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CONSULTING SERVICES AGREEMENT
EXHIBIT 10.31
This AGREEMENT (this "Agreement") dated December 31, 1998, but
effective as of January 1, 1998 (the "Effective Date") between XXXXXX X.
XXXXXXXXX, 0 Xxxxxx Xxxx, Xxxxxxxxx Xxxxx, Xxxxxxxxxxxxx , 00000 (Consultant"),
and GENZYME CORPORATION, a Massachusetts corporation having an office and
principal place of business at Xxx Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxxxxx
00000 ("Genzyme").
In consideration of the premises and covenants and undertakings set
forth below, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Consulting Services. Genzyme hereby engages Consultant as an independent
contractor to provide consulting services for Genzyme in connection with (i) its
general business, and (ii) various strategic alternatives available to Genzyme
to further develop its business, including mergers, acquisitions, joint ventures
and other types of business collaborations.
2. Compensation for Consulting Services.
(a) Genzyme shall pay Consultant a fee of $2,000 per day, and for
partial days at a rate of $250 per hour, for consulting services rendered by
Consultant and reported on his Activity Report (as hereafter defined).
(b) Genzyme shall reimburse Consultant for all reasonable out-of-pocket
expenses reported by Consultant on his Activity Report; provided, that such
expenses are confirmed by appropriate supporting documentation as Genzyme may
from time to time require and are approved by Genzyme. Expenses subject to
reimbursement shall include, but shall not be limited to, costs incurred by
Consultant for travel, lodging, meals, office supplies and other costs directly
related to the provision the consulting services. In addition to other
reasonable travel policies that may be established by Genzyme from time to time,
for air travel flights of less than six (6) hours, reimbursement shall be
limited to coach class fares, and for air travel flights greater than six (6)
hours, reimbursement shall be limited to business class fares.
3. Activity Report.
(a) Consultant shall submit to Genzyme from time to time a report (the "Activity
Report") substantially in the form attached hereto as Exhibit A. The Activity
Report shall include a description of the consulting services performed, the
number of days of consulting services provided by Consultant, and an itemization
of out-of-pocket expenses incurred in performing such consulting services. The
Activity Report shall be the basis for confirming the compensation payable to
Consultant under Section 2 of this Agreement.
4. Independent Contractor Status.
It is understood and agreed between the parties that during the period
Consultant renders consulting services hereunder, all of his activities shall be
undertaken and performed as an independent contractor. Consultant shall have no
rights to receive any employee benefits, such as health and accident insurance,
sick leave or vacation, which are afforded by Genzyme to regular employees.
Consultant shall not in any way represent himself or herself to be an employee,
partner, joint venturer, agent or officer of or with Genzyme.
5. Assignment and Subcontracting.
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Consultant may not assign this Agreement or subcontract the performance
of any consulting services to another person or entity without the express
written permission of Genzyme.
6. Confidential Proprietary Information.
Both parties acknowledge that each owns or are entrusted with and use
confidential and proprietary information which may include, without limitation,
computer programs, inventions, discoveries, tools, machines, articles of
manufacture, mechanisms, jigs, fixtures, methods, processes, compositions,
mixtures, formulas, designs, techniques of production, manufacture or assembly,
know-how, show-how, trade secrets, patent applications, technical data or
specifications, testing methods, information which concerns their financial
affairs, marketing practices, internal policies and procedures, research and
development activities, products, contracts, suppliers or customers
("Confidential Information"). The parties acknowledge that during the
performance of this Agreement, each may become privy to the Confidential
Information of the other or its affiliates. Notwithstanding the foregoing, both
parties agree that neither obtains any title to or interest or license in such
Confidential Information of the other, and that all such Confidential
Information is owned exclusively by its respective owner.
(a) Restrictions on Use and Disclosure. Each of the parties shall use the
Confidential Information of the other solely for the purposes set forth in this
Agreement. Each party shall maintain in strict confidence the Confidential
Information of the other, except that Genzyme may disclose or permit disclosure
of Consultant's Confidential Information to its directors, officers, employees
and advisors who are obligated to maintain the confidential nature of such
Confidential Information and who need to know such Confidential Information for
the purposes set forth in this Agreement. During the term of this Agreement, and
for a period of five (5) years thereafter, irrespective of the manner of or
reason for termination of this Agreement, neither party shall disclose, divulge,
publish to others or use in any manner any such Confidential Information of the
other without the prior written consent of the other. Upon the expiration or
termination of this Agreement, each party shall return to the other party all
originals, copies and summaries of documents, materials and other tangible
manifestations of Confidential Information in the possession or control of such
party, except that each party may retain one copy of such Confidential
Information in the possession of its legal counsel for purposes of monitoring
its obligations under this Agreement. Both parties further acknowledge that any
unauthorized disclosure or use of Confidential Information of the other would
substantially and irreparably damage and impair the business of the other;
therefore, the other party shall have, in addition to any remedies available at
law, the right to obtain equitable relief to enforce the provisions of this
Section 6.
