SCIENTIFIC ADVISORY BOARD AGREEMENT
This Agreement, effective as of September 1, 2003 (the "Effective Date"),
is made between Synta Pharmaceuticals Corp. (the "Company"), a Delaware
corporation, and Xxxxx Xxxxxxx, MD (the "Consultant").
RECITALS
WHEREAS, the Consultant is a member of the faculty at HARVARD MEDICAL
SCHOOL ("HMS") and appointed at CHILDREN'S HOSPITAL Boston ("CHILDREN'S
HOSPITAL" or "the Institution"), which permit the Consultant to perform limited
consulting services for companies;
WHEREAS, the Company desires that the Consultant provide advice and
assistance to the Company in his or her area of expertise; and
WHEREAS, the Consultant desires to provide such advice and assistance to
the Company under the terms and conditions of this Agreement;
NOW, THEREFORE, in consideration of the mutual covenants set forth herein,
the Company and the Consultant hereby agree as follows:
1. SERVICES.
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a. The Consultant shall render to the Company or its designee such
consulting services as the Company may mutually agree from time to time (the
"Services"); provided, however, that the Consultant shall not be required to
devote more than FIVE (5) days per month in the provision of such Services.
Meetings with Consultant shall be scheduled as mutually convenient. Consultant
may, but shall not be required to, participate by conference telephone. The
Company shall provide the Consultant with reasonable prior notice of any
Services the Company requires. The Consultant shall use reasonable efforts not
use any facilities, funds, or equipment owned or administered by the Institution
in the performance of the Services, except with the prior written consent of the
Company and in accordance with all applicable policies of the Institution.
b. It is understood that the purpose of the Consulting is to provide
periodic review and advice relevant to certain Company matters, and that neither
Consultant nor Company will benefit if Consultant provides inaccurate advice or
commentary based on insufficient information. To that end, Company shall provide
Consultant, in advance of meetings, with accurate, unbiased and sufficient
information for him to review the subject matter thereof, and shall promptly
provide further information that Consultant reasonably deems relevant to forming
any pertinent conclusions relevant to the matter for discussion. It is expressly
understood that Consultant has no fiduciary obligation to Company, but instead a
contractual one described by the terms of this Agreement; that his role is to
provide independent advice uninfluenced by commercial concerns; and that service
as a Consultant does not require him to be an advocate for Company or its
products in any forum, public or private. Company expressly agrees that under no
circumstances will this role be compromised or inaccurately represented.
2. COMPENSATION.
2.1 CONSULTING FEES. The Company shall pay to the Consultant a
consulting fee in the amount of $50,000.00 per annum for performance of the
Services. Such fees shall payable in four (4) equal calendar quarter
installments of twelve thousand five hundred dollars ($12,500.00) each,
beginning on SEPTEMBER 1, 2003.
2.2 STOCK OPTIONS. The Company will issue to the Consultant a
non-qualified stock option to purchase 100,000 shares of the common stock of the
Company, $.0001 par value per share, at a purchase price of $2.7108 per share,
such option to vest as follows: 25% vesting on the first anniversary of the
grant date of the option (the grant date being the actual date when the
Company's Board of Directors grants the option to the Institution) and
thereafter 6.25% vesting per quarter over the following three (3) year period,
provided that this Agreement remains in effect on the date in which vesting
occurs. The option will be subject to the terms and conditions of the Company's
2001 Stock Plan (as amended on August 21, 2002), and shall have additional terms
and conditions, as set forth on the stock option agreement certificate to be
provided to the Consultant following the grant. Company understands that it is
Consultant's intention immediately to transfer such options to Children's
Hospital Boston or Children's Medical Center Corporation, pursuant to a transfer
agreement approved by the Company, and hereby consents to such transfer.
2.3 REIMBURSEMENT OF EXPENSES. The Company shall reimburse the
Consultant for reasonable travel and other out-of-pocket expenses incurred by
the Consultant in the performance of the Services, provided that the Consultant
shall have submitted to the Company written expense statements and other
supporting documentation in a form that is reasonably satisfactory to the
Company. Company will accommodate Consultant's request to arrange, at Company's
expense, for all of his travel and accommodations in connection with such
meetings if they occur outside the Boston metropolitan area. If Consultant makes
such arrangements, the Company shall provide the Consultant with a check for any
amounts due under this Section within thirty (30) days after the Company
receives satisfactory documentation. Notwithstanding the foregoing, the
Consultant shall not incur total expenses in excess of $1,000 per occurrence
without the prior written approval of the Company.
