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EXHIBIT 10.5
CONSULTING AGREEMENT
This Consulting Agreement (this "Agreement") is entered into effective
as of October 15, 1997 (the "Effective Date") between DYAX CORP. ("Dyax"), a
Delaware corporation, with its principal executive offices at One Xxxxxxx
Square, Bldg. 600, 5th Fl., Xxxxxxxxx, XX 00000, and XXXXX X. XXXXXXX
("Consultant"), of 000 Xxxx Xxx., Xxxxxxxxx, XX 00000.
ARTICLE 1. RECITALS
1.1. Dyax, on behalf of itself and its subsidiaries and successors,
whether now existing or hereafter acquired or established (severally and
collectively, the "Company") desires to obtain the services of Consultant, and
Consultant is willing to render his services in assisting the strategic
direction of the Company's technology and business (the "Field of Interest"),
upon the terms and conditions set forth below.
1.2. Consultant has executed a Consultant Confidentiality and
Inventions Agreement with the Company dated effective as of the Effective Date
(the "Confidentiality Agreement"), a copy of which is attached hereto as
EXHIBIT 1.
1.3. Capitalization terms used in this Agreement but not defined
herein shall have the meaning assigned in the Confidentiality Agreement.
NOW, THEREFORE, in consideration of the mutual promises contained
herein, the Company and Consultant hereby agree as follows:
ARTICLE 2. ENGAGEMENT AND SCOPE OF WORK
2.1. ENGAGEMENT. Subject to the following terms and conditions,
the Company hereby retains the Consultant to serve as a member of the Company's
Strategic Advisory Board and to perform such consulting and advisory services in
the Field of Interest as the Company may from time to time reasonably request,
and Consultant accepts such engagement. such consulting and advisory services
are referred to herein as the "Services".
2.2. COMMITMENT. Consultant agrees to make himself available to render
the Services from time to time as requested by the Company at such times and
locations as may be mutually agreed, provided that the Consultant shall not be
required to devote time equivalent to more than one day per month to the
performance of the Services.
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ARTICLE 3. PAYMENTS AND INVOICES
3.1. MONTHLY RETAINER RATE. For all services under this Agreement,
Dyax will pay consultant a fee at the rate of US$1,250 per month. Consultant
acknowledges and agrees that the foregoing schedule of fees shall be full
compensation for Consultant's services during the term of this Agreement. Fees
will be paid monthly in arrears.
3.2. STOCK OPTIONS. Subject to the approval of the Board of Directors,
the Company shall grant Consultant a nonstatutory stock option to purchase
15,000 shares of the Company's Common Stock pursuant to the Company's 1995
Equity Incentive Plan (the "Option") at the then fair market value of the
Company's Common Stock as determined in good faith by the Company's Board of
Directors. So long as Consultant is providing Services to the Company, the
Option shall become exercisable over a period of four years in accordance with
the Company's customary schedule for members of its other advisory boards.
Consultant's options shall be subject to the terms of the Company's standard
form of Nonstatutory Stock Option Certificate, and his acceptance thereof shall
evidence his acceptance of the terms and conditions of the Option set forth
therein.
3.3. EXPENSES. Travel and related expenses incurred by Consultant in
connection with the performance of Services under this Agreement will be
reimbursed at actual costs by the Company in accordance with general policies
and procedures established by the Company from time to time. No reimbursement
will be made for any expenses other than travel and related expenses incurred by
Consultant during the performance of services under this Agreement unless such
expenses are approved in advance by the Company. All approvals by the Company
must be given or confirmed in writing; expense approvals can be requested from
the President or any Executive Vice President of the Company.
ARTICLE 4. CONFIDENTIALITY AND INVENTIONS
4.1. CONFIDENTIALITY AND INVENTIONS. Consultant has executed, or in
connection with this Agreement is executing the "Confidentiality Agreement" with
the Company, and he agrees to be bound by the terms of the Confidentiality
Agreement.
ARTICLE 5. REPRESENTATIONS AND WARRANTIES OF CONSULTANT
5.1. COMPLIANCE WITH EMPLOYER'S POLICIES. Consultant is responsible
for ensuring that any consulting agreement Consultant enters into is not in
conflict with the patent, consulting or other policies of his employer, and that
Consultant is responsible for disclosing the activities contemplated by any such
consulting agreement to the employer. Consultant represents and warrants (i)
that Consultant has determined that this Agreement complies with all such
policies of the employer and (ii) that Consultant has made such disclosure.
Consultant agrees to keep the employer informed of any changes in his activities
hereunder and to obtain any necessary formal approvals, consents, waivers and
other agreements or actions from or by the employer as may be required by the
employer in connection with this Agreement and the Confidentiality Agreement.
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5.2. ABSENCE OF RESTRICTIONS. Except for the consultants existing and
future fiduciary and confidentiality obligations to others, Consultant is
presently under no contractual or other restrictions or obligation which is
inconsistent with Consultant's execution of this Agreement or the
Confidentiality Agreement or the performance of the Services, and during the
Term, Consultant will not enter into any agreement, either written or oral, in
conflict with this Agreement or the Confidentiality Agreement.
