EXHIBIT 10.16
CONSULTING AGREEMENT
Effective as of February 28, 2006
AMICUS THERAPEUTICS, INC. (the "Company"), a Delaware corporation, having
its place of business at 0 Xxxxx Xxxxx Xxxxx, Xxxxxxxx, XX 00000 and Xxxxxx X.
Xxxxxx, Xx. ("Consultant"), residing at 0 Xxxxxxxx Xxxx, Xxxxxxx, XX 00000
hereby agree as follows:
1. Basis for Agreement. The Company is engaged in the business of developing
inventions, know-how and trade secrets, and marketing and selling products
pertaining to the Technological Field (as hereinafter defined) ("Business").
Consultant is an experienced executive in the pharmaceutical field and desires
to aid in the Company's executive management and leadership. The purpose of this
Agreement is to set forth the terms and conditions under which Consultant will
provide consulting services and work product.
2. Definitions. For the purposes of this Agreement, the following terms when
used in the singular or plural shall have the following meanings:
2.1 Effective Date. The term "Effective Date" shall mean the date first above
written.
2.2 Technological Field. The term "Technological Field" shall mean the research,
development and/or commercialization of pharmacological or other small molecule
approaches to the treatment of genetic diseases.
3. Consulting Services. The following provisions shall relate to the terms and
conditions of consulting services to be rendered by Consultant to the Company
hereunder:
3.1 Consulting Term. Subject to the terms and conditions contained herein, the
Company agrees to retain Consultant and Consultant agrees to serve as a
consultant for a term commencing with the Effective Date and ending on the
second (2nd) anniversary of the Effective Date. Thereafter, the consulting term
and this Agreement shall be automatically extended on a year-to-year basis
unless otherwise terminated in accordance with Section 8.
3.2 Duties. Subject to the terms and conditions contained herein, Consultant
agrees to render services to the Company in the areas of executive management,
commercialization, business development and leadership.
3.3 Availability. Consultant shall make himself available to the Company for
consulting services as described herein when and as reasonably required by the
Company. Consultant agrees to provide the equivalent of 20% of his working time
to the
Page 1 of 8
Company on a mutually flexible, agreeable and convenient time. Such consulting
services shall be carried out at the Company's offices or elsewhere as may be
agreed between the parties to this Agreement. It is expressly understood that
Consultant will arrange the times to render consulting services to meet the
requirements of the Company, which will give due consideration to Consultant's
work habits, and to Consultant's obligations to the Company.
4. Confidentiality Agreement. Consultant shall execute and deliver a
Confidentiality Agreement substantially in the form attached hereto as Exhibit
A.
5. Compensation.
5.1 Fees. Consultant shall receive an annual fee of $60,000 for services as a
consultant to the Company. This fee shall be payable monthly in arrears.
5.2 Reimbursement. The Company shall reimburse Consultant for Consultant's
reasonable, documented out-of-pocket expenses.
6. Independent Contractor. Consultant's relationship to the Company under this
Agreement is that of an independent contractor. Consultant is not an agent,
joint venturer, partner, or employee of the Company. No act or obligation,
express or implied, of the Consultant is in any way binding upon the Company
except as expressly set forth herein. Consultant is responsible for obtaining
all necessary licenses and permits for the conduct of Consultant's business and
in all other ways fully complying with the requirements of applicable laws,
including but not limited to the payment of all income and withholding taxes
with respect to payments from the Company pursuant to this Agreement.
7. Warranty. Consultant represents and warrants that he (i) has the right and
authority to enter into this Agreement and to perform his obligations as
described in this Agreement; (ii) shall perform such obligations in a
professional manner; (iii) will not infringe on, violate or misappropriate any
patent, copyright, trade secret, trademark or other proprietary right of any
entity in performing such obligations; and (iv) is free to enter into and
perform this Agreement without violating the provisions of any other agreement,
written or oral, to which he is a party.
8. Termination. This Agreement may be terminated by either party at any time
upon thirty (30) days prior written notice to the other.
9. Miscellaneous Provisions. The following miscellaneous provisions shall also
apply to this Agreement:
Page 2 of 8
9.1 Notices. All notices and communications provided for hereunder shall be in
writing and shall be mailed or delivered to the business address of the parties
to this Agreement, or to such other address as either party shall designate in
writing to the other.
9.2 Successors and Assigns. The rights and obligations of the Company under this
Agreement shall bind and inure to the benefit of the Company and its successors
and assigns. The Company shall have the right to freely assign, delegate, or
transfer any of its rights and obligations under this Agreement. The rights and
obligations of Consultant under this Agreement are personal to Consultant and
may not be assigned, delegated or transferred without the prior written consent
of the Company, except for the right to payment hereunder.
9.3 Governing Law. This Agreement shall be governed by and interpreted in
accordance with the laws of the State of New Jersey, without regard to the
conflicts of laws rules thereof.
