EXHIBIT 10.2
April 21, 2005
▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Re: Employment Agreement
Dear ▇▇▇▇:
This letter is to confirm our understanding with respect to (i) your future
employment by OSI Pharmaceuticals, Inc. (the "Company"), (ii) your agreement not
to solicit employees or customers of the Company, or any present or future
parent, subsidiary or affiliate of the Company (each, a "Company Affiliate" and
collectively, together with the Company, the "Company", (iii) your agreement to
protect and preserve information and property which is confidential and
proprietary to the Company, and (iv) your agreement with respect to the
ownership of inventions, ideas, copyrights and patents which may be used in the
business of the Company (the terms and conditions agreed to in this letter are
hereinafter referred to as the "Agreement"). In consideration of the mutual
promises and covenants contained in this Agreement, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby mutually
acknowledged, we have agreed as follows:
1. Employment.
(a) Subject to the terms and conditions of this Agreement, the Company
will employ you, and you will be employed by the Company and/or any Company
Affiliate designated by the Company, initially as Executive Vice President
and Chief Financial Officer, of the Company reporting to the Chief
Executive Officer (the "CEO") of the Company. You will have the
responsibilities, duties and authority customarily performed, undertaken
and exercised by a person in a similar executive capacity. You will also
perform such other and/or different services for the Company as may be
assigned to you from time to time by the CEO. The principal location at
which you will perform such services will be the Company's headquarters
located at ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, although you will be
available to perform services at any other Company facility and to travel
as the needs of business may require.
(b) Devotion to Duties. While you are employed hereunder, you will, to
the best of your ability, perform faithfully and diligently all duties
assigned to you pursuant to this Agreement and will devote your full
business time and energies to the business
and affairs of the Company. While you are employed hereunder, you will not
undertake any other employment from any person or entity without the prior
written consent of the Company.
2. Term. Except for earlier termination as provided for in Section 4
hereof, your employment under this Agreement (the "Employment Term") shall
be for an initial term commencing on May 31, 2005 (the "Effective Date")
and ending on the third anniversary of the Effective Date (the "Initial
Term"). Unless written notice is given of an intent not to extend the
Initial Term or any extension thereof by you or the Company at least 90
days prior to an anniversary of the Effective Date, the Employment Term
shall be deemed, as of such 90th day, to have been extended and continue
until the end of the successive 12-month period unless otherwise terminated
as provided for in Section 4 hereof. In the event the Company elects not to
renew the Employment Term, you shall be entitled to the payments and
benefits set forth in Section 6(c).
3. Compensation.
(a) Base Salary. While you are employed hereunder, the Company will
pay you a base salary at the annual rate of $410,000 (the "Base Salary").
Your Base Salary will be reviewed on an annual basis each January (or such
other time as determined by the CEO and/or the Compensation Committee of
the Board of Directors of the Company (the "Board")), commencing with
January, 2006. The Base Salary will be payable in equal installments in
accordance with the Company's payroll practices as in effect from time to
time. The Company will deduct from each such installment all amounts
required to be deducted or withheld under applicable law or under any
employee benefit plan in which you participate.
(b) Bonus. In addition to the Base Salary, for each fiscal year of the
Company ending during the Term of the Agreement, beginning with the 2005
fiscal year, you will be eligible to receive a target bonus of between
$200,000 - $300,000, determined and payable in accordance with the
Company's practices applicable to bonuses paid to its executives. The
Company's bonus system is a discretionary annual performance-based
incentive bonus system, approved by the Company's Board, and is based upon
a combination of personal and corporate performance contributing to your
maximum target. Bonuses are determined in December of each year.
(c) Equity Compensation.
(i) Initial Grant. On the Effective Date and pursuant to a
written stock option agreement (the "Stock Option Agreement") between
the Company and you under the OSI Pharmaceuticals, Inc. Amended and
Restated Stock Incentive Plan (the "Plan"), you will be granted a
non-qualified option (the "Initial Option") to purchase 150,000 shares
of the Company's common stock, par value, $.01 per share (the "Common
Stock"). The exercise price will be determined based on the fair
market value determined at the close of business on the first business
day of the month after your employment begins. The Initial
2
Option will have a term of 10 years and will become exercisable with
respect to 33% of such shares on the first anniversary of the date of
grant with the remaining shares vesting over the succeeding 48 months
following the first anniversary of the date of grant on a monthly
pro-rated basis. Notwithstanding the foregoing, the Initial Option
shall vest and be fully exercisable upon a Change of Control (as
hereinafter defined).
