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EXHIBIT 10.11
SERVICES AGREEMENT
This services agreement (the "Agreement") made this 1st day of April 2000, is
entered into by The Medicines Company, a Delaware corporation with its principal
place of business at Xxx Xxxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxxxxx 00000 (the
"Company"), and Stack Pharmaceuticals, Inc., a Delaware corporation ("Stack"),
with a place of business at 0 Xxxxxx Xxx, Xxxxxxxxxx, Xxx Xxxxxx.
INTRODUCTION
The Company desires to retain the services of Stack and Stack desires to perform
certain services for the Company. In consideration of the mutual covenants and
promises contained herein and other good and valuable consideration, the receipt
and sufficiency of which is hereby acknowledged by the parties hereto, the
parties agree as follows:
1. SERVICES
Stack agrees to perform during the Services Period (as defined below) such
infrastructure, consulting, advisory and related services to and for the Company
as may be reasonably requested from time to time by the Company, including, but
not limited to the support of the Company's employees based in New Jersey and
such other services as the parties deem to be appropriate. In the event that the
Company requests that additional services be provided, the Company and Stack
shall agree on a description of the services to be provided and the fees to be
paid by the Company for such services (which fees will be based on the per diem
rates set forth on EXHIBIT A hereto which may be amended from time to time).
2. TERM
This Agreement shall commence on the date hereof and shall continue until April
1, 2001 unless terminated by either party upon receipt of ninety (90) days'
prior written notice (the "Services Period"). In the event of such termination,
Stack shall be entitled to payment for services performed and expenses paid or
incurred prior to the effective date of termination, subject to the limitation
on reimbursement of expenses set forth in Section 3.2. Notwithstanding the
foregoing, either party may terminate the Services Period (i) effective
immediately upon receipt of written notice, if the other party breaches or
threatens to breach any provision of Sections 3, 5 or 7 of this Agreement or
(ii) upon at least 30 days prior written notice to the other party, at any time
after September 1, 2000, if the Company has not received written notice of FDA
approval of, or an approvable letter from the FDA (which does not require
additional clinical trials on the part of the Company) with respect to, the
Company's Angiomax product currently being reviewed by the FDA.
3. COMPENSATION
3.1 Service Fees
During the Services Period, the Company shall pay to Stack service fees of
$23,600 per month, payable in advance on the first day of each month. Payment
for any partial month shall be prorated and Stack will reimburse the Company for
any excess fees advanced to Stack. In the event that any additional fees are
payable to Stack in connection with the additional services
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contemplated by the last sentence of Section 1, the Company shall pay to Stack
the fees due for such services on a monthly basis in arrears within thirty (30)
days of receipt by the Company of a monthly invoice from Stack in a form
reasonably satisfactory to the Company setting forth the fees owed to Stack for
the additional services performed in the prior month.
3.2 Reimbursement of Expenses
The Company shall reimburse Stack for all reasonable expenses incurred or paid
by Stack in connection with, or related to, the performance of its services
under this Agreement. Such reasonable expenses shall include but not be limited
to travel and entertainment expenses. Stack shall submit to the Company itemized
monthly statements, in a form satisfactory to the Company, of such expenses
incurred in the previous month. The Company shall pay to Stack amounts shown on
each such statement within thirty (30) days after receipt thereof with all
expenses to be reimbursed hereunder to be due as of the end of the Services
Period. Notwithstanding the foregoing, Stack shall not incur total expenses in
excess of $5,000 per month without prior written approval of the Company.
4. COOPERATION
Stack shall use its best efforts in the performance of its obligations under
this Agreement. The Company shall provide such access to its information and
property as may be reasonably required in order to permit Stack to perform its
obligations hereunder. Stack shall cooperate with the Company's personnel, shall
not interfere with the conduct of the Company's business and shall observe all
rules, regulations and security requirements of the Company concerning the
safety of persons and property.
