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CONSULTING SERVICES AGREEMENT
EXHIBIT 10.30
This AGREEMENT (this "Agreement") dated December 14, 1998, but
effective as of January 1, 1999 (the "Effective Date") between ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇, Ph.D., with an address at ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇ (Consultant"), and GENZYME CORPORATION, a Massachusetts corporation having
an office and principal place of business at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("Genzyme").
WITNESSETH:
WHEREAS, Consultant has knowledge, expertise and experience in chemical
and biochemical engineering, manufacturing processes and operations management;
WHEREAS, Genzyme manufactures a variety of therapeutic, surgical,
diagnostic and pharmaceutical products;
WHEREAS, Consultant is willing to provide counseling, planning, recommendations
and assistance to Genzyme with respect to Genzyme's business operations and
manufacturing processes, including technical reviews of current and prospective
development projects, evaluations and benchmarking studies of systems and
procedures, advice concerning Genzyme planning and staffing, and other forms of
assistance relating to Genzyme's manufacturing and operations; and
WHEREAS, Genzyme desires to engage Consultant as an independent contractor to
consult to Genzyme regarding the matters described above.
NOW, THEREFORE, in consideration of the premises and the covenants and
undertakings set forth below, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties agree as
follows:
1. Consulting Services.
(a) Genzyme hereby engages Consultant as an independent contractor to
provide Consulting Services (as hereafter defined) for Genzyme with respect to
the Transactions. As used herein, the term "Consulting Services" shall include
the provision of technical and business advice regarding Genzyme's business
operations, technology development and manufacturing processes, including in
particular but without limitation, the projects set forth on Exhibit A attached
hereto.
(b) Consultant agrees to make himself available and, if requested,
to provide not less than fifteen (15) business days (each business day
to consist of 8 hours devoted to the conduct of the Consulting Services)
of Consulting Services each year during the term of this Agreement as
requested by Genzyme. Each Genzyme request (which may be provided orally or
in writing) shall include a description of the requested Consulting Services,
the number of consulting hours anticipated to complete the requested
Consulting Services, the proposed dates and times of the Consulting Services
and the location for delivery of the Consulting Services. Consultant shall
use his best efforts to provide the Consulting Services in accordance with
Genzyme's request; nonetheless, if the date and location of the requested
Consulting Services conflict with activities previously scheduled by
Consultant or are otherwise not reasonably convenient for the Consultant,
the Consultant may reasonably decline to provide the Consulting Services on the
proposed dates and may suggest alternative scheduling which is subject
to Genzyme's approval.
2. Compensation for Consulting Services.
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(a) Genzyme shall pay Consultant an annual fee equal to $30,000,
payable quarterly in four equal installments of $7,500 within 20 business days
after the end of each calendar quarter. If Consultant works in excess of 15
business days during the year, Genzyme shall pay Consultant a fee at a rate of
$2,000 per day, and for partial days at a rate of $250.00 per hour.
(b) Genzyme shall reimburse Consultant for all reasonable out-of-pocket
expenses reported by Consultant, provided, that such expenses are confirmed by
appropriate supporting documentation as Genzyme may from time to time require
and approved by Genzyme. Expenses subject to reimbursement shall include, but
shall not be limited to, costs incurred by Consultant for travel, lodging,
meals, office supplies and other costs directly related to the provision the
Consulting Services. Reasonable efforts should be made by Consultant to arrange
and book travel in advance to obtain the most cost effective travel pricing
available. In addition to other reasonable travel policies that may be
established by Genzyme from time to time, for air travel flights of less than
six (6) hours Genzyme reimbursement shall be limited to coach class fares, and
for air travel flights greater than six (6) hours Genzyme reimbursement shall be
limited to business class fares.
3. Independent Contractor Status.
It is understood and agreed between the parties that during the period
Consultant renders Consulting Services hereunder, all of his activities shall be
undertaken and performed as an independent contractor. Consultant shall have no
rights to receive any employee benefits, such as health and accident insurance,
sick leave or vacation, which are afforded by Genzyme to regular employees.
