Exhibit 10.8


 





 


CONSULTING AGREEMENT


Contract # CNSLT-3775


 


THIS CONSULTING AGREEMENT (together with its Business Terms Exhibit, the “Agreement”) made as of
November 30, 2009 (the “Effective Date”) is between Ironwood
Pharmaceuticals, Inc., a Delaware corporation having an address
at 320 Bent Street, Cambridge, MA 02141 (“Ironwood”), and Christopher
T. Walsh, Ph.D., having an address at 90 Baxter Road, Brookline, MA
02445 (tel: 617-432-1715) (“Consultant”).  Ironwood desires to have the benefit of
Consultant’s knowledge and experience, and Consultant desires to provide
Consulting Services (defined below) to Ironwood, all as provided in this
Agreement.


 


1.                                      Consulting Services. 
Ironwood retains Consultant and Consultant agrees to provide Consulting
Services to Ironwood (the “Consulting Services”) as it may from time to time
reasonably request and as specified in any business terms exhibit that shall
reference this Agreement (“Business Terms Exhibit”). The terms and
conditions of this Agreement shall apply to any Business Terms Exhibit and
shall supercede in the case of any conflict. Any changes to the Consulting Services (and any related compensation
adjustments) must be agreed upon in writing between Consultant and Ironwood
prior to commencement of the changes.


 


1.1                               Performance. 
Consultant agrees to render the Consulting Services to Ironwood, or to
its designee, (a) at such reasonably convenient times and places as
Ironwood may direct, (b) under the general supervision of Ironwood, and (c) on
a best efforts basis.  Consultant will
comply with all rules, procedures and standards promulgated from time to time
by Ironwood with regard to Consultant’s access to and use of Ironwood’s
property, information, equipment and facilities.  Consultant agrees to furnish Ironwood with
written reports with respect to the Consulting Services if and when requested
by Ironwood.


 


1.2                               Third Party Confidential
Information.  Consultant agrees not to use any trade
secrets or other confidential information of any other person, firm, corporation,
institution or other entity in connection with any of the Consulting Services.


 


1.3                               No Conflicts. 
Consultant is under no contractual or other obligation or restriction
which is inconsistent with Consultant’s execution of this Agreement or the performance
of the Consulting Services.  During the
Term (defined below), Consultant will not enter into any agreement, either
written or oral, in conflict with Consultant’s obligations under this
Agreement.  Consultant will arrange to
provide the Consulting Services in such manner and at such times that the
Consulting Services will not conflict with Consultant’s responsibilities under
any other agreement, arrangement or understanding or pursuant to any employment
relationship Consultant has at any time with any third party.  If Consultant is a member or employee of an
educational or not-for-profit institution and is 


 


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required by such institution to disclose to it any proposed agreements
with a for-profit entity, he or she has made such disclosure in accordance with
the policies and procedures of such institution and obtained the prior written
approval of this Agreement by such institution, if required.


 


1.4                               Absence of Debarment.  Consultant represents that
Consultant has not been (a) debarred, convicted, or is not subject to a
pending debarment or conviction, pursuant to section 306 of the United States
Food Drug and Cosmetic Act, 21 U.S.C. § 335a, (b) listed by any government
or regulatory agencies as ineligible to participate in any government
healthcare programs or government procurement or non-procurement programs (as
that term is defined in 42 U.S.C. 1320a-7b(f)), or excluded, debarred,
suspended or otherwise made ineligible to participate in any such program, or (c) convicted
of a criminal offense related to the provision of healthcare items or services,
or is not subject to any such pending action. 
Consultant agrees to inform Ironwood in writing promptly if Consultant
is subject to the foregoing, or if any action, suit, claim, investigation, or
proceeding relating to the foregoing is pending, or to the best of Consultant’s
knowledge, is threatened.  Consultant is
under no obligation to solicit, refer, or solicit the referral of patients for
any Ironwood business.  Consultant will
receive no benefit of any kind from Ironwood for such referrals, nor suffer any
detriment for not making such referrals.