5. INVENTIONS AND PROPRIETARY INFORMATION
5.1 Inventions
(a) Stack will make full and prompt disclosure to the Company of all
inventions, improvements, discoveries, methods, developments, software and works
of authorship, whether patentable or not, which are created, made, conceived or
reduced to practice by it or under its direction or jointly with others, for the
benefit of the Company (all of which are collectively referred to in this
Agreement as "Developments") during the Services Period which Developments are
directly related to the services performed by Stack hereunder.
(b) Stack agrees to assign and does hereby assign to the Company (or any
person or entity designated by the Company) all its right, title and interest in
and to all Developments and all related patents, patent applications, copyrights
and copyright applications. Stack understands that, to the extent this Agreement
shall be construed in accordance with the laws of any state which precludes a
requirement in a consulting agreement to assign certain classes of inventions
made by a consultant, this Section 5.1 shall be interpreted not to apply to any
invention which a court rules and/or the Company agrees falls within such
classes.
(c) Notwithstanding the foregoing, this Agreement shall not require
assignment or disclosure of any Developments that: (i) Stack develops outside of
this Agreement without using the Company's equipment, supplies, facilities, or
Proprietary Information (as defined below); (ii) do not directly result from the
specific services that Stack performs for the Company during the
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Services Period; or (iii) do not relate to the present business or research of
the Company, as disclosed to Stack as of the date of this Agreement.
(d) Stack agrees to cooperate fully with the Company, both during and
after the term of this Agreement, with respect to the procurement, maintenance
and enforcement of copyrights, patents and other intellectual property rights
(both in the United States and foreign countries) relating to Developments,
except as provided above. Stack shall sign all papers, including, without
limitation, copyright applications, patent applications, declarations, oaths,
formal assignments, assignments of priority rights and powers of attorney, which
the Company may deem necessary or desirable in order to protect its rights and
interests in any Developments.
5.2 Proprietary Information
(a) Stack agrees that all information, whether or not in writing, of a
private, secret or confidential nature concerning the Company's business,
business relationships or financial affairs (collectively, "the Company's
Proprietary Information") which is disclosed to Stack is and shall be the
exclusive property of the Company. By way of illustration, but not limitation,
the Company's Proprietary Information may include inventions, products,
developments, plans, research data, clinical data, financial data, personnel
data, computer programs, customer and supplier lists and contacts at or
knowledge of customers or prospective customers of the Company. Stack will not
disclose any of the Company's Proprietary Information to any person or entity
other than employees of the Company or employees of Stack on a need-to-know
basis under this Agreement or use the same for any purposes (other than in the
performance of its duties) without written approval by an officer of the
Company, either during or after the term of this Agreement unless and until such
of the Company's Proprietary Information has become public knowledge without
fault by Stack.
(b) Stack agrees that all files letters, memoranda, reports, records,
data, sketches, drawings, laboratory notebooks, program listings or other
written, photographic or other tangible material containing the Company's
Proprietary Information relating to the services performed hereunder, whether
created by Stack or others during the Services Period, shall be and are the
exclusive property of the Company. All such materials or copies thereof and all
tangible property of the Company in the custody or possession of Stack shall be
delivered to the Company upon the earlier of (i) a request by the Company; or
(ii) termination of this Agreement. After such delivery, Stack shall not retain
any such materials or copies thereof or any such tangible property, except one
copy for archival purposes.
(c) The Company agrees that all information, whether or not in writing, of
a private, secret or confidential nature concerning Stack's business, business
relationships or business contacts (collectively, "Stack's Proprietary
Information") which is disclosed to the Company is and shall be the exclusive
property of Stack. By way of illustration, but not limitation, Stack's
Proprietary Information may include inventions, products, developments, plans,
research data, clinical data, financial data, personnel data, computer programs,
customer and supplier lists and contacts at or knowledge of customers or
prospective customers of the Company which Stack possessed prior to commencement
of the Services Period and which is developed by Stack during the Services
Period outside the scope of services being performed by Stack for Company
hereunder. The Company will not disclose any of Stack's Proprietary Information
to any person or entity (other than employees of the Company) or use the same
for any purposes (other than as
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Stack directs during the performance of its duties under this Agreement) without
written approval by Stack, either during or after the term of this Agreement
unless and until such of Stack's Proprietary Information has become public
knowledge without fault by the Company.