2.4 NO BENEFITS. The Consultant acknowledges and agrees that the
Company will not provide the Consultant with any employee benefits, including
without limitation any employee stock purchase plan, social security,
unemployment, medical, or pension payments. The Consultant is an independent
contractor and not an employee of the Company. Notwithstanding the foregoing,
Company shall indemnify, defend and hold harmless Consultant, and CHILDREN'S
HOSPITAL, its corporate affiliates, current or future directors, trustees,
officers, faculty, medical and professional staff, employees, students and
agents and their respective successors, heirs and assigns (the "Indemnitees"),
against any claim, liability, cost, damage, deficiency, loss, expense or
obligation of any kind or nature (including without limitation reasonable
attorneys' fees and other costs and expenses of litigation) incurred by or
imposed upon the Indemnitees or any one of them in connection with any claims,
suits, actions, demands or judgments arising out of this Agreement (including,
but not limited to, actions in the form of tort, warranty, or strict liability),
except to the extent caused by the Consultant's misconduct or negligence.
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3. TERM AND TERMINATION.
3.1 TERM. This Agreement shall commence on the Effective Date and shall
remain in effect for a period of one (1) year, unless earlier terminated as
provided in this Article 3; provided, however, that the term of this Agreement
shall automatically extend for additional one-year periods until the Consultant
gives the Company written notice that the Agreement will not continue, which
notice must be received by the Company at least sixty (60) days prior to the
expiration of the term.
3.2 TERMINATION WITHOUT CAUSE. Either party may terminate this Agreement
for any reason upon sixty (60) days prior written notice to the Consultant.
3.3 TERMINATION WITH CAUSE. In the event that a party commits a material
breach of its obligations under this Agreement, the other party may terminate
this Agreement upon sixty (60) days prior written notice to the party in breach,
unless the breach is cured within such sixty-day notice period. Notwithstanding
the foregoing, either party may terminate this Agreement immediately upon
written notice if either party breaches or threatens to breach any provision of
Article 4 or Sections 6.5 or 6.6..
3.4 SURVIVAL. The following provisions shall survive the expiration or
termination of this Agreement: Articles 4 and 5; Sections 6.5., 6.6.,
6.10., and 6.12.
4. CONFIDENTIAL INFORMATION AND PROPRIETARY MATERIALS.
4.1 CONFIDENTIAL INFORMATION.
4.1.1 DEFINITION OF CONFIDENTIAL INFORMATION. Confidential Information
shall mean, subject to the exceptions below, any technical or business
information furnished by the Company to the Consultant in connection with this
Agreement or developed by the Consultant within the scope and in the course of
performing the Services. Such Confidential Information may include, without
limitation, trade secrets, know-how, inventions, technical data or
specifications, testing methods, business or financial information, research and
development activities, product and marketing plans, and customer and supplier
information.
4.1.2 OBLIGATIONS. The Consultant shall
(a) maintain all Confidential Information in strict confidence;
(b) use all Confidential Information solely for the purpose of providing
the Services as requested by the Company; and
(c) reproduce the Confidential Information only to the extent necessary
for providing the Services as requested by the Company, with all such
reproductions being considered Confidential Information.
Notwithstanding anything herein to the contrary, Company agrees that it shall
not disclose to Consultant any information which is Company Confidential
Information: (i) except to the extent necessary for Consultant to fulfill his
obligations to Company under this Agreement; or (ii)
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unless Consultant has agreed in writing to accept such disclosure. All other
information and communications between Company and Consultant shall be deemed to
be provided to Consultant by Company on a non-confidential basis. Company agrees
that Consultant shall not be liable to Company or to any third party claiming by
or through Company for any unauthorized disclosure or use of Company
Confidential Information which occurs despite Consultant's compliance with his
obligations under this Agreement.
4.1.3 EXCEPTIONS. The obligations of the Consultant under
Section 4.1.2. above shall not apply to the extent that such information
(a) was in the public domain prior to the time of its disclosure under
this Agreement;
(b) entered the public domain after the time of its disclosure under this
Agreement through means other than an unauthorized disclosure resulting from an
act or omission by the Consultant;
(c) was independently developed or discovered by the Consultant or
others ;
(d) is or was disclosed to the Consultant at any time, whether prior to or
after the time of its disclosure under this Agreement, by a third party having
no fiduciary relationship with the Company and having no obligation of
confidentiality with respect to such Confidential Information;
(e) is required to be disclosed to comply with applicable laws or
regulations, or with a court or administrative order. To the extent practicable
the consultant shall provide Company with prior notice of such disclosure and
cooperate with Company in taking reasonable steps to obtain confidential
treatment for such disclosure and, if possible, to minimize the extent of such
disclosure;