 


1.5                               Nonsolicitation. 
During the Term and for a period of one (1) year thereafter,
Consultant shall not (i) solicit any person who is employed by or a
consultant to Ironwood or any affiliate or subsidiary of Ironwood, to terminate
such person’s employment by or consultancy to Ironwood, such affiliate or
subsidiary, or (ii) hire such employee or consultant.  As used
herein, the term “solicit” shall include, without limitation, requesting,
encouraging, assisting or causing, directly or indirectly, any such employee or
consultant to terminate such person’s employment by or consultancy to Ironwood
or its affiliate or subsidiary.


 


2.                                      Compensation.  In
consideration for the Consulting Services rendered by Consultant to Ironwood,
Ironwood agrees to pay Consultant the fees set forth in the Business Terms Exhibit attached hereto.  Unless otherwise specified in the Business Terms Exhibit, undisputed payments will be made by
Ironwood within forty-five (45) days from Ironwood’s receipt of Consultant’s
invoice.  Invoices will contain such
detail as Ironwood may reasonably require, including Ironwood’s contract
number, and will be quoted in and payable in U.S. Dollars.  Ironwood will reimburse Consultant for
reasonable business expenses incurred by Consultant in the performance of the
Consulting Services as specified in the Business Terms Exhibit.


 


3.                                      Materials and Developments.


 


3.1                               Materials.  All
documentation, information, and biological, chemical and other materials
controlled by Ironwood and furnished to Consultant by or on behalf of Ironwood
(“Materials”) and all associated intellectual property rights will remain the
exclusive property of Ironwood. 
Consultant will use Materials provided by Ironwood only as necessary to
perform the Consulting Services and will treat them in accordance with the
requirements of this Section 3.1. 
Consultant agrees that it will not use or evaluate those Materials or
any portions thereof for any other purpose except as directed or permitted in
writing by Ironwood.  Without Ironwood’s
prior express written consent, Consultant 


 


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agrees that it will not analyze the Materials, or transfer or make the
Materials available to third parties.


 


3.2                               Deliverables. 
Consultant assigns and agrees to assign to Ironwood all rights in the
United States and throughout the world to inventions, discoveries, improvements,
ideas, designs, processes, formulations, products, computer programs, works of
authorship, databases, mask works, trade secrets, know-how, information, data,
documentation, reports, research, creations and other products arising from or
made in the performance of the Consulting Services (whether or not patentable
or subject to copyright or trade secret protection) (collectively, “Deliverables”).  For purposes of the copyright laws of the
United States, Deliverables will constitute “works made for hire,” except to
the extent such deliverables cannot by law be “works made for hire.”  Ironwood will have the right to use
Deliverables for any and all purposes. During and after the term of this
Agreement, Consultant will cooperate fully in obtaining patent and other
proprietary protection for any patentable Deliverables, all in the name of
Ironwood and at Ironwood’s cost and expense. 
Such cooperation will include, without limitation, executing and
delivering all requested applications, assignments and other documents, and
taking such other measures as Ironwood may reasonably request in order to
perfect and enforce Ironwood’s rights in the Deliverables.  Consultant appoints Ironwood its
attorney-in-fact to execute and deliver any such documents on behalf of
Consultant if Consultant fails to do so. 
Consultant will, however, retain full ownership rights in and to all
templates, programs and other materials developed by Consultant or obtained or
licensed from third parties by Consultant (“Consultant Property”) prior to or
independent of the Consulting Services, regardless of whether such Consultant
Property is used in the performance of the Consulting Services.  Consultant hereby grants to Ironwood a
perpetual, non-exclusive, fully paid-up worldwide license to use Consultant
Property solely to the extent required for Ironwood’s use of the Deliverables.


 


3.3                               Work at Third Party Facilities.  Consultant will not use any third party
facilities or intellectual property in performing the Consulting Services
without Ironwood’s prior written consent.


