EXHIBIT 99.2
CONSULTING AGREEMENT
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July 25, 2006
Xxxxxx Xxxxxxxxx
[ADDRESS]
This Consulting Agreement (the "Agreement") is made as of the date
written above (the "Effective Date") between EPIX Pharmaceuticals, Inc. a
Delaware corporation having a usual place of business at 000 Xxxxx Xxxxxx,
Xxxxxxxxx, Xxxxxxxxxxxxx 00000 (the "Company") and Xxxxxx Xxxxxxxxx ("you").
This Agreement confirms our understanding with respect to (i) you rendering
services as a consultant to the Company, and (ii) you agreeing to protect and
preserve information and property which is confidential and proprietary to the
Company or other third parties with whom the Company does business. The Company
and you both acknowledge that (a) you resigned your employment as the Company's
Principal Accounting Officer and Executive Director of Finance effective August
10, 2006, (b) you will not be providing services as an employee or officer
pursuant to this Agreement and do not wish to have any employment relationship
with EPIX going forward. If your employment with EPIX does not continue through
August 10, 2006, then this Agreement shall be void ab initio and of no further
force and effect.
In consideration of the mutual promises and covenants contained in this
Agreement, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, we have agreed as follows:
1. SERVICES. Upon request by the Company, and at times mutually agreed upon
by the Company and you, you shall provide financial and accounting consulting
services to the Company up to forty hours per week (the "Consulting Services");
provided, however, that you may reduce the number of hours per week you work for
the Company in accordance with Section 5 below (with a commensurate reduction in
pay as described in Section 6 below). In performing the Consulting Services for
the Company, you shall provide consultation at such times and locations mutually
agreeable to the Company and you, and you shall devote your best efforts in the
performance of the foregoing services.
You acknowledge and agree that in providing Consulting Services you will
be an independent contractor for all purposes including, but not limited to,
payroll and tax purposes, and that you shall not represent yourself to be an
employee or officer of the Company.
2. ACKNOWLEDGMENTS. You acknowledge and agree that during the course of
performing services for the Company, the Company will furnish, disclose or make
available to you confidential and proprietary information related to the
Company's business, including confidential information of third parties with
whom the Company conducts business. You also acknowledge that such confidential
information to be provided by the Company has been developed and will be
developed by the Company through the expenditure by the Company of
substantial time, effort and money. You further recognize and acknowledge the
competitive and proprietary nature of the Company's business operations.
3. CONFIDENTIALITY; PROTECTED INFORMATION.
(a) You shall not disclose to the Company information that is
proprietary to any third party and is not generally available to the public
other than through formal technology transfer procedures.
(b) You shall at all times, both during and after any termination of
the consulting arrangement by either the Company or you, maintain in confidence
and shall not, without the prior written consent of the Company, use, except in
the course of performance of your duties for the Company, disclose or give to
others any fact or information which was disclosed to or developed by you during
the course of performing services for, or receiving training from, the Company,
and is not generally available to the public, including but not limited to
information and facts concerning business plans, customers, future customers,
suppliers, licensors, licensees, partners, potential partners, investors,
affiliates or other, training methods and materials, financial information,
sales prospects, client lists, Inventions (as defined in Section 4), or any
other scientific, technical, trade or business secret or confidential or
proprietary information of the Company or of any third party provided to you in
the course of your consultancy to the Company. You also agree not to file patent
applications based on the Company's technology or confidential information, nor
seek to make improvements thereon, without the Company's prior written approval.
You agree not to make any copies of such confidential or proprietary information
of the Company (except when appropriate for the furtherance of the business of
the Company and specifically authorized to do so) and promptly upon request,
whether during or after the period of the consulting arrangement, to return to
the Company any and all documentary, machine-readable or other elements or
evidence of such confidential or proprietary information, and any copies that
may be in your possession or under your control. In the event you are questioned
by anyone not employed by the Company, in regard to any such information or any
other secret or confidential work of the Company, or concerning any fact or
circumstance relating thereto, you will promptly notify the President of the
Company.
(c) Confidential or proprietary information subject to this Section 3
does not include information generated solely by you unless the information is
generated as a direct result of the performance of consulting services under
this Agreement.
