SUNESIS PHARMACEUTICALS, INC. CONSULTING AGREEMENT Effective Date: August 5, 2008 Expiration Date: August 31, 2009 Contract No. 2008-3101.0
SUNESIS
PHARMACEUTICALS, INC.
Effective
Date:
August
5, 2008
Expiration
Date:
August
31, 2009
Contract
No. 2008-3101.0
This
Consulting Agreement (the “Agreement”)
is
entered into by and between Sunesis Pharmaceuticals, Inc. (“SUNESIS”)
and
Xxxxxx XxXxxxxx, Ph.D. (“CONSULTANT”).
SUNESIS desires to have CONSULTANT serve as a non-exclusive consultant to
SUNESIS under the terms of this Agreement.
NOW,
THEREFORE, CONSULTANT and SUNESIS agree as follows:
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1.
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SERVICES
AND COMPENSATION.
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a. Consulting
Services.
During
the term of this Agreement, CONSULTANT will provide consulting services (the
“Services”)
to
SUNESIS as described on Exhibit A
attached
to this Agreement. CONSULTANT shall use best efforts to perform the Services
in
a manner satisfactory to SUNESIS. Without limiting the foregoing, CONSULTANT
shall provide Services to SUNESIS in accordance with generally accepted
professional standards as applied to similar projects performed under similar
conditions prevailing in the industry at the time such Services are rendered
to
SUNESIS. CONSULTANT shall not subcontract any portion of CONSULTANT’s duties or
obligations under this Agreement without the prior written consent of SUNESIS.
b. SUNESIS
Liaison; Reports.
CONSULTANT will report to the SUNESIS representative or agent (hereinafter,
the
“SUNESIS
Liaison”,
specified on Exhibit
A)
concerning the Services performed under this Agreement. The nature and frequency
of these reports will be left to the discretion of the SUNESIS Liaison. Any
and
all such reports prepared by Consultant shall be the Confidential Information
(as defined below) and sole property of SUNESIS.
c. Support.
SUNESIS
may from time to time provide CONSULTANT with such support facilities and space
at SUNESIS as may be required in SUNESIS’ sole judgment to enable CONSULTANT to
properly perform the Services. Notwithstanding the foregoing, CONSULTANT shall
be responsible for securing, at CONSULTANT’s sole expense, such other
facilities, equipment, space and any other items that are not expenses per
Section 1(d) below that are required by CONSULTANT to perform the
Services.
d. Compensation.
In
consideration for CONSULTANT’s performance of Services, SUNESIS will pay
CONSULTANT in accordance with the fees and payment terms set forth in
Exhibit
A.
CONSULTANT shall send SUNESIS an invoice monthly for services rendered. Unless
otherwise set forth in Exhibit A, SUNESIS shall make payments to CONSULTANT
within fifteen (15) days of invoice receipt.
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e. Expenses.
CONSULTANT shall be reimbursed for any reasonable expenses incurred while
performing Services on behalf of SUNESIS, including travel expenses (i.e.
airfare, meals and lodging). Any air travel on behalf of SUNESIS shall be coach
class unless otherwise mutually agreed by the parties. As a condition to receipt
of reimbursement, CONSULTANT shall be required to submit to SUNESIS reasonable
evidence that the amount involved was expended and related to Services provided
under this Agreement.
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2.
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CONFIDENTIALITY.
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a. Confidential
Information.
As used
in this Agreement, the term “Confidential
Information”
means
information (A) pertaining to any aspects of SUNESIS’ business, including
but not limited to its research, technical data, products, services, plans
for
products or services, customers and potential customers, markets and marketing,
finances, financial projections, employees (including employee compensation),
patents, patent applications, developments, inventions, processes, designs,
drawings, engineering, formulae, regulatory information, medical reports,
clinical data and analysis, compounds, chemical structures, compositions,
microorganisms or other cell types, proteins, peptides, reagents, cell lines,
genetic or other biological materials, chemical formulas, business plans, and
agreements with third parties, disclosed to CONSULTANT by SUNESIS either
directly or indirectly in writing, orally or otherwise, or (B) created by
CONSULTANT as part of the Services, whether or not during working hours.