 


3.4                               Records; Records Storage.  Consultant will maintain all materials and all other data and
documentation obtained or generated by Consultant in the course of preparing
for and providing the Consulting Services, including all computerized records
and files (the “Records”) in a secure area reasonably protected from fire,
theft and destruction.  These Records
will be “Works Made for Hire” and will remain the exclusive property of
Ironwood. Upon written instruction of Ironwood, all Records will, at Ironwood’s
option either be (a) delivered to Ironwood or to its designee, or (b) disposed
of, unless such Records are otherwise required to be stored or maintained by
Consultant as a matter of law or regulation. 
In no event will Consultant dispose of any such Records without first
giving Ironwood sixty (60) days’ prior written notice of Consultant’s intent to
do so.  Consultant may, however, retain
copies of any Records  as are
reasonably necessary for regulatory or insurance  purposes,
subject to Consultant’s obligation of confidentiality.


 


4.                                      Confidential Information.


 


4.1                               Definition.  “Confidential
Information” means all scientific, technical, financial or business information
owned, possessed or used by Ironwood, learned of by Consultant or 


 


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developed by Consultant in connection with the Consulting Services,
whether or not labeled “Confidential”, including but not limited to (a) Deliverables,
Materials, scientific data and sequence information, (b) marketing plans,
business strategies, financial information, forecasts, personnel information
and customer lists of Ironwood, and (c) all information of third parties
that Ironwood has an obligation to keep confidential.


 


4.2                               Obligations of Confidentiality. 
During the Term and for a period of five (5) years thereafter,
Consultant will not directly or indirectly publish, disseminate or otherwise
disclose, use for Consultant’s own benefit or for the benefit of a third party,
deliver or make available to any third party, any Confidential Information,
other than in furtherance of the purposes of this Agreement, and only then with
the prior written consent of Ironwood. 
Consultant will exercise all reasonable precautions to physically
protect the integrity and confidentiality of the Confidential Information.


 


4.3                               Exceptions. 
Consultant
will have no obligations of confidentiality and non-use with respect to any
portion of the Confidential Information which:


 


(a)                                  is or later becomes generally available to
the public by use, publication or the like, through no fault of Consultant;


 


(b)                                  is obtained from a third party who had the
legal right to disclose it to Consultant; or


 


(c)                                  Consultant already possesses, as evidenced by
Consultant’s written records that predate the receipt thereof.


 


In the event that Consultant is required by law or court order to
disclose any Confidential Information, Consultant will give Ironwood prompt
notice thereof so that Ironwood may seek an appropriate protective order.  Consultant will reasonably cooperate with
Ironwood in its efforts to seek such a protective order.


 


5.                                      Term and  Termination.


 


5.1                               Term.  This
Agreement will commence on the Effective Date and continue for two years (the “Term”),
unless sooner terminated pursuant to the express terms of this Section 5.
This Agreement shall automatically renew for subsequent periods of one (1) year
each unless either party notifies the other at least thirty (30) days prior to
the expiration of the current period of its intent not to renew.   Notwithstanding the foregoing, this
Agreement shall not expire, but shall continue in full force and effect until
Consultant’s completion of any unperformed obligations under any Business Terms
Exhibit executed prior to the date upon which the Agreement would
otherwise have expired.


 


5.2                               Termination for Breach. If either party breaches in any material
respect any of its material obligations under this Agreement, in addition to
any other right or remedy, the non-breaching party may terminate this Agreement
or a Business Terms Exhibit in the event that the breach is not cured
within thirty (30) days after receipt by that party of written notice of the
breach.


 


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5.3                               Termination. 
Either party may terminate this Agreement or a Business Terms Agreement (a) immediately
at any time upon written notice to the other party in the event of a breach of
this Agreement or a Business Terms Exhibit by the other party which cannot
be cured (i.e. breach of the confidentiality
obligation) and/or (b) at any time without cause upon not less than thirty
(30) days’ prior written notice to the other party.