4. OWNERSHIP OF IDEAS, COPYRIGHTS AND PATENTS.
(a) You agree that all ideas, discoveries, creations, manuscripts and
properties, innovations, improvements, know-how, inventions, designs,
developments, apparatus, techniques, algorithms, software, mask works, methods,
and formulae made, developed or improved by you in the Fields of Interest (as
defined below) whether or not reduced to practice and whether patentable,
copyrightable, protectable as mask works or not, which you may conceive, reduce
to practice or develop during the Term and for a period of one (1) year
thereafter, alone or in conjunction with another, or others, and whether at the
request or upon the suggestion of the Company, or otherwise, which (i) you
develop as a direct result of performing
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consulting services for the Company under this Agreement (all of the foregoing
being hereinafter referred to as "the Inventions"), shall be the sole and
exclusive property of the Company, and that you shall not publish or publicly
disclose any of the Inventions without the prior written consent of the Company.
You agree to assign and hereby assign to the Company all of your right, title
and interest in and to all of the foregoing. You agree to maintain and furnish
to the Company complete and current records of all such Inventions and disclose
to the Company in writing any such Inventions. Upon termination of your
consulting arrangement with the Company, you shall provide to the Company in
writing a full, signed statement of all Inventions in which you participated
prior to termination of the consulting arrangement. You further represent and
agree that to the best of your knowledge and belief none of the Inventions will
violate or infringe upon any right, patent, copyright, trademark or right of
privacy, or constitute libel or slander against or violate any other rights of
any person, firm or corporation, and that you will use your best efforts to
prevent any such violation.
(b) "Fields of Interest" as used herein means the development of
pharmaceuticals for magnetic resonance imaging, and the discovery and
development of novel, highly selective, small-molecule drugs that target
G-Protein Coupled Receptors and ion channels.
(c) At any time during or after the Term, you agree that you will
fully cooperate with the Company, its attorneys and agents, in the preparation
and filing of all papers and other documents as may be required to perfect and
protect the Company's rights in and to any of such Inventions, including, but
not limited to, joining in any proceeding to obtain and enforce letters patent,
copyrights, mask work registrations, trademarks or other legal rights of the
United States and of any and all other countries on such Inventions, provided
that the Company will bear the expense of such proceedings, and that any patent,
copyright, mask work registration, trademark, or other legal right so issued to
you, personally, shall be assigned by you to the Company without charge by you.
You hereby designate the Company as your agent for, and grant to the Company a
power of attorney with full power of substitution, which power of attorney shall
be deemed coupled with an interest, for the purpose of effecting the foregoing
assignments from you to the Company.
5. TERM OF CONSULTING ARRANGEMENT. Your services as a consultant to the
Company hereunder shall commence on August 11, 2006 and shall continue until
December 31, 2006, unless terminated earlier by you or the Company. You may
terminate this Agreement in full upon seven (7) days advance written notice to
the Company. In addition, upon seven (7) days advance written notice to the
Company, you may reduce the number of hours per week you will work for the
Company to a number of hours determined by you (but not more than forty) and
convert the terms of payment under this agreement to an hourly rate for actual
hours of consulting services provided as set forth in Section 6 below. The
Company can terminate this Agreement prior to December 31, 2006 only for "Cause"
(as such term is defined in the Retention Agreement between you and the Company
dated July 25, 2006. The period from August 11, 2006 to the earlier of December
31, 2006 or the effective date of termination by either party is referred to in
this Agreement as the "Term".
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6. FEES/EXPENSES.
(a) For performance of the Consulting Services, the Company shall pay
you a fee in the amount of $17,379.00 per month (pro-rated where you have been
engaged as a consultant under this Agreement for a partial month); provided,
however, that in the event you elect pursuant to Section 5 above to reduce the
number of hours per week that you work on behalf of the Company, then the
Company shall pay you two hundred dollars ($200.00) per hour actually worked on
behalf of the Company. The time and location of consulting shall be agreed to by
both parties. Payment will be made within thirty (30) days following receipt of
an invoice from you that provides a reasonable accounting of the time and
subject matter of your consulting during the prior month. The monthly fee, prior
to conversion to an hourly rate, shall not vary based on the number of days or
hours of services provided by you during any particular month of your engagement
hereunder.
