse under this Agreement shall
be had against, and no personal liability shall attach to, any officer,
director, affiliate or shareholder of the Company, as such, by the enforcement
of any assessment of by any legal or equitable proceeding, by virtue of any
statute or otherwise in respect of this Agreement, it being expressly agreed and
understood that this Agreement is solely a corporate obligation of the Company,
and that any and all personal liability, either at common law or in equity or by
statute or constitution, of every such officer, director, employee, affiliate or
shareholder of the Company for breaches by any party to this Agreement of any
obligations under this Agreement is hereby expressly waived by Consultant as a
condition of and in consideration for the execution and delivery of this
Agreement by the Company.
SECTION 18. Severability. The invalidity or unenforceability of any
provision or provisions of this Agreement shall not affect the validity or
enforceability of any other provision of this Agreement which shall remain in
full force and effect.
SECTION 19. Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed to be an original but both of which
shall together constitute one and the same instrument.
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SECTION 20. Headings. The headings contained in this Agreement are for
reference purposes only and shall not in any way affect the meaning or
interpretation of this Agreement.
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IN WITNESS WHEREOF, the parties have executed this agreement as of the
year and date first above written.
EYETECH PHARMACEUTICALS, INC.
By: /s/ XXXXX X. XXXXX
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Name: Xxxxx X. Xxxxx
Title: CEO EYETECH
By: /s/ XXXXX XXXXX
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Xxxxx Xxxxx
