Exhibit 10.1
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT, dated as of April 7, 2005 (the "Agreement"), by
and between Eyetech Pharmaceuticals, Inc., a Delaware corporation (the
"Company"), and Xxxxx Xxxxx ("Consultant").
R E C I T A L S
WHEREAS, the Company desires to retain the consulting services of the
Consultant, and the Consultant desires to provide consulting services to the
Company;
NOW, THEREFORE, in consideration of the premises and the agreements and
provisions hereinafter set forth, and for other good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged, the Consultant and
the Company agree as follows:
SECTION 1. Engagement of Consultant; Independent Contractor and Not
Employee. (a) The Company hereby engages the Consultant to provide the Services
(as defined below) for the benefit of the Company and the Consultant hereby
agrees to provide such Services. Consultant acknowledges and agrees that at all
times during the term of this Agreement set forth in Section 4 herein (the
"Term"), Consultant will be an independent contractor and not an employee of the
Company for any purposes whatsoever and under any applicable law. As an
independent contractor, Consultant acknowledges and agrees that Consultant will
be solely responsible for the payment of all federal, state and other taxes
applicable to Consultant's role as an independent contractor performing
consulting services.
(b) Consultant hereby represents and warrants to the Company that no third
party has exclusive rights to Consultant's Services in the areas described in
Section 2 below and that Consultant's performance of all the terms of this
Agreement does not and will not (i) breach or conflict with any prior agreement
or contract to which Consultant is bound or (ii) compromise any right or trust
relationship or create a conflict of interest between Consultant and a third
party. Consultant shall promptly disclose to the Company any circumstance or
relationship with any third party that constitutes a conflict of interest or
breach of this Agreement.
SECTION 2. Nature of Services. During the Term and subject to the
direction of the Chief Executive Officer (the "Supervisor") (or such other
senior personnel to whom the Supervisor may delegate day-to-day responsibility
for the Consultant), the Consultant shall perform, on behalf of the Company, the
services listed on Schedule A hereto (the "Services").
SECTION 3. Hours; Attention to Services. The Consultant and the Company
anticipate that the Consultant will provide an estimated 2 days of Service per
month, such hours of service and actual time rendered to be mutually agreed upon
by the Consultant and the Company upon reasonable request by the Company to
discharge the Services.
SECTION 4. Term and Termination. The Consultant's retention under this
Agreement shall be from April 7, 2005 through October 6, 2006 unless the parties
agree in writing to extend the Agreement. The Company may not terminate this
Agreement prior to its expiration on October
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5, 2006 without the prior written consent of the Consultant. Sections 7, 8 and
14 of this Agreement shall survive the termination or expiration of this
Agreement.
SECTION 5. Compensation. In consideration for the Consultant's performance
of the Services, the Consultant shall be paid a monthly consulting fee of $5,000
by the tenth business day of each month during the term commencing in April
2005.
SECTION 6. Expense Reimbursement. Consultant shall be entitled to
reimbursement for reasonable and necessary expenses incurred by Consultant in
connection with Consultant's performance of the Services submitted via Invoice;
provided that such expenses are (i) approved in advance, (ii) are incurred for
or on behalf of the Company in the performance of the Consultant's duties under
this Agreement; and (iii) are documented in compliance with the Company's
expense reimbursement procedures so as to verify the amount, nature and date of
such expenses. All expenses incurred must be in accordance with the Company's
expense policy which is attached hereto as Schedule B, provided, however, that
the Consultant shall be permitted to travel via first class on trans-continental
flights.
