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EXHIBIT 10.1
LEUKON, INC.
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT, entered into as of this 22nd day of January,
1993 (this "Agreement"), is between Leukon, Inc., a Delaware corporation
(hereinafter called the "Company"), and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, of Cambridge,
Massachusetts (hereinafter called the "Consultant").
1. Consulting Services.
(a) Subject to and upon the terms and conditions set forth in this
Agreement, the Company hereby retains the Consultant, and the Consultant
hereby agrees, during the term of this Agreement, to serve as Chairman of
the Scientific Advisory Board of the Company and to provide to the Company
such consulting and technical advisory services as may be required by the
Company from time to time. Such services shall be rendered exclusively to
the Company in the healthcare field except that such services shall not
include (i) operational or managerial responsibilities, (ii)
responsibilities, or service as a member of the Board of Directors of the
Company (although Consultant shall, during the term of this Agreement,
receive all notices of meetings of such Board of Directors and may, at his
option, observe at such meetings), or (iii) Clinical Research as defined
in the Harvard University ("Harvard") Faculty of Medicine Policy on
Conflicts of Interest and Commitment dated March 22, 1990 (the "Harvard
Conflicts Policy"), or (iv) the conduct of research externally that would
ordinarily be conducted within or for Harvard or the Center for Blood
Research, Inc. and/or its for profit subsidiary CBR Laboratory, Inc., both
hereinafter the "CBR", or (v) research conducted at or utilizing the
resources or facilities of Harvard, the CBR or any other
Harvard-affiliated institution, including such research and services for
third parties through CBR (which may be rendered to commercial, for profit
companies, or others) which, now, or at any time, sponsor, or have
sponsored research, or work with CBR and/or Harvard in the healthcare
field or otherwise.
In rendering consulting services hereunder, the Consultant shall act
solely as an independent contractor and this Agreement shall not be
construed to create any employee/employer relationship between the
Consultant and the Company.
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It is understood and agreed that Consultant is an employee of CBR
and has and will have existing and future obligations to CBR, including
rendering services, and assigning rights to certain inventions,
developments and discoveries (whether patentable or not), which
obligations shall not be diminished by anything in this agreement.
(b) During the term of this Agreement, the Consultant agrees to
devote up to, but no more than, two (2) days per month to the performance
of consulting services hereunder, including attendance at meetings of the
Company's Scientific Advisory Board; provided, however, that he shall not
be required to devote more time than is permitted by the policies or
regulations of Harvard or the CBR. If such policies or regulations are
amended or later determined to permit less than two days per month of
services hereunder there shall be an appropriate reduction in the
compensation payable to the Consultant hereunder. If in connection with
the performance of the services, the Consultant is required to travel for
over one hour to or from a metropolitan area where the Consultant does not
reside, time spent in travel shall be considered to be time spent
performing services. Services performed by Consultant as the Chairman of
the Scientific Advisory Board in addition to preparation for and
attendance at meetings shall also be considered to be time spent
performing services hereunder.
(c) The Consultant shall provide his consulting services hereunder
at such times and locations as are mutually agreed upon by the Consultant
and the Company; provided, however, that such times and locations shall
not interfere with Consultant's obligations to Harvard and the CBR, the
principal employer of the Consultant.
(d) The Company recognizes that the Consultant's activities are or
will be subject to the rules and regulations of Harvard and the CBR, now
or in the future, and the Company agrees that the Consultant shall be
under no obligation to perform services hereunder if such performance
would conflict with such rules and regulations, or constitute a Category I
activity under the Harvard Conflicts Policy. The Consultant's obligations
under this Agreement shall be subject to his compliance with such rules
and regulations, and, in the event of a conflict, such rules and
regulations shall control. In the event such rules and regulations shall
in the Company's opinion substantially interfere with the performance of
services by the Consultant hereunder, the Company
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may terminate this Agreement upon ninety (90) days notice to the
Consultant. Subject to the obligations of Section 10, the Consultant shall
not be restricted in his ability to publish or formally present research
results, or provide expert commentary on any subject relating to his
activities for Harvard or the CBR.
(e) The Consultant shall not serve on or participate in any way with
respect to the scientific advisory board of any other company or consult
or become an officer or employee of any other for profit company without
the prior written consent of the Board of Directors of the Company except
for such participation or consulting as may be required by Consultant's
obligations to CBR. The Board of Directors may condition any consent upon
a reduction in the Consulting Fee (as defined below) with respect to any
payments received by the Consultant for such other activities.