ARTICLE 6. TERM AND TERMINATION
6.1. TERM. This Agreement shall have an initial term of twelve (12)
months ending on the first anniversary of the Effective Date and may be extended
by mutual agreement for additional one year periods.
6.2. Termination. This Agreement may be terminated by either the
Company or Consultant upon not less than thirty (30) days prior written notice
to the other party. The provisions of the Confidentiality Agreement shall
survive for a period of 3 years following any termination of this Agreement.
ARTICLE 7. MISCELLANEOUS
7.1. INDEPENDENT CONTRACTOR. Consultant is an independent contractor
under this Agreement. He is not an employee or agent of the Company and as a
result will not be entitled to participate in, or receive any benefit or right
as an employee under any employee benefit or welfare plan of the Company nor
have authority to represent or bind the Company in any manner in dealings with
third parties. Consultant shall have sole responsibility for payment of all
federal, state and local taxes or contributions imposed or required under
unemployment insurance, social security and income tax laws and for filing all
required tax forms with respect to any amounts paid by the Company to Consultant
hereunder. Consultant shall indemnify and hold the Company harmless against any
claim or liability (including penalties) resulting from failure of Consultant to
pay such taxes or contributions or file any such tax forms.
7.2. NOTICES. All notices, requests, demands and other communications
to be given pursuant to this Agreement shall be in writing and shall be deemed
to have been duly given to a party if delivered by hand or mailed by registered
or certified mail, return receipt requested, postage prepaid, to such party at
its address set forth in the first paragraph or at such other address as such
party shall have designated by notice in writing to the other party.
7.3. NO CONFLICTING AGREEMENTS. Consultant represents that his
performance of all the terms of this Agreement does not and will not breach any
agreement or obligation to keep in confidence proprietary information acquired
by him in confidence or in trust. Consultant has not entered into, and
Consultant agrees he will not enter into, any agreement either written or oral
in conflict herewith. Notwithstanding the foregoing, the Company acknowledges
that it is the nature of Consultant's business that at some time in the future,
Consultant may make an investment(s) in a company(ies) which is in a similar
and/or competing business as the Company. It is understood by the Company that
the general knowledge Consultant obtains from his consulting relationship with
the Company may
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influence his future investment decisions and that this does not constitute a
violation of this Agreement.
7.4. SEVERABILITY. If any one or more of the provisions of this
Agreement shall, for any reason, be held to be invalid, illegal or unenforceable
in any respect, it shall not affect any other term or provisions of this
Agreement. If any provision in this Agreement shall be held to be excessively
broad, it shall be construed by limiting it so as to be enforceable to the
extent with applicable law.
7.5. CAPTIONS. Captions of sections have been added only for
convenience and shall not be deemed to be a part of this Agreement.
7.6. BINDING EFFECT. Consultant's obligations under this Agreement
shall be binding upon his heirs, executors and administrators and shall inure to
the benefit of the Company's successor's and assigns.
7.7. COMPLETE AGREEMENT; AMENDMENTS. This Agreement, together with the
Confidentiality Agreement, constitutes the entire agreement between the parties
with respect to the subject matter hereof and may not be modified or amended
except in a writing signed by both parties.
7.8. RIGHTS OF PUBLICITY. The Company shall have the right to use
Consultant's name and likeness in any publicity materials prepared by it and in
presentations to current or prospective clients, investors and others.
Consultant shall not have the right to use the Company's name in any
publications or publicity or materials prepared by him without obtaining the
prior written consent of the Company.
7.9. APPLICABLE LAW. This Agreement shall be considered to have been
made in the United States, and shall be interpreted in accordance with the laws
of the Commonwealth of Massachusetts, United States of America, and the parties
hereby submit to the jurisdiction of the courts of that state.
7.10. NONWAIVER PROVISION. The waiver by either party hereto of any
right hereunder or the failure to perform or of a breach by the other party
shall not be deemed a waiver of any other right hereunder or of any breach or
failure by said other party whether similar nature or otherwise.
7.11. ASSIGNMENT. Neither this Agreement nor any rights hereunder shall
be assignable by either party hereto without the prior written consent of the
other party.
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7.12. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original and all of which
together shall be deemed to be one and the same instrument.
IN WITNESS HEREOF, the Company and the Consultant have duly executed
and delivered this Agreement as of the date first written above.