Consultant shall not in any way represent himself or herself to be an employee,
partner, joint venturer, agent or officer of or with Genzyme. Genzyme shall not
be responsible for the Consultant's acts while the Consultant is performing the
Consulting Services, whether on Genzyme's premises or elsewhere, and the
Consultant will not have authority to speak for, represent or obligate Genzyme
in any way without additional prior written authority.
4. Assignments and Subcontracts.
Neither party may assign this Agreement to another person or entity
without the express written permission of the other party; provided, however,
that Genzyme may assign this Agreement to an affiliated company in connection
with a merger, consolidation or sale of all or substantially all of the assets.
If assignment is permitted, all of the conditions of this Agreement shall remain
in effect for the future assignee for the entire term of this Agreement.
Permission to assign shall not be unreasonably withheld or delayed.
5. Confidential Proprietary Information.
Both parties acknowledge that each owns or is entrusted with and use
confidential and proprietary information which may include, without limitation,
computer programs, inventions, discoveries, tools, machines, articles of
manufacture, mechanisms, jigs, fixtures, methods, processes, compositions,
mixtures, formulas, designs, techniques of production, manufacture or assembly,
know-how, show-how, trade secrets, patent applications, technical data or
specifications, testing methods, information which concerns their financial
affairs, marketing practices, internal policies and procedures, research and
development activities, products, contracts, suppliers or customers
("Confidential Information"). The parties acknowledge that during the
performance of this Agreement, each may become privy to the Confidential
Information of the other or its affiliates. Notwithstanding the foregoing, both
parties agree that neither obtains any title to or interest or license in such
Confidential Information of the other, and that all such Confidential
Information is owned exclusively by its respective owner.
(a) Restrictions on Use and Disclosure. Each of the parties shall use
the Confidential Information of the other solely for the purposes set forth
in this Agreement. Each party shall maintain in strict confidence
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the Confidential Information of the other, except that Genzyme may disclose or
permit disclosure of Consultant's Confidential Information to its directors,
officers, employees and advisors who are obligated to maintain the confidential
nature of such Confidential Information and who need to know such Confidential
Information for the purposes set forth in this Agreement. During the term of
this Agreement, and for a period of five (5) years thereafter, irrespective of
the manner of or reason for termination of this Agreement, neither party shall
disclose, divulge, publish to others or use in any manner any such Confidential
Information of the other without the prior written consent of the other. Upon
the expiration or termination of this Agreement, each party shall return to the
other party all originals, copies and summaries of documents, materials and
other tangible manifestations of Confidential Information in the possession or
control of such party, except that each party may retain one copy of such
Confidential Information in the possession of its legal counsel for purposes of
monitoring its obligations under this Agreement. Both parties further
acknowledge that any unauthorized disclosure or use of Confidential Information
of the other would substantially and irreparably damage and impair the business
of the other; therefore, the other party shall have, in addition to any remedies
available at law, the right to obtain equitable relief to enforce the provisions
of this Section 6.
(b) Subject Matter Excluded From Restrictions. The foregoing
proscription against use, disclosure and copying by one party (the "Receiving
Party") does not apply to information or data of the other party (the
"Disclosing Party") which (i) can be shown by written documents to have been
known by the Receiving Party prior to disclosure hereunder other than as a
result of some breach of the Disclosing Party's rights in and to such
confidential proprietary information; (ii) is available in published print or is
otherwise known to the public, unless published or made known as a result of
some act of omission of the Receiving Party; (iii) can be shown by written
documents to have been obtained by the Receiving Party in writing from a third
party who did not wrongfully acquire such information or data from the
Disclosing Party and who has no obligation of confidentiality to the Disclosing
Party with respect to such information; (iv) can be shown by written documents
to have been independently developed by the Receiving Party or its affiliates
without breach of any of the provisions of this Agreement; or (v) is disclosed
by the Receiving Party pursuant to a subpoena lawfully issued by a Genzyme or
governmental agency, provided that such party notifies the Disclosing Party
immediately upon receipt of any such subpoena.
