CONSULTING SERVICES AGREEMENT PROGENICS CONTRACT NO. 000000
Exhibit 10.54
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Progenics Pharmaceuticals, Inc. One World Trade ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (646) 975-2500 ▇▇▇.▇▇▇▇▇▇▇▇▇.▇▇▇ |
PROGENICS CONTRACT NO. 000000
This Consulting Services Agreement (“Agreement”) effective as of the November 15, 2019 (“Effective Date”) is by and between Progenics Pharmaceuticals, Inc., a corporation organized under the laws of the State of Delaware with a place of business at One World Trade Center, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (“PROGENICS”) and ▇▇▇▇▇ ▇. ▇▇▇▇, with a place of business at [*] (“CONSULTANT”).
In consideration of the promises and mutual covenants contained herein and on the terms and conditions hereinafter set forth, it is agreed as follows:
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1. |
SCOPE OF SERVICES |
CONSULTANT is engaged by PROGENICS to provide interim Chief Executive Officer (“CEO”) services (the “Services”).
CONSULTANT will personally perform all Services hereunder. CONSULTANT shall be available to PROGENICS at its offices or such other places as the parties may agree, at such times as the parties may agree, and shall be available for telephone consultations as requested by PROGENICS. CONSULTANT shall perform all Services in a prompt and professional manner. CONSULTANT shall not be entitled to subcontract any of its obligations hereunder without PROGENICS’ prior written approval. CONSULTANT will commute from his home in Alabama, and will work out of his home when he is not in the Progenics offices or at other locations on behalf of Progenics.
CONSULTANT’s primary contact at PROGENICS with respect to the work performed hereunder will be PROGENICS’ Board of Directors or such other individual(s) as PROGENICS may subsequently designate (“PROGENICS Contact”).
CONSULTANT shall not remove any PROGENICS property from PROGENICS’ premises without prior written authorization from PROGENICS; provided that CONSULTANT may have company property in his possession away from Progenies' premises for use in carrying out his duties under this agreement or as a board member.
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2. |
COMPENSATION |
CONSULTANT’s fees for performance of Services (“Monthly Retainer”) will be $30,000 USD per month payable in arrears on the last business day of each month.
The parties estimate that Service fees hereunder will not exceed an aggregate dollar amount during the term of this Agreement of US $225,000.00 (“Maximum Service Fees”). Any amount above the Maximum Service Fees must be approved in writing by PROGENICS.
In addition to the compensation set forth above, PROGENICS will reimburse CONSULTANT for reasonable out-of-pocket expenses actually incurred by CONSULTANT in the performance of the Services, including, but not limited to telephone and facsimile charges and calls, car rental, lodging, travel expenses, meals and associated expenses all in accordance with Progenics’ current Travel Policy provided to CONSULTANT. CONSULTANT shall not be eligible to participate in any PROGENICS of ’s employee benefit plans, fringe benefit programs, group insurance arrangements or similar programs.
CONSULTANT shall submit invoices once a month to PROGENICS, which shall set forth the hours of Services performed by CONSULTANT (and brief description of such Services, if applicable) for the prior unbilled period, and the amount of out-of-pocket expenses incurred by CONSULTANT for which CONSULTANT seeks reimbursement. Such invoices shall be payable within thirty (30) days of receipt by PROGENICS. CONSULTANT shall provide PROGENICS with supporting receipts and documentation for any out-of-pocket expenses which individually exceed $100.00 as an attachment to the billing statement. All invoices submitted by CONSULTANT shall reference the PROGENICS contract number on the first page of this Agreement. PROGENICS prefers invoices to be sent via email to ▇▇@▇▇▇▇▇▇▇▇▇.▇▇▇. Alternatively, paper invoices may be mailed to PROGENICS at One World Trade Center, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attn: Accounts Payable. PROGENICS does not accept invoices via facsimile.
CONSULTANT shall be required to devote CONSULTANT’s full time and attention to the performance of the Services hereunder to PROGENICS; provided that CONSULTANT may continue to serve on other boards and undertake other investment and business activity consistent with his current activity.
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TERM & TERMINATION |
This Agreement shall enter into force and effect as of the Effective Date and shall remain in force and effect until June 30, 2020 unless terminated as set forth herein by either party.
