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Exhibit 10.22
AGREEMENT AND RELEASE
AGREEMENT AND RELEASE dated this 14th day of January, 2005, by
and
between Dr. Lan Bo Chen ("DR. CHEN") and Synta Pharmaceutical Corp.
(the
"COMPANY"). Dr. Chen and the Company may be referred to jointly as
"THE
PARTIES."
WHEREAS, Dr. Chen is a
founder of the Company, serves as a member of
the Company's board of
directors, and is chair of the Company's scientific
advisory board;
WHEREAS, during the course of their relationship, the parties
(including, in certain cases, various predecessor entities of the
Company) have
had, or may have had, various oral understandings and arrangements
which,
because they were not memorialized clearly in writing, have led to
lack of
clarity about the nature and extent of the parties' obligations to
each other
under these arrangements; and
WHEREAS, Dr. Chen and the Company wish to resolve, for their
mutual
benefit, all matters regarding such arrangements, including
arrangements
relating to (i) the release by Dr. Chen of any and all claims that
Dr. Chen and
his Affiliates (as defined below) and Associates (as defined below)
may have
against the Company, its Predecessors (as defined below) and other
related
parties, (ii) the assignment by Dr. Chen of the benefit of his
interests in
certain entities to the Company and (iii) Dr. Chen's assignment of
inventions,
non-competition, non-solicitation and confidentiality agreements
with the
Company.
NOW, THEREFORE, for good and valuable consideration, as more
fully
described below, the sufficiency of which is hereby acknowledged,
the parties
agree as follows:
1.
AGREEMENT AND RELEASE CONSIDERATION.
As full, complete, and unconditional satisfaction, settlement
and
accord of all Claims (as defined below) and in consideration of the
agreements
and releases set forth herein, the Company agrees to pay to Dr.
Chen a total sum
of Five Hundred Thousand Dollars ($500,000). Such amount will be
paid in twenty
(20) equal payments of Twenty-Five Thousand Dollars ($25,000), the
first being
made on the date of execution of this Agreement and Release, and
the remaining
nineteen payments to be made every three months from the date
hereof.
2.
DEFINITIONS.
For purposes of this Agreement and Release, the following terms
shall
have the meanings set forth below:
(i) "AFFILIATE" shall mean a person or entity that
directly, or indirectly through one or more intermediaries,
controls or is controlled by, or under common control with
another person or entity, and shall include without limitation,
both current and former directors and officers of an entity;
(ii) "ASSOCIATE" shall mean (a) any corporation or
organization (other than the Company or any of its
subsidiaries) of which an individual, as of the date hereof, is
a director, executive officer or partner or of which the
individual is, directly or indirectly, the beneficial owner of
10% or more of any class of equity securities, (b) any trust or
other estate in which an individual has a substantial
beneficial interest or as to which the individual serves as
trustee or in a similar fiduciary capacity, and (c) an
individual's spouse and, either by blood or adoption, the
individual's parents, children, siblings,
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mothers and fathers-in-law, sons and daughters-in-law, and
brothers and sisters-in-law; and
(iii) "PREDECESSOR" shall mean an entity, the major
portion of the business and assets of which was acquired by
another entity in a single transaction or in a series of
related transactions.
3.
RELEASES.
(a) Dr. Chen on behalf of himself his Affiliates and Associates,
and
his and their fiduciaries, representatives, agents, estates,
trusts, attorneys,
executors, administrators, beneficiaries, successors and assigns
(hereinafter,
the "RELEASORS"), absolutely and unconditionally releases and
forever discharges
the Company, its Predecessors, Affiliates, Associates, and its and
their
successors and assigns, as well as all of their past and present
attorneys,
employees, insurers, representatives and agents, both individually
and in any of
their official capacities (collectively, the "RELEASEES"), from any
and all
actions or causes of action, disputes, suits, claims, complaints,
contracts,
liabilities, agreements, promises, oral or written, debts,
judgments and
damages, in law or equity, whether existing or contingent, known or
unknown,
matured or not matured since the Beginning of the World thorough
the Date of
this Agreement and Release (collectively, "CLAIMS"), including,
without
limitation: Claims arising out of Dr. Chen's ownership interest in
or
relationship with any Predecessor of the Company or any entity
related to the
Company in any manner whatsoever; Claims arising out of Dr. Chen's
role as a
founder, stockholder and/or director of the Company, as a
consultant to the
Company, or as an individual who has provided equipment and/or
services to the
Company; Claims arising from or as a consequence of any actions or
omissions to
act of the Company's Board of Directors or individual directors of
the Company;
Claims arising from or as a consequence of any actions or omissions
to act of
any other Releasee; Claims of breach of fiduciary duty; Claims
arising from or
concerning Dr. Chen's status as an owner or inventor of any assets,
including
equipment, intellectual property, biological or chemical materials,
processes or
know-how, compounds used by the Company, its Predecessors,
Affiliates or
Associates in their businesses; Claims for compensation,
reimbursement or
remuneration of any sort (such as, but without limitation,
severance payments,
license payments, bonus payments, benefits, accrued vacation pay,
sick pay,
reimbursable expenses, loans to the Company, expense vouchers,
obligations or
commitments to grant stock options or to issue stock and all other
rights to
acquire stock, if any such obligations, commitments and/or rights
are claimed to
exist, and all other payments, commissions, compensations or
reimbursements of
every kind and description and for whatever reason); Claims
involving any
federal or state securities laws; Claims involving any federal or
state law or
regulation relating to employment or employment discrimination
(such as those
laws or regulations concerning discrimination on the basis of age,
alienage,
race, color, creed, sex, sexual orientation, religion, national
origin, handicap
status or veteran status or any military service or application for
military
service); Claims involving any contract, arrangement or
understanding, whether
oral or written, express or implied; or common law Claims. This
release is
intended to be all-encompassing and to act as a full and total
release of any
and all Claims that any of the Releasors has, may have in the
future, or has had
against any or all of the Releasees resulting or arising from,
relative to, or
based on facts, events or occurrences since the Beginning of the
World through
the date of this Agreement and Release; however, notwithstanding
the foregoing,
nothing herein is intended to or shall impair, negate or otherwise
affect (i)
Dr. Chen's ownership in, or title or rights in or to, any equity
interest,
whether capital stock or options or other rights to acquire capital
stock, he,
his Affiliates or Associates has or have in the Company; or (ii)
any vested
interest of Dr. Chen in any retirement plan or pension.
