Exhibit 10.23
[SYNTA PHARMACEUTICALS CORP. LETTERHEAD]
April 18, 2005
Xxx Xx Xxxx, Ph.D.
[ADDRESS]
Re: CONSULTING AGREEMENT
--------------------
Dear Xxx Xx:
This letter is to confirm our understanding with respect to (i) your
continued service to Synta Pharmaceuticals Corp. (the "Company") as a
consultant, (ii) your agreement not to compete with the Company, or any present
or future parent, subsidiary or affiliate of the Company (each, a "Company
Affiliate" and collectively with the Company, the "Company Group"), (iii) your
agreement to protect and preserve information and property which is confidential
and proprietary to the Company Group and (iv) your agreement with respect to the
ownership of inventions, ideas, copyrights and patents which may be used in the
business of the Company Group (the terms and conditions agreed to in this letter
are hereinafter referred to as the "Agreement"). 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 mutually
acknowledged, we have agreed as follows:
1. SERVICES.
(a) You are hereby engaged by the Company as an independent contractor,
and not as an employee, to provide the following services to the Company (the
"Consulting Services"):
(i) to serve as Chairman and/or a member of the Company's
Scientific Advisory Board;
(ii) to carry out various projects which the Chief Executive
Officer or the Board of Directors of the Company may request and assign to you
from time to time; and
(iii) to bring to the attention of the Company from time to time
information about inventions, scientific developments, research programs,
available chemical compounds or biological entities, ideas, formulations,
business development opportunities, potential employees, scientific contacts and
the like, that may be of interest to the Company in the pursuit of its business
as currently conducted or then anticipated or planned (hereinafter, "Business
Opportunities")
(b) You shall maintain sole control and discretion as to the exact
manner of the performance of the Consulting Services, subject to the following:
(i) The Company and you acknowledge that you currently have, and
may continue to have, a consulting arrangement with Caxton Health Holdings LLC
("CHH"), pursuant to which you will provide services to CHH that include
identifying potential technologies and related opportunities for investment and
development by CHH ("Investment Opportunities"). The Company and you further
acknowledge that, upon occasion, an Investment Opportunity that you identify may
also constitute a Business Opportunity for the Company. You hereby agree that,
if you identify or become aware of any Investment Opportunity that also
constitutes a Business Opportunity for the Company, you will endeavor first to
bring such Business Opportunity to the attention of the Company, by
communicating such opportunity to the Company's Chief Executive Officer,
providing the Company with information reasonably available to you about the
Business Opportunity, and assisting the Company, to the extent requested, in
evaluating the Business Opportunity. Such actions shall hereinafter be referred
to as providing the Company with a "Right of First Evaluation". If, however, in
any instance you believe that it would violate your obligations to CHH if you
were to provide the Company a Right of First Evaluation with respect to a
Business Opportunity that also constitutes and Investment Opportunity, you agree
to promptly notify the Company of such circumstances.
(ii) You shall satisfy all reasonable deadlines, specifications and
requirements set forth by the Company (in consultation with you).
(iii) In performing the Consulting Services under this Agreement,
you will (a) use diligent efforts and professional skills and judgment, (b)
perform professional services in accordance with recognized industry standards;
and (c) comply with the Company's policies applicable to consultants, members of
the Scientific Advisory Board, and other personnel and Company representatives,
as in effect from time to time. You also shall comply with all federal, state
and local employment, labor and taxation laws, regulations and rules relating to
the Consulting Services to be performed by you.
2. TERM. This Agreement shall continue until such time as it is
terminated by you or by the Company (for any reason or no reason at all), in
either case by written notice at least fifteen (15) days in advance (the
"Consulting Term").
3. COMPENSATION.
(a) CONSULTING FEES. While you continue to provide Consulting
Services to the Company, you will be paid a consulting fee of
Twenty-Five Thousand Dollars ($25,000.00) per month (the "Consulting
Fee"). Consulting Fees will be paid to you no later than fifteen (15)
days following the last day of the month during which such Consulting
Fees are earned.
