Exhibit 10.7
CONSULTING AGREEMENT
THIS AGREEMENT, dated this 1st of January 1997, between DR. PATRICK C.
KUNG, residing at 5 Joseph Comee Road, Lexington, Massachusetts 02173 (the
"Consultant"), and T CELL SCIENCES, INC., with its headquarters at 119 Fourth
Avenue, Needham, Massachusetts 02194 (the "Company").
WHEREAS the Company wishes to retain the services of the Consultant as
a consultant, to include the Consultant's services as Vice Chairman of the
Company's Board of Directors (the "Board), for the period and upon the terms and
conditions hereinafter set forth; and
WHEREAS the Consultant desires to consult with the Company in such
capacity upon such terms and conditions;
NOW, THEREFORE, in consideration of the covenants and agreements herein
contained, the Company and the Consultant hereby agree to amend the Agreement as
follows:
1. Consulting Duties.
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The Consultant hereby agrees to consult exclusively with the Company in the
following fields:
(a) Actively contribute to the further development and advancement of TCAR
products by assisting the Company in meeting its obligation in the
Company's agreements with Astra AB, providing scientific counsel to
the Company's scientists, and helping the Company evaluate competitive
technologies and products;
(b) Assist the Company's management in technical evaluation of new
scientific and product opportunities in East Asia; and
(c) Assist the Company in establishing business contact in Southeast Asia;
and
(d) Interact with the Company's Scientific Advisory Board and, provided he
is duly nominated and elected, be an active Director of the Board.
2. Compensation and Expenses.
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In consideration for Consultant's services hereunder (including his services as
Director of the Board):
(a) The Company shall pay the Consultant a total of $2,500 per month,
payable on a monthly basis.
(b) The Company agrees to pay the costs of continuing medical and dental
benefits elected by the Consultant until April 30, 1997 under the
Consolidated Omnibus Budget Reconciliation Act of 1985 ("COBRA").
(c) The Consultant shall be reimbursed by the Company for reasonable
travel, lodging and meal expenses incurred by him in connection with
performing his services hereunder in accordance with the Company's
policy at the time.
(d) The Company will furnish the Consultant with office space at the
Company's Needham office reasonably commensurate with his position and
work schedule at the Company.
(e) The Consultant shall be eligible for non-employee Director stock
option grants pursuant to the Company's Amended and Restated 1991
Stock Compensation Plan.
3. Termination.
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The term of this Agreement shall be for a period of twelve (12) months, subject
to renewal by mutual agreement in writing. Either party shall have the right to
terminate this Agreement at any time after giving three (3) months written
notice. The provisions of Paragraphs 4 and 5 shall survive an termination or
expiration of this Agreement.
4. Confidentiality.
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(a) Consultant shall treat as confidential any proprietary, confidential
or secret information relating to the business or interests of the
Company, including, without limitation, its organizational structure,
operations, business plans, technical projects, research data or
results, inventions, trade secrets, customer lists or other work
product developed by or for the Company whether on the premises of the
Company or elsewhere ("Confidential Information"). Consultant shall
not disclose in any manner or in any forum or make use of in any way
or manner any Confidential Information other than in performing the
services required of him under this Agreement or as required by law,
without the prior written consent of the Company.
(b) The provisions of this Paragraph 4 shall not apply to any proprietary,
confidential or secret information, which is, at the commencement of
the Agreement or at some later date, publicly known under
circumstances involving no breach of this Agreement or is lawfully and
in good faith made available to Consultant without restriction as to
disclosure by a third party.
(c) Any and all inventions and discoveries, whether or not patentable,
which Consultant conceives or makes during the term of this Agreement
and any extensions thereof, and which are a direct result of work
performed hereunder, shall be the sole and exclusive property of the
Company. Consultant shall promptly execute any and all applications,
assignments or other instruments which an officer of the Company or
its Board shall deem necessary or useful in order to apply for and
obtain Letters Patent in the United States and all foreign countries
for said inventions and discoveries and in order to assign and convey
to his employment by the Company the sole and exclusive right, title
and interest in and to said patent inventions, discoveries, patent
applications and patents thereon. The Company will bear the cost of
prosecution of all such patent applications in the United States
Patent Office an in the patent offices of foreign countries.
