EXHIBIT 10.9
March 3, 2000
Gail L. Brown, M.D.
108 Portola Road. Suite 130
Portola Valley, CA 94028-7899
Re: Amended Consulting Agreement
Dear Gail,
Please accept this letter as written notification of the extension of the
consulting agreement between you and Telik, Inc. dated October 20, 1998, to
December 31, 2000. All other terms and conditions of the agreement remain the
same.
Do not hesitate to contact me at 650-238-3325 if you have any questions.
Sincerely yours,
Jan Braun
Senior Director, Human Resources
Accepted and Agreed:
/s/ Gail Brown
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Gail Brown, M.D.
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Date
TELIK, INC.
CONSULTING AGREEMENT FOR INDIVIDUAL CONSULTANTS
This Agreement is made by TELIK, INC., its successors and its subsidiaries
worldwide ("Telik") and Gail L. Brown, M.D. whose mailing address is 108 Portola
Valley Road, Suite 130, Portola Valley, CA 94028-7899, ("Consultant"), effective
this 20th day of October 1998, for the purpose of setting forth the exclusive
terms and conditions by which Telik will acquire Consultant's services on a
temporary basis.
In consideration of the mutual obligations specified in this Agreement and any
compensation paid to Consultant for his or her services, the parties agree to
the following:
1. Work and Payment. Attached to this Agreement as Exhibit A hereto is a
statement of the work performed or to be performed by Consultant, the type of
payment or Consultant's rate of payment for such work, the types of any expenses
to be paid in connection with such work, and such other terms and conditions as
shall be deemed appropriate or necessary for the performance of the work.
2. Nondisclosure and Trade Secrets. During the term of this Agreement and in
the course of Consultant's performance hereunder, Consultant may receive and
otherwise be exposed to confidential and proprietary information relating to
Telik's business practices, strategies and technologies. Such confidential and
proprietary information may include, but not be limited to, confidential and
proprietary information supplied to Consultant with the legend "Telik
Confidential and Proprietary," or equivalent, Telik's research, development and
marketing strategies, Telik's financial information, including sales, costs,
profits and pricing methods, Telik's internal organization, employee information
and customer lists, Telik's technology, including discoveries, inventions,
research and development efforts, processes, designs, formulas, methods, product
know-how and show-how, and all derivatives, improvements and enhancements to any
of the above which are created or developed by Consultant under this Agreement
and information of third parties as to which Telik has an obligation of
confidentiality (collectively referred to as "Information").
Consultant acknowledges the confidential and secret character of the
Information, and agrees that the Information is the sole, exclusive and
extremely valuable property of Telik. Accordingly, Consultant agrees not to
reproduce any of the Information without the applicable prior written consent of
Telik, not to use the Information except in the performance of this Agreement,
and not to disclose all or any part of the Information in any form to any third
party, either during or after the term of this Agreement. Upon termination of
this Agreement for any reason, including expiration of the term of this
Agreement, Consultant agrees to cease using and to return to Telik all whole and
partial copies and derivatives of the Information, whether in Consultant's
possession or under Consultant's direct or indirect control. Consultant may
retain one copy for legal purposes.
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Consultant shall not disclose or otherwise make available to Telik in any manner
any confidential information of Consultant or received by Consultant from third
parties.
This Section 2 shall survive the termination of this Agreement for any reason,
including expiration of the term of this Agreement.
3. Ownership of Work Product. Consultant shall specifically describe and
identify in Exhibit A to this Agreement any and all technology (a) which
Consultant intends to use in performing under this Agreement (b) which is either
owned solely by Consultant or licensed to Consultant with a right to sublicense,
and (c) which is in existence in the form of a writing or working prototype
prior to the effective date of this Agreement ("Background Technology").
Consultant agrees that any and all ideas, improvements, inventions and works of
authorship conceived, written, created or first reduced to practice in the
performance of work under this Agreement shall be the sole and exclusive
property of Telik and hereby assigns to Telik all its right, title and interest
in and to any and all such ideas, improvements, inventions and works of
authorship.
Consultant further agrees that, except for Consultant's rights in any Background
Technology, Telik is and shall be vested with all right, title and interest,
including patent, copyright, trade secret and trademark rights, in all of
Consultant's work product under this Agreement. Consultant hereby grants to
Telik a non-exclusive, royalty free and worldwide right to use and sublicense
the use of any Background Technology for the purpose of developing and marketing
any Background Technology separate from Telik products.