(f) in the case of information prepared by Consultant, is encompassed
within and derived from Consultant's academic and professional commitments to
CHILDREN'S HOSPITAL, HMS, and/or any other consulting or research engagement,
provided that Confidential Information described in this clause (f) which
constitutes Inventions shall be subject to the intellectual property provisions
of Section 5 of this Agreement
4.2 PROPRIETARY MATERIALS.
4.2.1 DEFINITION OF PROPRIETARY MATERIALS. "Proprietary Materials"
shall mean any tangible chemical, biological, or physical research materials
furnished by the Company to the Consultant in connection with this Agreement and
any such materials developed by the Consultant solely in the course of
performing the Services. (If such materials developed by Consultant are also
subject to CHILDREN'S HOSPITAL policies, they shall not be considered
Proprietary Materials for purposes of this Section 4, but will instead be
governed by the principles stated in Section 5, and Company shall have an option
to their use as stated therein.) In the case of biological materials,
Proprietary Materials shall also include other materials ordinarily engendered
by the original materials, including without limitation any progeny derived from
a cell line (including naturally occurring mutants), monoclonal antibodies
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produced by hybridoma cells, DNA or RNA replicated from isolated DNA or RNA,
recombinant proteins produced by a cell line, recombinant proteins produced
through use of isolated DNA or RNA, and substances routinely purified from any
source material included in the original materials.
4.2.2 LIMITED USE. The Consultant shall use Proprietary Materials
solely for the purpose of providing the Services as requested by the Company.
The Consultant shall use the Proprietary Materials only in compliance with all
applicable governmental laws and regulations, and not for any IN VIVO
experiments on human subjects.
4.2.3 LIMITED DISPOSITION. The Consultant shall not transfer or
distribute any Proprietary Materials to any third party without the prior
written consent of the Company.
4.3 RETURN OF CONFIDENTIAL INFORMATION AND PROPRIETARY MATERIALS. Upon the
termination of this Agreement, or earlier at the request of the Company, the
Consultant shall return to the Company all originals, copies, and summaries of
documents, materials, and other tangible manifestations of Confidential
Information in the possession or control of the Consultant, except that
Consultant may retain one copy, on a completely confidential basis, for archival
purposes. Upon the termination of this Agreement, or earlier at the request of
the Company, the Consultant shall at the instruction of the Company either
destroy or return any unused Proprietary Materials that remain in his or her
possession.
4.4 SURVIVAL OF OBLIGATIONS. The obligations set forth in this Article 4
shall remain in effect for a period of ten (10) years after termination of this
Agreement, except that the obligations of the Consultant to return Confidential
Information and to return or destroy Proprietary Materials shall survive until
fulfilled.
5. INTELLECTUAL PROPERTY.
5.1 Consultant and CHILDREN'S HOSPITAL understand and acknowledge that
Company will be providing access to proprietary and valuable information that
Consultant might otherwise not receive. In addition, those parties also
understand that should Consultant, in the course of his advice, invent or
participate in inventing modifications or improvements to Company technology,
Company reasonably seeks to secure such improvements for its own use and
practice. At the same time, Company understands and acknowledges that Consultant
has pre-existing and on-going obligations to HMS, CHILDREN'S HOSPITAL, and the
sponsors of research at CHILDREN'S HOSPITAL (including obligations under grants,
contracts and collaborative agreements, generally). These obligations include a
duty on the part of Consultant to disclose and assign to CHILDREN'S HOSPITAL any
inventions or other proprietary rights arising during the course of such
employment or medical staff membership and any overlapping consulting
arrangements (including this Agreement), and an obligation to ensure that any
consulting agreement he enters into is not in conflict with the CHILDREN'S
HOSPITAL Policy on Inventions and Intellectual Property or in conflict with
other HMS or CHILDREN'S HOSPITAL commitments, such as Consultant's obligation to
publish research results.
5.2 In order to enter into this Agreement with Consultant, Company
therefore further acknowledges and agrees that in the event that any conflict
should arise between the duties set forth in this Agreement and Consultant's
obligations to HMS, CHILDREN'S HOSPITAL or sponsors of research at CHILDREN'S
HOSPITAL, Consultant shall necessarily notify
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CHILDREN'S HOSPITAL immediately, and that Consultant's obligations to CHILDREN'S
HOSPITAL and sponsors of research at CHILDREN'S HOSPITAL shall take precedence
over the terms of this Agreement.