(b) You shall bear the costs of business expenses, such as commuting
costs, tools, materials, supplies and the like, incurred by you in providing the
Consulting Services. The Company shall reimburse you for additional approved
expenses incurred by you, such as for equipment the Company requires you to
purchase in order to perform the Consulting Services and for out-of-town travel
and lodging.
(c) Any non-qualified option grants held by you as of the date of
termination of your employment shall continue to vest during the Term.
(d) If you terminate your services hereunder all of your compensation
of any nature shall cease and all unvested options shall terminate.
7. CONTINUING OBLIGATIONS. Your obligations under this Agreement under
Sections 2, 3, and 4 shall not be affected: (i) by any termination of your
consulting arrangement, including termination upon the Company's initiative;
(ii) by any change in your relationship with the Company; or (iii) by any
interruption in your consulting arrangement with the Company.
8. RECORDS. Upon request by the Company or termination of your consulting
relationship with the Company, you shall deliver to the Company any property of
the Company which may be in your possession including products, materials,
memoranda, notes, records, reports, laboratory notebooks, or other documents or
photocopies of the same, including without limitation any of the foregoing
recorded on any computer or any machine readable medium.
9. NO CONFLICTING AGREEMENTS. You hereby represent and warrant that you have
no commitments or obligations inconsistent with this Agreement. During the term
of this Agreement, you will not enter into any agreement either written or oral
in conflict with this Agreement and will arrange to provide your services under
this Agreement in such a manner and at times that your services will not
conflict with your responsibilities under any other agreement, arrangement or
understanding or pursuant to any employment relationship you have at any time
with any third party. If you are a party to any agreement which may be in
conflict with this Agreement, please so indicate by identifying that agreement
below your signature at the end of this Agreement and attaching a copy hereto.
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10. INDEPENDENT CONTRACTOR STATUS.
(a) You will act solely as an independent contractor hereunder and
shall conduct your operations as an independent contractor, and nothing in this
Agreement shall be construed to render you an employee of the Company. The
Company shall have no right to control or direct the details, manner or means by
which you accomplish the results of the Consulting Services.
(b) You understand and recognize that you are not an agent of the
Company and have no authority to and shall not bind, represent or speak for the
Company for any purpose whatsoever.
(c) The Company will record payments to you on an Internal Revenue
Service Form 1099, and the Company will not withhold any federal, state or local
employment taxes on your behalf. You agree to pay all such taxes in a timely
manner and as prescribed by law.
(d) You will not be considered an employee for purposes of any Company
employment policy or any employment benefit plan, and you will not be entitled
to any benefits under any such policy or benefit plan.
(e) You are free to provide services to other entities and individuals
so long as such services do not conflict with your obligations under Sections 3
or 4 hereunder or any similar obligations you have to the Company or your
ability to fulfill the Consulting Services.
11. INSURANCE/OTHER INDIVIDUALS.
(a) You agree to secure, pay for and maintain all insurances, licenses
and/or permits necessary to perform any of the Consulting Services, including
but not limited to securing general liability insurance and workers'
compensation insurance (to the extent and in such amount as is required by law
in any state in which you operate).
(b) If you retain anyone else to assist you in providing the
Consulting Services, you shall be fully responsible for all wages, fees,
benefits, taxes, reporting obligations, insurance, and other obligations
relating to such individual, and such individual shall not be deemed to have any
relationship with the Company whatsoever.
12. INDEMNIFICATION. You shall indemnify and hold harmless the Company, its
employees, directors, officers and agents from and against any and all claims,
demands, losses, damages or expenses (including attorneys' fees) that arise as a
result of your performance or non-performance of your obligations under Sections
10 and 11 of this Agreement.
13. WAIVER OF PROVISIONS. Failure of any party to insist, in one or more
instances, on performance by the other in strict accordance with the terms and
conditions of this Agreement shall not be deemed a waiver or relinquishment of
any right granted hereunder or of the future performance of any such term or
condition or of any other term or condition of this Agreement, unless such
waiver is contained in a writing signed by or on behalf of the waiving party.
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14. NOTICES. Any notice or other communication required or permitted
hereunder shall be deemed sufficiently given if sent by facsimile transmission,
recognized courier service or certified mail, postage and fees prepaid,
addressed to the party to be notified as follows: if to the Company to its
address set forth above, and if to you to your address set forth above, or in
each case to such other address as either party may from time to time designate
in writing to the other. Such notice or communication shall be deemed to have
been given as of the date sent by facsimile or delivered to a recognized courier
service, or three days following the date deposited with the United States
Postal Service.
