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
subsidiaries, “ OSI ”), having executive offices
at 41 Pinelawn Road, Melville, New York 11747, and Daryl Granner,
M.D., an individual (“ Consultant ”).
1. Nature of
Consulting Services. Consultant will provide advisory services to OSI
with respect to strategy regarding its diabetes and obesity
research and development programs and general corporate initiatives
(the “ Services ”).
2. Delivery
of Consulting Services. 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 a location, time and place that Consultant
deems appropriate. Consultant will perform the Services in
compliance with all applicable laws, rules and
regulations.
3.
Compensation and Reimbursement.
(a)
In consideration of Consultant’s services hereunder, OSI will
pay to Consultant a fee at the rate of seventy five thousand
dollars ($75,000) per annum pro rated for the term of the Agreement
(i.e., six thousand two hundred fifty dollars ($6,250) per calendar
month). Fees shall be payable to Consultant on a monthly basis in
arrears.
(b)
OSI will reimburse Consultant for travel and other out-of-pocket
expenses reasonably and properly incurred by Consultant in the
course of performing services under this Agreement; provided,
however, that Consultant provides OSI with appropriate receipts and
other relevant documentation for all such costs as part of any
request by Consultant for reimbursement. Notwithstanding the
foregoing, Consultant shall obtain the prior written consent of OSI
for any expenses that will exceed, in the aggregate, more than
$2,500.
(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;
intellectual property rights; 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 give
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