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EXHIBIT 10.35
CONSULTATION AGREEMENT
This Consultation Agreement, dated as of January 1, 1992, between
ImmuLogic Pharmaceutical Corporation, a Delaware corporation ("ImmuLogic"), and
X. Xxxxxxxx Xxxxxxx ("Consultant").
W I T N E S S E T H:
WHEREAS, ImmuLogic and the Consultant entered into a Consultation
Agreement, dated as of June 29, 1988, as amended, which is scheduled to
terminate on May 31, 1992 (the "Original Agreement");
WHEREAS, ImmuLogic desires to continue to have the benefit of
Consultant's knowledge and experience, and Consultant desires to continue to
provide consulting services to ImmuLogic, all as hereinafter provided in this
Agreement;
WHEREAS, ImmuLogic and the Consultant wish to amend and restate the
terms of the Original Agreement as set forth herein;
NOW, THEREFORE, in consideration of the premises and mutual agreements
hereinafter set forth, effective as of the date hereof, ImmuLogic and Consultant
hereby agree as follows:
1. Consultation; Termination of Original Agreement.
(a) ImmuLogic shall retain Consultant as a consultant, and
Consultant shall serve ImmuLogic as a consultant, upon the terms and conditions
hereinafter set forth.
(b) This Agreement shall be considered an amendment to and
restatement of the Original Agreement, and upon execution of this Agreement by
ImmuLogic and the Consultant, the Original Agreement shall be of no further
force and effect.
2. Term.
Subject to the terms and conditions hereinafter set forth, the
term of the Consultant's consulting arrangement hereunder (hereinafter referred
to as the "Term") shall commence on the date hereof, and, unless sooner
terminated as provided in this Agreement, shall continue through December 31,
1994, provided, however, that the Term shall be extended for up to two
additional periods of one year beginning on January 1, 1995, and on January 1,
1996, if the parties mutually agree to such an extension at least two years
prior to the expiration of the initial Term or the first extension of the Term;
and
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provided further, that the Term shall automatically terminate upon the death of
the Consultant.
3. Consulting Duties.
(a) During the Term, Consultant shall render to ImmuLogic or
to ImmuLogic's designee such consulting services in his fields of
expertise and knowledge related to the business of ImmuLogic and at
such times and places as ImmuLogic may from time to time reasonably
request, including providing advice to existing or potential research
collaborators, research sponsors, or customers of ImmuLogic with
respect to the function of the immune system in humans or animals. The
parties agree and acknowledge that such consulting services shall
primarily be rendered at ImmuLogic's offices in Palo Alto, California
and Cambridge, Massachusetts. Consultant acknowledges that in addition
it will be necessary for Consultant to travel to Cambridge,
Massachusetts and such other locations as ImmuLogic shall reasonably
request. ImmuLogic shall give Consultant reasonable advance notice of
any services required of him hereunder.
(b) All work to be performed by Consultant for ImmuLogic shall
be under the general supervision of ImmuLogic.
(c) The parties acknowledge and agree that the Consultant is
receiving substantial compensation under this Agreement and has also
been granted stock options pursuant to a separate agreement between the
parties. Although the amount of time to be devoted by the Consultant to
ImmuLogic is limited, as provided below, the Consultant recognizes that
he has a special obligation, in light of such compensation and stock
options, to devote his best efforts and ability to the performance of
his duties hereunder, both in terms of the quality of the scientific
input and guidance provided to ImmuLogic and the amount of time devoted
to such responsibilities. The parties agree that an essential element
of the Consultant's responsibility to ImmuLogic is timely interaction
and coordination with ImmuLogic scientists and management. The
Consultant shall perform such duties in a manner consistent with the
business and scientific direction and objectives of ImmuLogic and the
operating policies and practices established by the management of
ImmuLogic. Without limiting the generality of the foregoing, the
Consultant shall devote an amount of time to such duties equal to
approximately one day per week, except as otherwise mutually agreed.