(d) The Company agrees that all files letters, memoranda, reports,
records, data, sketches, drawings, laboratory notebooks, program listings or
other written, photographic or other tangible material containing Stack's
Proprietary Information, shall be and are the exclusive property of Stack. All
such materials or copies thereof and all tangible property of Stack in the
custody or possession of the Company shall be delivered to Stack upon the
earlier of (i) a request by Stack; or (ii) termination of this Agreement. After
such delivery, the Company shall not retain any such materials or copies thereof
or any such tangible property, except one copy for archival purposes.
(e) The parties agree that their obligation not to disclose or to use
information and materials of the types set forth in paragraphs (a), (b), (c),
and (d) above, and their obligation to return materials and tangible property,
set forth in paragraphs (b) and (d) above, also extends to such types of
information, materials and tangible property of customers or suppliers of Stack
or the Company, or other third parties who may have disclosed or entrusted the
same to the Company or to Stack.
(f) The parties' obligations under this Section 5.2 shall not apply to any
information that (i) is or becomes known to the general public under
circumstances involving no breach by the parties of the terms of this Section
5.2; (ii) is generally disclosed to third parties by the Company or Stack
without restriction on such third parties; (iii) was known to Company or Stack
as of the date of this Agreement as evidenced by documents in possession of
Company or Stack; or (iv) is approved for release by written authorization of
the Company or Stack.
(g) Stack represents that its retention by the Company and its performance
under this Agreement does not, and shall not breach any agreement that obligates
it to keep in confidence any trade secrets or confidential or proprietary
information of it or of any other party or to refrain from competing, directly
or indirectly, with the business of any other party. Stack shall not disclose to
the Company any trade secrets or confidential or proprietary information of any
other party.
(h) Stack acknowledges that as of the date hereof the Company has
agreements with other persons or with the United States Government, or agencies
thereof, that impose obligations or restrictions on the Company regarding
inventions made during the course of work under such agreements or regarding the
confidential nature of such work. Stack agrees to be bound by all such
obligations and restrictions that are known to it and to take all action
necessary to discharge the obligations of the Company under such agreements.
5.3 Remedies
The parties acknowledge that any breach of the provisions of this Section 5
shall result in serious and irreparable injury to the non-breaching party for
which the parties cannot be adequately compensated by monetary damages alone.
The parties agree, therefore, that, in addition to any other remedy they may
have, the Company shall be entitled to enforce the specific performance of this
Agreement against Stack and to seek both temporary and permanent injunctive
relief (to
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the extent permitted by law) without the necessity of proving actual damages in
any federal or state court within New Jersey and Stack shall be entitled to
enforce the specific performance of the Agreement against the Company and to
seek both temporary and permanent injunctive relief (to the extent permitted by
law) without the necessity of proving actual damages in any federal or state
court within Massachusetts.
6. NON-EXCLUSIVE RELATIONSHIP
It is understood that during the Services Period, Stack's services are available
to the general public and not to the Company exclusively. During the Services
Period, Stack may represent, perform services for, or be employed by such
additional clients, persons, or companies as Stack in Stack's sole discretion
sees fit, provided, however, that such additional clients, persons, or companies
do not require services that will have a material adverse affect on the Company.
The parties acknowledge that Stack is currently a party to a Commercial
Agreement (and other ancillary agreements) with Innovex (North America) Inc.,
dated October 5, 1999, and those other agreements set forth on Schedule B hereto
and agree that such agreements do not violate the terms set forth in this
Agreement.
7. NON-SOLICITATION
7.1 Non-Solicitation Restrictions
During the Services Period and for a period of one (1) year after the
termination or cessation of the Services Period for any reason, neither party
will directly or indirectly recruit, solicit or hire any employee of the other
party, or induce or attempt to induce any employee of the other party to
terminate his/her employment with, or otherwise cease his/her relationship with
the other party. If either party violates the provisions of this Section 7.1,
the violating party shall continue to be bound by the restrictions set forth in
this Section 7.1 until a period of one (1) year has expired without any
violation of such provisions.