(ii) Future Grants. On each date that annual stock options or
other equity compensation are granted by the Company to its executive
management group, so long as you then remain in the employ of the
Company, the Company will grant to you an option (an "Annual Option")
to purchase a number of shares of Common Stock to be determined by the
Compensation Committee of the Board based upon your grade level. The
exercise price for each Annual Option will be the fair market value
per share of Common Stock on the date the Annual Option is granted and
the other terms and conditions of the Annual Option will be as set
forth in the Plan and Option Agreement accompanying such Annual
Option. Each Annual Option will have a term of 10 years and will
become exercisable with respect to 33% of such shares on the first
anniversary of the date of grant with the remaining shares vesting
over the succeeding 24 months following the first anniversary of the
date of grant on a monthly pro-rated basis. Notwithstanding the
foregoing, each Annual Option shall vest and be fully exercisable upon
a Change of Control (as hereinafter defined).
(iii) Restricted Stock Grant On the first business day of the
month after your employment begins you will be granted a restricted
stock grant of 15, 000 shares at the closing price of the stock on
such date. The restrictions will lift on an annual basis at twenty
percent per year over a period of five years. Notwithstanding the
foregoing, the Restricted Stock Grant shall vest and be fully
exercisable upon a Change of Control (as hereinafter defined).
(d) Vacation. You will be entitled to 22 paid vacation days in each
calendar year, and paid holidays plus personal days in accordance with the
Company's policies for its senior executives as in effect from time to
time.
(e) Fringe Benefits. In addition to the equity compensation provided
for herein, you will be entitled to participate in employee benefit plans
which the Company provides or may establish for the benefit of its senior
executives generally (for example, term life, disability, medical, dental
and other insurance, retirement, pension, profit-sharing and similar plans)
(collectively, the "Fringe Benefits"). Your eligibility to participate in
the Fringe Benefits and receive benefits thereunder will be subject to the
plan documents governing such Fringe Benefits. Nothing contained herein
will require the Company to establish or maintain any Fringe Benefits.
(f) Relocation. The Company will assist you in your relocation to Long
Island in accordance with the following:
3
(i) Relocation Service. American International will assist you in
your relocation from New Jersey to Long Island.
(ii) Current Residence. The Company, through American
International and at your request, will appraise your current
residence in New Jersey. You will market your home with their
assistance to try to find a third-party buyer. If the sale price is
less than the averaged appraisals, OSI will reimburse you the
difference.
(iii) Expenses. The Company will reimburse you, either directly
or through its relocation service, American International, for all
expenses relating to your relocation from New Jersey to Long Island,
including, without limitation, expenses relating to packing and moving
household goods, temporary storage of household goods, closing costs
(including 2 mortgage points) associated with the purchase of a new
home on Long Island, sales and closing costs associated with the sale
of your home in New Jersey, expenses incurred by you and/or your
family relating to house-hunting trips (including transportation,
hotel accommodations and meals) and expenses incurred by you and/or
your family for temporary living accommodations for up to six months
prior to your move into a new home (including transportation, lease or
sublease amounts, utilities, hotel or other accommodations, brokers'
fees). During this 6 month period The Company will pay for a car
service to bring you to and from Long Island on Mondays and Fridays.
The Company will continue to pay for your living costs and for a car
service after the six month period, but any such costs will be fully
recaptured versus your final relocation costs.
(iv) Mortgage Assistance. For a period of three years following
your purchase of a home on Long Island (the "Long Island Home"), the
Company will pay you a mortgage assistance allowance equal to $50,000
per annum, payable in equal monthly installments. The foregoing is
subject to your continued employment with the Company during such
three-year period. If (A) your employment terminates "without cause"
(as defined in Section 4(e) hereof), (B) you terminate your employment
for "good reason" (as defined in Section 4(d) hereof), or (C) upon a
"Change of Control" (as defined in Section 7 hereof) prior to the end
of such three-year period, you will continue to receive such mortgage
assistance allowance on the terms described in this section provided
that you remain resident in the Long Island Home.