This Agreement may be terminated by either party, which in the case of Progenics will be its Board of Directors, (i) for convenience upon fifteen (15) days written notice to the other, or (ii) upon default in performance of the other party, provided that the defaulting party shall be given not less than ten (10) days prior written notice of default and the opportunity to cure the default during such notice period. To the extent stated in the notice, CONSULTANT shall cease all Services as of the effective date of termination (the “Termination Date”).
Promptly upon the expiration or termination of this Agreement, and earlier if requested by PROGENICS at any time, CONSULTANT shall deliver to PROGENICS (and shall not keep in CONSULTANT’s possession or deliver to anyone else) all Confidential Information, as defined in Section 4 below, of PROGENICS (including all embodiments thereof) and all software, documentation, devices (including cell phones, computers and other electronics used by CONSULTANT), records, data, notes, reports, proposals, lists, correspondence, specifications, drawings, blueprints, sketches, materials, equipment, other documents or property, or reproductions of any aforementioned items, or any other work product whatsoever, developed by CONSULTANT as part of or in connection with the Services or otherwise belonging to PROGENICS.
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CONFIDENTIALITY |
During the term of this Agreement, and for a period of three years following the expiration or termination of this Agreement, CONSULTANT shall keep confidential, and shall not use for any purpose other than in connection with the performance of CONSULTANT’s obligations under this Agreement, any information, including without limitation, data, business plans, techniques, processes, trade secrets, or other technical or business information of PROGENICS that is directly or indirectly disclosed by or on behalf of PROGENICS to CONSULTANT, by any means, including written, oral, visual or electronic, or obtained or generated by CONSULTANT during or as a result of CONSULTANT’s work for PROGENICS (“Confidential Information”).
The foregoing obligations of confidentiality and nonuse shall not apply to any information that (i) is or becomes part of the public domain through no fault of CONSULTANT, (ii) was already known to CONSULTANT at the time of disclosure by PROGENICS, as evidenced by written records prepared prior to such disclosure, or (iii) is acquired by CONSULTANT from a third party having right to possess and disclose such information, provided that such third party did not receive such information directly or indirectly from PROGENICS. CONSULTANT shall use the same degree of care, but no less than a reasonable degree of care, to keep PROGENICS’ Confidential Information confidential as CONSULTANT uses in safeguarding CONSULTANT’s own confidential information.
In addition, CONSULTANT may disclose Confidential Information to the extent required to do so by regulatory or judicial authority to whose jurisdiction CONSULTANT is subject. CONSULTANT shall promptly notify PROGENICS of any such request so that PROGENICS may object to the request and/or seek an appropriate protective order.
CONSULTANT shall not disclose the existence or subject matter of this Agreement to any third party other than employees of PROGENICS with a need to know without prior written consent of PROGENICS.
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OWNERSHIP OF MATERIALS |
CONSULTANT shall promptly make full written disclosure to PROGENICS, shall hold in trust for the sole right and benefit of PROGENICS, and hereby assigns, transfers and conveys to PROGENICS, or its designee, all of CONSULTANT’s worldwide right, title and interest in and to any and all inventions, original works of authorship, findings, conclusions, data, discoveries, developments, concepts, improvements, trade secrets, techniques, processes and know-how, whether or not patentable or registrable under patent, copyright or similar laws, that CONSULTANT may solely or jointly conceive, develop or reduce to practice, or cause to be conceived, developed or reduced to practice, in the performance of the Services or that result, to any extent, from use of PROGENICS’ premises or property (collectively, the “Inventions”), including any and all moral rights and intellectual property rights inherent therein and appurtenant thereto, including, but not limited to, all patent rights, copyrights, trademarks, know-how and trade secrets and the rights to apply for the same (collectively, “Intellectual Property Rights”). CONSULTANT further acknowledges and agrees that all original works of authorship that are made by CONSULTANT (solely or jointly with others) in the performance of the Services (a “Work”) and that are protectable by copyright are “works made for hire,” as that term is defined in the United States Copyright Act. However, to the extent that any Work may not, by operation of any applicable law, be a work made for hire, CONSULTANT hereby assigns, transfers and conveys to PROGENICS all of CONSULTANT’s worldwide right, title and interest in and to such Work, including all Intellectual Property Rights relating thereto. For avoidance of doubt, this Section does not apply to Consultants activity permitted by the proviso in the last paragraph of Section 2.
