1
Exhibit 10.01
CONSULTATION AGREEMENT
This Consultation Agreement, effective as of May 13, 1997, between
ImmuLogic Pharmaceutical Corporation, a Delaware corporation having a place of
business at 000 Xxxxxxx Xxxxxx, Xxxxxxx, XX 00000, its consultants and
affiliates ("ImmuLogic"), and J. Xxxxxxx Xxxxxxx (Social Security Number
###-##-####) having an office at Xxx Xxxxxxxx Xxx, Xxxxxxx, XX 00000
("Consultant").
W I T N E S S E T H:
WHEREAS, ImmuLogic desires to have the benefit of Consultant's
knowledge and experience, and Consultant desires to provide consulting services
to ImmuLogic, all as hereinafter provided in this Agreement;
NOW, THEREFORE, in consideration of the premises and mutual agreement
hereinafter set forth, effective the date hereof, ImmuLogic and Consultant
hereby agree as follows:
1. CONSULTATION. ImmuLogic shall retain Consultant as a consultant, and
Consultant shall serve ImmuLogic as a consultant upon the terms and conditions
hereinafter set forth.
2. TERM. The term of this Agreement shall be from the above date until the
effective date of termination. Either party may terminate the Agreement by
providing thirty (30) days prior written notice to the other party.
3. CONSULTING DUTIES.
(a) During the term, Consultant agrees to serve as Chief Financial Officer
of ImmuLogic, at the pleasure of the Chief Operating Officer, and
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 request. ImmuLogic shall give Consultant reasonable
advance notice of any additional services required of him hereunder.
Consultant agrees to use his best efforts to devote as much time as is
necessary to perform his duties as chief financial officer of
ImmuLogic, but it is also the intent of the parties that Consultant
will be afforded the resources to accomplish this in a manner such that
time spent at ImmuLogic will average two to three days a week.
(b) All work to be performed by Consultant for ImmuLogic shall be under the
general supervision of ImmuLogic.
(c) Consultant shall devote his best efforts and ability to the performance
of the duties attaching to this obligation, devoting an amount of time
as mutually agreed. All work performed by Consultant for ImmuLogic
shall be at times reasonably convenient to him. Consultant
Page 1
2
agrees to furnish ImmuLogic with written reports with respect to such
consulting services if and when requested by ImmuLogic.
4. COMPENSATION. In consideration for the services rendered by Consultant to
ImmuLogic, ImmuLogic shall pay Consultant during the Term compensation in the
amount of One Hundred Ten dollars ($110.00) per hour for each hour of consulting
work performed on behalf of ImmuLogic. Payment of such amounts will be made upon
ImmuLogic's approval of a detailed invoice from Consultant. The payment of such
amounts shall cease upon Consultant's death or permanent disability. Consultant
agrees to furnish ImmuLogic with written reports with respect to such consulting
services if and when requested by ImmuLogic.
5. REIMBURSEMENT OF EXPENSES. ImmuLogic shall reimburse Consultant for his
reasonable out-of-pocket expenses incurred in the performance of his duties
hereunder as requested by ImmuLogic upon presentation of reasonably detailed
receipts.
6. STATUS. Consultant's relation 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 acknowledges that
he will be a corporate officer of ImmuLogic for purposes of Section 16 of the
Securities Exchange Act of 1934.
7. INVENTIONS, PROPRIETARY RIGHTS AND DISCLOSURES.
(a) Consultant agrees to disclose promptly to ImmuLogic all inventions,
discoveries, designs, improvements and all other intellectual property
rights (collectively referred to as "Inventions") made or perfected in
the performance of, or arising out of, the work to be performed by
Consultant for ImmuLogic, and will maintain adequate and current
written records (in the form of notes, sketches, drawings and as may be
specified by ImmuLogic), properly corroborated, to document the
conception and/or first actual reduction to practice of any Invention.
Such written records shall be available to and remain the sole property
of ImmuLogic at all times. All such Inventions and patents therefor
shall be the exclusive property of ImmuLogic. Consultant hereby
undertakes and agrees to execute such assignments and other papers
which, in the opinion of ImmuLogic, are necessary at any time to permit
the filing and prosecution of copyrights, applications for copyrights,
applications for patents covering the Inventions or are otherwise
required for compliance with the provisions of this paragraph.
(b) Consultant agrees that the services furnished pursuant to the work to
be performed hereunder, the data and Inventions generated by the said
work and any and all information, data, specifications, techniques,
formulae and processes disclosed by ImmuLogic in connection therewith
(collectively referred to as "Confidential Information") are the
property of ImmuLogic and are confidential and proprietary to
ImmuLogic. Consultant agrees that he shall not use Confidential
Information for any purpose other than as advised or directed by
ImmuLogic regardless of whether such Confidential Information has been
furnished or made available to Consultant by ImmuLogic or is original
with Consultant. Without ImmuLogic's
Page 2
3
express written consent first obtained, Consultant agrees that he shall
not disclose or make available any Confidential Information to any
third party regardless of whether such Confidential Information has
been furnished or made available to Consultant by ImmuLogic or is
original with Consultant. Consultant shall not discuss the nature of
his activities in connection with ImmuLogic with anyone except
authorized representatives of ImmuLogic. At ImmuLogic's request,
Consultant shall provide ImmuLogic with all Confidential Information
furnished to Consultant by ImmuLogic or original with Consultant in
connection with his services furnished hereunder which has been reduced
to writing and retain no copies thereof. Consultant understands that in
receiving Confidential Information, he receives no right to a license,
implied or otherwise, under any patent or other rights now or hereafter
owned or controlled by ImmuLogic.