2
(b) REIMBURSEMENT OF EXPENSES. Upon presentation of
documentation of such expenses reasonably satisfactory to the Company,
the Company will reimburse you for all ordinary and reasonable
out-of-pocket business expenses that are reasonably incurred by you in
furtherance of the Company's business in accordance with the Company's
policies with respect thereto as in effect from time to time.
4. TERMINATION. Upon termination of your service to the Company for any
reason or no reason, you shall receive payment of (a) your accrued, but unpaid,
Consulting Fees through the date of termination of your service to the Company
(the "Termination Date"), and (b) all expense reimbursements due to you through
the Termination Date in accordance with established Company policies or
applicable law.
5. PROHIBITED COMPETITION.
(a) CERTAIN ACKNOWLEDGEMENTS AND AGREEMENTS.
(i) We have discussed, and you recognize and
acknowledge the competitive and proprietary aspects of the
business of the Company Group.
(ii) You acknowledge that a business will be deemed
"competitive" with the Company Group if, at the time you enter
into a relationship with such business or, at any time within
two years thereafter while you have a relationship with such
business, it engages in, or is actively planning or
developing, any service and/or the research, development or
commercialization of any product that is the functional
equivalent of, or that has or will likely have the effect of
materially displacing sales of services or products which (A)
are performed, produced, manufactured, distributed, sold,
under research or active development or in active planning by
the Company Group at any time while you are providing
Consulting Services or (B) are expressly identified in writing
as the subject of your Consulting Services hereunder. If the
Company requests that you provide Consulting Services that you
advise the Company may be competitive with the activities of
another business with which you then have a relationship, the
Company may at its option (x) terminate the Consulting
Services and in connection therewith pay to you any fees and
reimbursable expenses due for all Consulting Services rendered
through the date of termination, or (y) require you to
terminate your services with the competitive business or
entity.
(iii) You further acknowledge that, while you perform
Consulting Services hereunder, the Company Group will furnish,
disclose or make available to you Confidential Information (as
defined below) related to the business of the Company Group
and that the Company Group. You also acknowledge that such
Confidential Information has been developed and will be
developed by the Company Group through the expenditure by the
Company Group of substantial time, effort and money and that
all such Confidential Information could be used by you to
compete with the Company Group. Further, while you perform
Consulting Services hereunder, you will be introduced to
customers and others with important relationships to the
Company Group. You acknowledge that any
3
and all "goodwill" created through such introductions belongs
exclusively to the Company Group, including, without
limitation, any goodwill created as a result of direct or
indirect contacts or relationships between yourself and any
customers or other third parties doing business with the
Company Group.
(iv) For purposes of this Agreement, "Confidential
Information" means confidential and proprietary information of
the Company Group, whether in written, oral, electronic or
other form, including but not limited to, information and
facts concerning business plans; current or potential
customers, suppliers, licensors, licensees, partners,
investors, affiliates or others; training methods and
materials; financial information; sales prospects; client
lists; inventions; or any other scientific, technical or trade
secrets of the Company Group or of any third party provided to
you or the Company Group under a condition of confidentiality;
provided that Confidential Information will not include
information that is in the public domain other than through
any fault or act by you. The term "trade secrets," as used in
this Agreement, will be given its broadest possible
interpretation under the law of the Commonwealth of
Massachusetts and will include, without limitation, anything
tangible or intangible or electronically kept or stored, which
constitutes, represents, evidences or records secret,
scientific, technical, merchandising, production or management
information, or any design, process, procedure, formula,
invention, improvement or other confidential or proprietary
information or documents.