5.3 However, the parties agree that it is mutually beneficial that
Consultant be able to participate fully in his role as an adviser, as stated
herein, without being obligated to constrain his comments or contributions based
upon the complexities of applying these conflicting obligations to intellectual
property ownership. Therefore, in order to reconcile these obligations, and
promote Consultant's participation, during the term of this Agreement Consultant
shall promptly report and simultaneously disclose to CHILDREN'S HOSPITAL and to
the President of Company, or his or her designee, all inventions, improvements,
modifications, discoveries, methods and developments, whether patentable or not,
made or conceived by Consultant, or by employees or agents of Company under
Consultant's direction, during the performance of this Agreement that result
directly from Confidential Information provided by Company pursuant to this
Agreement and either embody Company technology or are reduced to practice as a
modification or improvement to Company technology (hereby designated
"Inventions"). Ownership of such Inventions, and any patent rights related
thereto, shall reside with CHILDREN'S HOSPITAL, if the Consultant is the sole
inventor and the Invention is covered by applicable CHILDREN'S HOSPITAL
policies, jointly between CHILDREN'S HOSPITAL and the Company if the Consultant
is not the sole inventor, but the Invention is covered by applicable CHILDREN'S
HOSPITAL policies, or otherwise with Company. If ownership lies solely or
jointly with CHILDREN'S HOSPITAL, then, provided such Inventions are not subject
to prior conflicting obligations to sponsors of research at CHILDREN'S HOSPITAL,
Company shall have an exclusive option, for 120 days following notice of
Consultant's disclosure, to negotiate an exclusive world-wide license, on
reasonable terms customary for CHILDREN'S HOSPITAL, to use, practice, license
and sublicense rights under patents claiming such Inventions within a mutually
agreed field of use. (While the parties believe that conflicting obligations to
research sponsors are unlikely, it is conceivable that in the course of such
sponsored research Inventions useful to Company may emerge; rather than forego
disclosing such fortuitous inventions to Company, to the extent permitted by
such sponsorship and related agreements Consultant and CHILDREN'S HOSPITAL will
endeavor to disclose and license such Inventions pursuant to this Agreement.)
5.4 THIRD-PARTY INTELLECTUAL PROPERTY. The Consultant acknowledges that
the Company does not desire to acquire any trade secrets, know-how, confidential
information, or other intellectual property that the Consultant may have
acquired from or developed for any third party, including the Institution
("Third-Party IP"). The Company agrees that in the course of providing the
Services, the Consultant shall not be required to use or disclose any
Third-Party IP, including without limitation any intellectual property of (i)
any former or current employer, (ii) any person for whom the Consultant has
performed or currently performs consulting services, or (iii) any other person
to whom the Consultant has a legal obligation regarding the use or disclosure of
such intellectual property.
5.5 Notwithstanding any other provision of this Agreement, Company
understands that Consultant has primary professional, academic and ethical
obligations arising in connection with his positions at HMS and CHILDREN'S
HOSPITAL, and that Consultant is subject to policies of those institutions which
protect academic freedom and preserve ownership of
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intellectual property rights. Company agrees that Consultant shall be free to
publish within the scope of his professional and academic duties with respect to
his participation as a Consultant, provided that he does not reveal Confidential
Information. Company therefore agrees that in the course of his professional and
academic duties, Consultant may discuss such participation at conferences, with
colleagues, and with students, residents and fellows as he deems appropriate. In
either context, as well as in the scope of his duties under this Agreement,
Consultant shall be free to conduct himself without restraint or improper
influence, in accordance with HMS and Institutional academic, ethical and
publication standards. Solely in order to permit Company an opportunity to
determine if Confidential Information or Inventions are therein improperly
disclosed, Consultant agrees to use reasonable efforts to (i) provide to Company
at least thirty days in advance of submission to a journal any substantially
complete manuscript that includes such Confidential Information; (ii) provide
notice to Company no later than five working days before submission for
publication or to a conference of any substantially final abstract referring to
such Confidential Information; and (iii) notify Company thirty days in advance
of any conference at which such Confidential Information can foreseeably be
revealed. If within that thirty-day period Company requests a delay in
publication so that a patent may be filed on Inventions disclosed in the
manuscript, Consultant will delay publication for up to an additional sixty days
(not to exceed a total of ninety days from the initial submission of a
manuscript to Company). Company agrees to hold all such submissions and
information in confidence pending publication. Company agrees to notify
Consultant promptly if any action is necessary to delete Confidential
Information. Company has no other right to request alteration or deletion of any
portion of the manuscript or abstract.
6. MISCELLANEOUS.
6.1 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.
6.2 HEADINGS. All headings in this Agreement are for convenience only and
shall not affect the meaning of any provision hereof.
6.3 BINDING EFFECT. This Agreement shall inure to the benefit of and be
binding upon the parties and their respective lawful successors, assigns, heirs,
and personal representatives.
