EX-10.11
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filename19.htm
Exhibit 10.11
CONSULTING AGREEMENT
THIS
Consulting Agreement (the "Agreement")
is made as of February 7, 2012 (the "Effective Date"), by and between Chimerix,
Inc., a Delaware corporation (the "Company"), and Synergee LLC, a limited liability
corporation organized under the laws of New Jersey (the "Consultant").
The Company desires
to benefit from Consultant's expertise by retaining Consultant as a consultant, and Consultant wishes to perform consulting services
for the Company, as provided below. In consideration of the mutual covenants set forth below, the parties hereby agree as follows:
1. Consulting
Services. The Company hereby engages Consultant, and Consultant hereby agrees, to provide consulting services to the Company
as described in Exhibit A hereto (the "Services") during the term of this Agreement,
as requested by the Company. Consultant agrees to exercise the highest degree of professionalism and to utilize Consultant's expertise
and creative talents in performing the Services.
2. Compensation.
As full and complete compensation for performing the Services, the Company shall pay Consultant the compensation specified
in Exhibit A hereto. Company shall reimburse Consultant, in accordance with Company's reimbursement policy, for any reasonable
expenses incurred in connection with the performance of Services under this Agreement, provided Consultant obtains Company's prior
written approval thereof and submits verification of such expenses as Company may reasonably require.
3. Independent
Contractor. Consultant's relationship with Company is that of an independent contractor and nothing in this Agreement should
be construed to create a partnership, joint venture, or employer-employee relationship. Consultant is not the agent of Company
and is not authorized to make any representation, contract, or commitment on behalf of Company. Consultant will not be entitled
to any of the benefits that Company may make available to its employees, such as group insurance, profit-sharing, or retirement
benefits. Consultant shall be solely responsible for all tax returns and payments required to be filed with or made to any federal,
state, or local tax authority with respect to Consultant's performance of services and receipt of fees under this Agreement. The
Company will report amounts paid to Consultant by filing Form 1099-MISC with the Internal Revenue Service as required by law. Because
Consultant is an independent contractor, the Company will not withhold or make payments for social security, make unemployment
insurance or disability insurance contributions, or obtain worker's compensation insurance on Consultant's behalf. Consultant agrees
to accept exclusive liability for complying with all applicable state and federal laws governing self-employed individuals, including
obligations such as payment of taxes, social security, disability, and other contributions based on fees paid to Consultant, his
agents, or employees under this Agreement. Consultant hereby agrees to indemnity and defend the Company against any and all such
taxes or contributions, including penalties and interest.
4. Confidentiality.
(a) Confidential
Information. The term "Confidential Information" shall mean any and all trade secrets, confidential
knowledge, know-how, data or other proprietary information or materials, in whatever form, tangible or intangible, pertaining in
any manner to the Company's business. By way of illustration but not limitation, Confidential Information may include inventions,
ideas, discoveries, developments, designs, techniques, tangible and intangible information, chemical compounds, building blocks,
chemical libraries, reaction protocols for chemical libraries, chemical structures, chemical design and model relationship data,
chemical databases, assays, samples, media and other biological materials, procedures and formulations for producing any such materials,
products, processes, drawings, improvements, formulas, equations, methods, developmental or experimental work, research or clinical
data, instruments, devices, computer software and hardware, and information regarding research, development, current and proposed
products and services, marketing and selling, business plans, business methods, budgets, finances, licensing, collaboration and
development arrangements, prices and costs, buying habits and practices, contact and mailing lists and databases, vendors, customers
and clients, and potential business opportunities.
(b) Exceptions. Information
to which Consultant receives access pursuant to this Agreement will not be considered to be Confidential Information to the
extent that Consultant can demonstrate by competent written evidence that such information: (i) is or becomes publicly
known other than as a result of any breach of this Agreement by Consultant; (ii) is disclosed to Consultant on a
non-confidential basis by a third party who rightfully possesses the information; or (iii) was known to Consultant prior to
its first receipt from the Company (whether such first receipt occurred before or during the term of this Agreement), except
in the case of the Company Inventions, which shall not be subject to the exception in this clause (iii).