Confidential Information also includes any information, which SUNESIS has
received from a third party which SUNESIS is obligated to treat as confidential
or proprietary. Notwithstanding the foregoing, Confidential Information shall
not include information that CONSULTANT can demonstrate by competent written
proof: (i) was in the public domain at the time it was disclosed or has
entered the public domain through no fault of CONSULTANT; (ii) was known to
CONSULTANT, other than under an obligation of confidentiality, at the time
of
disclosure; (iii) was received by CONSULTANT from a third party authorized
to make such disclosure; or (iv) is independently developed by CONSULTANT
without any use of Confidential Information.
b. Confidentiality
Obligations.
i. CONSULTANT
shall not, during the term of this Agreement or for ten (10) years after the
date of expiration or termination of this Agreement, use any Confidential
Information for any purpose whatsoever other than the performance of the
Services on behalf of SUNESIS, or disclose Confidential Information to any
third
party. CONSULTANT agrees not to make copies of Confidential Information except
as authorized by SUNESIS. CONSULTANT agrees that Confidential Information,
including any copies thereof, shall remain the sole property of SUNESIS. Without
SUNESIS’ prior written approval, CONSULTANT will not directly or indirectly
disclose to anyone the existence of this Agreement or the fact that CONSULTANT
has this arrangement with SUNESIS.
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ii. CONSULTANT
shall take all reasonable precautions to prevent any unauthorized use, access
or
disclosure of Confidential Information, including but not limited to
(i) using the highest degree of care that it utilizes to protect its own
most sensitive confidential information of a similar nature,
(ii) maintaining any such Confidential Information or any information
derived therefrom wholly separate from information provided to CONSULTANT by
any
third party or belonging thereto, (iii) not taking any such Confidential
Information into the facilities of any third party, (iv) not copying or
reverse engineering any such Confidential Information, except to the extent
necessary to perform the Services, and (v) immediately informing SUNESIS,
in writing, of any actual or suspected unauthorized use, disclosure or access
to
Confidential Information.
iii. Upon
expiration or termination of this Agreement, or upon SUNESIS’ earlier request,
CONSULTANT will deliver to SUNESIS all Confidential Information and any property
relating thereto and all tangible embodiments thereof in CONSULTANT’s possession
or control.
iv. This
Section 2(b) shall not prevent CONSULTANT from disclosing Confidential
Information that it is required to disclose pursuant to an order or requirement
of a court or other governmental agency; provided,
however,
CONSULTANT shall provide prompt notice to SUNESIS of such order or requirement
to enable SUNESIS the opportunity to seek a protective order or otherwise
prevent or restrict such disclosure.
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3.
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OWNERSHIP.
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a. Inventions.
CONSULTANT agrees that all information (including, without limitation, business
plans and/or business information), technology, know-how, materials, notes,
records, designs, discoveries, formulae, compositions, processes, devices,
trade
secrets, trademarks, inventions, developments, original works of authorship,
concepts, improvements, methods, techniques, and ideas, whether or not
patentable or registrable under copyright or similar laws, discovered or
developed or conceived or reduced to practice by CONSULTANT, solely or in
collaboration with others, (i) in the course of or as a result of
performing the Services, (ii) through use of information disclosed by
SUNESIS, (iii) through funding provided by SUNESIS, and/or (iv) from
use of premises or materials owned, leased or contracted for by SUNESIS
(collectively, “Inventions”)
are
the sole property of SUNESIS. CONSULTANT also agrees to assign (or cause to
be
assigned) and hereby irrevocably assigns fully to SUNESIS, or SUNESIS’ designee,
all right, title and interest throughout the world in and to the Inventions
and
any copyrights, patents, mask work rights or other intellectual property rights
relating to all Inventions. CONSULTANT will not disclose Inventions to any
person outside SUNESIS unless requested to do so by the President of
SUNESIS.
b. Further
Assistance.