 


5.4                               Effect of Expiration/Termination.  Upon
expiration or termination of this Agreement or a Business Terms Exhibit,
neither Consultant nor Ironwood will have any further obligations under this
Agreement or the Business Terms Exhibit, except that (a) Consultant will
terminate all Consulting Services in progress in an orderly manner as soon as
practical and in accordance with a schedule agreed to by Ironwood, unless
Ironwood specifies in the notice of termination that Consulting Services in
progress should be completed, (b) Consultant will deliver to Ironwood any
Materials in its possession or control and all Deliverables made through
expiration or termination, (c) Ironwood will pay Consultant any monies due
and owing Consultant, up to the time of termination or expiration, for
Consulting Services actually performed and all authorized expenses actually
incurred, (d) Consultant will promptly refund to Ironwood any monies paid
by Ironwood in advance for Consulting Services not rendered, (e) Consultant
will immediately return to Ironwood all Confidential Information and copies
thereof provided to Consultant under this Agreement or a Business Terms Exhibit except
for one (1) copy which Consultant may retain solely to monitor Consultant’s
surviving obligations of confidentiality, and (f) the terms, conditions
and obligations under Sections 1.4, 1.5, 3, 4, 5.4 and 6 will survive
expiration or termination for any reason.


 


6.                                      Miscellaneous.


 


6.1                               Independent Contractor.  All
Consulting Services will be rendered by Consultant as an independent contractor
and this Agreement does not create an employer-employee relationship between
Ironwood and Consultant.  Consultant will
have no rights to receive any employee benefits, such as health and accident
insurance, sick leave or vacation which are accorded to regular Ironwood
employees. Consultant will not in any way represent himself to be an employee,
partner, joint venturer, or agent of Ironwood.


 


6.2                               Taxes. 
Consultant will pay all required taxes on Consultant’s income from
Ironwood under this Agreement. 
Consultant will provide Ironwood with Consultant’s taxpayer
identification number or social security number, as applicable.


 


6.3                               Use of Name. 
Consultant consents to the use by Ironwood of Consultant’s name and
likeness in written materials and oral presentations to current or prospective
customers, partners, investors or others, provided that such materials or
presentations accurately describe the nature of Consultant’s relationship with
or contribution to Ironwood.


 


6.4                               Assignability and Binding Effect.  The
Consulting Services to be rendered by Consultant are personal in nature.  Consultant may not assign or transfer this
Agreement or any of Consultant’s rights or obligations hereunder except to a
corporation of which Consultant is the sole stockholder.  In no event will Consultant assign or
delegate responsibility for actual performance of the Consulting Services to
any other natural person.  This Agreement
will be binding upon and inure to the benefit of the parties and their
respective legal representatives, heirs, successors and permitted assigns.


 


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6.5                               Notices.  All
notices required or permitted under this Agreement must be in writing and must
be given by addressing the notice to the address for the recipient set forth in
this Agreement or at such other address as the recipient may specify in writing
under this procedure.  Notices to
Ironwood will be marked “Attention:  Vice
President, General Counsel.”  Notices
will be deemed to have been given (a) three (3) business days after
deposit in the mail with proper postage for first class registered or certified
mail prepaid, or (b) one (1) business day after sending by nationally
recognized overnight delivery service.


 


6.6                               No Modification.  This Agreement may be changed only by a writing signed by Consultant
and an authorized representative of Ironwood.


 


6.7                               Remedies.  It is
understood and agreed that Ironwood may be irreparably injured by a breach of
this Agreement; that money damages would not be an adequate remedy for any such
breach; and that Ironwood will be entitled to seek equitable relief, including
injunctive relief and specific performance, without having to post a bond, as a
remedy for any such breach, and such remedy will not be Ironwood’s exclusive
remedy for any breach of this Agreement.


 


6.8                               Severability; Reformation.  Any of
the provisions of this Agreement which are determined to be invalid or
unenforceable in any jurisdiction will be ineffective to the extent of such
invalidity or unenforceability in such jurisdiction, without rendering invalid
or unenforceable the remaining provisions hereof and without affecting the
validity or enforceability of any of the other terms of this Agreement in such
jurisdiction, or the terms of this Agreement in any other jurisdiction.  The parties will substitute for the invalid
or unenforceable provision a valid and enforceable provision that conforms as
nearly as possible with the original intent of the parties.


