CONSULTING AGREEMENT
This CONSULTING AGREEMENT (the "Agreement") is made by and between Xxxxxx
X. Xxxxxx, MD an individual with an address of Center for Neurologic Diseases,
Harvard Medical School, Xxxxxxx and Women's Hospital, 000 Xxxxxxxx Xxxxxx--XXXX,
Xxxxxx, XX 00000 ("Consultant"), and Elan Pharmaceuticals, Inc., a Delaware
corporation with an address of 000 Xxxxxxx Xxxxxxxxx, Xxxxx Xxx Xxxxxxxxx,
Xxxxxxxxxx 00000 ("Elan"), and is effective as of April 1, 2002 ("Effective
Date").
RECITALS
A. Consultant possesses special expertise and knowledge in the field of
Alzheimer's disease, including but not limited to issues related to
immunological response to AB ("Consultant Field"); and
B. An Affiliate of Elan and American Home Products Corporation, a Delaware
corporation, together with its Affiliates, acting through its Wyeth-Ayerst
Laboratories Division (collectively, "AHP") have entered into a collaboration
with respect to the treatment and/or prevention of Alzheimer's disease and/or
Mild Cognitive Impairment using immunological approaches directed at one or more
epitopes of AB (the "Project").
C. Elan has need for Consultant's services with respect to Alzheimer's
disease in connection with the Project ("Elan Field"); and
D. Elan and Consultant now desire to enter into this Agreement whereby
Consultant shall perform consulting services for Elan on the terms and
conditions set forth below.
AGREEMENT
NOW, THEREFORE, Consultant and Elan agree as follows:
1. Description of Services. Subject to the terms and conditions of this
Agreement, Consultant shall perform services for Elan, at times and locations
determined by Elan. Such services shall include, without limitation, serving on
the Project's Scientific Advisory Panel to the Joint Leadership Team, attending
committee meetings, and providing review of and advice on the merit or value of
the Project's research and development, as well as information on new
developments and opportunities in the Elan Field.
2. Term and Renewal. This Agreement shall be effective as of the Effective
Date and shall remain in effect for a period of one (1) year, renewable each
year thereafter, unless terminated pursuant to this Agreement. This Agreement
may only be renewed for additional periods on terms mutually agreed upon in
writing by the parties. Neither party shall have any obligation to renew this
Agreement.
3. Fees and Expenses.
(a) In return for services actually rendered, Elan will pay Consultant at a
rate of Four Thousand Dollars ($4,000) for the term of this Agreement and an
additional One Thousand Two Hundred Dollars ($1,200) per day for each meeting.
(b) Elan shall also reimburse Consultant for all out-of-pocket expenses
actually incurred by Consultant in rendering services under this Agreement so
long as such expenses, in Elan's opinion, are reasonable and necessary. Such
expenses will include reasonable and necessary travel (air travel to be coach
class only), lodging and meals. Consultant shall provide Elan with a written
expense report, complete with receipts or other reasonable documentation, for
all such expenses requested for reimbursement.
(c) The aggregate fees and expenses payable to Consultant hereunder shall
not exceed Twelve Thousand Dollars ($12,000) for the term of this Agreement
without Elan's prior written consent.
4. Invoices. Amounts due hereunder shall be payable no later than thirty
(30) days from Elan's receipt of a written invoice with an expense report and
accompanying supporting documentation therefor.
5. Confidentiality; Proprietary Information; Intellectual Property.
(a) Any and all information which Elan may disclose to Consultant under
this Agreement will be considered confidential, including, but not limited to,
information related to the Elan Field.
(b) Consultant further agrees that all discussions and negotiations with
respect to this Agreement are confidential.
(c) Consultant understands that Elan and/or AHP possesses and will continue
to possess information that has been created, discovered or developed, or has
otherwise become known to Elan and/or AHP or their respective Affiliates and/or
in which property rights have been assigned or otherwise conveyed to it, which
information has commercial value in the business in which such entity is
engaged. Affiliate(s) shall mean, with respect to any person or entity, any
other person or entity which controls, is controlled by or is under common
control with such person or entity. A person or entity shall be regarded as in
control of another entity if it owns or controls at least fifty percent (50%) of
the equity securities of the subject entity entitled to vote in the election of
directors (or, in the case of an entity that is not a corporation, for the
election of the corresponding managing authority), provided, however, that the
term "Affiliate" shall not include subsidiaries or other entities in which a
Party or its Affiliates owns a majority of the ordinary voting power necessary
to elect a majority of the board of directors or other governing board, but is
restricted from electing such majority by contract or otherwise, until such time
as such restrictions are no longer in effect.