(b) Subject Matter Excluded From Restrictions. The foregoing proscription
against use, disclosure and copying by one party (the "Receiving Party") does
not apply to information or data of the other party (the "Disclosing Party")
which (i) can be shown by written documents to have been known by the Receiving
Party prior to disclosure hereunder other than as a result of some breach of the
Disclosing Party's rights in and to such confidential proprietary information;
(ii) is available in published print or is otherwise known to the public, unless
published or made known as a result of some act or omission of the Receiving
Party; (iii) can be shown by written documents to have been obtained by the
Receiving Party in writing from a third party who did not wrongfully acquire
such information or data from the Disclosing Party and who has no obligation of
confidentiality to the Disclosing Party with respect to such information; (iv)
can be shown by written documents to have been independently developed by the
Receiving Party or its affiliates without breach of any of the provisions of
this Agreement; or (v) is disclosed by the Receiving Party pursuant to a
subpoena lawfully issued by a court or governmental agency, provided that such
party notifies the Disclosing Party immediately upon receipt of any such
subpoena.
(c) Additional Obligations of Consultant. The Consultant agrees not to
disclose to representatives of Genzyme any information which is secret or
confidential information belonging to a third party or with respect to which the
Consultant is under an obligation to a third party not to disclose. Similarly,
if during the term of this Agreement, the Consultant discloses any ideas to
Genzyme which were conceived prior to the term of this Agreement or are outside
the scope of the consultancy under this
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Agreement, Genzyme shall have no liability to the Consultant because of his use
of such ideas, except that this shall not be construed as a license under any
valid patent now or hereafter issued thereon. The Consultant has not brought and
will not bring to Genzyme or use in the performance of this Agreement any
materials or documents of any current or former employer which are not generally
available to the public, unless the Consultant shall have obtained written
authorization from such employer for the possession and use of such materials or
documents.
7. Term and Termination.
(a) Term and Renewal. The initial term of this Agreement shall be for a
period of one (1) year from the Effective Date hereof. The term of this
Agreement shall be extended automatically at the end of its initial term and any
subsequent renewal term for an additional one (1) year period without notice and
without amendment, unless a party provides written notice to the other party of
its election not to extend this Agreement. The terms and conditions in effect at
the end of the initial period and any subsequent renewal term shall continue to
apply during the renewal period following each automatic extension.
(b) Termination. Either party may terminate this Agreement without cause upon
written notice to the other party.
(c) Effect of Termination. Upon termination of this Agreement, neither
party shall have any further obligations under this Agreement, except (i) the
liabilities accrued through the date of termination, and (b) the obligations
which by their terms survive termination. The provisions of Section 6 and this
Section 7(c) shall survive the expiration or termination of this Agreement.
8. Ownership of Work Product. Any products, methods, approaches or ideas made or
conceived by Consultant in connection with or during the performance of the
consulting services under this Agreement, whether developed alone or in
conjunction with Genzyme, shall be the property of Genzyme, free of any
restrictions of any kind maintained or asserted by you or any third party.
9. Notices.
All notices contemplated herein shall be deemed sufficient when given
or made in writing and personally delivered or sent by registered or certified
mail (return receipt requested, postage prepaid) or by the so-called next
business day service of an overnight carrier of national reputation (with
evidence of delivery) to the receiving party and his, her or its representative
at the addresses set forth below, or at such further addresses as may be
hereafter specified in writing:
To Consultant:
Xxxxxx X. Xxxxxxxxx
0 Xxxxxx Xxxx
Xxxxxxxxx Xxxxx, XX 00000
To Genzyme:
Genzyme Corporation
Xxx Xxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attn: Xxxxx X. Xxxxxxx
10. Governing Law.
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This Agreement and the rights and obligations of the parties hereunder
shall be construed in accordance with and be governed by the laws of the
Commonwealth of Massachusetts, without giving effect to the conflict or choice
of law provisions thereof.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the date
first written above.
XXXXXX X. XXXXXXXXX GENZYME CORPORATION
/s/ Xxxxxx X. Xxxxxxxxx By: /s/ Xxxxx Xxxxx
Xxxxx Xxxxx
Executive Vice President
rwhesslein
Xxxxxxx\consult\carepent2
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EXHIBIT A
ACTIVITY REPORT
Name: ________________________________________________
Address: _____________________________________________
Report Period: _______________________________________
Report Date: _________________________________________
Project/Activity Date(s) Consulting Services Rendered~Description of Consulting
Services~Location(s) Consulting Services Rendered~Consulting Hours~Expenses
Subject to Reimbursement* TOTALS__________ Total Consulting Hours Year-to-Date:
______________________
* Expenses listed in this Activity Report must be confirmed by appropriate
supporting documentation, including receipts, invoices, credit card statements
and other similar documents. All requests for expense reimbursement will
be considered under Genzyme's general reimbursement polices and practices
for consultants and the specific understandings contained in written
agreements between Genzyme and Consultant. In all cases, reimbursement
for expenses is subject to Genzyme's reasonable approval.