All work performed by the Consultant to ImmuLogic shall be at times
reasonably convenient to ImmuLogic and the Consultant, recognizing that
flexibility in scheduling meetings and visits, and the availability of
the Consultant on a timely basis, is essential to the productive and
efficient conduct of ImmuLogic's research activities. Nothing contained
in this Agreement, however, shall interfere with Consultant's teaching
responsibilities and related research duties, including, but not
limited to, Consultant's responsibilities to Stanford University and
governmental entities making research grants to or through Stanford.
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4. Compensation.
In consideration for the services rendered by Consultant to
ImmuLogic, ImmuLogic shall pay Consultant during the Term compensation (the
"Compensation") at the rate of (a) $88,000 per year for the year ended December
31, 1992, and (b) in each subsequent year, the Consultant's rate of Compensation
for the prior calendar year, plus an Annual Increase (as hereinafter defined).
The "Annual Increase" in each year during the Term shall be an amount equal to
the Consultant's rate of Compensation for the prior calendar year multiplied by
the greater of (i) a percent increase equal to ImmuLogic's target percent
increase for all employees, or (ii) five percent.
Compensation shall be paid monthly in equal installments, on
the last day of each month. The payment of such amounts shall cease upon
Consultant's death or permanent disability or upon termination of this
Agreement. Upon Consultant's death, all of his, his spouse and his heirs' rights
under this Agreement which were to accrue after his death shall terminate. If
Consultant shall die or become permanently disabled prior to the end of the Term
there shall be no refund of any amount theretofore paid.
5. Termination.
(a) Breach. Either of the parties may terminate this Agreement
upon material breach of any provision of this Agreement by the other party, upon
thirty (30) days' written notice to the breaching party specifying the material
breach. The termination becomes effective at the end of the thirty (30) day
period unless the breaching party cures the breach during such thirty (30) day
period. ImmuLogic may also terminate this Agreement as provided in Section 9(a)
hereof by providing written notice as required therein.
(b) Termination for Cause. In addition to termination for
breach set forth in Section 5(a) above, ImmuLogic may terminate this Agreement
for "Cause" (as defined below), immediately upon written notice by ImmuLogic to
the Consultant. As used herein, the term "Cause" shall mean (i) misconduct
constituting dishonesty or fraud in connection with the Consultant's obligations
to ImmuLogic, or (ii) willful failure to perform his contractual obligations to
ImmuLogic. In order for cause to exist under subsection (ii), the following
conditions must be satisfied: (A) ImmuLogic shall have given the Consultant
written notice of such failure with reasonable particulars provided, and (B) the
Consultant shall have failed to cure or rectify such failure within thirty (30)
days after such notice.
6. Reimbursement of Expenses.
ImmuLogic shall reimburse Consultant for his reasonable
out-of-pocket expenses incurred in the performed of his duties hereunder upon
presentation of reasonably detailed receipts and compliance with reasonable
administrative policies established from time to time by ImmuLogic.
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7. Status.
Consultant's relationship to ImmuLogic shall be that of an
independent contractor and 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. Consultant shall
not be deemed an agent for any purpose and shall have no authority to bind
ImmuLogic in any way.
8. Proprietary Information.
(a) General. ImmuLogic agrees and acknowledges that Consultant
has existing obligations relating to proprietary information to Stanford
University and certain governmental agencies. Consultant agrees to use best
efforts to segregate work done under this Agreement from his work at Stanford
and for any other such governmental agency in order to minimize any question of
disclosure to such persons or the rights of such persons under any Discoveries
or Proprietary Information, as defined below. The research work which Consultant
performs for Stanford and such other governmental agencies shall be called the
"Stanford Work," and the research work or consulting work which Consultant
performs under this Agreement shall be called the "Consultancy Work."
(b) Inventions.