2. Freedom to Contract. The Consultant represents that he is free to
enter into this Agreement, he has not made and will not make (except as may be
contemplated by Section 1 (d)) any agreements in conflict with this Agreement,
and he will not disclose to the Company, or use for the Company's benefit, any
trade secrets or confidential information which is the property of any other
party. Without limiting the generality of the foregoing, the Consultant shall
have no obligation to disclose to the Company, and shall not use for the
Company's benefit, any information relating to or arising out of his research
conducted at Harvard or the CBR, or utilizing the funds, personnel, facilities,
materials or other resources of Harvard or the CBR, until such information has
been published; provided, however, that the Consultant shall have an obligation
to disclose to the Company, and shall use for the Company's exclusive benefit,
any and all such information to the extent that the Company shall be legally
entitled to the exclusive use of such information pursuant to any license
granted by Harvard or the CBR to the Company.
3. Compensation.
(a) So long as the Consultant is providing consulting services to
the Company under this Agreement, the Company agrees to pay the Consultant
a consulting fee in the amount of $100,000.00 per year (the "Consulting
Fee"), subject to possible adjustment as provided in this Section, Section
1(b) and (e), payable in equal monthly installments. The Consulting Fee
shall be the exclusive form of compensation by the Company to the
Consultant regarding services rendered to the Company by the Consultant.
Beginning on January 1, 1994, the Consulting Fee shall be adjusted
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upward by the same percentage as the percentage increase in the "Consumer
Price Index for Urban Wage Earners and Clerical Workers for the City of
Boston - All Items - Series A" published by the Bureau of Labor
Statistics, United States Department of Labor, or any index which may in
the future be submitted in place of such index (the "Index"), from the
index figure for the month of January, 1993 to the index for the month of
January, 1994. For each successive year, the Consulting Fee shall be
adjusted in the same manner, that is, by the percentage by which the
Consumer Price Index for January of that year exceeds the index for the
preceding January.
(b) The Company hereby acknowledges that the Consultant has been
rendering consulting services to the Company since August 3, 1992, and,
within ten (10) days of the Effective Date (as defined in Section 6) of
this Agreement, agrees to compensate the Consultant for such consulting
services, in accordance with Section 3(a) above, to the same extent as if
the Consultant had rendered such consulting services after the Effective
Date.
(c) The Company will not withhold any tax or Social Security
payments due from the Consultant to any governmental taxing authority. The
Consultant hereby agrees that he will timely pay all taxes and fees upon
the compensation he is paid by the Company.
4. Expenses. The Company shall reimburse the Consultant for any actual
expenses incurred by the Consultant while rendering services under this
Agreement so long as such expenses are reasonable and necessary, appropriately
documented, and, where feasible, approved in advance by the Company.
5. Representation of Consultant. The Consultant hereby represents and
warrants to the Company that he has provided a copy of this Agreement to the CBR
and the CBR has not objected to his entering into and performing this Agreement,
that he will file a copy with Harvard in accordance with the Harvard Conflicts
Policy and that the terms of this Agreement and the services contemplated
hereunder do not conflict with any of the Consultant's current or anticipated
obligations to, or with any of the policies, procedures or regulations of,
Harvard or the CBR.
6. Term. This Agreement shall take effect as of the date hereof (the
"Effective Date") and, unless sooner terminated pursuant to Sections 7 or 1(d)
hereof or renewed as set forth below, shall expire two years from the Effective
Date. Unless either the Company or the Consultant gives
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written notice at least sixty (60) days prior to the initial or any successive
expiration date, the term of this Agreement shall be automatically extended for
successive renewal terms of one year each.
7. Termination.
(a) This Agreement (i) shall terminate immediately upon the
Consultant's death, (ii) may be terminated by either the Company or the
Consultant upon the permanent disability of the Consultant by giving
written notice of such termination to the other party and (iii) may be
terminated by the Company by giving written notice to the Consultant if
the Company and CBR do not, within ninety (90) days of the Effective Date,
enter into one or more written license agreements satisfactory to the
Company relating to the technology and inventions of ▇▇. ▇▇▇▇▇▇▇▇.