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All such information, including the information described in Sections 5 (a) and
(b) above, and including any other information developed by or on behalf of
Consultant pursuant to this Agreement, is hereinafter referred to as
"Proprietary Information." By way of illustration, but not limitation,
Proprietary Information includes trade secrets, processes, formulae, data and
know-how, improvements, inventions, techniques, marketing plans, strategies,
forecasts and customer and contact lists. Accordingly, Consultant further agrees
as follows:
(i) All Proprietary Information shall be the sole property of Elan
and/or AHP and their respective Affiliates and assigns, and such parties
shall be the sole owners of all patents and other rights in connection
therewith. At all times during this Agreement and at all times after
expiration or termination of this Agreement, Consultant will keep in
confidence and trust all Proprietary Information, and will not use or
disclose any Proprietary Information without the prior written consent of
Elan, except as may be necessary in the ordinary course of performing the
duties of Consultant hereunder. No announcement, oral presentation or
publication of any kind relating to any Proprietary Information shall be
made by Consultant without the prior written consent of Elan; and
(ii) All documents, data, records, apparatus, equipment and other
physical property, whether or not pertaining to Proprietary Information,
furnished to Consultant by or on behalf of Elan or developed by or on
behalf of Consultant pursuant to this Agreement, shall be and remain the
sole property of Elan and/or AHP and their respective Affiliates and
assigns and shall be returned promptly as and when requested by Elan except
that Consultant shall be permitted to retain one (1) copy of such
Information in its legal files solely for the purposes of verifying
compliance with the terms thereof. Should Elan not so request, Consultant
agrees to return and deliver all such property upon expiration or
termination of this Agreement for any reason and Consultant shall not
retain or reproduce any such property upon expiration or termination.
Nothwithstanding the foregoing, Proprietary Information shall not be deemed to
include information that Consultant can demonstrate (a) was lawfully in
Consultant's possession prior to the date of disclosure, (b) becomes public or
available to the public through no fault or omission of Consultant amounting to
breach of this Agreement, (c) has been lawfully obtained by Consultant from a
third party which is in lawful possession of such information, or (d) is
required to be disclosed by law, in which case Consultant will give Elan as much
advance notice of the proposed disclosure as is practical (including a copy of
any written request or order), and will cooperate with Elan in any effort to
limit or restrict such disclosure, via a protective order or otherwise.
(d) Consultant further agrees as folows:
(i) Consultant shall promptly disclose to Elan or its designee all
intellectual property (including, but not limited to any inventions,
improvements, formulae, processes, techniques, know-how, data, patents or
applications for patents, trade secrets, trademarks, copyrights and
confidential information as described in this Section 5), made or conceived
or reduced to practice or learned by Consultant (collectively,
"Intellectual Property") which: (A) result from the tasks assigned to
Consultant hereunder; (B) are funded by or on behalf
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of Elan or AHP; or (C) result from the use or property or premises owned,
leased or contracted for by or on behalf of Elan or AHP.
(ii) Consultant agrees to and does hereby sell, assign, transfer and
set over to Elan, and/or AHP or their respective successors or assigns, as
the case may be, all right, title and interest in and to all Intellectual
Property developed or conceived individually or in conjunction with others
in performance of this Agreement, to be held and enjoyed by Elan, and/or
AHP or the respective successors or assigns, as the case may be, to the
full extent of the term for which any Letters Patent may be granted and as
fully as the intellectual property would have been held by Consultant had
this Agreement, sale or assignment not been made.
(iii) Consultant shall execute and deliver any and all instruments and
documents and perform any and all acts, necessary to obtain, maintain or
enforce patents, trademarks, trade secrets and copyrights for such
Intellectual Property, and shall make, execute and deliver any and all
instruments and documents and perform any and all acts necessary to obtain,
maintain or enforce patents, trademarks, trade secrets and copyrights for
such Intellectual Property as Elan may designate in any and all countries.
All costs and expenses of application and prosecution of such patents,
trademarks, trade secrets and copyrights shall be paid by Elan.
(iv) Any copyrightable material prepared by Consultant as a result of
Consultant's activities with Elan, in performance of this Agreement, are
prepared as works for hire for the benefit of Elan and/or AHP. Consultant
hereby assigns to Elan and/or AHP, as Elan shall designate, any copyright
to which Consultant is entitled for any copyrightable material prepared in
the course of the performance of this Agreement for Elan. Elan and or AHP
shall have the right to reproduce, modify and use such material and all
results generated as the result of services rendered under this Agreement
for any purpose related to its lawful business.