 


6.9                               Waivers.  No waiver of any term, provision or condition of this Agreement in any
one or more instances will be deemed to be or construed as a further or
continuing waiver of any other term, provision or condition of this
Agreement.  Any such waiver must be
evidenced by an instrument in writing executed by Consultant or, in the case of
Ironwood, by an officer authorized to execute waivers.


 


6.10                        Entire Agreement.  This
Agreement constitutes the entire agreement of the parties with regard to its
subject matter, and supersedes all previous written or oral representations,
agreements and understandings between the parties on the subject matter,
including, but not limited to, that certain Consulting Agreement between
Ironwood and Consultant dated as of June 1, 2003.


 


6.11                        Governing Law.  This
Agreement will be governed by, construed, and interpreted in accordance with
the laws of the Commonwealth of Massachusetts, without reference to principles
of conflicts of laws.


 


6.12                        Counterparts.  This
Agreement may be executed in any number of counterparts, each of which will be
deemed an original, but all of which together will constitute one and the same
instrument.


 


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6.13                        Headings.  The
section headings are included solely for convenience of reference and will not
control or affect the meaning or interpretation of any of the provisions of
this Agreement.


 


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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the Effective
Date.


 


	
  IRONWOOD
  PHARMACEUTICALS, INC.

  
	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  By:
  

  	
  /s/
  Mark G. Currie

  	
   

  	
  /s/
  Christopher T. Walsh

  
	
   

  	
   

  	
   

  	
  Christopher
  T. Walsh

  
	
  Name:

  	
  Mark
  G. Currie

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Title:

  	
  Chief
  Scientific Officer

  	
   

  	
   

  
	
   

  	
  duly authorized

  	
   

  	
   

  



 


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BUSINESS TERMS EXHIBIT


 


Consulting Agreement with
Christopher T. Walsh


 


THIS
BUSINESS TERMS EXHIBIT, dated November 30, 2009  (the
“Business Terms Exhibit”) is by and between Ironwood
Pharmaceuticals, Inc. (“Ironwood”) and Christopher
T. Walsh (“Consultant”), and upon execution will be incorporated
into the Consulting Agreement between Ironwood and Consultant dated November 30,
2009 (the “Agreement”).  Capitalized
terms in this Business Terms Exhibit will have the same meaning as set
forth in the Agreement.  Ironwood hereby
engages Consultant to provide Consulting Services, as follows:


 


1.                                      Consulting Services:


 


Consultant will serve as Chairman of Ironwood’s
Pharmaceutical Advisory Committee (“PAC”), attend a minimum of four (4) regularly-scheduled
PAC meetings per year and render advisory services in connection therewith.


 


Consultant will render
Consulting Services on a schedule to be determined by arrangement between
Consultant and Brian Cali.


 


2.                                      Compensation:


 


As
full compensation for the Consulting Services, Ironwood will pay Consultant
$50,000.00 per year, payable in four equal installments.  An installment payment of $12,500.00 shall be
due immediately after each of the four regularly-scheduled PAC meetings.  Consultant is not required to submit invoices
for the installment payments due hereunder. 
Ironwood will remit undisputed payments to Consultant within forty-five
(45) days of each due date.


 


Ironwood
will reimburse Consultant for all reasonable travel and other business expenses
incurred by Consultant in rendering the Consulting Services, provided that such
expenses are agreed upon in writing in advance, and are confirmed by
appropriate written expense statements and other supporting documentation.


 


 


THIS
BUSINESS TERMS EXHIBIT AGREED TO AND ACCEPTED BY:


 


 


	
  IRONWOOD
  PHARMACEUTICALS, INC.

  
	
   

  
	
   

  	
   

  	
   

  
	
  By:
  

  	
  /s/
  Mark G. Currie

  	
   

  	
  /s/
  Christopher T. Walsh

  
	
   

  	
   

  	
   

  	
  Christopher
  T. Walsh

  
	
  Name:

  	
  Mark
  G. Currie

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Title:

  	
  Chief
  Scientific Officer

  	
   

  	
   

  
	
   

  	
  duly authorized