9.4 Entire Agreement. This Agreement constitutes the entire understanding
between the parties hereto with respect to the subject matter hereof. No
modifications, extension or waiver of any provisions hereof or any release of
any right hereunder shall be valid, unless the same is in writing and is
consented to by both parties hereto.
9.5 Headings. The headings in this Agreement are intended solely for convenience
of reference and shall be given no effect in the construction or interpretation
of this Agreement.
9.6 Counterparts. This Agreement may be executed simultaneously in multiple
counterparts, each of which shall be deemed to be an original but all of which
together shall constitute one and the same Agreement.
Page 3 of 8
IN WITNESS WHEREOF, the parties hereto have executed this Consulting
Agreement as of the date first written above.
AMICUS THERAPEUTICS, INC.
By: /s/ Xxxx X. Xxxxxxx
-----------------------------------
Name: Xxxx X. Xxxxxxx
Title: Chief Executive Officer
CONSULTANT
/s/ Xxxxxx X. Xxxxxx, Xx.
-----------------------------
Signature
SS# or EIN: (omitted)
Page 4 of 8
EXHIBIT A
February 28, 2006
Xxxxxx X. Xxxxxx, Xx.
0 Xxxxxxxx Xxxx
Xxxxxxx, XX 00000
Re: Confidentiality Agreement ("Agreement")
Dear Don:
In connection with your engagement as a consultant (the "Relationship") with
Amicus Therapeutics, Inc. (the "Company"), the Company expects to make available
to you certain nonpublic information concerning its businesses, financial
condition, operations, assets and liabilities. As a condition to such
information being furnished to you and your partners, directors, officers,
employees, agents, advisors, and your affiliated or subsidiary companies
(including, without limitation, attorneys, accountants, consultants, bankers and
financial advisors) (collectively, "Representatives"), you agree to treat any
nonpublic information concerning the Company (whether prepared by the Company,
its Representatives or otherwise and irrespective of the form of communication)
which is furnished hereunder to you or to your Representatives by or on behalf
of the Company in accordance with the provisions of this Agreement, and to take
or abstain from taking certain other actions hereinafter set forth.
1. CONFIDENTIAL INFORMATION.
(a) "Trade Secrets" shall mean information belonging to the
Company or its Representatives (collectively, the "Disclosing Party") or
licensed by it including, without limitation, formulae, patterns, compilations,
programs, devices, methods, techniques, or processes (including such information
that has commercial value to the Disclosing Party from a negative viewpoint,
such as the results of research which proves that certain processes used to
attempt to develop new technology will be unsuccessful), which is not commonly
known by or available to the public, was not your or your Representatives'
(collectively, the "Receiver") legitimate possession prior to the time of
entering this Agreement, and which information: (a) derives independent economic
value, actual or potential, from not being generally known to, and not being
readily ascertainable by proper means by, other persons who can obtain economic
value from their disclosure or use; and (b) is the subject of efforts that are
reasonable under the circumstances to maintain its secrecy.
Page 5 of 8
(b) "Proprietary Information" shall mean any information,
other than Trade Secrets, without regard to form, belonging to the Disclosing
Party or licensed by it including, without limitation, formulae, patterns,
compilations, programs, devices, methods, techniques, or processes, which is not
commonly known by or available to the public and which information is material
to the Disclosing Party, and all notes, analyses, compilations, studies,
interpretations or other documents prepared by the Receiver which contain,
reflect or are based upon, in whole or in part, the information furnished to the
Receiver by the Disclosing Party pursuant hereto; provided, however that
"Proprietary Information" shall not include any information which Receiver can
show (i) is or shall become generally known to the industry or the public
through no act or fault of Receiver, (ii) is received in good faith from any
third party who has the right to disclose such information and who has not
received such information, either directly or indirectly, from the Disclosing
Party, or (iii) any information which Receiver can show was in Receiver's
legitimate possession prior to the time of entering this Agreement.
(c) "Confidential Information" shall mean, collectively, both
Proprietary Information and Trade Secrets that are disclosed to the Receiver (a)
in documents or other tangible materials clearly marked as proprietary and
delivered to the recipient by the disclosing party, or (b) orally, or in any
other intangible form, provided, however, when first disclosed to the recipient,
the disclosing party tells the recipient the information is proprietary, and the
information is described and disclosed in documents or other tangible materials
clearly marked as proprietary and then delivered to the Receiver by the
Disclosing Party within thirty (30) calendar days after the information is first
disclosed to the Receiver.
2. USE OF CONFIDENTIAL INFORMATION. You hereby agree that you and
your Representatives shall use the Confidential Information solely for the
purpose of evaluating a possible Relationship, and that the Confidential
Information will be kept confidential and you and your Representatives will not
disclose or use for purposes other than as permitted herein any of the
Confidential Information in any manner whatsoever; provided, however, that you
may make any disclosure of Confidential Information to your Representatives (i)
who need to know such information for the sole purpose of evaluating a possible
Relationship between the parties, (ii) who are provided with a copy of this
letter agreement and (iii) who agree to treat such information confidentially.
