EXHIBIT 10.4
GENZYME TRANSGENICS CORPORATION
CONSULTING AGREEMENT
This Consulting Agreement dated as of July 1, 1998 is between Xxxxx X.
Xxxxxxxx (the "Consultant") and Genzyme Transgenics Corporation (the
"Company"), a Delaware corporation.
In consideration of the mutual promises of the parties hereunder, it is agreed
as follows:
5. Consulting Services.
1.1. The Company hereby retains the Consultant and the Consultant hereby
agrees to serve as a consultant to the Company to assist the Company
with its financial and strategic planning and to perform such other
consulting and advisory services relating to the Business (as defined
below) of the Company as the Company may from time to time determine
(such consulting and advisory services being herein referred to as the
"Services"). As used herein, the "Business" of the Company shall mean
the activities of the Company in the research, development,
manufacture, marketing, license and sale of transgenically produced
proteins and related activities and the provision of contract research
services and related activities.
1.2. The Consultant agrees to make himself available to render the
Services, at such time or times and location or locations as may be
mutually agreed, from time to time as requested by the Company. The
Consultant agrees to devote his best efforts to performing the
Services. The Consultant agrees that he shall devote at least three
business days per month to providing Services to the Company.
1.3. For the full, prompt and faithful performance of the Services, the
Company shall pay the Consultant a fee at a daily rate of $1,200 for
three days per month, representing $3,600 per month and $43,200
annually, payable monthly in arrears on the first day of each calendar
month. The Company shall promptly reimburse the Consultant for
reasonable expenses incurred by him in the performance of the Services
in accordance with the policy and practice of the Company.
2. Developments
2.1. The Consultant agrees to make full and prompt disclosure to the
Company of all inventions, improvements, modifications, discoveries,
methods, biological materials, and developments related to the
Business of the Company and which result from the Consultant's
participation in this consulting relationship, his involvement with
employees and/or advisors of the Company and/or ideas and information
supplied to him as part of his consulting duties and interactions (all
of which are collectively termed "Developments" hereinafter), whether
patentable or not, made or conceived by the
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Consultant or under the Consultant's direction during the term of
this Agreement, whether or not made or conceived on the premises of
the Company.
2.2. The Consultant agrees that all Developments covered by Paragraph 2.1
shall be the sole property of the Company and its assigns, and the
Company and its assigns shall be the sole owner of all patents and
other rights in connection therewith. The Consultant hereby assigns
to the Company any rights he may have or acquire in all Developments.
The Consultant further agrees as to all Developments to assist the
Company in every proper way (but at the Company's expense) to obtain
and from time to time enforce patents on Developments in any and all
countries, and to that end the Consultant will execute all documents
for use in applying for and obtaining such patents thereon and
enforcing same, as the Company may desire, together with any
assignments thereof to the Company or persons designated by it, and
the Consultant hereby appoints the Company as his attorney to execute
and deliver any such documents or assignments on his behalf in the
event the Consultant fails or refuses to execute and deliver any such
documents or assignments requested by the Company. The Consultant's
obligation to assist the Company in obtaining and enforcing patents
for Developments in any and all countries shall continue beyond the
termination of this Agreement, but the Company shall compensate the
Consultant at a reasonable rate after such termination for time
actually spent at the Company's request on such assistance.
The Consultant understands that these Paragraphs 2.1 and 2.2 do not
apply to Developments for which no equipment, supplies, facility or trade secret
information of the Company was used and (a) which do not relate (1) to the
Business of the Company or (2) to the Company's actual or demonstrably
anticipated research or development, or (b) which do not result from the
Services.
2.3. The Consultant hereby represents that, to the best of his knowledge,
he has no present obligation to assign to any employer or former
employer (or than the Company) or any other person, corporation or
firm, any Developments covered by Paragraph 2.1. The Consultant
further represents that his performance of all the terms of this
Agreement does not and will not breach any agreement to keep in
confidence proprietary information acquired in confidence or in trust
by the Consultant prior to the execution of this Agreement. The
Consultant has not entered into, and the Consultant agrees not enter
into, any agreement (either written or oral) in conflict herewith.
2.4. The Consultant will assign to the Company any and all copyrights and
reproduction rights to any material prepared by the Consultant in
connection with the Developments or the Services.
2.5. The Consultant has not brought and will not bring to the Company or
use in the performance of the Services 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.
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3. Confidentiality
3.1. In the course of performing the Services, the Consultant may learn of
the Company's confidential information or confidential information
entrusted to the Company by other persons, corporations, or firms.
The Company's confidential information includes matters not generally
known outside the Company, such as information relating to existing
and future products and services marketed or used by the Company and
data relating to the Business of the Company (e.g., concerning sales,
costs, profits, organizations, customer lists, pricing methods, etc.),
any reagents, chemical compounds, cell lines, or subcellular
constituents, organisms or other biological materials or other
Developments. The Consultant agrees not to disclose any confidential
information of the Company or of such other persons, corporations, or
firms to others or to make use of such information, except on the
Company's behalf, whether or not such information is produced by the
Consultant's efforts. The Consultant also may learn of Developments,
ways of business, etc., which in themselves are generally known but
the use of which by the Company is not generally known, and the
Consultant agrees not to disclose to others such use, whether or not
such use is due to the Consultant's own efforts.
3.2. The Consultant agrees that he will not make any notes or memoranda
relating to the Business of the Company otherwise than for the benefit
of the Company and will not at any time use or permit to be used any
such notes or memoranda otherwise than for the benefit of the Company.