SECTION 7. Confidentiality. The Consultant agrees at all times during the
term of this Agreement and thereafter, to hold in strictest confidence, and not
to use, except for the benefit of the Company, or to disclose to any person,
firm or corporation (except as required by law or administrative process)
without the written authorization of the Chief Executive Officer or chief legal
officer, any Confidential Information of the Company, its subsidiaries,
affiliates, successors and assigns (collectively, the "Company Group"). The
Consultant understands that the Consultant is not an authorized spokesperson for
the Company. The Consultant understands that Confidential Information includes,
without limitation, any Company Group proprietary information, technical data,
trade secret or know-how, including, but not limited to, research, product
plans, products, services, patient, client or customer lists and customers
(including, but not limited to, patients, clients, providers or customers of the
Company Group on whom the Consultant has called or with whom the Consultant
becomes acquainted during the Term), markets, software, developments,
inventions, processes, formulas, technology, designs, drawings, engineering,
marketing, financial or other business information, third party information from
parties to whom the Company has a confidentiality obligation, in each case as
such Confidential Information is disclosed to the Consultant by the Company
Group, either directly or indirectly, in writing, orally or by drawings or
observation. This Section 7 shall survive the termination of this Consulting
Agreement and continue for a period of five (5) years thereafter.
SECTION 8. Intellectual Property. Consultant agrees that Company shall
have exclusive rights to any and all inventions, original works of authorship,
developments, concepts, improvements, designs, discoveries, ideas, trademarks or
trade secrets, whether or not patentable or registrable under patent, copyright
or similar laws, which are conceived or developed or reduced to practice by
Consultant or its employees, fellows or affiliates during the course of
providing Services under this Agreement and hereby assign to Company, or its
designee, all of its right, title and interest in and to any invention.
SECTION 9. Injunctive Relief. It is understood and agreed that money
damages would not be a sufficient remedy for any breach of this Agreement by the
Consultant and that the Company shall be entitled to equitable relief, including
but not limited to injunction and specific
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performance as a remedy for any such breach. Such remedies shall not be deemed
to be exclusive remedies for a breach by the Consultant under this agreement but
shall be in addition to all other remedies available by law or equity to the
Company.
SECTION 10. Defense and Indemnification by Consultant. Consultant agrees,
at its sole expense, to defend the Company against, and to indemnify and hold
the Company harmless from, any liability, claim, judgment, cost, expense,
damage, deficiency, loss, or obligation, of any kind or nature (including
without limitation reasonable attorneys' fees and other costs and expenses of
defense) relating to a claim or suit by a third party against the Company,
arising from the Consultants breach of obligations under this Agreement.
SECTION 11. Defense and Indemnification by Company. The Company agrees to
indemnify and hold Consultant harmless from and against any and all losses,
claims, damages, legal fees, expenses, or other liabilities which the Consultant
may incur based upon information, representations, reports, data, or releases
furnished or approved by the Company or its representatives for use or release
by the Consultant, whether or not the Consultant prepares or participates in the
preparation of the material, except in the case of negligence or willful
misconduct by the Consultant.
SECTION 12. Options. The Consultant's stock options in the Company granted
to the Consultant in his capacity as a Director of the Company shall continue to
vest during the term of this Agreement under the terms provided for in such
option agreements. Upon cessation of services provided to the Company under this
Agreement at the end of the term of this Agreement such options shall, without
further notice, cease vesting and then continue to be exercisable under the
provisions of such option agreements for a period of three (3) months after the
term of this Agreement, unless otherwise provided for in the event of the death
or disability of the Consultant under the provisions of the option agreements.
SECTION 13. Securities Law Matters. Consultant acknowledges that (1) he
will remain subject to applicable short-swing profit recovery and applicable
filing requirements of Section 16 through October 6, 2005, six months after
resignation from the Company's Board of Directors and will continue to
coordinate with the Company's Legal Department prior to all transactions in the
Company's securities, (2) Consultant will continue to be considered an
"affiliate" of the Company under Rule 144 under the Securities Act of 1933, as
amended until ninety days after the date of his resignation as a Director, and
(3) Consultant will continue to be subject to the Company's Xxxxxxx Xxxxxxx
Policy during the term of this Agreement and thereafter shall continue to be
responsible for not violating xxxxxxx xxxxxxx laws. The Consultant is aware that
the Company has instituted a Blackout Period under the Xxxxxxx Xxxxxxx Policy
that is currently scheduled to end on April 25, 2005 and that the Consultant is
subject to such Blackout Period. By virtue of the fact that the Consultant will
no longer be an Director of the Company and is not a Restricted Person under the
Xxxxxxx Xxxxxxx Policy, the Consultant will no longer be subject to Blackout
Periods under the Xxxxxxx Xxxxxxx Policy after the current Blackout Period,
unless the Consultant is later deemed a Restricted Person in the future under
the terms of the Xxxxxxx Xxxxxxx Policy.