(v) Lump Sum Payment. In addition to the amounts provided for in
Sections 3 (f) (iii) and (iv), upon your purchase of the Long Island
Home, you will receive a one-time lump sum payment equal to $25,000 to
cover incidental expenses.
(vii) Pay-Back. If, within 12 months following the Effective
Date, you terminate your employment with the Company "without good
reason" (as defined in Section 4(f) hereof), you shall pay back all
(based upon the date of your termination) of
4
the amounts paid to you pursuant to Sections 3 (f) (iii), (iv), (v)
and (vi) (the "Relocation Expenses").
(viii) Documentation. Reimbursement of the expenses provided for
in this Section 3(f) shall be made upon presentation of documentation
reasonably satisfactory to the Company in accordance with the
Company's policies with respect thereto as in effect from time to
time. Receipts shall not be required for payment covered under Section
3 (f) (v).
(ix) Any amounts paid under this Section 3 (f) deemed to be
taxable income to you will be grossed up for taxes at the appropriate
rate.
(g) Reimbursement of Expenses. Upon presentation of documentation of
such expenses reasonably satisfactory to the Company, the Company will
reimburse you for all ordinary and reasonable out-of-pocket business
expenses that are reasonably incurred by you in furtherance of the
Company's business in accordance with the Company's policies with respect
thereto as in effect from time to time.
4. Termination. The Employment Term shall end upon the earliest of the
following to occur:
(a) Your death.
(b) Upon written notice to you of termination as a result of your
Permanent Disability. "Permanent Disability" means your inability, by
reason of any physical or mental impairment, to substantially perform your
duties and responsibilities hereunder for two or more periods of 90 days
each in any 360-day period, as determined by a qualified physician with no
history of prior dealings with you or the Company, as reasonably agreed
upon by you (or, if you are unable to make such selection, by an adult
member of your immediate family) and the Company. Such physician's written
determination of your Permanent Disability shall, upon delivery to the
Company, be final and conclusive for purposes of this Agreement.
(c) Your termination by the Company for "cause" as evidenced by, and
effective upon, delivery by the Company to you of a Notice of Termination
(as defined in Section 5 below). "Cause" shall mean, for purposes of this
Agreement, (i) an act of fraud or embezzlement against the Company or an
unauthorized disclosure of Confidential Information (as defined in Section
8(a)(iv) hereof) of the Company, in each case which is willful and results
in material damage to the Company, (ii) any criminal violation of the
Securities Act of 1933 or the Securities Exchange Act of 1934, (iii) your
conviction (or a plea of nolo contendere) of any felony, (iv) your gross
neglect of your duties or your willful and continuing refusal to perform
your duties, provided you have been given written notice of such neglect or
refusal and within 30 days have failed to cure such neglect and refusal, or
(v) your material willful misconduct with respect to the business or
affairs of the Company.
(d) Your termination of your employment for "good reason" by
delivering to the Company a Notice of Termination (as defined in Section 5
below) not less than 30
5
days prior to the effective date of such termination. For purposes of this
Agreement, "good reason" shall mean the occurrence of any of the events
hereinafter set forth which are not cured by the Company within 30 days
after the Company has received written notice from you specifying the
particular events or conditions which constitute "good reason":
(i) a material reduction in your duties, title, responsibilities,
authority, status, or reporting responsibilities unless you have
previously consented in writing to such reduction (which consent
may be given or withheld in your sole discretion);
(ii) a material reduction in your Base Salary or the range of your
target bonus; or;
(iii) the Company's requiring you to be based more than 35 miles from
the Company's current headquarters in Melville, New York or to
any location for which the average commute from your residence
exceeds 45 minutes; or
(iv) change of control (as defined in Section 7 hereof).