(b) This Agreement may be terminated by the Consultant, by giving
written notice of such termination to the Company, in the event that
HealthCare Investment Corporation ("HealthCare") and/or Dr. ▇▇▇▇▇▇ ▇▇▇▇▇▇
("▇▇. ▇▇▇▇▇▇"), and/or other investors or designees who may participate
with them, fail to make the first of two $5,000,000.00 installments as
contemplated by the terms of that certain Term Sheet, dated December ,
1992, relating to the Company's proposed Convertible Preferred Stock
Financing.
(c) This Agreement may be terminated immediately by the Company or
the Consultant for Cause at any time during the initial term of this
Agreement (or during any renewal term) by giving the other party written
notice of such termination. For purposes of this Agreement, the meaning of
the term "Cause" shall include, but not be limited to, dishonesty,
embezzlement, theft, fraudulent misconduct, any use of an illegal
substance, or any breach of this Agreement which remains uncured 30 days
after the breaching party receives written notice of such breach from the
nonbreaching party. If the Company gives notice of termination or
non-renewal pursuant to Section 6 hereof, it shall be treated as a
termination without Cause (unless the notice of termination specifically
provides that it is a for Cause termination). If the Consultant terminates
this Agreement on account of a material (uncured) breach by the Company,
it shall be treated as a termination without Cause.
8. Agreement not to Compete. Except as otherwise provided below, during
the term of this Agreement and for a period of one (1) year thereafter, the
Consultant shall not, directly or indirectly, engage or participate in any way
in any business, commercial activity or commercial
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enterprise which competes or is competitive with any product, process or service
that (in the case of a termination, at the date of termination) the Company is
researching, developing, marketing, licensing or selling or that the Company is
intending within two (2) years from the date of termination to research,
develop, market, license or sell; provided, however, that nothing in this
Section 8 shall be construed to limit the ability of the Consultant to conduct
research or engage in research-related activities for or administered by Harvard
and the CBR; and provided, however, that the holding by the Consultant of any
investment in the equity of a publicly traded entity (registered under
(Section)12(g) of the Securities Exchange Act of 1934 and traded on a recognized
national securities exchange or the NASDAQ National Market System) shall not be
deemed to be a violation of this section if such investment does not constitute
over one percent (1%) of all of the equity of such entity. The Consultant also
shall not solicit any other employee, customer, supplier, or franchisee of, or
consultant or adviser to, the Company to terminate such party's relationship
with the Company during the term of this Agreement and for a period of one (1)
year thereafter. The time periods provided for in this section shall be extended
for a period of time in which the Consultant is in violation of any provision of
this section. Notwithstanding anything in this Agreement to the contrary
(including, without limitation, the provisions of Section 13 hereof), the
provisions of this Section 8 shall not be applicable from and after any
termination of this Agreement pursuant to Section 7(b) hereof.
9. Inventions; Assignments. Except to the extent that the Consultant's
employer, Harvard or the CBR now or in the future, may have pre-existing or
superior rights by reason of such employment and/or by agreement, all
inventions, improvements, developments, ideas, names, patents, trademarks,
copyrights, and innovations (including all data and records pertaining thereto),
whether or not reduced to writing, which the Consultant may, either alone or
with others and whether or not during working hours or by the use of facilities
of the Company, originate, make or conceive, at any time during the term of this
Agreement and for a period of twelve (12) months thereafter, and which arise out
of or are based upon any services rendered hereunder and/or any Confidential
Information of the Company shall be the exclusive property of the Company. The
Consultant agrees to give the Company prompt written notice of any such
invention, improvement, development, idea, name, patent, trademark, copyright or
innovation and agrees to execute such instruments of transfer, assignment,
conveyance or confirmation and such other documents (including, without
limitation, patent applications) as the Company may reasonably request to
transfer, confirm and perfect in the Company all legally protectable rights in
any such invention,
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improvement, development, idea, name, patent, trademark, copyright or
innovation. By this Agreement the Consultant hereby irrevocably constitutes and
appoints during the period commencing on the Effective Date and ending three
years following the date of termination of the Consultant's services for any
reason the Company as his attorney-in-fact for the purpose of executing, in the
Consultant's name and on his behalf, such instruments or other documents as may
be necessary to transfer, confirm and perfect all rights which the Company may
have or be entitled to assert under this Section 9. In no event, however, shall
the Consultant's obligations hereunder relate to any right, title or interest
the Consultant may have in inventions, discoveries, developments, methods and
processes (whether or not patentable or copyrightable or constituting trade
secrets) conceived, made or discovered by the Consultant (whether alone or with
others) that the Consultant is now or may in the future be legally required to
assign to Harvard or the CBR pursuant to the rules and regulations of Harvard or
the CBR or to assign to third parties in connection with employment by Harvard
or CBR.