Without
further compensation, CONSULTANT hereby agrees promptly to disclose to SUNESIS
all Inventions. CONSULTANT agrees to sign, execute and acknowledge or cause
to
be signed, executed and acknowledged, at the expense of SUNESIS, any and all
documents and to perform, any and all acts deemed necessary, useful or
convenient by SUNESIS for the purposes of perfecting the foregoing assignments
and obtaining, enforcing and defending intellectual property rights in any
and
all countries with respect to Inventions. CONSULTANT agrees that CONSULTANT’s
foregoing obligation shall continue after the termination of this Agreement.
It
is understood and agreed that SUNESIS or SUNESIS’s designee shall have the sole
right, but not the obligation, to prepare, file, prosecute and maintain patents
applications and patents worldwide with respect to Inventions.
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c. Power
of Attorney.
If
SUNESIS is unable because of CONSULTANT’s mental or physical incapacity or
unavailability or for any other reason to secure CONSULTANT’s signature to apply
for or to pursue any application for any United States or foreign patents or
copyright registrations covering Inventions assigned to SUNESIS as above, then
CONSULTANT hereby irrevocably designates and appoints SUNESIS and its duly
authorized officers and agents as CONSULTANT’s agent and attorney in fact, to
act for and in CONSULTANT’s behalf to execute and file any such applications and
to do all other lawfully permitted acts to further the application for,
prosecution, issuance, maintenance or transfer of letters patent or copyright
registrations thereon with the same legal force and effect as if originally
executed by CONSULTANT. CONSULTANT hereby waives and irrevocably quitclaims
to
SUNESIS any and all claims, of any nature whatsoever, that CONSULTANT now or
hereafter has for infringement of any and all proprietary rights assigned to
SUNESIS.
d. Non-exclusive
License Grant.
CONSULTANT
agrees that, if in the course of performing the Services, CONSULTANT
incorporates into any Invention developed hereunder any invention, improvement,
development concept, discovery or other proprietary information owned by
CONSULTANT or in which CONSULTANT has an interest (“Item”),
SUNESIS is hereby granted and shall have a non-exclusive, royalty-free,
perpetual, irrevocable, worldwide license to make, have made, modify, reproduce,
display, use and sell such Item as part of or in connection with the
exploitation of such Invention.
e. Return
of Inventions.
Upon
the
expiration or termination of this Agreement for any reason, or upon SUNESIS’s
earlier request, CONSULTANT will deliver to SUNESIS all property relating to,
and all tangible embodiments of, Inventions in CONSULTANT’s possession or
control.
4. TERM
AND TERMINATION. The
term
of this Agreement shall commence on the Effective Date and continue until the
Expiration Date, unless terminated before the Expiration Date. This Agreement
may be terminated at any time by either party, with or without cause, and
without prejudice to any right or remedy a party may have due to any failure
of
the other party to perform their obligations under this Agreement, upon
ten (10) days written notice to the other party. In addition, SUNESIS may
terminate this Agreement immediately and without prior notice if CONSULTANT
is
in breach of any material provision of this Agreement. The obligations of the
parties contained in Sections 2, 3, 4, 5 and 8 hereof shall survive
expiration or termination of this Agreement.
5. INDEPENDENT
CONTRACTOR.
CONSULTANT’s relationship with SUNESIS will be that of an independent contractor
and not that of an employee. CONSULTANT will not be eligible for any employee
benefits or unemployment benefits, nor will SUNESIS make deductions from
payments made to CONSULTANT for taxes, unless as otherwise required by law,
all
of which will be CONSULTANT’s responsibility. CONSULTANT agrees to indemnify and
hold SUNESIS harmless from any and all liability for, or assessment of, any
such
taxes imposed on SUNESIS by relevant taxing authorities. CONSULTANT will have
no
authority to enter into contracts that bind SUNESIS or create obligations on
the
part of SUNESIS without the prior express written authorization of
SUNESIS.
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6. CERTAIN
OTHER CONTRACTS.
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a.
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CONSULTANT
will not disclose to SUNESIS any information that CONSULTANT is obligated
to keep secret pursuant to an existing confidentiality agreement
with a
third party, and nothing in this Agreement will impose any obligation
on
CONSULTANT to the contrary.
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b.
