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EXHIBIT 10.41
CONSULTING AGREEMENT
This Consulting Agreement (this "Agreement") is made effective as of
May 1, 2002, (the "Effective Date"), by and between ArQule, Inc., a Delaware
corporation with its principal place of business at 19 Presidential Way, Woburn,
MA 01801 (the "Company"), and Michael Rosenblatt, M.D., an individual residing
at 130 Lake Avenue, Newton Centre, MA 02459-2108 (the "Consultant").
R E C I T A L S
WHEREAS, the Company desires that the Consultant provide advice and
assistance to the Company within the areas of the Consultant's expertise,
particularly the pharmaceutical and medical fields; and
WHEREAS, the Consultant desires to provide such advice and assistance
to the Company under the terms and conditions of this Agreement;
NOW, THEREFORE, in consideration of the mutual covenants set forth
herein, the Company and the Consultant hereby agree as follows:
1. SERVICES.
The Consultant shall render to the Company such consulting services as
the Company may request from time to time (the "Services"). The Company shall
provide the Consultant with reasonable prior notice of any Services the Company
requires.
2. COMPENSATION.
2.1. CONSULTING FEES. The Company shall pay to the Consultant a sum of
$42,000 for the Consultant's rendering of Services to the Company during the
Term (as defined in Section 3.1). Such fee shall be payable in four installments
of $10,500 on the Effective Date and each three months thereafter during the
Term.
2.2. REIMBURSEMENT OF EXPENSES. The Company shall reimburse the
Consultant for reasonable travel expenses incurred by the Consultant in the
performance of the Services, provided that the Consultant shall have submitted
to the Company written expense statements and other supporting documentation in
a form that is reasonably satisfactory to the Company. The Company shall provide
the Consultant with a check for any amounts due under this Section within thirty
(30) days after the Company receives satisfactory documentation. Notwithstanding
the foregoing, the Consultant shall not incur total expenses in excess of
$100.00 per month without the prior written approval of the Company.
2.3. NO BENEFITS. The Consultant acknowledges and agrees that the
Company will not provide the Consultant with any employee benefits, including
without limitation the Employee
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Stock Purchase Plan, social security, unemployment, medical, or pension
payments. The Consultant is an independent contractor and not an employee of the
Company.
3. TERM AND TERMINATION.
3.1. TERM. This Agreement shall commence on the Effective Date and
shall remain in effect for a period of one year unless earlier terminated as
provided in this Article 3 (the "Term").
3.2. TERMINATION. Either party may terminate this Agreement for any or
no reason upon thirty (30) days' prior written notice to the other party. In
addition, the Company may terminate this Agreement immediately upon written
notice if the Consultant breaches or threatens to breach any provision of
Articles 4, 5 or 6. Upon termination, the Company shall owe no consulting fees,
as set forth in Section 2.1, to the Consultant attributable to the period
subsequent to the date of termination.
3.3. SURVIVAL. The following provisions shall survive the expiration or
termination of this Agreement: Articles 4, 5 and 6; and Section 3.3.
4. CONFIDENTIAL INFORMATION AND PROPRIETARY MATERIALS.
4.1. CONFIDENTIAL INFORMATION.
4.1.1. DEFINITION OF CONFIDENTIAL INFORMATION. Confidential
Information shall mean any technical or business information furnished by the
Company to the Consultant in connection with this Agreement or developed by the
Consultant in the course of performing the Services. Such Confidential
Information may include, without limitation, trade secrets, know-how,
inventions, technical data or specifications, testing methods, business or
financial information, research and development activities, product and
marketing plans, and customer and supplier information.
4.1.2. OBLIGATIONS. The Consultant shall
(a) maintain all Confidential Information in
strict confidence;
(b) use all Confidential Information solely for
the purpose of providing the Services as requested by the Company; and
(c) reproduce the Confidential Information only
to the extent necessary for providing the Services as requested by the Company,
with all such reproductions being considered Confidential Information.
4.1.3. EXCEPTIONS. The obligations of the Consultant under
Section 4.1.2. above shall not apply to the extent that the Consultant can
demonstrate by clear and convincing evidence that certain Confidential
Information:
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(a) was in the public domain prior to the time
of its disclosure under this Agreement;
(b) entered the public domain after the time of
its disclosure under this Agreement through means other than an unauthorized
disclosure resulting from an act or omission by the Consultant;
(c) was independently developed or discovered by
the Consultant prior to the time of its disclosure under this Agreement;
(d) is or was disclosed to the Consultant at any
time, whether prior to or after the time of its disclosure under this Agreement,
by a third party having no fiduciary relationship with the Company and having no
obligation of confidentiality with respect to such Confidential Information; or
(e) is required to be disclosed to comply with
applicable laws or regulations, or with a court or administrative order,
provided that the Company receives prior written notice of such disclosure and
that the Consultant takes all reasonable and lawful actions to obtain
confidential treatment for such disclosure and, if possible, to minimize the
extent of such disclosure.