(c) Non-Disclosure
and Non-Use. At all times during the term of Consultant's association with the Company and thereafter, Consultant shall hold
the Confidential Information in trust and confidence and shall not disclose or use any Confidential Information, except to the
extent such disclosure or use is required in direct connection with Consultant's performance of requested Services for the Company
or is expressly authorized in writing by the Company.
(d) Third
Party Information. Consultant acknowledges that the Company has received and in the future will receive from third parties
confidential or proprietary information ("Third Party Information") subject to a duty on
the Company's part to maintain the confidentiality of such information and to use it only for certain limited purposes. During
the term of Consultant's association and thereafter, Consultant shall hold Third Party Information in the strictest confidence
and shall not disclose or use Third Party Information, except the extent such disclosure or use is required in direct connection
with Consultant's performance of requested Services for the Company or is expressly authorized in writing by the Company.
5. Intellectual
Property Rights.
(a) Ownership
of Company Inventions. Consultant agrees that any and all ideas, inventions, discoveries, improvements, know-how and techniques
that the Consultant conceives, reduces to practice or develops during the term of the Agreement, alone or in conjunction with
others, during the performance of, or as a direct result of performing, the Services for the Company under this Agreement, including,
without limitation, any and all intellectual property rights therein (collectively, "Company Inventions"),
shall be the sole and exclusive property of the Company. Consultant hereby irrevocably assigns to the Company all right, title
and interest in and to all Company Inventions and agrees to execute, verify, and deliver assignments of Company Inventions to
the Company or its designee promptly upon request. In addition, Consultant hereby designates the Company as his or her agent for,
and grants to the Company a power of attorney with full power of substitution, which power of attorney shall be deemed coupled
with an interest, solely for the purpose of effecting the assignment of Company Inventions from the Consultant to the Company.
(b) Company
Inventions Not Capable of Assignment. If Consultant has any rights to Company Inventions that cannot, under applicable law,
be assigned to the Company, Consultant unconditionally and irrevocably waives the enforcement of such rights and all claims and
causes of action of any kind against the Company with respect to such rights. Consultant agrees, at the Company's request and expense,
to consent to and join in any action to enforce such rights. If Consultant has any right to Company Inventions that can neither
be assigned to the Company nor waived by Consultant, Consultant unconditionally and irrevocably grants to the Company during the
term of such rights, an exclusive, irrevocable, perpetual, worldwide, fully-paid and royalty-free license, with rights to sublicense
through multiple levels of sublicensees, to develop, make, have made, use, sell, have sold, offer for sale, import, reproduce,
create derivative works of, distribute, publicly perform, and publicly display by all means now known or later developed, Company
Inventions.
(c) Cooperation
and Assistance. Consultant agrees to cooperate with the Company and its designee(s), both during and after the term of this
Agreement, in the procurement and maintenance of the Company's rights in Company Inventions, and to execute, when requested, any
other documents deemed necessary by the Company to carry out the purpose of this Section 5. Consultant shall assist the Company
in every proper way to obtain, prosecute, maintain and enforce United States and foreign patent rights, copyrights and other intellectual
property rights or protections claiming, covering or relating to Company Inventions in any and all countries. To that end, Consultant
shall execute, verify and deliver such documents and perform such other acts (including appearances as a witness) as the Company
may reasonably request for use in applying for, obtaining, perfecting, evidencing, sustaining, and enforcing such rights and the
assignment thereof. Consultant's obligations under this Section 5(c) shall continue beyond the expiration or termination of this
Agreement, but after expiration or termination of this Agreement, the Company shall compensate Consultant at a reasonable rate
for the time actually spent by Consultant at the Company's request on such assistance.
6. No
Conflicts. During the term of this Agreement, Consultant shall not, without the prior written consent of the Company, engage
in any commercial business activity that competes with the Company's business or enter into any consulting or advisory relationship
with any third party commercial entity that is engaged in any business activity that competes with the Company's business. If any
restriction set forth above in this Section 6 is found by any court of competent jurisdiction to be unenforceable because it extends
for too long a period of time or over too great a range of activities or in too broad a geographic area, it shall be interpreted
to extend only over the maximum period of time, range of activities or geographic area as to which it may be enforceable.