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The
Services performed hereunder will not be conducted on time that is
required to be devoted to any other third party. CONSULTANT shall
not use
the funding, resources and facilities of any other third party, without
the prior written consent of SUNESIS, to perform Services hereunder
and
shall not perform Services hereunder in any manner that would give
any
third party rights or access to the product of such
Services.
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7. NO
CONFLICTING OBLIGATIONS.
During
the term of this Agreement, CONSULTANT
shall
not
enter
into a binding agreement that
would conflict with any of the provisions of this Agreement and/or preclude
CONSULTANT
from
complying with the provisions hereof.
8. MISCELLANEOUS.
a. At-Will
Relationship.
CONSULTANT understands and acknowledges that CONSULTANT’s consulting
relationship with SUNESIS is and shall continue to be at-will, as defined under
applicable law, meaning that either CONSULTANT or SUNESIS may terminate the
relationship at any time for any reason or no reason, without further obligation
or liability.
b. Non-solicitation.
During
the Term of this Agreement and for a period of twenty-four (24) months
thereafter CONSULTANT will not directly or indirectly solicit, recruit, hire
away, or induce or encourage to leave any employee or consultant of SUNESIS.
c. No
Conflict: Valid and Binding.
CONSULTANT represents that neither the execution of this Agreement nor the
performance of CONSULTANT’s obligations under this Agreement will result in a
violation or breach of any other agreement by which CONSULTANT is bound. SUNESIS
represents that this Agreement has been duly authorized and executed and is
a
valid and legally binding obligation of SUNESIS, subject to no conflicting
agreements.
d. Use
of Name.
Neither
party shall have the right to use the name of the other party without such
other
party’s prior written consent, except that it is understood that the name of
CONSULTANT may appear in certain SUNESIS disclosure documents, including those
required by securities laws and in other regulatory and administrative filings
in the ordinary course of SUNESIS’ business.
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e. Withholding
Taxes.
California tax(es) will be deducted pursuant to California State Franchise
Tax
Board Publication 1023 for all non-resident consultants unless the appropriate
exemption forms are completed and provided to SUNESIS.
f. Remedies.
CONSULTANT acknowledges that SUNESIS would have no adequate remedy at law to
enforce Sections 2 and 3 hereof. In the event of a violation by CONSULTANT
of such Sections, SUNESIS shall have the right to obtain injunctive or similar
relief, as well as all other relevant damages, without the requirement of
posting bond or other similar measures.
g. Choice
of Law.
The
validity, interpretation, construction and performance of this Agreement shall
be governed by the laws of the State of California, without giving effect to
the
principles of conflict of laws.
h. Arbitration.
Any dispute
or claim arising out of or in connection with any provision of this Agreement
will be finally settled by binding arbitration in San Mateo County, California
in accordance with the rules of the American Arbitration Association by one
arbitrator appointed
in accordance with said rules. The arbitrator shall apply California law,
without reference to rules of conflicts of law or rules of statutory
arbitration, to the resolution of any dispute. Judgment on the award rendered
by
the arbitrator may be entered in any court having jurisdiction thereof.
Notwithstanding the foregoing, the parties may apply to any court of competent
jurisdiction for preliminary or interim equitable relief, or to compel
arbitration in accordance with this paragraph, without breach of this
arbitration provision.
i. Notices.
Any
notice required or permitted by this Agreement shall be in writing and shall
be
deemed sufficient upon receipt, when delivered personally or by courier,
overnight delivery service or confirmed facsimile, or forty-eight (48) hours
after being deposited in the regular mail as certified or registered mail
(airmail if sent internationally) with postage prepaid, if such notice is
addressed to the party to be notified at such party’s address or facsimile
number as set forth with the signatures below, or as subsequently modified
by
written notice. Notices to SUNESIS shall be sent to the attention of General
Counsel.
j. Assignment.
Due
to
the personal nature of the Services to be rendered hereunder, CONSULTANT may
not
assign this Agreement. SUNESIS may assign this Agreement without the consent
of
CONSULTANT. Subject to the foregoing, this Agreement will inure to the benefit
of and be binding upon each of the heirs, assigns and successors of the
respective parties.
k. Severability.