(e) Termination of your employment by the Company "without cause" by
delivery by the Company to you of a Notice of Termination (as defined in
Section 5 below) not less than 30 days prior to the effective date of such
termination. Your termination by the Company shall be considered to be
"without cause" if you are terminated or dismissed by the Company for
reasons other than death, permanent disability or for "cause".
(f) Your termination of your employment "without good reason" by
delivery by you to the Company of a Notice of Termination (as defined in
Section 5 below). Your termination of your employment shall be considered
to be "without good reason" unless you resign for "good reason" (as defined
in Section 4(d)).
5. Notice of Termination. Any termination by the Company or by you shall be
communicated by a written "Notice of Termination" to the other party
hereto. A "Notice of Termination" shall mean a notice which indicates a
termination date and the specific termination provision in this Agreement
relied upon and which sets forth in reasonable detail the facts and
circumstances claimed to provide a basis for termination under the
provision so indicated.
6. Payments Upon Termination.
(a) Upon termination of your employment for any reason you will become
entitled to (i) any accrued and unpaid Base Salary up to the date of
termination, and (ii) any accrued and unpaid vacation pay up to the date of
termination ((i) and (ii) being collectively referred to as the "Accrued
Compensation").
(b) Upon termination of your employment due to death or Permanent
Disability, in addition to Accrued Compensation, you (or your estate, as
the case may be)
6
will become entitled to an amount equal to the bonus that you would have
been entitled to receive for the fiscal year in which your termination
occurs had you continued to be employed until the end of such fiscal year,
multiplied by a fraction (i) the numerator of which is the number of days
in such fiscal year through the termination date and (ii) the denominator
or which is 365 (a "Pro-rata Bonus").
(c) Upon a termination of your employment by the Company "without
cause" or by you "for good reason" or upon a "Change of Control" (as
defined in Section 7 hereof), in addition to Accrued Compensation, you will
become entitled to (i) your Base Salary for 12 months following the date of
termination, (ii) your Pro-rata Bonus, and (iii) continued coverage for 12
months following termination under any health and dental program in which
you were eligible to participate as of the time of termination of your
employment.
(d) You shall not be required to mitigate the amount of any payment
provided for under this Section 6 by seeking other employment or otherwise
and no payment shall be offset or reduced by the amount of any compensation
or benefits provided to you in any subsequent employment. The Company's
obligation to make the payments provided for in this Section 6 and
otherwise perform its obligations hereunder shall not be affected by any
circumstances, including, without limitation, set-off, counterclaim,
recoupment, defense or other claim, right or action which the Company may
have against you or others.
7. Change of Control. For purposes of this Agreement, a "Change of Control"
shall mean the approval by stockholders of the Company of (a) a merger or
consolidation involving the Company if the stockholders of the Company,
immediately before such merger or consolidation, do not, as a result of
such merger or consolidation, directly or indirectly, continue to hold
greater than 60% of the voting power in the resulting entity, or (b) an
agreement for the sale or other disposition of all or substantially all of
the assets of the Company.
8. Prohibited Activities.
(a) Certain Acknowledgements and Agreements.
(i) We have discussed, and you recognize and acknowledge the
competitive and proprietary aspects of the business of the Company.
(ii) You acknowledge that your employment by the Company creates
a relationship of confidence and trust between the Company and you
with respect to certain information relating to the business and
affairs of the Company or applicable to the business of any client,
customer, consultant, partner, external collaborator or service
provider of the Company, which may be made known to you by the Company
or by any client, customer, consultant, partner, external collaborator
or service provider of the Company, or learned by you during the
period of your affiliation with the Company.
7
(iii) You further acknowledge that, while you are employed
hereunder, the Company will furnish, disclose or make available to you
Confidential Information (as defined in Section 8 (a) (iv) below)
related to the business of the Company (whether or not the information
has commercial value to the Company's business). You also acknowledge
that such Confidential Information has been developed and will be
developed by the Company through the expenditure by the Company of
substantial time, effort and money and that all such Confidential
Information could be used by you to compete with the Company. You also
acknowledge that if you become employed or affiliated with any
competitor of the Company, it is possible that you would disclose
Confidential Information to such competitor and would use Confidential
Information, knowingly or unknowingly, on behalf of such competitor.