(c) The foregoing obligations of confidentiality and non-use shall not
apply to:
(1) information which at the time of disclosure by ImmuLogic
hereunder to Consultant or at the time of generation by
Consultant is in the public domain;
(2) information which after disclosure by ImmuLogic to Consultant
or generation by Consultant is published or otherwise becomes
part of the public domain through no fault of Consultant, but
only after it is so published or so becomes part of the public
domain;
(3) information received by Consultant from a third party who is
legally in possession of the same and not under an obligation
of confidentiality with respect thereto; or
(4) information which was already in Consultant's possession at
the time of receipt from ImmuLogic, as evidenced by written
records;
however, Confidential Information shall not be deemed within the
foregoing exceptions if
(i) specific information is merely embraced by more general
information in the public domain or Consultant's possession,
or (ii) it constitutes a combination which can be
reconstructed from multiple sources in the public domain or
Consultant's possession, none of which shows the whole
combination of the Confidential Information.
(d) Consultant warrants and represents that no trade secrets or other
confidential information of any other person, firm, corporation,
institution or other entity will be wrongfully disclosed by him to
ImmuLogic in connection with any of the services called for hereunder.
Consultant further warrants and represents that none of the provisions
of this Agreement, nor the services which will be performed by
Consultant pursuant to the work to be performed hereunder, contravenes
or is in conflict with any agreement of Consultant with, or obligation
to, any other person, firm, corporation, institution or other entity
including, without limiting the generality of the foregoing, employment
agreements, consulting agreements, disclosure agreements or agreements
for assignment of inventions. Consultant further agrees that if his
Page 3
4
services to other enterprises result in a conflict of interest with his
obligations to ImmuLogic under this Agreement, he will immediately
inform ImmuLogic and resolve the conflict in a mutually satisfactory
manner.
8. 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; or
(b) cause any person or entity rendering services to ImmuLogic to
discontinue his or its relationship with ImmuLogic.
9. INDEMNIFICATION. To the fullest extent permitted by law, ImmuLogic shall
indemnify, defend and hold Consultant harmless from and against any and all
claims, damages, costs, expenses or other liabilities, including reasonable
attorneys' fees and court costs, incurred by or imposed upon Consultant in
connection with any claims, suits, actions, demands or judgments arising out of
Consultant's position as an officer of ImmuLogic or Consultant's activities on
behalf of ImmuLogic; provided, however, that this indemnity shall not extend to
any claims, suits, actions, demands or judgments which are judicially determined
to have resulted from Consultant's gross negligence or willful or criminal
misconduct. Consultant agrees to promptly notify ImmuLogic in writing of any
such claim, suit, action or demand, and ImmuLogic shall have the right to
control the defense and/or settlement of any claim pursuant to this section.
Consultant shall not settle any claim, suit, action or demand covered by the
indemnity without the prior written consent of ImmuLogic, which consent shall
not be unreasonably withheld or delayed. The foregoing indemnity shall be in
addition to, and not in lieu of, any indemnity to which Consultant shall be
entitled under ImmuLogic's Restated Certificate of Incorporation, as amended.
10. SURVIVAL OF PROVISIONS. The provisions of paragraphs 7, 8 and 9 hereof shall
survive the termination or expiration of this Agreement, irrespective of the
reason therefor.
11. ASSIGNABILITY AND BINDING EFFECT. Neither this Agreement nor any interest
shall be assignable by either party unless such assignment is mutually agreed to
in writing by the parties hereto; provided, however, that ImmuLogic may assign
this Agreement to any corporation with which ImmuLogic may merge or consolidate
or to which ImmuLogic may assign substantially all of its assets or that portion
of its business to which this Agreement pertains without obtaining the agreement
of Consultant.
12. 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.
13. NOTICES. Any notices or other communications 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:
Page 4
5
If to ImmuLogic:
ImmuLogic Pharmaceutical Corporation
000 Xxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: General Counsel
If to Consultant:
J. Xxxxxxx Xxxxxxx
Xxx Xxxxxxxx Xxx
Xxxxxxx, XX 00000
or at such other address as such other party may designate in conformity with
the foregoing.
14. ENTIRE AGREEMENT; MODIFICATION. This document sets forth the entire
Agreement between the parties hereto with respect to the subject matter hereof
and will supersede all prior and contemporaneous negotiations, agreements,
representations, understandings, and commitments with respect thereto. This
Agreement shall not be changed or modified in any manner except by an instrument
signed by the duly authorized officers of each of the parties hereto, which
document shall make specific reference to this Agreement and shall express the
plan or intention to modify same.
15. 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, this Agreement is executed under seal by both
parties and deemed to be governed by the laws of the Commonwealth of
Massachusetts, exclusive of its conflicts of law principles.
IMMULOGIC PHARMACEUTICAL CORPORATION
By: /s/ XXXXX X. XXXXXX
------------------------------
Name: XXXXX X. XXXXXX
----------------------------
Title: VP HUMAN RESOURCES
---------------------------
CONSULTANT:
By: /s/ J. XXXXXXX XXXXXXX
------------------------
J. XXXXXXX XXXXXXX
Page 5