7.2 Cutback Clause
If any restriction set forth in Section 7.1 is found by any court of competent
jurisdiction to be unenforceable because it extends for too long a period of
time or over too great a range of activities or in too broad a geographic area,
it shall be interpreted to extend only over the maximum period of time or range
of activities as to which it may be enforceable.
7.3 Equitable Remedies
The restrictions contained in Section 7.1 are necessary for the protection of
the business and goodwill of the parties and are considered by the parties to be
reasonable for such purpose. The parties agree that any breach of Section 7 is
likely to cause the parties substantial and irrevocable damage and therefore, in
the event of any such breach, the parties agree that the parties, in addition to
such other remedies which may be available, shall be entitled to specific
performance and other injunctive relief.
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8. INDEPENDENT CONTRACTOR STATUS
Stack shall perform all services under this Agreement as an "independent
contractor" of and not as an employee or agent of the Company. Stack is not
authorized to assume or create any obligation or responsibility, express or
implied, on behalf of, or in the name of, the Company or to bind the Company in
any manner.
9. NOTICES
All notices required or permitted under this Agreement shall be in writing and
shall be deemed effective upon personal delivery or upon deposit in the United
States Post Office, by registered or certified mail, postage prepaid, addressed
to the other party at the address shown above, or at such other address or
addresses as either party shall designate to the other in accordance with this
Section 9.
10. PRONOUNS
Whenever the context may require, any pronouns used in this Agreement shall
include the corresponding masculine, feminine or neuter forms, and the singular
forms of nouns and pronouns shall include the plural, and vice versa.
11. ENTIRE AGREEMENT
This Agreement constitutes the entire agreement between the parties and
supersedes all prior agreements and understandings, whether written or oral,
relating to the subject matter of this Agreement, including the Consulting
Agreement dated January 4, 2000 between the parties which shall have expired on
March 31, 2000 (except for the provisions of Section 5 which shall survive the
expiration of such agreement).
12. AMENDMENT
This Agreement may be amended or modified only by a written instrument executed
by both the Company and Stack.
13. GOVERNING LAW
This Agreement shall be construed, interpreted and enforced in accordance with
the law of the Commonwealth of Massachusetts.
14. SUCCESSORS AND ASSIGNS
This Agreement shall be binding upon, and inure to the benefit of, both parties
and their respective successors and assigns, including any corporation with
which, or into which, the Company may be merged or which may succeed to its
assets or business, provided, however, that the obligations of Stack are
personal and shall not be assigned by him.
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15. MISCELLANEOUS
15.1 No Waiver
No delay or omission by any party in exercising any right under this Agreement
shall operate as a waiver of that or any other right. A waiver or consent given
by any party on any one occasion shall be effective only in that instance and
shall not be construed as a bar or waiver of any right on any other occasion.
15.2 Captions
The captions of the sections of this Agreement are for convenience of reference
only and in no way define, limit or affect the scope or substance of any section
of this Agreement.
15.3 Enforceability
In the event that any provisions of this Agreement shall be invalid, illegal or
otherwise unenforceable, the validity, legality and enforceability of the
remaining provisions shall in no way be affected or impaired thereby.
15.4 Counterparts
This Agreement may be executed in one or more counterparts, each of which shall
be deemed to be an original, but all of which shall be one and the same
document.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
day and year set forth above.
THE MEDICINES COMPANY
/s/ Xxxxx X. Xxxxxxxx
By:--------------------------------------
President
Title:-----------------------------------
STACK PHARMACEUTICALS, INC.
/s/ Xxxxx X. Xxxxx
By:--------------------------------------
Xxxxx X. Xxxxx
Title: President
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SCHEDULE A
Xxxx Xxxxxx $1,500/day
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SCHEDULE B
Stack is currently a party to agreements with the following parties:
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PARTY TO AGREEMENT
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Quintiles/Innovex
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Cubist Pharmaceuticals Inc.
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Nitro Systems Inc.
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Xxxxx Therapeutics
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Xxxxx Pharmaceuticals, Inc.
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