SECTION 14. Miscellaneous. (a) All notices and other communications made
in connection with this Agreement shall be in writing and shall be deemed to
have been duly given if (i) mailed by first-class, registered or certified mail,
return receipt requested, postage prepaid,
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(ii) transmitted by hand delivery, (iii) sent by next-day or overnight mail or
delivery, or (iv) sent by fax, telecopy or telegram, addressed as follows:
if to the Company:
Eyetech Pharmaceuticals, Inc.
0 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Fax: 000-000-0000
Attn: Legal Department
if to Consultant:
Xxxxx Xxxxx
000 Xxxxxxx Xxxx.
Xxxxx Xxx Xxxxxxxxx, XX 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
E-mail: xxxxxx@xxxxxxxxxx.xxx
or, in each case, at such other address as may be specified in writing to
the other parties hereto.
(b) No provision of this Agreement may be modified, waived or discharged
unless such waiver, modification or discharge is agreed to in writing, and is
signed by Consultant and the Company. No agreements or representations, oral or
otherwise, express or implied, with respect to the subject matter hereof has
been made by any party hereto which is not set forth expressly in this
Agreement. This Agreement supersedes all prior agreements between the parties
hereto with respect to the subject matter hereof.
(c) This Agreement shall be governed in all respects, including as to
validity, interpretation and effect, by the internal laws of the State of New
York without giving effect to the conflict of laws rules thereof.
(d) (i) EACH PARTY TO THIS AGREEMENT HEREBY IRREVOCABLY SUBMITS TO THE
JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK LOCATED IN THE COUNTY OF NEW
YORK AND THE FEDERAL COURTS OF THE UNITED STATES OF AMERICA LOCATED IN THE
SOUTHERN DISTRICT OF THE STATE OF NEW YORK SOLELY IN RESPECT OF THE
INTERPRETATION AND ENFORCEMENT OF THE PROVISIONS OF THIS AGREEMENT AND IN
RESPECT OF THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. EACH PARTY TO THIS
AGREEMENT HEREBY WAIVES AND AGREES NOT TO ASSERT, AS A DEFENSE IN ANY ACTION,
SUIT OR PROCEEDING FOR THE INTERPRETATION AND ENFORCEMENT OF THIS AGREEMENT, OR
IN RESPECT OF ANY TRANSACTION CONTEMPLATED BY THIS AGREEMENT, THAT SUCH ACTION,
SUIT OR PROCEEDING MAY NOT BE BROUGHT OR IS NOT MAINTAINABLE IN SUCH COURTS OR
THAT THE VENUE THEREOF MAY NOT BE APPROPRIATE OR THAT THIS AGREEMENT OR ANY SUCH
DOCUMENT MAY
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NOT BE ENFORCED IN OR BY SUCH COURTS. EACH PARTY TO THIS AGREEMENT HEREBY
CONSENTS TO AND GRANTS ANY SUCH COURT JURISDICTION OVER SUCH PARTY AND OVER THE
SUBJECT MATTER OF ANY SUCH DISPUTE AND AGREES THAT THE MAILING OF PROCESS OR
OTHER PAPERS IN CONNECTION WITH ANY SUCH ACTION OR PROCEEDING IN THE MANNER
PROVIDED IN THE NOTICES SECTION OF THIS AGREEMENT OR IN SUCH OTHER MANNER AS MAY
BE PERMITTED BY LAW, SHALL BE VALID AND SUFFICIENT SERVICE THEREOF.