(c) Additional Obligations of Consultant. The Consultant agrees not to
disclose to representatives of Genzyme any information which is secret or
confidential information belonging to a third party or with respect to which the
Consultant is under an obligation to a third party not to disclose. Similarly,
if during the term of this Agreement, the Consultant discloses any ideas to
Genzyme which were conceived prior to the term of this Agreement or are outside
the scope of the consultancy under this Agreement, Genzyme shall have no
liability to the Consultant because of his use of such ideas, except that this
shall not be construed as a license under any valid patent now or hereafter
issued thereon. The Consultant has not brought and will not bring to Genzyme or
use in the performance of this Agreement any materials or documents of any
current or former employer which are not generally available to the public,
unless the Consultant shall have obtained written authorization from such
employer for the possession and use of such materials or documents.
6. Non-Competition and Conflicting Obligations
(a) Non-Competition. During the term of this Agreement the Consultant shall not
enter into a consulting arrangement with any other person or entity which is
engaged in any business or activity similar to or competitive with the business
or products of Genzyme unless such arrangement has been approved by Genzyme in
writing and signed by an appropriate representative of Genzyme. It shall not be
considered a competitive activity within the meaning of this Section 7 for the
Consultant to be a member of the faculty or staff of a university, college or
other educational or non-profit research institution.
(b) Conflicting Obligations. The Consultant represents that the Consultant is
presently under no obligation to any third party (including without limitation
any governmental body and others with whom the
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Consultant consults) which would prevent the Consultant from carrying out his
duties and obligations under this Agreement or which is inconsistent with the
provisions contained herein. The Consultant agrees not to enter into any
agreement (either oral or written) in conflict with this Agreement.
7. Compliance with Policies and Regulations.
In performing the Consulting Services, the Consultant shall comply with all
business conduct, regulatory and health and safety guidelines or regulations
established by Genzyme or any governmental authority that may be applicable to
the Consulting Services.
8. Requisite Authority.
Each party warrants and represents to the other that he, she or it has
the right to enter into and fully perform this Agreement, and that, to the best
of that party's knowledge, the performance of their respective obligations under
this Agreement will not violate any applicable law, rule or regulation, or any
contract with a third party. Each party warrants to the other that he or it has
the requisite power and authority to execute and deliver this Agreement and to
perform his or its obligations hereunder. Each party warrants that this
Agreement has been duly and validly executed and constitutes a valid and binding
obligation, enforceable in accordance with the terms of this Agreement.
9. Term and Termination.
(a) Term and Renewal. Unless earlier terminated, the initial term of
this Agreement shall be for a period of one (1) year from the Effective Date
hereof. The term of this Agreement may be extended at the end of its initial
term and any subsequent renewal term for an additional one (1) year period by
written agreement of Consultant and Genzyme executed and delivered by both
parties prior to the end of the initial term or any renewal term, as the case
may be.
(b) Termination by Mutual Consent. The parties may terminate
this Agreement without cause upon the mutual written consent of the parties.
(c) Termination for Breach. In the event that either party commits
a material breach of any of the terms herein, the non-breaching party must then
give ten (10) days written notice to the breaching party, specifically setting
forth the nature of the complained of breach. If the breach is not
satisfactorily cured within the ten (10) day period, then the Agreement will be
deemed terminated; provided, however, that all monies due hereunder as of the
date of the termination will remain due and owing, under a complete and full
post-termination accounting and payment, within forty-five (45) days of said
termination date.
(d) Grounds For Immediate Termination. If either party becomes bankrupt
or insolvent, or if either party's business is placed in the hands of a
receiver, assignee or trustee, whether by that party's voluntary act or
otherwise, this Agreement shall immediately and automatically terminate.
(e) Effect of Termination. Upon termination of this Agreement, neither
party shall have any further obligations under this Agreement, except (i) the
liabilities accrued through the date of termination, and (b) the obligations
which by their terms survive termination. The provisions of Section 9 and this
Section 10(e) shall survive the expiration or termination of this Agreement.
10. Succession.
This Agreement shall inure to the benefit of and be binding upon the
heirs, lawful assigns, successors, and legal representatives, as the case may
be, of the undersigned parties. The operation of this Section 17 is subject to
Section 6 of this Agreement.