(iv) For purposes of this Agreement, "Confidential Information"
means confidential and proprietary information of the Company, whether
in written, oral, electronic or other form, including, without
limitation, systems, processes, formulae, data, functional
specifications, computer software, programs and displays, know-how,
improvements, discoveries, inventions, developments, designs,
techniques, marketing plans, strategies, forecasts, new and proposed
products and technologies, unpublished financial statements and
financial information, business plans, budgets, projections, licenses,
prices, costs, training methods and materials, sales prospects, and
customer, supplier, manufacturer, collaborator, partner, and client
lists and any and all intellectual properties, including any
scientific, technical or trade secrets of the Company or of any third
party provided to you or the Company under a condition of
confidentiality, provided that Confidential Information will not
include information that is in the public domain other than through
any fault or act by you.
(b) Covenants. While you are employed hereunder and for a period of
one year following the termination of your employment hereunder for any
reason or for no reason, you will not, without the prior written consent of
the Company:
(i) Engage, directly or indirectly, for your benefit or the
benefit of others, in any activity or employment in the performance of
which any Confidential Information obtained during the course of your
employment would, by necessity, need to be disclosed by you in order
to engage in any such activity or employment. This covenant shall not
be construed to limit in any way your obligation not to use or
disclose Confidential Information as set forth in Section 9 below.
(ii) Either individually or on behalf of or through any third
party, directly or indirectly, solicit, divert or appropriate or
attempt to solicit, divert or appropriate, any customers of the
Company or any prospective customers with respect to which the Company
has developed or made a sales presentation (or similar offering of
services) for the purpose of directly competing with the Company with
respect to the Company's "principal marketed products" (i.e., those
products which are in the first or second detail position) or its
development
8
candidates which have material financial significance to the Company
and which are in Phase III programs; or
(iii) Either individually or on behalf of or through any third
party, directly or indirectly, (A) solicit, entice or persuade or
attempt to solicit, entice or persuade any employees of or consultants
to the Company to leave the service of the Company for any reason, or
(B) employ, cause to be employed, or solicit the employment of, any
employees of or consultants to the Company while any such person is
providing services to the Company or within six months after any such
person has ceased providing services to the Company; or
(iv) Either individually or on behalf of or through any third
party, directly or indirectly, interfere with, or attempt to interfere
with, the relations between the Company and any manufacturer or
supplier to or customer of the Company.
(c) Reasonableness of Restrictions. You understand that the provisions
set forth in Section 8(b) are not meant to prevent you from earning a
living or fostering your career. They are intended, however, to prevent
competitors of the Company from gaining an unfair advantage from your
knowledge of Confidential Information. You understand that, by making any
other employer aware of the provisions set forth in this Section 8, that
employer can take such action as to avoid your breach of this Section 8.
(d) Survival of Acknowledgements and Agreements. Your acknowledgements
and agreements set forth in this Section 8 will survive the termination of
this Agreement and the termination of your employment hereunder for any
reason or for no reason.
9. Protected Information. All Confidential Information shall be the sole
property of the Company and its assigns. You hereby assign to the Company
any right you may have or acquire in such Confidential Information. You
will at all times, both during the period while you are employed hereunder
and after the termination of this Agreement and the termination of your
employment hereunder for any reason or for no reason, maintain in
confidence and will not, without the prior written consent of the Company,
use, except as required in the course of performance of your duties for the
Company or by court order, disclose or give to others any Confidential
Information. In the event you are questioned by anyone not employed by the
Company or by an employee of or a consultant to the Company not authorized
to receive Confidential Information, in regard to any Confidential
Information, or concerning any fact or circumstance relating thereto, you
will promptly notify the Company. Upon the termination of your employment
hereunder for any reason or for no reason, or if the Company otherwise
requests, you will return to the Company all tangible Confidential
Information and copies thereof (regardless how such Confidential
Information or copies are maintained). The terms of this Section 9 are in
addition to, and not in lieu of, any statutory or other contractual or
legal obligation that you may have relating to the protection of the
Company's Confidential Information. The terms of this Section 9 will
survive indefinitely any termination of this Agreement and/or any
termination of your employment hereunder for any reason or for no reason.
