OSI PHARMACEUTICALS, INC.
CONSULTING AND CONFIDENTIAL DISCLOSURE AGREEMENT
This
Consulting and Confidential Disclosure Agreement (“
Agreement ”) is effective as of the date of the last
party to sign below (“ Effective Date ”) by and
between OSI Pharmaceuticals, Inc., a Delaware corporation (together
with its affiliates and subsidiaries, “OSI ”),
having executive offices at 41 Pinelawn Road, Melville, New York
11747, and H.M. (Bob) Pinedo, M.D., Ph.D., an individual (“
Consultant ”) , having an address at
Gladiolenweg 6, Willemstad, Curacao, Netherlands
Antilles.
1. Nature of
Consulting Services. The
field of consultation will be clinical development of oncology
products (“ Field ”). The consulting services
provided by Consultant under this Agreement (“
Services ”) will include the following activities:
(i) advising and informing OSI of developments within the
Field; (ii) assisting OSI in solving research, development and
other problems within the Field; (iii) making suggestions and
recommendations to OSI for new drug products and for improvements
of existing drug products related to the Field; and
(iv) attending scientific advisory board meetings as
requested.
2. Delivery
of Consulting Services.
(a)
In providing the Services, Consultant will provide at
Consultant’s expense all equipment, tools, supplies and
materials.
(b)
Consultant will carry out the Services to the best of
Consultant’s ability in a professional manner consistent with
industry standards, in accordance with the standard of care
customarily observed with regard to such services in
Consultant’s profession and using the Consultant’s
expertise and creative talents. Consultant will perform Services in
a timely manner and at mutually agreeable locations, times and
places. Consultant will perform the Services in compliance with all
applicable laws, rules and regulations.
3.
Compensation and Reimbursement.
(a)
OSI will pay Consultant a fee at the rate of five hundred dollars
(US$500) per hour or four thousand dollars (US$4,000) per day
(minimum of eight hours) in consideration for the Services.
Consultant shall invoice OSI for Services on a monthly basis.
Payment shall be due within thirty (30) days of OSI’s
receipt of an invoice for such payment.
(b)
Consultant may bill OSI for reasonable travel time when such travel
is requested by OSI at a rate of the lesser of two hundred dollars
(US$200) per hour or two thousand (US$2,000) per day. OSI will
reimburse Consultant for reasonable out-of-pocket expenses incurred
while Consultant is traveling at OSI’s request. Unless
otherwise approved by OSI, Consultant must use OSI-designated
travel services to make all OSI requested travel arrangements. In
addition, Consultant must obtain OSI’s prior written consent
for such expenses that will exceed two thousand dollars (US$2,000)
in the aggregate. Consultant must submit copies of appropriate
receipts for any such expenses.
(a)
“ Confidential Information ” means confidential
or proprietary information of OSI either disclosed orally,
graphically, in writing, or in electronic or other form to or
otherwise learned by Consultant under this Agreement or that should
reasonably be known to be confidential or proprietary to OSI,
including but not limited to information relating to OSI’s:
research, development, preclinical and clinical programs, data and
results; pharmaceutical or biologic candidates and products;
inventions, works of authorship, trade secrets, processes,
conceptions, formulas, patents, patent applications and licenses;
IP Rights (as defined in Section 5); business, product,
marketing, sales, scientific and technical strategies, programs and
results, including costs and prices; suppliers, manufacturers,
customers, market data,
personnel, and
consultants; and other confidential matters related to
OSI.
(b)
Subject to Section 4(c), until ten (10) years after the
expiration or termination of this Agreement, Consultant:
(i) shall not use Confidential Information for its own
benefit or the benefit of any third party except solely for the
purpose of performing Services;
(ii) shall hold Confidential Information in strictest
confidence and shall not disclose Confidential Information to
others, except to its employees or agents who require Confidential
Information solely for the purpose of performing Services and who
are subject to binding obligations of confidentiality and
restricted use at least as protective as those of this
Agreement;
(iii) shall protect the confidentiality of
Confidential Information using at least the same level of efforts
and measures used to protect its own confidential information, and
at least commercially reasonable efforts and measures, including
without limitation limiting access to Confidential Information
commensurate with performance of the Services and keeping adequate
records of those with access to Confidential Information and of all
uses or dispositions of Confidential Information; and
(iv) shall notify OSI as promptly as practicable of
any unauthorized use or disclosure of Confidential
Information.
(c)
Consultant’s obligations under Section 4(b) shall not apply
to any Confidential Information that:
(i) Consultant knew prior to learning it under this
Agreement, as demonstrated by written records predating the date it
was learned under this Agreement (unless learned from OSI or a
third party under a binder of confidentiality);
(ii) is now, or becomes in the future, publicly
available other than by an act or omission of Consultant;
or
(iii) a third party discloses to Consultant as a
matter of right, without any restriction on disclosure, and without
any breach of any direct or indirect obligation of confidentiality
to OSI, as shown by Consultant’s written records
contemporaneous with such third party disclosure.
(d)
Notwithstanding other provisions of this Agreement, Consultant may
disclose Confidential Information to the extent and to the persons
or entities required under applicable governmental law, rule,
regulation or order, provided that Consultant (i) first gives
prompt notice of such disclosure requirement to OSI so as to enable
OSI to seek any limitations on or exemptions from such disclosure
requirement and (ii) reasonably cooperates at OSI’s
request in any such efforts by OSI.
(e)
Upon the earlier of the completion of the Services or OSI’s
request for any reason at any time, Consultant will
(i) immediately cease all use of Confidential Information and
notify OSI and (ii) promptly, at OSI’s instruction,
either return to OSI or destroy all Confidential Information,
including any copies, extracts, summaries, or derivative works
thereof, and certify in writing to OSI the completion of such
return and/or destruction.
(f)
OSI retains all right, title and interest in and to Confidential
Information. This Agreement gives Consultant no right or license to
any Confidential Information or any intellectual property or other
rights owned by or licensed to OSI, by implication or otherwise,
except the right to use Confidential Information solely for
performance of Services. OSI may freely transfer, disclose and/or
use Confidential Information for its or others’
purposes.
(g)
Consultant acknowledges that any actual or threatened breach of
this Section 4 will cause OSI immediate and irreparable harm
that cannot be adequately compensated by monetary damages, and
Consultant therefore agrees that OSI shall have the right to secure
equitable and injunctive relief under
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