(d) Consultant and the Company agree that any breach of this Paragraph 4
will cause the Company irreparable harm for which the Company will
have no adequate remedy at law. As a result, the Company will be
entitled to the issuance by an arbitrator or court of competent
jurisdiction of an injunction, restraining order or other equitable
relief in favor of itself restraining Consultant from committing or
continuing in any such violation. Any right to obtain an injunction,
restraining order or other equitable relief hereunder shall not be
deemed to be a waiver of any right to assert a claim or remedy which
the Company may have under this Agreement or otherwise at law or in
equity.
(e) The Company acknowledges that the Consultant is employed by Global
Pharma, Ltd. and that this Paragraph 4 is not intended to compromise
Consultant's relationship with Global Pharma, Ltd.
5. Limitation on Competition.
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(a) For so long as Consultant is consulting with the Company and for a
period of one year thereafter, Consultant shall not, without the prior
written consent of the Board of Directors, participate, engage, or be
interested in whether as a director, officer, employee, advisor,
consultant, stockholder, partner, joint venture, owner or in any other
capacity, whether directly or indirectly, any business engaged in the
development, production or sale of any products or services related to
the T Cell Sciences' programs.
(b) During the term of this Agreement, and for a period of one year
thereafter, Consultant shall not, directly or indirectly, solicit,
raid, entice or otherwise induce any employee of the Company or any of
its subsidiaries or affiliated companies to be employed by a
competitor of the Company.
(c) Consultant acknowledges that the foregoing restrictions are fair and
reasonable and that this breach, or threatened or attempted breach, of
any provision of this Paragraph 5 would cause irreparable harm to the
Company, no compensation in money damages, and that the Company shall
be entitled in addition to other applicable remedies, to a temporary
and permanent injunction and a decree for specific performance of the
terms of this Paragraph 5 without being required to prove damages or
furnish any bond or other security.
(d) The Company agrees that the Consultant's employment by Global Pharma,
Ltd. does not apply to this Paragraph 5.
6. Miscellaneous.
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Enforceability.
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If the provisions of this Agreement shall be deemed invalid or unenforceable as
written, it shall be construed, to the greatest extent possible, or modified, to
the extent allowable by law, in a manner which shall render it valid and
enforceable and any limitation on the scope of duration of any such provision
necessary to make it valid and enforceable shall be deemed to be part thereof;
no invalidity or unenforceability shall affect any other portion of this
Agreement unless the provision deemed to be so invalid or unenforceable is a
material element of this Agreement, taken as a whole.
Notices.
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All notices which either party is required or permitted to give to the other
shall be given by express, registered or certified mail, addressed to the
address referred to above, or at such other place as a party may from time to
time designate in writing, or by personal delivery.
Waivers.
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No waiver by either party of any breach or nonperformance of any provision or
obligation of this Agreement shall be deemed to be a waiver of any preceding or
succeeding breach of the same or any other provision of this Agreement.
Entire Agreement; Amendments.
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This instrument is the entire agreement of the parties with respect to the
subject matter hereof and supersedes the Consulting Agreement dated January 1,
1996 between the parties. This Agreement may not be amended, supplemented,
canceled or discharged except by a written instrument executed by both of the
parties hereto.
Nonassignability.
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This Agreement and the rights and obligations hereunder are personal to the
Company and Consultant and are not assignable or transferable to any other
person, firm or corporation.
Governing Law.
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This Agreement will be governed by and construed in accordance with the laws of
the Commonwealth of Massachusetts applicable to agreements made and to be
performed entirely within such state.
IN WITNESS WHEREOF, the parties below have executed this Agreement
effective as of the date set forth above.
T CELL SCIENCES, INC. DR. PATRICK C. KUNG
By: By:
Una S. Ryan, Ph.D.
President and CEO