9
10. Ownership of Ideas, Copyrights and Patents.
(a) Property of the Company. All ideas, discoveries, creations,
manuscripts and properties, innovations, improvements, know-how,
inventions, designs, developments, apparatus, techniques, methods,
biological processes, cell lines, laboratory notebooks and formulae
(collectively, the "Inventions") which may be used in the current or
planned business of the Company or which in any way relates to such
business, whether patentable, copyrightable or not, which you may conceive,
reduce to practice or develop while you are employed hereunder (and, if
based on or related to any Confidential Information, within two years after
termination of such employment for any reason or for no reason), alone or
in conjunction with another or others, whether during or out of regular
business hours, whether or not on the Company's premises or with the use of
its equipment, and whether at the request or upon the suggestion of the
Company or otherwise, will be the sole and exclusive property of the
Company, and that you will not publish any of the Inventions without the
prior written consent of the Company. Without limiting the foregoing, you
also acknowledge that all original works of authorship which are made by
you (solely or jointly with others) within the scope of your employment or
which relate to the business of the Company and which are protectable by
copyright are "works made for hire" pursuant to the United States Copyright
Act (17 U.S.C. Section 101). You will promptly disclose to the Company all
of the foregoing and you hereby assign to the Company all of your right,
title and interest in and to all of the foregoing. You further represent
that, to the best of your knowledge and belief, none of the Inventions will
violate or infringe upon any right, patent, copyright, trademark or right
of privacy, or constitute libel or slander against or violate any other
rights of any person, firm or corporation, and that you will use your best
efforts to prevent any such violation.
(b) Cooperation. At any time during your employment hereunder or after
the termination of your employment hereunder for any reason or for no
reason, you will cooperate fully with the Company and its attorneys and
agents in the preparation and filing of all papers and other documents as
may be required to perfect the Company's rights in and to any of such
Inventions, including, without limitation, joining in any proceeding to
obtain letters patent, copyrights, trademarks or other legal rights with
respect to any such Inventions in the United States and in any and all
other countries, provided that the Company will bear the expense of such
proceedings, and that any patent or other legal right so issued to you
personally will be assigned by you to the Company without charge by you.
(c) Licensing and Use of Inventions. With respect to any Inventions,
and work of any similar nature (from any source), whenever created, which
you have not prepared or originated in the performance of your employment,
but which you provide to the Company or incorporate in any Company product
or system, you hereby grant to the Company a royalty-free, fully paid-up,
non-exclusive, perpetual and irrevocable license throughout the world to
use, modify, create derivative works from, disclose, publish, translate,
reproduce, deliver, perform, dispose of, and to authorize others so to do,
all such Inventions. You will not include in any Inventions you deliver to
the Company or
10
use on its behalf, without the prior written approval of the Company, any
material which is or will be patented, copyrighted or trademarked by you or
others unless you provide the Company with the written permission of the
holder of any patent, copyright or trademark owner for the Company to use
such material in a manner consistent with then-current Company policy.
(d) Prior Inventions. Listed on Exhibit 10(d) to this Agreement are
any and all Inventions in which you claim or intend to claim any right,
title and interest (collectively, "Prior Inventions"), including, without
limitation, patent, copyright and trademark interests, which to the best of
your knowledge will be or may be delivered to the Company in the course of
your employment, or incorporated into any Company product or system. You
acknowledge that your obligation to disclose such information is ongoing
while you are employed hereunder.
11. Records. Upon termination of your employment hereunder for any reason
or for no reason and at any other time requested by the Company, you will
deliver to the Company any property of the Company which may be in your
possession, including products, materials, memoranda, notes, records,
reports, or other documents or photocopies of the same.
12. Representations. You hereby represent and warrant to the Company that
you understand this Agreement, that you enter into this Agreement
voluntarily and that your employment under this Agreement will not conflict
with any legal duty owed by you to any other party, or with any agreement
to which you are a party or by which you are bound, including, without
limitation, any non-competition or non-solicitation provision contained in
any such agreement.