7. Representations
and Warranties. Consultant represents and warrants to the Company that Consultant's performance of the Services and
of its obligations under this Agreement do not and will not breach or conflict with any agreement between Consultant and any third
party (including, without limitation, Institution).
8. No
Improper Use of Materials. Consultant agrees not to bring to the Company or to use in the performance of Services for the Company
any materials or documents of a present or former employer of Consultant, or any materials or documents obtained by Consultant
from a third party under an obligation of confidentiality, unless such materials or documents are generally available to the public
or Consultant has written authorization from such present or former employer or third party for the possession and unrestricted
use of such materials. Consultant understands that Consultant is not to breach any obligation of confidentiality that Consultant
has to present or former employers or clients, and agrees to fulfill all such obligations during the term of this Agreement.
9. Term;
Termination. The term of this Agreement, and Consultant's Services hereunder, shall commence on the Effective Date and, unless
earlier terminated as provided below, shall expire 1 year after the Effective Date. The Company may terminate this Agreement in
its sole discretion: (a) upon 30 days prior written notice to Consultant; or (b) immediately upon written notice to Consultant
upon Consultant's material breach of Section 4, Section 6 and/or Section 10. Consultant may terminate the Agreement at any time
upon 30 days' prior written notice to the Company. Upon expiration or any termination of this Agreement, or earlier as requested
by the Company, Consultant shall deliver to the Company any and all drawings, notes, memoranda, specifications, devices, formulas,
and documents, together with all copies thereof, and any other material containing or disclosing any Company Inventions, Third
Party Information, or Confidential Information of the Company. Consultant further agrees that any property situated on the Company's
premises and owned by the Company, including disks and other storage media, filing cabinets or other work areas, is subject to
inspection by Company personnel at any time with or without notice. The provisions of Sections 4, 5, 9, 10 and 11 shall survive
expiration or termination of this Agreement.
10. Non-Interference
with Business. During the term of this Agreement and for a period of two (2) years thereafter, Consultant agrees not to solicit
or induce any employee or independent contractor of the Company to terminate or breach an employment, contractual, or other relationship
with the Company.
11. General
Provisions.
(a) Governing
Law. This Agreement will be governed and construed in accordance with the laws of the State of North Carolina, without regard
to its conflicts of laws principles.
(b) Severability.
In case any one or more of the provisions contained in this Agreement shall, for any reason, be held to be invalid, illegal,
or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect the other provisions of this
Agreement, and this Agreement shall be construed as if such invalid, illegal, or unenforceable provision had never been contained
herein. If moreover, any one or more of the provisions contained in this Agreement shall for any reason be held to be excessively
broad as to duration, geographical scope, activity, or subject, it shall be construed by limiting and reducing it, so as to be
enforceable to the extent compatible with the applicable law as it shall then appear.
(c) No
Assignment. Consultant may not assign or delegate Consultant's obligations under this Agreement either in whole or in part
without the prior written consent of the Company. Any attempted assignment or delegation by Consultant without the Company's prior
written consent shall be void and of no effect.
(d) Injunctive
Relief. Consultant hereby acknowledges and agrees that in the event of any breach of this Agreement by Consultant, including,
without limitation, the actual or threatened disclosure or unauthorized use of Confidential Information without the prior express
written consent of the Company, the Company would suffer an irreparable injury such that no remedy at law would adequately protect
or appropriately compensate the Company for such injury. Accordingly, Consultant agrees that the Company shall have the right
to enforce this Agreement and any of its provisions by injunction, specific performance or other equitable relief, without bond
and without prejudice to any other rights and remedies that the Company may have for a breach of this Agreement.
(e) Notices.