(b) NON-COMPETITION; NON-SOLICITATION. While you perform
Consulting Services hereunder and for a period of one year following
the termination of your service to the Company Group hereunder for any
reason or for no reason, you will not, without the prior written
consent of the Company:
(i) For yourself or on behalf of any other person or
entity, directly or indirectly, either as principal, partner,
stockholder, officer, director, member, employee, consultant,
agent, representative or in any other capacity, own, manage,
operate or control, or be concerned, connected or employed by,
or otherwise associate in any manner with, engage in or have a
financial interest in, any business which is competitive with
the business of the Company Group (each, a "Restricted
Activity") anywhere in the world, except that (A) nothing
contained herein will preclude you from purchasing or owning
securities of any such business if such securities are
publicly traded, and provided that your holdings do not exceed
one percent of the issued and outstanding securities of any
class of securities of such business and (B) nothing contained
herein will prohibit you from engaging in a Restricted
Activity for or with respect to any subsidiary, division or
affiliate or unit (each, a "Unit") of an entity if that Unit
is not engaged in any business which is competitive with the
business of the Company Group, irrespective of whether some
other Unit of such entity engages in such competition (as long
as you do not engage in a Restricted Activity for such other
Unit); or
(ii) Either individually or on behalf of or through
any third party, directly or indirectly, solicit, divert or
4
appropriate or attempt to solicit, divert or appropriate, for
the purpose of competing with the Company Group, any
customers, licensors, licensees, collaborative partners, or
other patrons of the Company Group, or any such person or
entity with respect to which the Company Group has developed
or made a presentation (or similar communication) with a view
to developing a business relationship;
(iii) Either individually or on behalf of or through
any third party, directly or indirectly, (A) solicit, entice
or persuade or attempt to solicit, entice or persuade any
employee of or consultant to the Company Group to leave the
service of the Company Group for any reason, or (B) employ,
cause to be employed, or solicit the employment of, any
employee of or consultant to the Company Group while any such
person is providing services to the Company Group or within
six months after any such person has ceased providing services
to the Company Group; or
(iv) Either individually or on behalf of or through
any third party, directly or indirectly, interfere with, or
attempt to interfere with, the relations between the Company
Group and any licensor, licensee, collaborative partner,
customer, vendor or supplier to the Company Group.
(c) REASONABLENESS OF RESTRICTIONS. You further recognize and
acknowledge that (i) the types of employment which are prohibited by
this Section 5 are narrow and reasonable in relation to the skills
which represent your principal salable asset both to the Company Group
and to others and (ii) the time period and the geographical scope of
the provisions of this Section 5 is reasonable, legitimate and fair to
you in light of the Company Group's need to effectively pursue its
business plan and objectives and in light of the limited restrictions
on the type of activities prohibited herein compared to the types of
activities for which you are qualified to earn your livelihood.
(d) SURVIVAL OF ACKNOWLEDGEMENTS AND AGREEMENTS. Your
acknowledgements and agreements set forth in this Section 5 will
survive the termination of this Agreement and the termination of your
services hereunder for any reason or for no reason.
(e) ACKNOWLEDGEMENT REGARDING CHH AFFILIATION. The Company
acknowledges that your affiliation with CHH is not in violation of this
Agreement, provided that you (i) maintain the confidentiality of all
Confidential Information as required by this Agreement, (ii) may not
engage in a competitive Restricted Activity, individually or in concert
with others, in connection with your affiliation with CHH, and (iii)
abide by your obligations set out in Section 1(b)(i) hereof.
6. PROTECTED INFORMATION. You will at all times, both during the period
while you perform Consulting Services hereunder and after the termination of
this Agreement and the termination of your service to the Company hereunder for
any reason or for no reason, maintain in confidence and will not, without the
prior written consent of the Company Group, use, except as required in the
course of performance of your duties for the Company Group or by court order,
disclose or give to others any Confidential Information. In the event you are
questioned
5
by anyone not employed by the Company or by an employee of or a consultant to
the Company not authorized to receive Confidential Information, in regard to any
Confidential Information, or concerning any fact or circumstance relating
thereto, you will promptly notify the Company. Upon the termination of your
service to the Company hereunder for any reason or for no reason, or if the
Company Group otherwise requests, you will return to the Company Group all
tangible Confidential Information and copies thereof (regardless how such
Confidential Information or copies are maintained). The terms of this Section 6
are in addition to, and not in lieu of, any statutory or other contractual or
legal obligation that you may have relating to the protection of the Company
Group's Confidential Information. The terms of this Section 6 will survive
indefinitely any termination of this Agreement and/or any termination of your
service to the Company Group hereunder for any reason or for no reason.