11. Ownership of Work Product. Any products, methods, approaches or ideas made
or conceived by Consultant in connection with or during the performance of the
consulting services under this Agreement,
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whether developed alone or in conjunction with Genzyme, shall be the property of
Genzyme, free of any restrictions of any kind maintained or asserted by you or
any third party.
12. Notices.
All notices contemplated herein shall be deemed sufficient when given
or made in writing and personally delivered or sent by registered or certified
mail (return receipt requested, postage prepaid) or by the so-called next
business day service of an overnight carrier of national reputation (with
evidence of delivery) to the receiving party and his, her or its representative
at the addresses set forth below, or at such further addresses as may be
hereafter specified in writing:
To Consultant:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Ph.D.
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
To Genzyme:
Genzyme Corporation
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Ph.D.
13. Waiver.
A waiver by either party of any term or condition of this Agreement in any one
instance shall not be deemed or construed to be a waiver of such term or
condition for any similar instance in the future or of any subsequent breach
hereof. All rights, remedies, undertakings, obligations and agreements contained
in this Agreement shall be cumulative and none of them shall be a limitation of
any other remedy, right, undertaking, obligations or agreement to either party.
14. Captions.
Titles or captions of sections contained in this Agreement are inserted only as
a matter of convenience and for reference, and in no way define, limit, extend
or describe the scope of this Agreement or the intent of any provision hereof.
15. Governing Law.
This Agreement and the rights and obligations of the parties hereunder
shall be construed in accordance with and be governed by the laws of the
Commonwealth of Massachusetts, without giving effect to the conflict or choice
of law provisions thereof.
16. Severability.
Any provisions of this Agreement that in any way contravenes any
provision of applicable law shall, to the extent that the law is contravened, be
considered severable and not applicable and shall not alter or affect any other
provision or provisions of this Agreement.
17. Entire Agreement/Amendments.
This Agreement, together with the exhibits hereto, constitutes the
entire Agreement between the parties, and supersedes in all respects any and all
agreements between the parties, whether active or inactive, verbal or written,
and there are no representations or understandings between the parties not set
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forth herein. This Agreement may be amended, modified or otherwise changed only
by an instrument in writing, executed by the parties, and no waiver, alteration
or modification of any of the provisions hereof shall be binding upon a party
unless in writing and signed by such party or his, her or its duly authorized
representative.
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IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the date
first written above.
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Ph.D. GENZYME CORPORATION
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
(signature) ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Ph.D.
Senior Vice President, Operations
rwhesslein
▇▇▇▇▇▇▇\consult\▇▇▇▇▇▇
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Exhibit A
CONSULTING SERVICES PROJECTS
Participate in technical reviews of Genzyme's hyaluronic acid development
projects (cost reduction, new formulations, manufacturing improvements, etc.)
and support hyaluronic acid manufacturing strategic planning.
Work with Genzyme's Operations Management group to identify suitable metrics of
performance for operations; to compare performance to appropriate biotechnology
and pharmaceutical companies for benchmarking purposes.
Participate in one or both of Genzyme's semi-annual Technology Development
reviews.
Review and evaluate Genzyme's process for the manufacture of Sevelamer in the
United Kingdom.
Give presentation(s) to Genzyme technical and business staff on improving
Genzyme's competitive advantage in those industries where Genzyme now produces
products.
Participate in discussions on reducing Genzyme's product development cycle time
(i.e., time to market).
Assist in identifying an appropriate cell culture product for manufacturing in
Genzyme's Allston facility.
Participate in the interviewing and selection of key candidates, and participate
in the hiring process.
Provide expert advice on technical issues as these are identified and
communicated to you by Genzyme staff (▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ to resolve
appropriateness, urgency, prioritization with the Consultant as necessary).
While undertaking the above, Consultant will endeavor to build into his schedule
site visits to Genzyme's United Kingdom facilities (both Kent and Haverhill) and
to Genzyme eastern Massachusetts facilities so as to visit as many of these
sites as possible at least once per calendar year.