All notices, requests, and other communications under this Agreement must be in writing and must be mailed by registered or
certified mail, postage prepaid and return receipt requested, sent by overnight courier or delivered by hand to the party to whom
such notice is required or permitted to be given. If mailed, any such notice will be considered to have been given five (5) business
days after it was mailed, as evidenced by the postmark. If sent by overnight courier
or delivered by hand, any such notice will be considered to have been given when received by the party to whom notice is given,
as evidenced by written and dated receipt of such party. The mailing address for notice to either party will be the address shown
on the signature page of this Agreement. Either party may change its mailing address by notice as provided by this section.
(f) Export.
Consultant agrees not to export, directly or indirectly, any U.S. source technical data acquired from the Company or any products
utilizing such data to countries outside the United States, which export may be in violation of the United States export laws or
regulations.
(g) Waiver.
No waiver by the Company of any breach of this Agreement shall be a waiver of any preceding or succeeding breach. No waiver
by the Company of any right under this Agreement shall be construed as a waiver of any other right. The Company shall not be required
to give notice to enforce strict adherence to all terms of this Agreement.
(h) Entire
Agreement. This Agreement is the final, complete, and exclusive agreement of the parties with respect to the subject matter
hereof. This Agreement supersedes all prior discussions between the parties. No modification of or amendment to this Agreement,
nor any waiver of any rights under this Agreement, will be effective unless in writing and signed by the party to be charged.
The terms of this Agreement will govern all Services undertaken by Consultant for the Company.
(i) Headings.
The headings preceding the text of the sections of this Agreement are inserted solely for convenience and ease of reference
only and shall not constitute any part of this Agreement, or have any effect on its interpretation or construction.
(j) Counterparts.
This Agreement may be executed in one or more counterparts each of which shall be deemed an original, but all of which together
shall constitute one and the same instrument.
In
Witness Whereof, the parties have, by duly authorized persons, executed this Agreement as of the Effective Date.
| Chimerix, INC. | | Synergee LLC |
| By: | /s/ Xxxxxxx Xxxx | | Signature: | /s/ Xxxxxxx X. Xxxxxxxxxx |
| Name: | Xxxxxxx Xxxx | | Xxxxxxx X. Xxxxxxxxxx |
| | | | SYNERGEE FOUNDER & PRINCIPAL |
| Title: | President & CEO | | Biotech Consultant |
| Address: | | Address: |
| | | |
| 0000 Xxxxxxxx Xxxxxxx, Xxxxx 000 | | 10 Fawnwood Drive |
| Durham, NC 27713 | | Xxxxxxxx, XX 00000 |
| XXX | | XXX |
| Attention: Contract Coordinator | | Phone: 000-000-0000 |
| Email: xxxxxx@xxxxxxxx.xxx | | Email: xxxxxxx@synergeeconsulting,com |
Exhibit
A
Services and Compensation
Consultant shall provide one or more of
the following services, as requested by the Company:
| - | Medical and strategic support for CMX001 CMV end of phase 2 package |
| - | -Strategic discussions based on data analysis, critical review and edit of End of phase 2 meeting
package |
| - | All work will be performed by Xxxxxxx X. Xxxxxxxxxx |
Compensation:
| - | Chimerix shall pay consultant four hundred dollars ($400.00) per hour. |
| - | The total number of hours performing the Services this Amendment shall not exceed one hundred
(100)/per month without the prior written agreement of the parties. |
| - | Chimerix shall pay consultant's travel time at half the billable rate unless consultant is
actively working on a project for Chimerix in which case consultant will xxxx at the full rate. |
| - | At the end of each month during the term of this Agreement Consultant agrees to send Chimerix
an invoice setting forth the work performed under this Agreement for such month. Within thirty (30 days) of receipt, Chimerix shall
pay consulting fees due for such month. |
FIRST AMENDMENT
TO THE CONSULTING AGREEMENT
BETWEEN CHIMERIX, INC.
AND SYNERGEE LLC
This First Amendment to the Consulting Agreement between Chimerix
and Consultant ("Amendment") is dated effective as of March 30, 2012 ("Effective Date"), and is entered into
by and between Chimerix, Inc. ("Chimerix" or "Company") a Delaware corporation and its successors and
assignees, and Synergee LLC, a limited liability corporation ("Consultant").