If one
or more provisions of this Agreement are held to be unenforceable under
applicable law, the parties agree to renegotiate such provision in good faith.
In the event that the parties cannot reach a mutually agreeable and enforceable
replacement for such provision, then (i) such provision shall be excluded
from this Agreement, (ii) the balance of the Agreement shall be interpreted
as if such provision were so excluded and (iii) the balance of the
Agreement shall be enforceable in accordance with its terms.
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l. Waiver.
Waiver
or forbearance by either party or the failure by either party to claim a breach
of any provision of this Agreement or exercise any right or remedy provided
by
this Agreement or applicable law shall not be deemed to constitute a waiver
with
respect to any subsequent breach of any provision hereof.
m. Advice
of Counsel.
EACH
PARTY ACKNOWLEDGES THAT, IN EXECUTING THIS AGREEMENT, SUCH PARTY HAS HAD THE
OPPORTUNITY TO SEEK THE ADVICE OF INDEPENDENT LEGAL COUNSEL, AND HAS READ AND
UNDERSTOOD ALL OF THE TERMS AND PROVISIONS OF THIS AGREEMENT. THIS AGREEMENT
SHALL NOT BE CONSTRUED AGAINST ANY PARTY BY REASON OF THE DRAFTING OR
PREPARATION HEREOF.
n. Headings.
Headings
are used in this Agreement for reference only and shall not be considered when
interpreting this Agreement.
o. Amendments.
Any term
of this Agreement may be amended or modified only with the written consent
of
the parties.
p. Entire
Agreement.
This
Agreement, including the Exhibit A
hereto,
constitutes the entire agreement between SUNESIS and CONSULTANT with respect
to
the subject matter of this Agreement and supercedes all prior written and oral
agreements between the parties regarding the subject matter of this Agreement.
q. Counterparts.
This
Agreement may be executed in counterparts, each of which shall be deemed an
original and all of which together will constitute one and the same instrument,
and may be executed through the use of facsimiles.
IN
WITNESS WHEREOF, the parties have executed this Agreement, effective as of
the
date first written above, on the dates set forth below.
| SUNESIS PHARMACEUTICALS, INC. | XXXXXX XXXXXXXX, PH.D. | |||
| 000 Xxxxxx Xxxxx Xxxxxxxxx, Xxxxx 000 | 0000 Xxxxxx Xxxxxx | |||
| Xxxxx Xxx Xxxxxxxxx, Xxxxxxxxxx 00000 | Xxx Xxxxxxxxx, Xxxxxxxxxx 00000 | |||
| By: | /s/ Xxxxxxx Pierce___________________ |
By:
/s/ Xxxxxx McDowell________
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||
| Print Name: Xxxxxxx Pierce_________________ | ||||
| Title: SVP & GC_______________________ | ||||
| Date Signed: 8/21/08____________________ | Date Signed: 8/20/08____________ | |||
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EXHIBIT
A
SERVICES
AND FEES
I. Services
to be provided include:
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a)
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Review
and support ongoing business and corporate development activities,
as
maybe requested from time to time;
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b)
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Attend
(or present at) SUNESIS’ project meetings, as may be requested from time
to time by SUNESIS; and
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c)
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Provide
written reports in connection with Services in a timely manner, or
as
requested by SUNESIS, when
applicable.
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II. Fees
and
Payments
Hourly
Rate: $200
per
hour, prorated for partial hours.
Amounts
payable for Services hereunder shall not exceed $10,000 during the term of
the
Consulting Agreement. All requests for payment will be in a form of a detailed
invoice emailed to the SUNESIS Liaison (indicated below) with a copy to
XX@xxxxxxx.xxx.
III.
SUNESIS Liaison
Xxxxxx
X.
Xxxxx, Ph.D.
VP,
Corporate & Business Development
Sunesis
Pharmaceuticals, Inc.
000
Xxxxxx Xxxxx Xxxx., Xxxxx 000
Xxxxx
Xxx
Xxxxxxxxx, XX 00000
Phone:
(000)
000-0000
Fax :
(000)
000-0000
Mobile : (000)
000-0000
Email :
xxxxxx@xxxxxxx.xxx
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