3.3. The Consultant agrees to submit to the Company in sufficient time to
enable the Company to ascertain whether a manuscript to be published
contains Company 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
as to specific areas of the Business designated by the Company as to
which the Consultant is providing active consulting services. The
Consultant shall cooperate with the Company in this respect and shall
delete from the manuscript any confidential information of the Company
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.
4. Non-Competition.
4.1. So long as this Agreement continues in effect, the Consultant shall
not enter into a consulting arrangement with any other person,
corporation, or firm which is engaged in any business or activity
similar to and competitive with the Business of the Company, except
for such other arrangements approved by the Company in writing and
signed by the President of the Company.
4.2. For a period of one (1) year commencing on the date on which this
Agreement is terminated, the Consultant, alone or as a partner,
officer, director, consultant, employee, stockholder or otherwise,
will not engage (directly or indirectly) in any activities or render
any services similar or reasonably related to the Services or any
other activities
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engaged in or services rendered by the Consultant to the Company
during any part of the two-year period preceding termination of
this Agreement for any trade or business which directly competes
with the Company in any place where the Business of the Company
is engaged in (or planned to be engaged in), whether now existing
or hereafter established, nor shall the Consultant engage in such
activities nor render such services for any other person or entity
engaged or about to become engaged in such activities to, for or on
behalf of any such trade or business.
4.3. For a period of one (1) year following termination of this Agreement,
the Consultant will not solicit or in any manner encourage employees
of the Company to leave their employ. The Consultant further agrees
that during such period the Consultant will not offer or cause to be
offered employment to any person who was employed by the Company at
any time during the six (6) months prior to the termination of this
Agreement.
4.4. Upon termination of this Agreement, the Consultant agrees to leave
with the Company all records, drawings, notebooks, and other documents
pertaining to the Company's confidential information, whether prepared
by the Consultant or others, and also any equipment, tools or other
devices owned by the Company, then in possession of the Consultant
however such items are obtained, and the Consultant agrees not to
reproduce any document or data relating thereto.
5. Miscellaneous.
5.1. The Consultant agrees that any breach of this Agreement by him could
cause irreparable damage to the Company and that in the event of such
breach the Company shall have the right to obtain injunctive relief,
including, without limitation, specific performance or other equitable
relief to prevent the violation of his obligations hereunder. It is
expressly understood and agreed that nothing herein contained shall be
construed as prohibiting the Company from pursuing any other remedies
available for such breach or threatened breach, including, without
limitation, the recovery of damages by the Company.
5.2. This Agreement shall terminate on June 30, 2000, or on an earlier
date, if terminated by the Company with cause and provided that this
Agreement may be extended by the mutual agreement of the parties
beyond June 30, 2000, on a year-to-year basis. The obligations of the
Consultant hereunder shall survive the termination of this Agreement
regardless of the manner of such termination, and shall be binding
upon the heirs, executors, and administrators of the Consultant.
5.3. It is understood and agreed that the Consultant's relationship to the
Company is that of an independent contractor and that neither this
Agreement nor the Services to be rendered hereunder shall for any
purpose whatsoever or in any way or manner create any
employer-employee relationship between the parties.
5.4. All notices and other communications hereunder shall be delivered or
sent by registered or certified mail, return receipt requested,
addressed to the party at the address herein set forth, or to such
other address as such party may designate in writing to the other.
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5.5. This Agreement shall be binding upon and inure to the benefit of the
parties and their respective legal representatives, successors and
permitted assigns. The Consultant agrees that the Company may assign
this Agreement to any person or entity controlled by, in control of,
or under common control with, the Company. The Services to be
rendered by the Consultant are personal in nature. The Consultant may
not assign or transfer this Agreement or any of his rights or
obligations hereunder except to a corporation of which he is the sole
stockholder. In no event shall the Consultant assign or delegate
responsibility for actual performance of the Services to any other
natural person.
5.6. This Agreement constitutes the entire agreement between the parties as
to the subject matter hereof. No provision of this Agreement shall be
waived, altered or cancelled except in writing signed by the party
against whom such waiver, alteration or cancellation is asserted. Any
such waiver shall be limited to the particular instance and the
particular time when and for which it is given.
5.7. This Agreement shall be governed by and construed in accordance with
the laws of the Commonwealth of Massachusetts.
5.8. The invalidity or unenforceability of any provision hereof as to an
obligation of a party shall in no way affect the validity or
enforceability of any other provision of this Agreement, provided that
if such invalidity or unenforceability materially adversely affects
the benefits the other party reasonably expected to receive hereunder,
that party shall have the right to terminate this Agreement.
Moreover, if one or more of the provisions contained in this Agreement
shall for any reason be held to be excessively broad as to scope,
activity or subject so as to be unenforceable at law, such provision
or provisions shall be construed by limiting or reducing it or them,
so as to be enforceable to the extent compatible with the applicable
law as it shall then appear.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement under seal
as of the date first above written.
Consultant
/s/ Xxxxx X. Xxxxxxxx
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Xxxxx X. Xxxxxxxx
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ACCEPTED AND AGREED TO:
GENZYME TRANSGENICS CORPORATION
By: /s/ Xxxxxx Nusinoff Xxxxxxx, President
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Xxxxxx Nusinoff Xxxxxxx, President
Xxxx Xxxxxxxx Xxxx
Xxxxxxxxxx, XX 00000
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