10. Confidential Information.
(a) The Consultant acknowledges that all information disclosed to or
acquired by the Consultant relating directly or indirectly to the present
or contemplated business of the Company (including, without limitation,
any information of the Company relating to DNA sequences and derivatives
thereof, assays, vectors, calls, antibodies, other biological and/or
chemical substances, formulations, techniques, processes, methodology,
equipment, data, reports, know-how, technology, computer software, sources
of supply, information regarding patent position, products, business
plans, or customer lists), as well as such other information as may be
designated by the Company as confidential (all of the foregoing
information being hereinafter referred to, collectively, as "Confidential
Information"), is a valuable, special, and unique asset of the Company and
is to be held in trust by the Consultant for the Company's sole benefit.
Without limiting the generality of the foregoing, the Consultant hereby
acknowledges and agrees that Confidential Information shall include any
and all inventions, know-how, technology, processes, techniques,
methodology, information and intellectual property licensed by one or more
written license agreements to the Company by Harvard and/or the CBR,
provided however that, the restrictions as to non-disclosure and non-use
of such information shall be controlled only by the terms of such license
agreement or agreements. Except as otherwise provided in Section 10(b) or
(c) hereof, the Consultant
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shall not, at any time during or after the term of this Agreement, use for
himself or others, or disclose or communicate to any person for any
reason, any Confidential Information without the prior written consent of
the Company; provided, however, that the Consultant may use Confidential
Information with respect to his services hereunder.
(b) The Consultant's obligations under Section 10(a) hereof not to
use, disclose or communicate Confidential Information shall not apply to
any Confidential Information which (i) is or becomes publicly known under
circumstances involving no breach by the Consultant of this Agreement,
(ii) was generally known by the Consultant prior to the date hereof, (iii)
was or is disclosed to the Consultant by a third party who is not under
any obligation of confidentiality to the Company, and/or (iv) was or is
approved for release by written authorization of an authorized
representative of the Company; provided, however, that clauses (ii) and
(iii) above in this Section 10(b) shall in no event exempt the Consultant
from the restrictions imposed by Section 10(a) hereof on the use,
disclosure and communication of Confidential Information with respect to
any Confidential Information which relates to the subject matter of any
license granted to the Company by Harvard and/or the CBR.
(c) The Consultant agrees to submit to the Company in sufficient
time to enable the Company to ascertain whether a manuscript to be
published (orally or in writing) contains Confidential Information and/or
discloses a potentially patentable invention to which the Company has
rights an early draft of such manuscript if such manuscript contains
information regarding any area of the business or contemplated business of
the Company. The Consultant shall cooperate with the Company in this
respect, and shall delete from the manuscript, any Confidential
Information as requested by the Company and shall assist the Company as
requested by the Company in filing for patent protection (prior to
publication of such manuscript) for any inventions in and to which the
Company has rights. Notwithstanding the foregoing, the obligations of the
Consultant under this Section 10(c) shall not apply to the publication of
information relating to inventions, discoveries, development, methods and
processes that the Consultant is not required to assign to the Company.
11. Return of Documents. All originals, copies and summaries of manuals,
memoranda, notes, notebooks, records, reports, plans, drawings, and other
documents or items of any kind concerning any matters
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affecting or relating to the present or contemplated business of the Company,
whether or not they contain Confidential Information, are and shall continue to
be the property of the Company, and all of such documents or items, other than
material belonging to Harvard or the CBR, in the actual or potential possession
or control of the Consultant shall be delivered to the Company by the Consultant
immediately upon termination of this Agreement.
12. Unique Nature of Agreement; Specific Enforcement. The Company and
the Consultant agree and acknowledge that the rights and obligations set forth
in this Agreement are of a unique and special nature and that the Company is,
therefore, without an adequate legal remedy in the event of the Consultant's
violation of any of the covenants set forth in this Agreement. The Company and
the Consultant agree, therefore, that, in addition to all other rights and
remedies, at law or in equity or otherwise (including termination of the
Consultant's consultancy), that may be available to the Company, each of the
covenants made by the Consultant under this Agreement shall be specifically
enforceable in equity.