15. GOVERNING LAW. This Agreement shall be governed by and construed and
enforced in accordance with the laws of the Commonwealth of Massachusetts,
without application of the conflicts of law provisions thereof.
16. ENTIRE AGREEMENT. This Agreement embodies the entire agreement and
understanding between the parties hereto regarding your consulting relationship
with the Company and supersedes all prior oral or written agreements and
understandings relating to such contractor relationship; provided that this
Agreement shall not supersede the Retention Agreement dated July 25, 2006 or the
Invention and Non-Disclosure Agreement dated March 3, 2003. No statement,
representation, warranty, covenant or agreement of any kind not set forth in
this Agreement shall affect, or be used to interpret, change or restrict, the
express terms and provisions of this Agreement.
17. INVALIDITY. This Agreement is intended to be performed in accordance
with, and only to the extent permitted by, all applicable laws, ordinances,
rules and regulations. If any provision of this Agreement, or the application
thereof to any person or circumstance, shall, for any reason and to any extent,
be invalid or unenforceable, the remainder of this Agreement and the application
of such provisions to other persons or circumstances shall not be affected
thereby, but rather shall be construed, reformed and enforced to the greatest
extent permitted by law.
18. INJUNCTIVE RELIEF. You hereby expressly acknowledge that any breach or
threatened breach of any of the terms and/or conditions set forth in Sections 2,
3, or 4 of this Agreement may result in substantial, continuing and irreparable
injury to the Company. Therefore, you hereby agree that, in addition to any
other remedy that may be available to the Company, the Company shall be entitled
to injunctive or other equitable relief by a court of appropriate jurisdiction
in the event of any breach or threatened breach of the terms of Sections 2, 3,
or 4 of this Agreement.
19. ASSIGNMENT. The Company may assign its rights and obligations hereunder
to any person or entity who succeeds to all or substantially all of the
Company's business or that aspect of the Company's business in which you are
principally involved. Your rights and obligations under this Agreement may not
be assigned without the prior written consent of the Company.
20. EXPENSES. Should any party breach this Agreement, in addition to all
other remedies available at law or in equity, such party shall pay all of any
other party's costs and expenses resulting therefrom and/or incurred in
enforcing this Agreement, including legal fees and expenses.
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21. MODIFICATION AND AMENDMENT. This Agreement shall not be modified or
amended except by an instrument in writing signed by or on behalf of the parties
hereto.
22. INTERPRETATION. The parties hereto acknowledge and agree that (i) the
rule of construction to the effect that any ambiguities are resolved against the
drafting party, and (ii) the terms and provisions of this Agreement, shall be
construed fairly as to all parties hereto and not in favor of or against a
party, regardless of which party was generally responsible for the preparation
of this Agreement.
23. PARTIES BENEFITED. Subject to the foregoing, this Agreement shall be
binding upon and inure to the benefit of the Company and any parent, subsidiary
or other affiliate of the Company, and their respective successors and assigns,
and shall be binding upon and inure to the benefit of you and your heirs,
executors and administrators.
24. PUBLICITY. The Company will not use your name in any commercial
advertisement or similar material that is used to promote or sell products,
unless the Company obtains in advance your prior written consent to such use.
25. HEADINGS. Section and other headings contained in this Agreement are for
reference purposes only and are in no way intended to define, interpret,
describe or otherwise limit the scope, extent or intent of this Agreement or any
of its provisions each of which shall be deemed an original, but all of which
together shall constitute one and the same document.
26. COUNTERPARTS. This Agreement may be executed in one or more counterparts
each of which will be deemed an original, but all of which together shall
constitute one and the same instrument.
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If the foregoing accurately sets forth our agreement, please so indicate by
signing and returning to us the enclosed copy of this Agreement.
EPIX PHARMACEUTICALS, INC.
By: /s/ Xxxxxx Xxxxxxxxx
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Name: Xxxxxx Xxxxxxxxx
Title: President and Chief Operating Officer
Accepted and Approved:
By: /s/ Xxxxxx Xxxxxxxxx
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Xxxxxx Xxxxxxxxx
Dated: July 25, 2006
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