(i) All discoveries, data, technology, innovations
and improvements (whether or not patentable and whether or not copyrightable)
("Discoveries") which are made; conceived, reduced to practice, created,
written or developed by the Consultant, solely or jointly with others during the
Term (or thereafter if based on Proprietary Information, as defined below), and
which (A) (I) are made, conceived, reduced to practice, created, written or
developed during the Consultancy Work, or (II) relate to the Field (as defined
below), and (B) are not made, conceived, reduced to practice, created, written
or developed during the Stanford Work, shall be the sole property of ImmuLogic.
As used above, the term "Field" means the development of vaccines and diagnostic
and therapeutic products for allergies, autoimmune diseases, and AIDS. The
Consultant hereby assigns to ImmuLogic all Discoveries and any and all related
patents, copyrights, trademarks, trade names, and other industrial and
intellectual property rights and applications therefor, in the United States and
elsewhere and appoints any officer of ImmuLogic as his duly authorized attorney
to execute, file, prosecute and protect the same before any government agency,
court or authority. Upon the request of ImmuLogic and at the expense of
ImmuLogic, the Consultant shall execute such further assignments, documents and
other instruments as may be necessary or desirable to fully and completely
assign all Discoveries to ImmuLogic and to assist ImmuLogic in applying for,
obtaining and enforcing patents or copyrights or other rights in the United
States and in any foreign country with respect to any Discovery.
(ii) The Consultant shall promptly disclose to
ImmuLogic all Discoveries and will maintain adequate and current written records
(in the form of notes,
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records, laboratory or research notebooks and as may be specified by ImmuLogic)
to document the conception and/or first actual reduction to practice of any
Discovery. Such written records shall be available to and remain the sole
property for ImmuLogic at all times.
(c) Proprietary Information.
(i) The Consultant acknowledges that his relationship
with ImmuLogic is one of high trust and confidence and that in the course of his
service to ImmuLogic he will have access to and contact with Proprietary
Information. The Consultant agrees that he will not, during the Term or at any
time thereafter, disclose to others, or use for his benefit or the benefit of
others, any Proprietary Information or Discovery.
(ii) For purposes of this Agreement, Proprietary
Information shall mean, all proprietary and confidential information (whether or
not patentable and whether or not copyrightable) owned, possessed, or used by
ImmuLogic in which ImmuLogic has a protectable interest, including, without
limitation, any Discovery, formula, information, apparatus, equipment, material,
trade secret, process, research, research result, report, paper, technical data,
know-how, technology, marketing or business plan, forecast, unpublished
financial statement, budget and license that is communicated to, learned of,
developed or otherwise acquired by the Consultant from ImmuLogic.
(iii) The Consultant's obligations under this Section
8(c) shall not apply to any information that (A) is or becomes known to the
general public under circumstances involving no breach by the Consultant (or the
other consultants signing comparable consultation agreements of even date
herewith) of the terms of this Section 8(c), (B) is generally disclosed to third
parties by ImmuLogic without restriction on such third parties, or (C) is
approved for release by written authorization of the Board of Directors of
ImmuLogic.
(iv) The Consultant shall keep separate records,
files, memoranda, notes, designs, data, reports, laboratory and research
notebooks and other documents relating to the performance of this obligations
under this Agreement. Upon termination of this Agreement or at any other time
upon request by ImmuLogic, the Consultant shall promptly deliver to ImmuLogic
all such records, files, memoranda, notes, designs, data, reports, laboratory
and research notebooks and other documents (and all copies of reproductions of
such materials) relating to the business of ImmuLogic.
(v) The Consultant represents that his retention as a
consultant with ImmuLogic and his performance under this Agreement does not, and
shall not, breach any agreement that obligates him to keep in confidence any
trade secrets or confidential or proprietary information of his or of any other
party or to refrain from competing, directly or indirectly, with the business of
any other party. The Consultant shall not disclose to ImmuLogic any trade
secrets or confidential or proprietary information of any other party.