Upon the request and at the expense of PROGENICS, CONSULTANT shall execute and deliver any and all instruments and documents and take such other acts as may be necessary or desirable to document the assignment and transfer described herein or to enable PROGENICS to secure its rights in the Inventions, Works and Intellectual Property Rights relating thereto in any and all jurisdictions, or to apply for, prosecute and enforce Intellectual Property Rights in any and all jurisdictions with respect to any Inventions or Works, or to obtain any extension, validation, re-issue, continuance or renewal of any such Intellectual Property Right. Without limiting the foregoing, CONSULTANT shall disclose to PROGENICS all pertinent information and data with respect thereto and shall execute all applications, specifications, oaths and all other instruments which PROGENICS deems necessary in order to apply for and obtain such rights and in order to assign and convey to PROGENICS the sole and exclusive right, title and interest in and to such Inventions, Works and any Intellectual Property Rights relating thereto. If PROGENICS is unable for any other reason to secure CONSULTANT’s signature to apply for or to pursue any application for any United States or foreign patent, trademark, copyright or other registration covering Inventions or Works assigned to PROGENICS hereunder, then CONSULTANT hereby irrevocably designates and appoints PROGENICS and its duly authorized officers and agents as CONSULTANT’s agent and attorney in fact, to act for and in CONSULTANT’s behalf and stead to execute and file any such applications and to do all other lawfully permitted acts to further the prosecution and issuance of letters patent or trademark, copyright or other registrations thereon with the same legal force and effect as if executed by CONSULTANT.
CONSULTANT will only use any materials provided by or on behalf of PROGENICS consistent with and as contemplated by this Agreement and will not undertake any actions which would jeopardize the copyright, trademark, tradename and other intellectual property rights of PROGENICS or its affiliates in any such materials.
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WARRANTIES |
CONSULTANT hereby warrants and represents to PROGENICS that:
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A. |
the Services shall be performed strictly in accordance with this Agreement and applicable laws and in a competent, timely, professional and workmanlike manner using the standards of care, skill, and diligence normally provided by competent professionals in the performance of Services similar to that are contemplated by this Agreement; |
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B. |
CONSULTANT has all rights, approvals, licenses, rights or other authorizations required to perform the Services, if any; and |
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C. |
the Services and/or any portion thereof, shall not violate, infringe upon, or misappropriate any patent, copyright, trade secret, trade name, or other proprietary rights of any third party, or breach any contract by which CONSULTANT is bound, and that CONSULTANT has neither assigned nor otherwise entered into an agreement by which CONSULTANT purports to assign or transfer to a third party any right, title or interest in or to any technology or intellectual property right that would conflict with CONSULTANT's obligations under this Agreement (collectively, "Infringement"). |
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INDEMNIFICATION |
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8. |
COMPLIANCE WITH LAWS |
A. CONSULTANT shall comply with all requirements of any and all applicable federal, state, and local laws, rules and regulations relating to his performance of the Services hereunder.
B. CONSULTANT represents and warrants to PROGENICS that CONSULTANT is not and has never been (i) sanctioned by the Office of Inspector General of the Department of Health and Human Services, excluded from participating in any government health care program, or convicted of a criminal offense that could lead to CONSULTANT being sanctioned or excluded; (ii) debarred by the Food and Drug Administration under the Generic Drug Enforcement Act of 1992, 21 U.S.C. Section 306(a) or (b) of the Federal Food, Drug, and Cosmetic Act, as amended, or any similar federal or state law or regulation, or (iii) other relevant professional licensing body. CONSULTANT shall immediately notify PROGENICS, during the term of this Agreement, upon becoming aware of any facts or circumstances reasonably expected to make such representations and warranties to become untrue. Upon receipt of such notice or if PROGENICS otherwise becomes aware of a threatened or actual sanction, exclusion, debarment, or disciplinary action, PROGENICS shall have the right to immediately terminate this Agreement for cause. PROGENICS reserves the right to screen CONSULTANT against the Office of Inspector General and General Services Administration exclusion databases, the U.S. Food and Drug Administration (“FDA”) debarment list, and any other relevant databases at any time during the term of this Agreement.