6.4 ASSIGNMENT. This Agreement may not be assigned by either party without
the prior written consent of the other party.
6.5 NO CONFLICT OF INTEREST. The Consultant and Company mutually represent
that to the best of their knowledge neither currently has any agreement with, or
any other obligation to, any third party that conflicts with the terms of this
Agreement. The parties agree that they shall not intentionally enter into any
such agreement.
6.6 COMPLIANCE WITH INSTITUTIONAL POLICIES. The Company recognizes that as
a faculty member of the Institution, the Consultant is responsible for ensuring
that any consulting agreement the Consultant enters into with a for-profit
entity is not in conflict with the intellectual property, consulting,
conflict-of-interest, and other policies of the Institution. The Consultant
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represents that to the best of his knowledge this Agreement complies with all
such policies in effect on the Effective Date. The Consultant further represents
that to the best of his knowledge he or she has made all required disclosures to
the Institution and has obtained all necessary approvals of this Agreement from
the appropriate authorities at the Institution.
6.7 NOTICES. All notices, requests, demands and other communications
required or permitted to be given pursuant to this Agreement shall be in writing
and shall be deemed to have been duly given upon the date of receipt if
delivered by hand, recognized national overnight courier, or confirmed facsimile
transmission, or upon the date sent if mailed by registered or certified mail,
return receipt requested, postage prepaid, to the following addresses or
facsimile numbers:
If to Consultant: If to Company:
Xxxxx Xxxxxxx, M.D. Synta Pharmaceuticals Corp.
Children's Hospital Boston 00 Xxxxxxxx Xxx.
Department of Surgery, Xxxxxxxxx - 1 Xxxxxxxxx, XX 00000
000 Xxxxxxxx Xxxxxx Xxxx.: Chief Executive Officer
Xxxxxx, XX 00000
Either party may change its designated address and facsimile number by notice to
the other party in the manner provided in this Section.
6.8 AMENDMENT AND WAIVER. This Agreement may be modified, amended, or
supplemented only by means of a written instrument signed by both parties. Any
waiver of any rights or failure to act in a specific instance shall relate only
to such instance and shall not be construed as an agreement to waive any rights
or fail to act in any other instance, whether or not similar.
6.9 GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the Commonwealth of Massachusetts irrespective of
any conflict of laws principles.
6.10 SEVERABILITY. In the event that any provision of this Agreement shall,
for any reason, be held to be invalid or unenforceable in any respect, such
invalidity or unenforceability shall not affect any other provision hereof, and
this Agreement shall be construed as if such invalid or unenforceable provision
had not been included herein. To the extent this Agreement may be construed in
accordance with the laws of any state that limits the assignability to the
Company of certain inventions, this Agreement shall be interpreted not to apply
to any such invention that a court rules or the Company agrees is subject to
such state limitation.
6.11 EQUITABLE RELIEF. The parties acknowledge that the restrictions
contained in this Agreement are necessary and reasonable, and that breach
thereof may cause irreparable harm to the other party. Therefore, in addition to
any other remedies that may be available, the aggrieved party may apply for and
obtain immediate injunctive relief in any court of competent jurisdiction to
restrain the breach or threatened breach of, or otherwise to specifically
enforce, any obligations under this Agreement.
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6.12 ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between the parties with respect to the subject matter hereof and supersedes any
and all prior or contemporaneous oral and prior written agreements and
understandings.
6.13 Company shall not use Consultant's name or depiction, or the name,
logos, trademarks, or depictions of CHILDREN'S HOSPITAL, HMS, or any officer,
director, employee, appointee, medical staff member of employee of either, or
any adaptation thereof, in any promotional, advertising or marketing literature,
or in any other way without the prior written consent of CHILDREN'S HOSPITAL,
the individual, or HMS, as appropriate, provided however that in neutral
circumstances that do not imply endorsement or advocacy, or otherwise
misrepresent the terms of this Agreement or Consultant's role, Company may
accurately state that Consultant is a Scientific Advisory Board member and
consultant to Company, and list his professional degrees and titles.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as a sealed instrument effective as of the date first written above.
SYNTA PHARMACEUTICALS CORP.
By: /s/ XXXX XXXXXXX
---------------------------------
Name: Xxxx Xxxxxxx, Ph.D.
Title: Chief Executive Officer
XXXXX XXXXXXX, MD
/s/ XXXXX XXXXXXX
---------------------------------
Accepted and Agreed:
CHILDREN'S HOSPITAL BOSTON
By: /s/ XXXXXX X. XXXXXXXX
---------------------------------
Xxxxxx X. Xxxxxxxx
Chief Intellectual Property Officer