13. General.
(a) Notices. All notices, requests, consents and other communications
hereunder which are required to be provided, or which the sender elects to
provide, in writing, will be addressed to the receiving party's address set
forth above or to such other address as a party may designate by notice
hereunder, and will be either (i) delivered by hand, (ii) sent by overnight
courier, or (iii) sent by registered or certified mail, return receipt
requested, postage prepaid. All notices, requests, consents and other
communications hereunder will be deemed to have been given either (i) if by
hand, at the time of the delivery thereof to the receiving party at the
address of such party set forth above, (ii) if sent by overnight courier,
on the next business day following the day such notice is delivered to the
courier service, or (iii) if sent by registered or certified mail, on the
fifth business day following the day such mailing is made.
(b) Entire Agreement. This Agreement, and the other agreements
specifically referred to herein, embodies the entire agreement and
understanding between the parties hereto with respect to the subject matter
hereof and supersedes all prior oral or written agreements and
understandings relating to the subject matter hereof. No statement,
representation, warranty, covenant or agreement of any kind not expressly
set forth in this
11
Agreement will affect, or be used to interpret, change or restrict, the
express terms and provisions of this Agreement.
(c) Modifications and Amendments. The terms and provisions of this
Agreement may be modified or amended only by written agreement executed by
the parties hereto.
(d) Waivers and Consents. The terms and provisions of this Agreement
may be waived, or consent for the departure therefrom granted, only by
written document executed by the party entitled to the benefits of such
terms or provisions. No such waiver or consent will be deemed to be or will
constitute a waiver or consent with respect to any other terms or
provisions of this Agreement, whether or not similar. Each such waiver or
consent will be effective only in the specific instance and for the purpose
for which it was given, and will not constitute a continuing waiver or
consent.
(e) Assignment. The Company may assign its rights and obligations
hereunder to any person or entity that succeeds to all or substantially all
of the Company's business or that aspect of the Company's business in which
you are principally involved or to any Company Affiliate; provided, that
the Company shall remain responsible for any payments and obligations to
you to the extent any assignee fails to fulfill such payments and
obligations. You may not assign your rights and obligations under this
Agreement without the prior written consent of the Company and any such
attempted assignment by you without the prior written consent of the
Company will be void.
(f) Benefit. All statements, representations, warranties, covenants
and agreements in this Agreement will be binding on the parties hereto and
will inure to the benefit of the respective successors and permitted
assigns of each party hereto. Nothing in this Agreement will be construed
to create any rights or obligations except between the Company and you,
except for your obligations to the Company as set forth herein, and no
person or entity (except for a Company Affiliate as set forth herein) will
be regarded as a third-party beneficiary of this Agreement.
(g) Governing Law. This Agreement and the rights and obligations of
the parties hereunder will be construed in accordance with and governed by
the laws of the State of New York, without giving effect to the conflict of
law principles thereof.
(h) Jurisdiction, Venue and Service of Process. Any legal action or
proceeding with respect to this Agreement that is not subject to
arbitration pursuant to Section 14 (i) below will be brought in the courts
of Suffolk County, New York. By execution and delivery of this Agreement,
each of the parties hereto accepts for itself and in respect of its
property, generally and unconditionally, the exclusive jurisdiction of the
aforesaid courts.
(i) Arbitration. Any controversy, dispute or claim arising out of or
in connection with this Agreement, other than a controversy, dispute or
claim arising under Section 8, 9 or 10 hereof, will be settled by final and
binding arbitration to be conducted in New York, New York pursuant to the
national rules for the resolution of employment disputes of the American
Arbitration Association then in effect. The decision or award in
12
any such arbitration will be final and binding upon the parties and
judgment upon such decision or award may be entered in any court of
competent jurisdiction or application may be made to any such court for
judicial acceptance of such decision or award and an order of enforcement.
In the event that any procedural matter is not covered by the aforesaid
rules, the procedural law of New York will govern. Any disagreement as to
whether a particular dispute is arbitrable under this Agreement shall
itself be subject to arbitration in accordance with the procedures set
forth herein. The fees of the arbitrators shall be paid by the Company.