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(vi) The Consultant acknowledges that ImmuLogic from
time to time may have agreements with other persons or with the United States
Government, or agencies thereof, that impose obligations or restrictions on
ImmuLogic regarding discoveries made during the course of work under such
agreements or regarding the confidential nature of such work. To the extent that
ImmuLogic discloses such agreements to the Consultant and such agreements do not
conflict with then existing obligations of the Consultant to Stanford or
governmental agencies, the Consultant agrees to be bound by all such obligations
and restrictions and to take all action necessary to discharge the Consultant's
obligations to ImmuLogic relating to such agreements.
9. Non-competition.
(a) Consultant represents and warrants that as of the date
hereof, and except as listed on Schedule A attached hereto, (i) he is not
engaged in any consulting arrangement with any person or entity other than
ImmuLogic, (ii) he is not a party to any agreement or arrangement which would
constitute a conflict of interest with this Agreement or would prevent him from
carrying out his obligations to ImmuLogic under this Agreement, and (iii) he is
not employed by, does not serve as a member of the Board of Directors or
Scientific Advisory Board (or comparable organization of) or act on behalf of
any other enterprise engaged in activities similar to or competitive with
ImmuLogic. Any activity described in the preceding sentence shall be referred to
herein as "Other Activity." During the Term, if Consultant desires to undertake
any Other Activity, he shall first present such proposed Other Activity to Xx.
Xxxx X. XxXxxxxx and Xx. Xxxxxxx X. Xxxxxx (collectively, including the
Consultant, the "Consultants"). If, after considering such factors as the time
commitment for, and focus of, the Other Activity, the Consultants unanimously
agree that the proposed Other Activity will not materially affect the
Consultant's ability to perform his obligations hereunder, then the Consultants
shall so state in a written statement to ImmuLogic signed by each of them.
ImmuLogic shall present such written statement to the Board of Directors for its
review. ImmuLogic shall have the right to withhold consent to the Other Activity
if, after considering such factors as the time commitment for, and focus of, the
Other Activity, a majority of the members of the Board of Directors (excluding
the Consultants) determine that such Activity could materially affect the
Consultant's ability to perform his obligations hereunder. ImmuLogic agrees not
to unreasonably withhold or delay its consent to any Other Activity by
Consultant in areas with respect to which ImmuLogic does not intend to develop
business or has not made, and has no plans to make, a commitment of resources at
such time. If Consultant fails to notify ImmuLogic of such activities at least
thirty (30) days prior to the occurrence thereof, ImmuLogic shall have the right
to terminate this Agreement upon written notice to the Consultant. If the
Consultant and the Other Consultants cannot agree that the proposed Other
Activity will not conflict with Consultant's work hereunder, Consultant agrees
not to undertake such Other Activity.
(b) ImmuLogic consents to the activities listed in Schedule A;
however, the parties acknowledge that because the Consultant is currently
engaged in activities for entities other than ImmuLogic, it is conceivable that
a conflict might arise. In the event
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of a potential conflict with respect to any activity identified on Schedule A,
the parties will follow the procedures for Other Activity set forth in
subsection (a) above.
(c) Consultant agrees that, during the Term and for one (1)
year thereafter, Consultant shall not become employed by, render services to,
serve as a member of the board of directors or scientific advisory board (or
comparable organization) of or act on behalf of any other enterprise engaged in
activities similar to or competitive with those of ImmuLogic, without
ImmuLogic's prior written consent. This prohibition shall include, but not be
limited to, all research in the area of the function of the immune system in
humans or animals. The parties recognize that, to the extent that it may be
determined that the laws of the State of California govern the enforceability of
this subsection (c), the provisions imposing restrictions on the Consultant
following the Term may be held to be unenforceable.