(v) Upon the written request of Elan, Consultant shall make any
assignment provided for in this Section 5 directly to, or for the benefit
of, an Elan Affiliate or Elan's designee, including Consultant's
performance of any related obligations hereunder.
6. Remedies. (a) Consultant acknowledges that Elan will have no adequate
remedy at law if Consultant breaches the terms of Section 5 hereof. Accordingly,
in such event, Elan shall have the right, in addition to any other rights it may
have at law or equity, to obtain in any tribunal of competent jurisdiction
injunctive relief to restrain any breach or threatened breach. (b) If, due to
reasons within Consultant's reasonable control, Consultant's products or
services fail to meet standards generally accepted in the applicable industry,
or if Consultant fails to provide agreed-upon products or services in a timely
manner Elan shall have the right, in addition to any other remedy it may have at
law or equity, to: (i) terminate this Agreement immediately upon written notice
to Consultant; (ii) require that defective products or services be replaced or
remedied, as the case may be, without charge to Elan; and (iii) correct, or have
corrected by a third party, the defective product or service and withhold from
amounts owing to Consultant hereunder all amounts incurred by Elan in taking
such corrective measures.
7. Termination. This Agreement may be terminated (a) by Elan with or
without cause upon thirty (30) days' prior written notice to Consultant, or (b)
by Consultant in
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the event of a material breach by Elan, provided that Consultant provides Elan
with written notice of such breach and Elan fails reasonably to cure such breach
within thirty (30) days of receipt of such notice.
In the event this Agreement is terminated by Elan pursuant to this Section
prior to completion of the work to be performed, Consultant shall be entitled to
receive an equitable proration of the fee for work performed through the
effective date of termination.
The provisions of Sections 5-6 and 9-14, inclusive, shall survive any
termination of this Agreement.
8. Independent Contractor. Nothing in this Agreement shall be construed to
create an employment relationship between Consultant and Elan or AHP. Consultant
shall be an independent contractor and shall have no authority to enter into
contracts on behalf of Elan or AHP, bind Elan or AHP to any third parties or act
as an agent on behalf of Elan or AHP in any way. Consultant shall not be
entitled to receive any compensation, or medical or other benefits as an Elan or
AHP employee. Accordingly, Consultant shall account for and report, and be
liable for the payment of all applicable federal and state income taxes, social
security taxes, and all other taxes due on payments received by Consultant
hereunder. Consultant hereby acknowledges that Elan will report as compensation
all payments to Consultant hereunder.
9. Consultant's Representations and Warranties. Consultant hereby
represents and warrants to Elan that (a) Consultant has the authority to enter
into and perform this Agreement and (b) performance of Consultant's services as
contemplated by this Agreement will not result in the breach or violation of any
contract, arrangement or understanding (including without limitation any
intellectual property rights or any agreement of confidentiality or
non-disclosure, whether written or oral) which Consultant may have with any
third party (including without limitation current and former employers of
Consultant and any other companies or persons for which Consultant has performed
or is performing consulting services).
10. Compliance Standards. During the term of this Agreement and any renewal
term, Consultant shall comply with all applicable laws, rules and regulations in
the conduct of the services being performed.
11. Severability. If any provision of this Agreement is declared void or
unenforceable, such provision shall be deemed modified to the extent necessary
to allow enforcement, and all other portions of this Agreement shall remain in
full force and effect.
12. Entire Agreement Amendments. This Agreement contains the entire and
complete agreement between the parties with respect to the subject matter
hereof, and supersedes all prior oral and/or written agreements with respect to
the subject matter hereof, other than any currently effective confidentiality
agreement. Any changes to this Agreement must be in writing and signed by both
parties.
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13. Successors. No portion of this Agreement may be assigned by Consultant
without Elan's prior written consent. This Agreement shall be binding upon and
inure to the benefit of the successors, permitted assigns and legal
representatives of the parties.
14. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of California, and the parties agree to
personal jurisdiction and venue in the state and federal courts of San
Francisco, California, in any suit or proceeding arising out of the subject
matter of this Agreement.
15. AHP shall be a third party beneficiary hereof.
DATED as of the Effective Date, and executed by:
ELAN PHARMACEUTICALS, INC. XXXXXX X. XXXXXX, MD
By: /s/ Xxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxx X. Xxxxxx, Ph.D.
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Title: Senior Vice President
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Discovery Research
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