Consultant further agrees to execute all papers, including patent applications,
invention assignments, and otherwise shall assist Telik as reasonably required
to perfect in Telik all right, title and interest in Consultant's work product
expressly granted to Telik under this Agreement. Costs related to such
assistance, if required, shall be paid by Telik.
This Section 3 shall survive the termination of this Agreement for any reason,
including expiration of the term of this Agreement.
4. Indemnification and Release. Consultant shall indemnify Company and hold it
harmless from and against all claims, damages, losses and expenses including
reasonable attorney's fees which arise out of or result from performance of the
services provided by Consultant and are caused by any grossly negligent act or
willful omission or willful conduct of Consultant or any willful violation of
any statute, ordinance or regulation.
Company agrees to indemnify, defend and hold Consultant harmless from and
against all loss, damages, costs and expenses (including reasonable attorney's
fees) or claims or suits resulting from injury or death alleged to have been
caused by or attributable to the drug, device, or biologic or other services
which are subject of this Agreement and to reimburse
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Consultant for all losses, damages, costs and expenses including reasonable
attorney's fees arising from Company's breach of any provision of this
Agreement.
5. Termination. Either Telik or Consultant may terminate this Agreement upon
written notice in the event of a material breach of the Agreement. Material
breaches include, but are not limited to, the filing of bankruptcy papers or
other similar arrangements due to insolvency. This Agreement may not be waived,
modified, amended or assigned unless mutually agreed upon in writing by both
parties
Either party may terminate this Agreement at any time by thirty (30) days
advance written notice of termination to the other, but Consultant shall in all
events be entitled to payment in accordance with the terms of this Agreement for
all services rendered and expenses incurred through the date this Agreement is
terminated.
6. Compliance with Applicable Laws. Consultant warrants that all material
supplied and work performed under this Agreement complies with or will comply
with all applicable laws and regulations.
7. Independent Consultant. Consultant is an independent consultant, is not an
agent or employee of Telik and is not authorized to act on behalf of Telik.
Consultant will not be eligible for any employee benefits, nor will Telik make
deductions from any amounts payable to Consultant for taxes if Consultant is a
California resident. Taxes shall be the sole responsibility of Consultant.
8. Legal and Equitable Remedies. Consultant hereby acknowledges and agrees
that in the event of any breach of this Agreement by Consultant, including,
without limitation, the actual or threatened disclosure of Information without
the prior express written consent of Telik, Telik will suffer and irreparable
injury, such that no remedy at law will afford it adequate protection against,
or appropriate compensation for, such injury. Accordingly, Consultant hereby
agrees that Telik shall be entitled to specific performance of Consultant's
obligations under this Agreement, as well as such further relief as may be
granted by a court of competent jurisdiction.
9. General. The parties' rights and obligations under this Agreement will bind
and inure to the benefit of their respective successors, heirs, executors, and
administrators and permitted assigns, except that Consultant may not delegate
any of his or her duties under this Agreement without Telik's prior written
consent. This Agreement and Exhibit A attached hereto and hereby incorporated
herein constitute the parties' final, exclusive and complete understanding and
agreement with respect to the subject matter hereof, and supersede all prior and
contemporaneous understandings and agreements relating to its subject matter.
This Agreement may not be waived, modified, amended or assigned unless mutually
agreed upon in writing by both parties. In the event any provision of this
Agreement is found to be legally unenforceable, such unenforceability shall not
prevent enforcement of any other provision of the Agreement. This Agreement
shall be governed by the laws of the State of California, excluding its
conflicts of laws principles. Any notices required or permitted hereunder shall
be given to the appropriate party at the
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address specified below or at such address as the party shall specify in
writing. Such notice shall be deemed given upon personal delivery, or sent by
certified or registered mail, postage prepaid, three (3) days after the date of
mailing.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first set forth above.
TELIK, INC. CONSULTANT
By: ____________________________ By: _____________________________
Clifford Orent Gail L. Brown, M.D.
Chief Executive Officer Consultant
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EXHIBIT A
Work to be performed:
Assistance with the clinical development of TER286
Type of rate of payment:
$250 per hour ($2000 per day) for a maximum of 5 days/month, unless Telik
requests more than five days in any given month and Consultant agrees
Timing of payment(s):
Consultant shall invoice Telik monthly for services rendered, and Telik shall
pay such invoices in full no later than 30 days after receipt of the invoice.
Term of Agreement:
This agreement will have a maximum term of six months from the date of execution
unless extended by mutual agreement of the parties in writing.
Types of Expenses to be paid:
Customary expenses associated with this agreement shall be reimbursed, upon
approval by Telik.
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