13. Survival. The provisions of Sections 8, 9, 10, 11 and 15 hereof
shall survive the termination of this Agreement.
14. Miscellaneous.
14.1. Entire Agreement. This Agreement represents the entire Agreement of
the parties with respect to the arrangements contemplated hereby. No prior
agreement, whether written or oral, shall be construed to change, amend, alter,
repeal or invalidate this Agreement. This Agreement may be amended only by a
written instrument executed in one or more counterparts by the parties.
14.2. Waiver. No consent to or waiver of any breach or default in the
performance of any obligations hereunder shall be deemed or construed to be a
consent to or waiver of any other breach or default in the performance of any of
the same or any other obligations hereunder. Failure on the part of either party
to complain of any act or failure to act of the other party or to declare the
other party in default, irrespective of the duration of such failure, shall not
constitute a waiver of rights hereunder and no waiver hereunder shall be
effective unless it is in writing, executed by the party waiving the breach or
default hereunder.
14.3. Assignment. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns. This
Agreement may be assigned by the Company to a successor
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of its business to which this Agreement relates (whether by purchase or
otherwise). The Consultant may not assign or transfer any or all of his rights
or obligations under this Agreement.
14.4. Disputes and Costs. In case of any dispute hereunder, the parties
will submit to the exclusive jurisdiction and venue of any court of competent
jurisdiction sitting in Suffolk County, Massachusetts, and will comply with all
requirements necessary to give such court jurisdiction over the parties and the
controversy. Each party waives any right to a jury trial and to claim or recover
punitive damages.
14.5. Severability. All headings and subdivisions of this Agreement are
for reference only and shall not affect its interpretation. In the event that
any provision of this Agreement should be held unenforceable by a court of
competent jurisdiction, such court is hereby authorized to amend such provision
so as to be enforceable to the fullest extent permitted by law, and all
remaining provisions shall continue in full force without being impaired or
invalidated in any way.
14.6. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the Commonwealth of Massachusetts.
14.7. Notices. All notices and other communications hereunder shall be
delivered or sent by registered or certified mail, return receipt requested,
hand delivery or confirmed telecopy addressed to each party at the address set
forth below, or to such other address as such party may designate in writing to
the other:
If to the Consultant:
▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
The Center for Blood Research
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
with a copy simultaneously to:
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Ropes & ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
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If to the Company:
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, Vice Chairman
HealthCare Investment Corp.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
with a copy simultaneously to:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
▇▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
15. To the extent permitted by law, the Company shall indemnify and hold
the Consultant harmless from and against expenses (including reasonable
attorneys' fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by him in connection with any threatened, pending or
completed action, suit or proceeding (whether civil, criminal, administrative or
investigative) to which he becomes a party or is threatened to be made a party
by reason of any status, service, action or failure to act on his part in his
capacity as Chairman of the Scientific Advisory Board of the Company, as a
consultant hereunder to, or an agent or promoter of, or otherwise on behalf of
the Company, whether before or after the date hereof. The Consultant shall not,
without the prior written consent of the Company, settle an action, suit or
proceeding as to which the Company has undertaken to indemnify the Consultant.
The Company shall not unreasonably withhold payment of expenses incurred by the
Consultant in the defense of an action, suit or proceeding subject to this
Section 15 or of amounts paid in settlement of such an action, suit or
proceeding in accordance with this Section 15. Without limiting or expanding the
foregoing, the Company shall indemnify and hold the Consultant harmless from any
expenses (including reasonable attorneys' fees), judgments, fines and amounts
paid in settlement actually and reasonably incurred by him as a result of
product liability claims arising from the use by the Company of any inventions
transferred by the Consultant to the Company or services rendered to the Company
by the Consultant hereunder. The Consultant agrees to promptly notify the
Company of any claim or action subject to the indemnification provisions of this
Section 15 and to cooperate with the Company in the defense thereof. The Company
shall have the right to settle any such claim for which the Consultant is to be
fully indemnified.
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The provisions of this Section 15 shall not apply to the extent the Consultant
has been finally determined by a court of competent jurisdiction to have acted
with gross negligence or willful misconduct with respect to the action or
failure to act with respect to which indemnification is being sought hereunder.
IN WITNESS WHEREOF, the parties have signed this Consulting Agreement as
of the date written above as a sealed instrument.
LEUKON, INC.
By:______________________________
Title:
_________________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