10. Employees of ImmuLogic.
Consultant agrees that during the Term and for two (2) years
thereafter, Consultant shall not directly or indirectly (a) retain the services
of any employees of ImmuLogic or assist anyone else doing so; (b) cause any
person or entity rendering services to ImmuLogic to discontinue his or its
relationship with ImmuLogic; or (c) perform services for any employer which has,
within three (3) months before of after termination of Consultant's duties for
ImmuLogic, retained the service of any other person or entity rendering services
for ImmuLogic, unless Consultant's employment by such employer has no
relationship to the employment of such other person or entity and the function
for which Consultant is hired has no relationship to the function for which such
person or entity was hired.
11. Survival of Provisions.
The provisions of Sections 8, 9, and 10 hereof shall survive
the termination or expiration of this Agreement, irrespective of the reason
therefor.
12. Injunctive Relief.
Consultant acknowledges that the services to be rendered by
him hereunder are of a special, unique and extraordinary character, and that a
breach by Consultant of Sections 8, 9, or 10 hereof will cause ImmuLogic
irreparable injury and damage. If any court holds that the whole or any part of
the provisions of Sections 8, 9, or 10 hereof is unenforceable by reason of the
extent or duration thereof, or otherwise, then the court making such
determination shall have the right to reduce such extent or duration, or other
provisions thereof, and in its reduced form the provisions of Sections 8, 9
shall be enforceable in the manner contemplated hereby. Furthermore, in the
event of Consultant's breach of the provisions of Sections 8, 9 or 10 hereof,
ImmuLogic shall be entitled to injunctive relief against Consultant in addition
to such other rights as ImmuLogic may have under this Agreement, at law or in
equity.
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13. Arbitration. Disputes under this Agreement shall be settled by
binding arbitration in the major city in or near the Consultant's principal
residence at the time of the arbitration, pursuant to the rules of the American
Arbitration Association, and judgment upon the award rendered may be entered in
any court of competent jurisdiction.
14. Other Agreements. The Consultant represents and warrants to
ImmuLogic that his execution of this Agreement and the performance hereunder
shall not violate any provisions of any agreement between Consultant and any
third party.
15. Assignability and Binding Effect. This Agreement shall inure
to the benefit of and shall be binding upon ImmuLogic and its successors and
permitted assigns and upon Consultant. However, neither party may assign,
transfer, pledge, encumber, hypopthecate or otherwise dispose of this Agreement
or any of its or his rights thereunder without the prior written consent of the
other party, and any such attempted assignment, transfer, pledge, encumbrance,
hypothecation or other disposition without such consent shall be null and void
and without effect. The invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of any other provision
of this Agreement, and each other provision of this Agreement shall be severable
and enforceable to the extent permitted by law.
16. Headings. The paragraph headings contained herein are included
solely for convenience of reference and shall not control or affect the meaning
or interpretation of any of the provisions of this Agreement.
17. Notices. Any notices or other communication hereunder by
either party shall be in writing and shall be deemed to have been duly given if
delivered personally to the other party or sent by registered or certified mail,
return receipt requested, to the other party at the following addresses:
If to ImmuLogic:
Building 000
Xxx Xxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: President
If to the Consultant:
X. Xxxxxxxx Xxxxxxx, M.D.
Department of Medicine/Immunology
Xxxxxxxx Xxxxxxxxxx, Xxxx X-000
Xxxxxxxx, XX 00000
or at such other address as such other party may designate in conformity with
the foregoing.
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18. Governing Law. This Agreement shall be governed by, and
construed and enforced in accordance with, the laws of the Commonwealth of
Massachusetts applicable to contracts made and to be performed therein, without
giving effect to the principles thereof relating to the conflict of laws.
19. Counterparts. This Agreement may be executed in any number of
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 hereto have duly executed this
Agreement as of the day and year first above written.
IMMULOGIC PHARMACEUTICAL CORPORATION
By: /s/ Xxxxx X. Xxxx
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CONSULTANT
/s/ X. Xxxxxxxx Xxxxxxx
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X. Xxxxxxxx Fathman
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Xx. Xxxxxxx
SCHEDULE A
Stanford related consultancies:
1. Syntex Institute of Medicine.
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