7. OWNERSHIP OF IDEAS, COPYRIGHTS AND PATENTS.
(a) PROPERTY OF THE COMPANY. All ideas, discoveries,
creations, manuscripts and properties, innovations, improvements,
know-how, inventions, designs, developments, apparatus, techniques,
methods, biological processes, cell lines, laboratory notebooks and
formulae in any form known or not yet known throughout the world
(collectively, the "Inventions") which may be used or useful in the
current or planned business of the Company Group or which in any way
relates to such business, whether patentable, copyrightable or not,
which you may conceive, reduce to practice or develop arising out of or
in connection with your performance of Consulting Services hereunder
(and, if based on or related to any Confidential Information, within
one year after termination of such service to the Company Group for any
reason or for no reason), alone or in conjunction with another or
others, whether during or out of regular business hours, whether or not
on the Company Group's premises or with the use of its equipment, and
whether at the request or upon the suggestion of the Company Group or
otherwise, will be the sole and exclusive property of the Company
Group, and you will not publish any of the Inventions without the prior
written consent of the Company Group. Without limiting the foregoing,
you also acknowledge that all original works of authorship which are
made by you (solely or jointly with others) within the scope of your
services to the Company or which relate to the business of the Company
Group and which are protectable by copyright are "works made for hire"
pursuant to the United States Copyright Act (17 U.S.C. Section 101).
You hereby assign to the Company Group all of your right, title and
interest in and to all of the foregoing. You further represent 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 not
knowingly create any Invention which causes any such violation.
(b) COOPERATION. At any time during your service to the
Company hereunder or after the termination of your service to the
Company hereunder for any reason or for no reason, you will cooperate
fully with the Company Group and its attorneys and agents in the
preparation and filing of all papers and other documents as may be
required to perfect the Company Group's rights in and to any of such
Inventions, including, but not limited to, joining in any proceeding to
obtain letters patent, copyrights, trademarks or other legal rights
with respect to any such Inventions in the United States and in any and
6
all other countries, provided that the Company Group will bear the
expense of such proceedings and, if after the termination of your
services to the Company Group hereunder, shall compensate you at your
then current per diem rate for your time spent providing such
cooperation and assistance, as evidenced by time records in reasonable
detail submitted to the Company. Any patent or other legal right so
issued to you personally will be assigned by you to the Company Group
without charge by you.
(c) LICENSING AND USE OF INVENTIONS. With respect to any
Inventions, whenever created, which you have not prepared or originated
in the performance of your services to the Company Group, but which you
provide to the Company Group or incorporate in any Company Group
product or system, you hereby grant to the Company Group a
royalty-free, fully paid-up, non-exclusive, perpetual and irrevocable
license throughout the world to use, modify, create derivative works
from, disclose, publish, translate, reproduce, deliver, perform,
dispose of, and to authorize others so to do, all such Inventions. You
will not include in any Inventions you deliver to the Company Group or
use on its behalf, without the prior written approval of the Company
Group, any material which is or will be patented, copyrighted or
trademarked by you or others unless you provide the Company Group with
the written permission of the holder of any patent, copyright or
trademark owner for the Company Group to use such material in a manner
consistent with then-current Company Group policy.
(d) PRIOR INVENTIONS. Listed on EXHIBIT 7(d) to this Agreement
are any and all Inventions in which you claim or intend to claim any
right, title and interest (collectively, "Prior Inventions"),
including, without limitation, patent, copyright and trademark
interests, which to the best of your knowledge will be or may be
delivered to the Company Group in the course of your service to the
Company, or incorporated into any Company Group product or system. You
acknowledge that your obligation to disclose such information is
ongoing while you perform Consulting Services hereunder.
8. DISCLOSURE TO FUTURE EMPLOYERS. You will provide, and the Company,
in its discretion, may similarly provide, a copy of the covenants contained in
Sections 5, 6 and 7 of this Agreement to any business or enterprise which you
may, directly or indirectly, own, manage, operate, finance, join, control or in
which you may participate in the ownership, management, operation, financing, or
control, or with which you may be connected as an officer, director, employee,
partner, principal, agent, representative, consultant or otherwise.