(j) WAIVER OF JURY TRIAL. ANY ACTION, DEMAND, CLAIM OR COUNTERCLAIM
ARISING UNDER OR RELATING TO THIS AGREEMENT THAT IS NOT SUBJECT TO
ARBITRATION PURSUANT TO SECTION 14(i) ABOVE WILL BE RESOLVED BY A JUDGE
ALONE AND EACH OF YOU AND THE COMPANY WAIVE ANY RIGHT TO A JURY TRIAL
THEREOF.
(k) Severability. The parties intend this Agreement to be enforced as
written. However, (i) if any portion or provision of this Agreement is to
any extent declared illegal or unenforceable by a duly authorized court
having jurisdiction, then the remainder of this Agreement, or the
application of such portion or provision in circumstances other than those
as to which it is so declared illegal or unenforceable, will not be
affected thereby, and each portion and provision of this Agreement will be
valid and enforceable to the fullest extent permitted by law and (ii) if
any provision, or part thereof, is held to be unenforceable because of the
duration of such provision, the geographic area covered thereby, or other
aspect or scope of such provision, the court making such determination will
have the power to reduce the duration, geographic area of such provision,
or other aspect or scope of such provision, and/or to delete specific words
and phrases ("blue-penciling"), and in its reduced or blue-penciled form,
such provision will then be enforceable and will be enforced.
(l) Injunctive Relief. You hereby expressly acknowledge that any
breach or threatened breach of any of the terms and/or conditions set forth
in Section 8, 9 or 10 of this Agreement will result in substantial,
continuing and irreparable injury to the Company. Therefore, in addition to
any other remedy that may be available to the Company, the Company will be
entitled to injunctive or other equitable relief by a court of appropriate
jurisdiction in the event of any breach or threatened breach of the terms
of Section 8, 9 or 10 of this Agreement. The period during which the
covenants contained in Section 8 will apply will be extended by any periods
during which you are found by a court to have been in violation of such
covenants.
(m) No Waiver of Rights, Powers and Remedies. No failure or delay by a
party hereto in exercising any right, power or remedy under this Agreement,
and no course of dealing between the parties hereto, will operate as a
waiver of any such right, power or remedy of the party. No single or
partial exercise of any right, power or remedy under this Agreement by a
party hereto, nor any abandonment or discontinuance of steps to enforce any
such right, power or remedy, will preclude such party from any other or
further exercise thereof or the exercise of any other right, power or
remedy hereunder. The election of any remedy by a party hereto will not
constitute a waiver of the right of such party to pursue other available
remedies. No notice to or demand on a party not expressly required under
13
this Agreement will entitle the party receiving such notice or demand to
any other or further notice or demand in similar or other circumstances or
constitute a waiver of the rights of the party giving such notice or demand
to any other or further action in any circumstances without such notice or
demand.
(n) Counterparts. This Agreement may be executed in two or more
counterparts, and by different parties hereto on separate counterparts,
each of which will be deemed an original, but all of which together will
constitute one and the same instrument.
(o) Opportunity to Review. You hereby acknowledge that you have had
adequate opportunity to review these terms and conditions and to reflect
upon and consider the terms and conditions of this Agreement, and that you
have had the opportunity to consult with counsel of your own choosing
regarding such terms. You further acknowledge that you fully understand the
terms of this Agreement and have voluntarily executed this Agreement.
(p) Survival of the Company's Obligations. Notwithstanding the
termination of this agreement pursuant to Section 4, the Company's
obligation to make payments and provide benefits to you as set forth in
Section 3 (g) (iv) and Section 6 will remain in effect.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
14
If the foregoing accurately sets forth our agreement, please so indicate by
signing and returning to us the enclosed copy of this Agreement.
Very truly yours,
OSI Pharmaceuticals, Inc.
By: /s/
------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇, Ph.D
Title: Chief Executive Officer
Accepted and Approved:
/s/ April 21, 2005
------------------------------------- Date
▇▇▇▇▇▇▇ ▇▇▇▇▇
15
EXHIBIT 10(d)
PRIOR INVENTIONS
16