4.2. PROPRIETARY MATERIALS.
4.2.1. DEFINITION OF PROPRIETARY MATERIALS. "Proprietary
Materials" shall mean any tangible materials furnished by the Company to the
Consultant in connection with this Agreement or developed by the Consultant in
the course of performing the Services. In the case of biological materials,
Proprietary Materials shall also include other materials ordinarily engendered
by the original materials, including without limitation any progeny derived from
a cell line (including naturally occurring mutants), monoclonal antibodies
produced by hybridoma cells, DNA or RNA replicated from isolated DNA or RNA,
recombinant proteins produced by a cell line, recombinant proteins produced
through use of isolated DNA or RNA, and substances routinely purified from any
source material included in the original materials.
4.2.2. LIMITED USE. The Consultant shall use Proprietary
Materials solely for the purpose of providing the Services as requested by the
Company. The Consultant shall use the Proprietary Materials only in compliance
with all applicable governmental laws and regulations, and not for any IN VIVO
experiments on human subjects.
4.2.3. LIMITED DISPOSITION. The Consultant shall not transfer
or distribute any Proprietary Materials to any third party without the prior
written consent of the Company.
4.3. RETURN OF CONFIDENTIAL INFORMATION AND PROPRIETARY MATERIALS. Upon
the expiration or termination of this Agreement, or earlier at the request of
the Company, the Consultant shall return to the Company all originals, copies,
and summaries of documents,
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materials, and other tangible manifestations of Confidential Information in the
possession or control of the Consultant. Upon the termination of this Agreement,
or earlier at the request of the Company, the Consultant shall at the
instruction of the Company either destroy or return any unused Proprietary
Materials that remain in his or her possession.
4.4. SURVIVAL OF OBLIGATIONS. The obligations set forth in this Article
4 shall remain in effect for a period of ten (10) years after termination of
this Agreement, except that the obligations of the Consultant to return
Confidential Information and to return or destroy Proprietary Materials shall
survive until fulfilled.
5. INTELLECTUAL PROPERTY.
5.1. DEFINITION OF INTELLECTUAL PROPERTY. "Intellectual Property" shall
mean any and all Confidential Information, Proprietary Materials, inventions,
developments, data, discoveries, improvements, ideas, concepts, computer
programs, algorithms, protocols, systems and related documentation, and any
other works of invention or authorship (whether or not patentable,
copyrightable, or entitled to or eligible for other forms of legal protection)
that the Consultant has conceived, devised, written, invented, discovered,
developed, or reduced to practice or tangible medium (whether alone, jointly
with others, or under the Consultant's direction) in the course of providing the
Services, or which arise out of the Services or from Confidential Information or
Proprietary Materials.
5.2. DISCLOSURE AND RECORDS. The Consultant shall promptly disclose to
the Company any and all Intellectual Property. The Consultant shall maintain
adequate records (whether written, electronic, or otherwise) to document the
Intellectual Property, including without limitation the conception and reduction
to practice of all inventions, and shall make such records available to the
Company upon request. The Company shall have sole ownership of all such records.
5.3. OWNERSHIP. The Consultant acknowledges and agrees that all
Confidential Information and Proprietary Materials that are provided by the
Company to the Consultant under this Agreement are and shall remain the
exclusive property of the Company or the third party entrusting such
Confidential Information or Proprietary Materials to the Company. The Consultant
hereby assigns, conveys, and grants to the Company all of his right, title, and
interest in and to the Intellectual Property and any and all patents, patent
applications, and copyrights relating to the Intellectual Property. Upon
request, the Consultant shall cooperate with the Company, at the expense of the
Company, in obtaining legal protection for the Intellectual Property including
confirmation of ownership. The Consultant agrees to execute all documents that
the Company may reasonably request in order to perfect its rights in the
Intellectual Property; in the event that the Consultant should fail or refuse to
execute such documents within a reasonable time, the Consultant hereby appoints
the Company attorney-in-fact to execute and deliver any such documents on the
Consultant's behalf. The Company shall own all right, title, and interest in and
to all work product and/or deliverables developed by the Consultant under this
Agreement, including, but not limited to, all software, documentation, data
rights, notes,
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designs, specifications, drawings, inventions, patents, technology, and
associated intellectual property.