DYAX CORP. XXXXX X. XXXXXXX
By: /s/ Xxxxx X. Xxxxx By: /s/ Xxxxx X. Xxxxxxx
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EXHIBIT 1
CONSULTANT CONFIDENTIALITY AND INVENTIONS AGREEMENT
In consideration of my engagement as a consultant to Dyax Corp. or any
of its predecessors, successors or subsidiaries (collectively, the "Company"),
and for other valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, I agree as follows:
CONFIDENTIALITY
I understand that the Company continually obtains and develops valuable
proprietary and confidential information concerning it business, business
relationships and financial affairs (the "Confidential Information") and
valuable Biological Materials which may become known to me in connection with my
consulting arrangement with the Company. By way of illustration, but not
limitation, Confidential Information may include Inventions (as hereafter
defined), trade secrets, technical information, know-how, research and
development activities of the Company, product and marketing plans, customer and
supplier information and information disclosed to the Company or to me by third
parties of a proprietary or confidential nature or under an obligation of
confidence. Confidential Information is contained in various media, including
without limitation, patent applications, computer programs in object and/or
source code, flow charts and other program documentation, manuals, plans,
drawings, designs, technical specifications, laboratory notebooks, supplier and
customer lists, internal financial data and other documents and records of the
Company. "Biological Materials" may include, without limitation, any and all
reagents, substances, chemical compounds, subcellular constituents, cells or
cell lines, organisms and progeny, mutants, derivatives or replications thereof
or therefrom.
I acknowledge that all Biological Materials and all Confidential
Information, whether or not in writing and whether or not labeled or identified
as confidential or proprietary, is and shall remain the exclusive property of
the Company or the third party providing such information to me or the Company.
I agree that I shall not, during the term of my consulting arrangement with the
Company and thereafter, publish, disclose or otherwise make available to any
third party, other than employees of the Company, and Confidential Information
or Biological Materials except as expressly authorized in writing by the
Company. I agree that I shall use such Confidential Information and Biological
Materials only in the performance of my consulting arrangement with the Company,
and not for my own benefit or for the benefit of any other person or business
entity.
I agree to exercise all reasonable precautions to protect the
confidentiality of Confidential Information and Biological Materials in my
possession and not to remove any Biological Materials from the Company's
premises. Upon the termination of my consulting arrangement with the Company, or
at any time upon the Company's request, I shall return immediately to the
Company any and all materials containing any Confidential Information then in my
possession or under my control.
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Confidential Information shall not include information which (a) is or
becomes generally known within the Company's industry through no fault of mine;
(b) was known to me at the time it was disclosed as evidenced by my written
records at the time of disclosure; (c) is lawfully and in good faith made
available to me by third party who did not derive it from the Company and who
imposes no obligation of confidence on me; or (d) is required to be disclosed by
a governmental authority or by order of a court of competent jurisdiction,
provided that such disclosure is subject to all applicable governmental or
judicial protection available for like material and reasonable advance notice is
given to the Company.
ASSIGNMENT OF INVENTIONS
I agree promptly to disclose to the Company any and all ideas,
concepts, discoveries, inventions, developments, original works of authorship,
software programs, software and systems documentation, trade secrets, technical
data, know-how and Biological Materials that are conceived, devised, invented,
developed or reduced to practice or tangible medium by me, under my direction or
jointly with others in the Field of Interest which may arise out of my
consulting relationship with the Company (collectively, "Inventions").
I hereby assign to the Company all of my right, title and interest to
the Inventions and any and all related patent rights, copyrights and
applications and registrations therefor. During and after my consulting
arrangement with the Company, I shall cooperate with the Company, at the
Company's expense, in obtaining proprietary protection for the Inventions and I
shall execute all documents which the Company shall reasonably request in order
to perfect the Company's rights in the Inventions. I hereby appoint the Company
my attorney to execute and deliver any such documents on my behalf in the event
I should fail or refuse to do so within a reasonable period following the
Company's request.
Notwithstanding the foregoing, any discoveries, improvements and
inventions, made or conceived by me prior to my consultancy with the Company, or
not otherwise covered by the foregoing, are expressly reserved and excepted from
the provisions of this agreement.
GENERAL
In the event that any one or more of the provisions contained herein
shall, for any reason, be held to be invalid, illegal, or unenforceable in any
respect, such invalidity, illegality, or unenforceability shall not affect any
other provisions of this Agreement, and all other provisions shall remain in
full force and effect. If any of the provisions of this Agreement is held to be
excessively broad, it shall be reformed and construed by limiting and reducing
it so as to be enforceable to the maximum extent permitted by law.
No delay or omission by the Company in exercising any right under this
Agreement will operate as a waiver of that or any other right. No waiver or
consent given by the Company on any occasion will be construed as a bar to or
continuing waiver of any right on any other occasion.
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I acknowledge that the restrictions contained in this agreement are
necessary for the protection of the business and goodwill of the Company and are
reasonable for such purpose. I agree that any breach of this agreement by me
will cause irreparable damage to the Company and that in the event of such
breach, the Company will have, in addition to any and all remedies of law, the
right to an injunction, specific performance, or other equitable relief, to
prevent the violation of my obligations hereunder.
This Agreement shall be construed as a sealed instrument and shall in
all events and for all purposes by governed by, and construed in accordance
with, the laws of the Commonwealth of Massachusetts without regard to any choice
of law principle that would dictate the application of the laws of another
jurisdiction. This Agreement supersedes all prior agreements, written or oral,
with respect to the subject matter of this Agreement.
AGREED:
Signature: /s/ Xxxxx X. Xxxxxxx
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