9. RECORDS. Upon termination of your services to the Company Group
hereunder for any reason or for no reason and at any other time requested by the
Company Group, you will deliver to the Company Group any property of the Company
Group which may be in your possession, including products, materials, memoranda,
notes, records, reports, or other documents or photocopies of the same
(regardless of how they are maintained, including whether or not they are in
electronic form).
10. INSURANCE. While you are performing Consulting Services to the
Company Group hereunder, you shall be solely responsible for securing, paying
for and maintaining any insurances, licenses and/or permits necessary to perform
any of the Consulting Services required under this Agreement, including, but not
limited to, general liability insurance (bodily injury and
7
property damage), professional liability insurance and workers' compensation
insurance. Upon request, you will furnish to the Company all applicable
certificates of insurance contemplated by this section.
11. INDEPENDENT CONTRACTOR STATUS. You and the Company agree that your
Consulting Services are made available to the Company Group on the basis that
you will retain your individual professional status and that your relationship
with the Company Group is that of an independent contractor and not that of an
employee. You acknowledge will not be eligible for any employee benefits, nor
will the Company make deductions from its fees to you for taxes, insurance,
bonds or any other subscription of any kind. The Company will record payments to
you on, and provide to you, an Internal Revenue Service Form 1099, and the
Company will not withhold any employment taxes on your behalf. Payment of all
federal, state and local income, employment and other taxes (including
unemployment insurance, social security taxes and federal, state and local
withholding taxes) are your sole responsibility. You will indemnify and hold
harmless the Company Group and its officers, directors, security holders,
partners, members, employees, agents and representatives against loss, damage,
liability or expense arising from any claim based on your failure to pay any or
all taxes due from you to any applicable taxing authorities.
12. REPRESENTATIONS AND ACKNOWLEDGEMENTS. You hereby represent and
warrant to the Company that you understand this Agreement, that you enter into
this Agreement voluntarily and that your service to the Company Group under this
Agreement will not conflict with any legal duty owed by you to any other party,
or with any agreement to which you are a party or by which you are bound,
including, without limitation, any non-competition or non-solicitation provision
contained in any such agreement. You will indemnify and hold harmless the
Company Group and its officers, directors, security holders, partners, members,
employees, agents and representatives against loss, damage, liability or expense
arising from any claim based upon circumstances alleged to be inconsistent with
such representation and warranty.
13. GENERAL.
(a) NOTICES. All notices, requests, consents and other
communications hereunder which are required to be provided, or which
the sender elects to provide, in writing, will be addressed to the
receiving party's address set forth above or to such other address as a
party may designate by notice hereunder, and will be either (i)
delivered by hand, (ii) sent by overnight courier, or (iii) sent by
registered or certified mail, return receipt requested, postage
prepaid. All notices, requests, consents and other communications
hereunder will be deemed to have been given either (i) if by hand, at
the time of the delivery thereof to the receiving party, (ii) if sent
by overnight courier, on the next business day following the day such
notice is delivered to the courier service, or (iii) if sent by
registered or certified mail, on the fifth business day following the
day such mailing is made.
(b) ENTIRE AGREEMENT.
(i) It is hereby acknowledged that the Company an you have
entered into an Agreement and Release, dated January 14, 2005 (the
"Agreement and Release"), arising out of your services to the Company,
its Affiliates and Predecessors (as such terms
8
are defined therein) during the period prior to the date hereof. The
Company and you hereby acknowledge and agree that certain provisions of
the Agreement and Release (E.G., the confidentiality, non-competition,
non-solicitation and inventions assignment provisions) are
substantially the same as corresponding provisions of this Agreement,
except that such provisions of the Agreement and Release are intended
to be effective and apply to matters arising out of the period of your
services to the Company, its Affiliates and Predecessors prior to the
date of this Agreement, and the corresponding provisions of this
Agreement are intended to be effective and apply to matters arising out
of the period commencing on the date hereof. The parties agree that
this Agreement shall not be deemed to supersede the Agreement and
Release except if, and to the extent that, (A) a provision of this
Agreement contains substantially equivalent terms to a corresponding
provision of the Agreement and Release, and (B) the application of such
provision of this Agreement alone (I.E., without continued
effectiveness and application of the corresponding provision of the
Agreement and Release) will provide the same protection to the Company
Group as would be the case if both the provision in this Agreement and
the corresponding provision in the Agreement and Release continued to
be effective and apply. All other terms and provisions of the Agreement
and Release shall continue in full force and effect.