(ii) EACH PARTY TO THIS AGREEMENT ACKNOWLEDGES AND AGREES THAT ANY
CONTROVERSY THAT MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED
AND DIFFICULT ISSUES AND, THEREFORE, EACH PARTY HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN
RESPECT OR ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO
THIS AGREEMENT, OR THE BREACH, TERMINATION OR VALIDITY OF THIS AGREEMENT, OR THE
TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. EACH PARTY TO THIS AGREEMENT
CERTIFIES AND ACKNOWLEDGES THAT (I) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD
NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (II) EACH
SUCH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (III)
EACH SUCH PARTY MAKES THIS WAIVER VOLUNTARILY, AND (IV) EACH SUCH PARTY HAS BEEN
INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS
AND REPRESENTATIONS IN THIS SECTION.
(e) This Agreement shall bind and inure to the benefit of and be
enforceable by the Company and Consultant and their respective successors and
assigns; provided, however, neither the Company nor Consultant may assign this
Agreement without the prior written consent of the other party.
(f) This Agreement may be amended from time to time only by written
agreement of the Company and the Consultant. No terms or provisions of this
Agreement may be waived or modified unless such waiver or modification is in
writing and signed by the party against whom such waiver or modification is
sought to be enforced. No failure on the part of the Company to exercise and no
delay in exercising, any right, power or remedy under this Agreement shall
operate as a waiver thereof; nor shall any single or partial exercise of any
right under this Agreement preclude any other or further exercise thereof or the
exercise of any other right. The remedies provided in this agreement are
cumulative and not exclusive of any remedies provided by law.
(g) Neither the Company nor Consultant is the agent or representative of
the other, and nothing in this Agreement shall be construed to make either the
Company or Consultant liable to any third party for services performed by such
third party or for debts or claims accruing to such third party against either
the Company or Consultant. Nothing contained in this Agreement or the acts of
the parties hereto shall be construed to create a partnership, agency or joint
venture.
(h) No recourse under this Agreement shall be had against, and no personal
liability shall attach to, any officer, director, affiliate or shareholder of
the Company, as such, by the enforcement
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of any assessment of by any legal or equitable proceeding, by virtue of any
statute or otherwise in respect of this Agreement, it being expressly agreed and
understood that this Agreement is solely a corporate obligation of the Company,
and that any and all personal liability, either at common law or in equity or by
statute or constitution, of every such officer, director, employee, affiliate or
shareholder of the Company for breaches by any party to this Agreement of any
obligations under this Agreement is hereby expressly waived by Consultant as a
condition of and in consideration for the execution and delivery of this
Agreement by the Company.
(i) The invalidity or unenforceability of any provision or provisions of
this Agreement shall not affect the validity or enforceability of any other
provision of this Agreement which shall remain in full force and effect.
(j) This Agreement may be executed in counterparts, each of which shall be
deemed to be an original but both of which shall together constitute one and the
same instrument. Facsimile signatures will be deemed to be original signatures
for the purpose of execution of this Agreement.
(k) The headings contained in this Agreement are for reference purposes
only and shall not in any way affect the meaning or interpretation of this
Agreement.
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IN WITNESS WHEREOF, the parties have executed this agreement as of
the year and date first above written.
EYETECH PHARMACEUTICALS, INC.
By: /s/Xxxxx Xxxxx
--------------
Name: Xxxxx Xxxxx
Title: CEO
CONSULTANT
By: /s/ Xxxxx Xxxxx
---------------
Name: Xxxxx Xxxxx
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SCHEDULE A
Services to be Performed
Consultant shall perform the following services for Company under the terms of
this Agreement:
1. Assist in the development of a strategy for additional product
acquisitions;
2. Support the Company in the execution of its DME strategy;
3. Provide input and guidance on the Company's drug delivery program;
and
4. Such other services, as may be mutually agreed upon by the Company
and the Consultant.
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SCHEDULE B
Eyetech Pharmaceuticals, Inc. Expense Policy
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