(b) Dr. Chen, on his own behalf and on behalf of the other
Releasors,
further agrees to release and discharge the Company and all other
Releasees from
any and all Claims that might be made by any other person or
organization on
behalf of the Releasors, and specifically waives any right to
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become, and promises not to become, a member of any class in a case
in which any
Claim against the Company, or any claim in the name of the Company,
is made
involving any matters subject to release pursuant to Section 3(a)
(or, except as
required by law or rule of court, to assist or cooperate in the
bringing of any
such claim against the Company or any other Releasee).
(c) These releases may be pleaded by any Releasee as a full and
complete defense to any released Claim and may be used as the basis
for an
injunction against any action, suit or proceeding that may be
prosecuted,
instituted, or attempted in breach hereof. Nothing herein shall be
deemed to
waive the right of the Company or Dr. Chen to bring an action to
enforce the
terms of, or recover damages for breach of, any of the terms of
this Agreement
and Release.
(d) If the parties bring an action barred by, or in order to
enforce,
these releases, the losing party shall be obligated to reimburse
the prevailing
party for reasonable attorneys' fees and costs in such action.
(e) Nothing herein is intended to or shall impair, negate or
otherwise
affect any right to insurance or to indemnification either party
may have under
applicable law, under the Company's Certificate of Incorporation,
as amended, or
the Company's By-laws, as amended, or under any future contract
specifically
with respect to indemnification entered into by the Company and Dr.
Chen.
4.
ASSIGNMENT AND TRANSFER.
To the extent that Dr. Chen, or any Affiliate or Associate retains
any
remaining interest, directly or indirectly, in Kava
Pharmaceuticals, Inc.,
Cancer Genomics, Inc., SinglePixel Biomedical, Inc., Three L
Enterprises, and
CMAC, LLC that could result in or give rise to a distribution or
payment to him
of anything of value, Dr. Chen hereby irrevocably assigns and
transfers to the
Company the net benefits received by Dr. Chen or any such Affiliate
or Associate
in connection with such interests, whenever they are received.
5.
CONFIDENTIALITY AND INVENTION ASSIGNMENT.
(a) The parties acknowledge that the Company and the Predecessors
have
engaged Dr. Chen on an "at-will" basis as a consultant and service
provider, and
that the Company is currently compensating him for consulting
services rendered
on a month-to-month schedule (all of the foregoing services being
hereinafter
referred to as "CONSULTING SERVICES"). In consideration of the
payments set
forth in Section 1 hereof and the payments received and to be
received pursuant
to the Consulting Services, Dr. Chen hereby agrees to the
confidentiality,
non-disclosure and invention assignment provisions set forth
below.
(b) CERTAIN
ACKNOWLEDGEMENTS AND AGREEMENTS.
(i) The parties have discussed, and Dr. Chen hereby
recognizes and acknowledges the competitive and proprietary
aspects of the
business of the Company, its Affiliates and
Associates.
(ii) Dr. Chen acknowledges that a business will be
deemed "competitive" with the Company if, at the time Dr. Chen
enters into a relationship with such business or, at any time
within two years thereafter while Dr. Chen has a relationship
with such business it engages in, or is actively planning or
developing any service and/or the research, development or
commercialization of any product that is the functional
equivalent of, or that has or will likely have the effect of
materially displacing sales of
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services or products which (A) are performed, produced,
manufactured, distributed, sold, under research or active
development or in active planning by the Company at any time
while Dr. Chen is providing Consulting Services or (B) are
expressly identified in writing as the subject of Dr. Chen's
Consulting Services hereunder. If the Company requests that
Dr. Chen provide Consulting Services that he advises the
Company may be competitive with the activities of another
business with which he then has a relationship, the Company
may at its option (x) terminate the Consulting Services and
in connection therewith pay to Dr. Chen any fees and
reimburseable expenses due for all Consulting Services
rendered through the date of termination, or (y) require Dr.
Chen to terminate his services with the competitive business
or entity.
(iii) Dr. Chen further acknowledges that, while
performing Consulting Services to the Company, the Company,
its Affiliates and Associates have furnished and will furnish,
disclose or make available to him Confidential Information (as
defined below) related to the business of the Company and, its
Affiliates. Dr. Chen also acknowledges that such Confidential
Information has been developed and will be developed by the
Company, its Affiliates and Associates through the expenditure
by the Company, its Affiliates and Associates of substantial
time, effort and money and that all such Confidential
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