WHEREAS, Chimerix and
Consultant entered into that certain Consulting Agreement between Chimerix and Consultant dated effective February 7, 2012 (the
"Agreement"); and
WHEREAS, the parties wish
to amend the Agreement to amend the scope of Services to be performed by Consultant; and
WHEREAS, the parties
wish to amend the Agreement to provide for the grant of a stock option to Xxxxxxx X. Xxxxxxxxxx (as an individual) as partial compensation
for the Services; and
WHEREAS, Chimerix and
Consultant now desire to amend the terms of the Agreement as more particularly set forth below:
2.1 Stock options. Contingent
and effective upon the execution of the Amendment, the Company has awarded to Xxxxxxx X. Xxxxxxxxxx (as an individual) a stock
option covering a total of Fifty Thousand (50,000) shares of the Company's Common Stock. Copies of the Company's 2012 Equity Incentive
Plan and Consultant's Stock Option Agreement and Stock Option Grant Notice relating to this stock option grant will be provided
to Consultant as soon as practicable following the date of the Amendment. The shares will vest as follows:
(i) 10,000
shares will vest immediately upon execution of the Amendment; and
(ii) 5,000
shares will vest at the end of each monthly period following the execution of the Amendment during which Xxxxxxx X. Xxxxxxxxxx
serves as Company's interim Chief Medical Officer as part of the Services; or
(iii) 2,500
shares will vest at the end of each monthly period following the execution of the Amendment during which Consultant performs Services
for the Company, but Xxxxxxx X. Xxxxxxxxxx does not serve as Company's interim Chief Medical Officer.
| 3. | Except as provided in this Amendment, all terms used
in this Amendment that are not otherwise defined shall have the respective meanings ascribed to such terms in the Agreement. |
| 4. | This Amendment embodies the entire agreement between
Consultant and Company with respect to the amendment of the Agreement. In the event of any conflict or inconsistency between the
provisions of the Agreement and this Amendment, the provisions of this Amendment shall control and govern. |
| 5. | Except as specifically modified and amended herein, all
of the terms, provisions, requirements and specifications contained in the Agreement remain in full force and effect. Except as
otherwise expressly provided herein, the parties do not intend to, and the execution of this Amendment shall not, in any manner
impair the Agreement, the purpose of this Amendment being simply to amend and ratify the Agreement, as hereby amended and ratified,
and to confirm and carry forward the Agreement, as hereby amended, in full force and effect. |
IN WITNESS WHEREOF, Consultant and Company
have executed and delivered this Amendment effective as of the Effective Date.
| Synergee LLC | | Chimerix, Inc. |
| By: | /s/ Xxxxxxx X. Xxxxxxxxxx | | By: | /s/ Xxxxxxx Xxxx |
| | | | | |
| Name: | Xxxxxxx X. Xxxxxxxxxx | | Name: | Xxxxxxx Xxxx |
| | | | | |
| Title: | Principal & Founder | | Title: | President & CEO |
| | | | | |
| Date: | 4/4/12 | | Date: | 4/4/12 |
| | | | |  |
APPENDIX
I
Exhibit
A
Services and Compensation
Consultant shall provide one or more of
the following services, as requested by the Company:
| - | Serve in the role of interim Chief Medical Officer (until such time as Company appoints a replacement CMO) |
| - | Other related matters as agreed upon by the Parties |
| - | Consultant will report directly to Xxxxxxx Xxxx, CEO |
| - | All work will be performed by Xxxxxxx X. Xxxxxxxxxx |
Compensation:
| - | Chimerix shall pay consultant four hundred dollars
($400.00) per hour. |
| - | The total number of hours performing the Services this Amendment shall not exceed one hundred
120 per month without the prior written agreement of the parties. |
| - | Chimerix shall pay consultant's travel time at half the billable rate unless consultant is
actively working on a project for Chimerix in which case consultant will xxxx at the full rate. |
| - | At the end of each month during the term of this Agreement Consultant agrees to send Chimerix
an invoice setting forth the work performed under this Agreement for such month. Within thirty (30) days of receipt, Chimerix shall
pay consulting fees due for such month. |