5.4. THIRD-PARTY INTELLECTUAL PROPERTY. The Consultant acknowledges
that the Company does not desire to acquire any trade secrets, know-how,
confidential information, or other intellectual property that the Consultant may
have acquired from or developed for any third party, including the Institution
("Third-Party IP"). The Consultant agrees that in the course of providing the
Services, the Consultant shall not improperly use or disclose any Third-Party
IP, including without limitation any intellectual property of (i) any former or
concurrent employer, (ii) any person for whom the Consultant has performed or
currently performs consulting services, or (iii) any other person to whom the
Consultant has a legal obligation regarding the use or disclosure of such
intellectual property.
6. MISCELLANEOUS.
6.1. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, and all of which
together shall be deemed to be one and the same instrument.
6.2. HEADINGS. All headings in this Agreement are for convenience only
and shall not affect the meaning of any provision hereof.
6.3. BINDING EFFECT. This Agreement shall inure to the benefit of and
be binding upon the parties and their respective lawful successors, assigns,
heirs, and personal representatives.
6.4. ASSIGNMENT. This Agreement may not be assigned by either party
without the prior written consent of the other party, except that the Company
may assign this Agreement to an affiliate or in connection with the merger,
consolidation, or sale of all or substantially all of its business or assets
relating to this Agreement.
6.5. NO CONFLICT OF INTEREST. The Consultant represents and warrants to
the Company that the Consultant currently has no agreement with, nor any other
obligation to, any third party that would conflict with the terms of this
Agreement, nor shall the Consultant enter into any such agreement nor incur such
an obligation without the prior written consent of the Company. The Consultant
further represents that the performance of the Services will not breach any
agreement or obligation with any third party, including without limitation any
obligation to refrain from engaging in activities that may compete with such
party.
6.6. NON-SOLICITATION. The Consultant agrees that during the term of
this Agreement and thereafter for a period of two (2) years, the Consultant
shall not, directly or indirectly, (i) solicit, divert, or take away, or attempt
to divert or take away, the business or patronage of any actual or prospective
clients, customers, or accounts of the Company, or (ii) recruit, solicit, or
hire any employee or consultant of the Company, or induce or attempt to induce
any employee or consultant of the Company, to discontinue his or her
relationship with the Company.
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6.7. NOTICES. All notices, requests, demands and other communications
required or permitted to be given pursuant to this Agreement shall be in writing
and shall be deemed to have been duly given upon the date of receipt if
delivered by hand, recognized national overnight courier, or confirmed facsimile
transmission, or upon the date sent if mailed by registered or certified mail,
return receipt requested, postage prepaid, to the following addresses or
facsimile numbers:
If to Company: If to Consultant:
ArQule, Inc. Michael Rosenblatt
19 Presidential Way 130 Lake Avenue
Woburn, MA 01801 Newton Centre, MA 02459-2108
Tel: (781) 994-0300 Tel: (617) 969-4007
Fax: (781) 994-0587 Fax: ________________
Attn: President
Copy to: General Counsel
Tel: (781) 994-0484
Fax: (781) 994-0587
Either party may change its designated address and facsimile number by notice to
the other party in the manner provided in this Section.
6.8. AMENDMENT AND WAIVER. This Agreement may be modified, amended, or
supplemented only by means of a written instrument signed by both parties. Any
waiver of any rights or failure to act in a specific instance shall relate only
to such instance and shall not be construed as an agreement to waive any rights
or fail to act in any other instance, whether or not similar.
6.9. GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the laws of the Commonwealth of Massachusetts applicable to
contracts made and to be performed entirely within such jurisdiction and without
giving effect to its choice or conflict of laws rules or principles.
6.10. SEVERABILITY. In the event that any provision of this Agreement
shall, for any reason, be held to be invalid or unenforceable in any respect,
such invalidity or unenforceability shall not affect any other provision hereof,
and this Agreement shall be construed as if such invalid or unenforceable
provision had not been included herein.
6.11. EQUITABLE RELIEF. The Consultant acknowledges that the
restrictions contained in this Agreement are necessary for the protection of the
business and goodwill of the Company and are reasonable for such purpose. The
Consultant agrees that any breach of his obligations under this Agreement will
cause irreparable harm to the Company. Therefore, in addition to any other
remedies that may be available to the Company, the Company may apply for and
obtain immediate injunctive relief in any court of competent jurisdiction to
restrain the breach or
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threatened breach of, or otherwise to specifically enforce, any obligations of
the Consultant under this Agreement.
6.12. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between the parties with respect to the subject matter hereof and supersedes any
and all prior or contemporaneous oral and prior written agreements and
understandings.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the Effective Date.
ARQULE, INC.
By: ________________________
Name: Stephen A. Hill, M.D.
Title: President and Chief Executive Officer
CONSULTANT
_______________________________
Michael Rosenblatt, M.D.
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