In addition to the foregoing, you agree as follows:
(a) Receiver will treat as confidential and will not, without
the prior written approval of the Disclosing Party, use (other than as set forth
herein), publish, disclose, copyright or authorize anyone else to use, publish,
disclose or copyright, either during the term of this Agreement or at any time
subsequent thereto, any information that constitutes Trade Secrets whether or
not the Trade Secrets are in written or tangible form.
Page 6 of 8
(b) Receiver will treat as confidential and will not, without
the prior written approval of the Disclosing Party, use (other than in the
performance of the purpose described in this Agreement), publish, disclose,
copyright or authorize anyone else to use, publish, disclose or copyright, any
Proprietary Information either during the term of this Agreement or for five (5)
years after the expiration or termination of this Agreement, with or without
cause, and whether or not the Proprietary Information is in written or other
tangible form.
3. REQUIRED DISCLOSURE. In the event you or your Representatives are
requested or required (by oral questions, interrogatories, requests for
information or documents in a legal proceeding, subpoena, civil investigative
demand or other similar process) to disclose any of the Confidential
Information, you or your Representatives so requested or required shall provide
the Company with prompt notice of any such request or requirement so that the
Company may seek a protective order or other appropriate remedy and/or waive
compliance with the provisions of this letter agreement. If, in the absence of a
protective order or other remedy or the receipt of a waiver by the Company, you
or your Representatives are nonetheless, in the opinion of outside counsel,
legally compelled to disclose the Confidential Information, you or your
Representatives may, without liability hereunder, disclose to such tribunal only
that portion of the Confidential Information which such counsel advises is
legally required to be disclosed, provided, however, that you or your
Representatives exercise reasonable efforts to preserve the confidentiality of
the Confidential Information, including, without limitation by cooperating with
the Company to obtain an appropriate protective order or other reliable
assurance that confidential treatment will be accorded the Confidential
Information by such tribunal.
4. RETURN OF CONFIDENTIAL INFORMATION. Upon termination of this
Agreement and at any time upon the request of the Company for any reason, you
will (i) promptly deliver to Company or destroy all written Confidential
Information furnished to you by or on behalf of the Company pursuant hereto (and
all copies-thereof and extracts therefrom) and (ii) promptly destroy all written
Confidential Information prepared by you which contain, reflect or are based
upon, in whole or in part, the information furnished to you by the Company
pursuant hereto (and all copies thereof and extracts therefrom) and such return
or destruction shall be certified in writing by your authorized officer;
provided, however, that in either case a copy may be retained by counsel of each
party solely for the purposes of maintaining an accurate record of the
Confidential Informations should a dispute under this letter agreement ever
arise. Notwithstanding the return or destruction of Confidential Information,
you and your Representatives will continue to be bound by their other
obligations as provided in this Agreement.
5. NO REPRESENTATION OF ACCURACY. You understand and hereby
acknowledge that neither the Company nor any of its Representatives makes any
representation or warranty, express or implied, as to the accuracy or
completeness of the
Page 7 of 8
Confidential Information made available by it. You agree that neither the
Company nor any of its Representatives shall have any liability to you or your
Representatives relating to or resulting from the use of, or reliance upon, the
Confidential Information or any errors therein or omissions therefrom.
6. MISCELLANEOUS. You agree to be responsible for any breach of this
agreement by any of your Representatives. No failure or delay by the Company or
any of its Representatives in exercising any right, power or privileges under
this agreement shall operate as a waiver thereof nor shall any single or partial
exercise thereof preclude any other or further exercise of any right, power or
privilege hereunder. In case any provision of this agreement shall be invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions of this agreement shall not in any way be affected or
impaired thereby.
7. GOVERNING LAW. This Agreement shall be governed by, and construed
in accordance with, the internal laws of the State of New Jersey without giving
effect to the principles of conflicts of laws thereof.
8. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
9. TERM. Confidential Information may be disclosed hereunder until
the date that is one year from the date first written above unless otherwise
terminated or extended in writing by the parties. Notwithstanding the
termination of this Agreement, the obligations with respect to the use of
confidential information contained in Section 2 shall survive.
Please confirm your agreement with the foregoing by signing and returning one
copy of this letter to the undersigned, whereupon this letter agreement shall
become a binding agreement.
Very truly yours,
AMICUS THERAPEUTICS, INC.
By: /s/ Xxxx X. Xxxxxxx
-------------------------
Name: Xxxx X. Xxxxxxx
Title: CEO
Accepted and Agreed as of
the date first written above:
By: /s/ Xxxxxx X. Xxxxxx, Xx.
--------------------------
Name: Xxxxxx X. Xxxxxx, Xx.
Page 8 of 8