(ii) Subject to subparagraph (i) above, this Agreement,
together with the other agreements specifically referred to herein,
embodies the entire agreement and understanding between the parties
hereto with respect to the subject matter hereof and supersedes all
prior oral or written agreements and understandings relating to the
subject matter hereof. No statement, representation, warranty, covenant
or agreement of any kind not expressly set forth in this Agreement will
affect, or be used to interpret, change or restrict, the express terms
and provisions of this Agreement.
(c) MODIFICATIONS AND AMENDMENTS. The terms and provisions of
this Agreement may be modified or amended only by written agreement
executed by the parties hereto.
(d) WAIVERS AND CONSENTS. The terms and provisions of this
Agreement may be waived, or consent for the departure therefrom
granted, only by written document executed by the party entitled to the
benefits of such terms or provisions. No such waiver or consent will be
deemed to be or will constitute a waiver or consent with respect to any
other terms or provisions of this Agreement, whether or not similar.
Each such waiver or consent will be effective only in the specific
instance and for the purpose for which it was given, and will not
constitute a continuing waiver or consent.
(e) ASSIGNMENT. The Company may assign its rights and
obligations hereunder to any person or entity that 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, or to any
Company Affiliate. You may not assign your rights and obligations under
this Agreement without the prior written consent of the Company, and
any such attempted assignment by you without the prior written consent
of the Company will be void.
(f) BENEFIT. All statements, representations, warranties,
covenants and agreements in this Agreement will be binding on the
parties hereto and will inure to the
9
benefit of the respective successors and permitted assigns of each
party hereto. Nothing in this Agreement will be construed to create any
rights or obligations except between the Company and you, except for
your obligations to the Company Group as set forth herein, and no
person or entity (except for a Company Affiliate as set forth herein)
will be regarded as a third-party beneficiary of this Agreement.
(g) GOVERNING LAW. This Agreement and the rights and
obligations of the parties hereunder will be construed in accordance
with and governed by the law of the Commonwealth of Massachusetts,
without giving effect to the conflict of law principles thereof.
(h) JURISDICTION, VENUE AND SERVICE OF PROCESS. Any legal
action or proceeding with respect to this Agreement that is not subject
to arbitration pursuant to Section 13(i) below will be brought in the
courts of the Commonwealth of Massachusetts or of the United States of
America for the District of Massachusetts. By execution and delivery of
this Agreement, each of the parties hereto accepts for itself and in
respect of its property, generally and unconditionally, the exclusive
jurisdiction of the aforesaid courts.
(i) ARBITRATION. Any controversy, dispute or claim arising out
of or in connection with this Agreement, other than a controversy,
dispute or claim arising under Section 5, 6 or 7 hereof, will be
settled by final and binding arbitration to be conducted in Boston,
Massachusetts pursuant to the national rules for the resolution of
employment disputes of the American Arbitration Association then in
effect. The decision or award in any such arbitration will be final and
binding upon the parties and judgment upon such decision or award may
be entered in any court of competent jurisdiction or application may be
made to any such court for judicial acceptance of such decision or
award and an order of enforcement. In the event that any procedural
matter is not covered by the aforesaid rules, the procedural law of
Massachusetts will govern. Any disagreement as to whether a particular
dispute is arbitrable under this Agreement shall itself be subject to
arbitration in accordance with the procedures set forth herein.
