CONSULTING AGREEMENT
Exhibit 99.2
May 5, 2006
Xxxxxxx X. Xxxxxx
[ADDRESS]
[ADDRESS]
This 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 Xxxxxxx X. Xxxxxx (“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 Chief Executive Officer (“CEO”) effective May 5, 2006, (b) you have received all
compensation due to you relating to your employment with EPIX and the termination thereof, and (c)
you will not be providing services as CEO pursuant to this Agreement and do not wish to have any
employment relationship with EPIX going forward.
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 consulting services to the Company (the “Consulting Services”).
In performing the Consulting Services for the Company, you shall provide consultation at such times
and locations mutually agreeable to the Company and you. You shall devote your best efforts in the
performance of the foregoing services.
You acknowledge and agree that 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 the Effective Date and shall continue until July 31, 2006 (the “Term”);
provided, however, that the Company may terminate this Agreement by giving not less than thirty
(30) days prior written notice to you at any time.
6. Fees.
(a) For performance of the Consulting Services, the Company shall pay you a fee in the amount
of three hundred dollars ($300) per hour, payable within thirty (30) days following receipt of an
invoice from you which provides a reasonably detailed accounting of the time and subject matter of
your consulting during the prior month.
(b) If you terminate your services hereunder all of your compensation of any nature shall
cease.
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7. Continuing Obligations.
(a) Your obligations under this Agreement under provisions of Sections 2, 3, 4, and 7 shall
not be affected: (i) by any termination of your consulting arrangement, including termination upon
the Company’s initiative; or (ii) by any change in your relationship with the Company; or (iii) by
any interruption in your consulting arrangement with the Company.
(b) Termination of this Agreement shall not affect the Company’s obligation to pay for
expenses reasonably incurred by you for which you are entitled to reimbursement under Section 6
above.
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.
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.
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(e) You are free to provide services to other entities and individuals so long as such
services do not conflict with your obligations under Sections3 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.
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 and supersedes all prior oral or written agreements and understandings
relating to the subject matter hereof; provided that this Agreement shall not supersede
Sections 5, 6, 7, or 8 of the Employment Agreement executed by you on September 21, 2005. No
statement, representation, warranty, covenant or agreement of any kind not set
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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.
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.
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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.
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/ XXXXXXXXXXX F.O. GABRIELI | |||
| Name: | Xxxxxxxxxxx F.O. Gabrieli | |||
| Title: | Chairman of the Board of Directors | |||
Accepted and Approved:
| By: | /s/ XXXXXXX X. XXXXXX | |||
| Xxxxxxx Xxxxxx | ||||
Dated: May 5, 2006
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