C. CONSULTANT hereby certifies that CONSULTANT has not and will not use in any capacity the services of any individual, corporation, partnership or association which has been debarred under 21 U.S.C. Section 306(a) or (b). In the event that CONSULTANT becomes aware of the debarment or threatened debarment of any individual, corporation, partnership or association providing services to CONSULTANT which directly or indirectly relate to CONSULTANT’s activities under this Agreement, CONSULTANT shall notify PROGENICS immediately. CONSULTANT understands that PROGENICS shall have the right to terminate this Agreement immediately upon receipt of such notice pursuant to the provisions of Section 3 hereof.
D. CONSULTANT acknowledges that PROGENICS conducts its relationships with healthcare professionals, in compliance with applicable laws and regulations (including, without limitation, the U.S. ▇▇▇▇-▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇, ▇.▇.▇. §▇▇▇▇▇-▇(▇)), and the PhRMA Code. CONSULTANT, in the performance of Services on behalf of PROGENICS, shall conduct its relationships with healthcare professionals, if any, in accordance with all applicable laws and the PhRMA Code.
E. CONSULTANT acknowledges PROGENICS’ commitment to comply with all applicable local, state, and federal laws, rules, regulations, and agreements, including, without limitation, transparency principles. To that end, CONSULTANT acknowledges and agrees that payments made pursuant to this Agreement may be reported by PROGENICS to government entities as required by law, rule, regulation, or agreement. CONSULTANT acknowledges that PROGENICS may be required to publicly disclose payments to CONSULTANT, including the identity of the CONSULTANT, the nature of any services performed by the CONSULTANT pursuant to this Agreement, and the value and nature of any payments to the CONSULTANT.
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INDEPENDENT CONTRACTOR |
Execution of this Agreement in no way creates, nor shall this Agreement be interpreted or construed as creating, an employment relationship between PROGENICS and CONSULTANT and it is understood CONSULTANT will be acting as an independent contractor.
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While providing the Services, CONSULTANT may gain access to certain material non-public information regarding PROGENICS. CONSULTANT understands that should CONSULTANT gain access to such material non-public information, CONSULTANT will, in compliance with U.S. securities laws, refrain from buying or selling PROGENICS securities, or disclosing such information to others.
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NOTICES |
Any notice required or permitted hereunder shall be in writing and shall be deemed given as of the date it is (a) delivered by hand; (b) sent by registered or certified mail, postage prepaid, return receipt requested; or (c) delivered by overnight carrier with signature of recipient confirming receipt to the other party at the address listed above.
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GOVERNING LAW |
This Agreement shall be governed by the laws of the State of New York, without reference to its choice of law principles.
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13. |
SEVERABILITY |
The invalidity or unenforceability of any term or provision of this Agreement shall not affect the validity or enforceability of any other term or provision hereof.
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14. |
WAIVER |
Waiver by either party or the failure by either party to claim a breach of any provision of this Agreement shall not be deemed to constitute a waiver or estoppel with respect to any subsequent breach of any provision hereof.
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ASSIGNMENT |
This Agreement is personal to PROGENICS. CONSULTANT may not assign this Agreement without the prior written consent of PROGENICS. Any purported assignment made in violation of this provision shall be null, void and without legal effect.
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ENTIRE AGREEMENT; AMENDMENTS |
This Agreement supersedes any previous understandings or agreements, whether written or oral, between the parties regarding the Services. This Agreement may be amended only by a written document signed by both parties. No pre-printed terms of any subsequent purchase order or invoice will add to, modify, or supersede the terms of this Agreement.
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SURVIVAL |
Any provision of or obligation under this Agreement, which contemplates performance or observance subsequent to any termination or expiration of this Agreement, shall survive any such termination or expiration, and shall continue in full force and effect. In addition, all provisions of this Agreement shall survive the termination or expiration of this Agreement to the fullest extent necessary to give the parties the full benefit of the bargain expressed herein and of the intent contemplated hereunder.
IN WITNESS WHEREOF, the parties hereto, by their duly authorized representatives, have signed this Agreement as of the Effective Date.
| PROGENICS PHARMACEUTICALS, INC. | ▇▇▇▇▇ ▇. ▇▇▇▇ |
| By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ | By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇ |
| Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ | Name: ▇▇▇▇▇ ▇. ▇▇▇▇ |
| Title: EVP & CFO | Title: CEO |
| Date: 1/7/20 | Date: 1/7/20 |