(j) WAIVER OF JURY TRIAL. ANY ACTION, DEMAND, CLAIM OR
COUNTERCLAIM ARISING UNDER OR RELATING TO THIS AGREEMENT THAT IS NOT
SUBJECT TO ARBITRATION PURSUANT TO SECTION 13(i) ABOVE WILL BE RESOLVED
BY A JUDGE ALONE AND EACH OF YOU AND THE COMPANY WAIVE ANY RIGHT TO A
JURY TRIAL THEREOF.
(k) SEVERABILITY. The parties intend this Agreement to be
enforced as written. However, (i) if any portion or provision of this
Agreement is to any extent declared illegal or unenforceable by a duly
authorized court having jurisdiction, then the remainder of this
Agreement, or the application of such portion or provision in
circumstances other than those as to which it is so declared illegal or
unenforceable, will not be affected thereby, and each portion and
provision of this Agreement will be valid and enforceable to the
fullest extent permitted by law and (ii) if any provision, or part
thereof, is held to be unenforceable because of the duration of such
provision, the geographic area covered thereby, or other aspect or
scope of such provision, the court making such determination will have
the power to reduce the duration, geographic area of such provision, or
other aspect or scope of such
10
provision, and/or to delete specific words and phrases
("blue-penciling"), and in its reduced or blue-penciled form, such
provision will then be enforceable and will be enforced.
(l) HEADINGS AND CAPTIONS. The headings and captions of the
various subdivisions of this Agreement are for convenience of reference
only and will in no way modify or affect the meaning or construction of
any of the terms or provisions hereof.
(m) INJUNCTIVE RELIEF. You hereby expressly acknowledge that
any breach or threatened breach of any of the terms and/or conditions
set forth in Section 5, 6 or 7 of this Agreement will result in
substantial, continuing and irreparable injury to the Company Group.
Therefore, in addition to any other remedy that may be available to the
Company Group, the Company Group will 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 Section 5, 6
or 7 of this Agreement. The period during which the covenants contained
in Section 5 will apply will be extended by any periods during which
you are found by a court to have been in violation of such covenants.
(n) NO WAIVER OF RIGHTS, POWERS AND REMEDIES. No failure or
delay by a party hereto in exercising any right, power or remedy under
this Agreement, and no course of dealing between the parties hereto,
will operate as a waiver of any such right, power or remedy of the
party. No single or partial exercise of any right, power or remedy
under this Agreement by a party hereto, nor any abandonment or
discontinuance of steps to enforce any such right, power or remedy,
will preclude such party from any other or further exercise thereof or
the exercise of any other right, power or remedy hereunder. The
election of any remedy by a party hereto will not constitute a waiver
of the right of such party to pursue other available remedies. No
notice to or demand on a party not expressly required under this
Agreement will entitle the party receiving such notice or demand to any
other or further notice or demand in similar or other circumstances or
constitute a waiver of the rights of the party giving such notice or
demand to any other or further action in any circumstances without such
notice or demand.
(o) COUNTERPARTS. This Agreement may be executed in two or
more counterparts, and by different parties hereto on separate
counterparts, each of which will be deemed an original, but all of
which together will constitute one and the same instrument.
(p) OPPORTUNITY TO REVIEW. You hereby acknowledge that you
have had adequate opportunity to review these terms and conditions and
to reflect upon and consider the terms and conditions of this
Agreement, and that you have had the opportunity to consult with
counsel of your own choosing regarding such terms. You further
acknowledge that you fully understand the terms of this Agreement and
have voluntarily executed this Agreement.
11
If the foregoing accurately sets forth our agreement, please so
indicate by signing and returning to us the enclosed copy of this Agreement.
Very truly yours,
SYNTA PHARMACEUTICALS CORP.
By: /s/ Xxxx X. Xxxxxxx
-----------------------------------
Xxxx X. Xxxxxxx, Ph.D.
President and Chief Executive
Officer
Accepted and Approved:
/s/ Xxx Xx Xxxx April 18, 2005
---------------------------------- ----------------------------------
Xxx Xx Xxxx, Ph.D. Date
12
EXHIBIT 7(d)
PRIOR INVENTIONS
13
