Exhibit 10.24
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REDACTED
CONSULTING AGREEMENT
By and Between
IMMUNOMEDICS, INC.
and
MMD SPECIALTY SERVICES, INC.
Effective Dates:
From: July 1, 1997
Through: June 30, 1998
*Confidential Portion Omitted And Filed Separately With The Commission
1
CONSULTING AGREEMENT
--------------------
CONSULTANT: MMD SPECIALTY SERVICES, INC.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Name and Address of the MMD SPECIALTY SERVICES, INC. Contact for IMMUNOMEDICS,
INC.:
Xxxxxxx Xxxxxxxx, President
MMD, Inc.
000 Xxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Name and Address of IMMUNOMEDICS, INC. (IMMUNOMEDICS) contact for CONSULTANT:
Xx. Xxx Xxxxxx
Director of Marketing and Sales
Immunomedics, Inc.
000 Xxxxxxxx Xxxx
Xxxxxx Xxxxxx, XX 00000
Direct Dial Number: (000) 000-0000 Fax Number: (000) 000-0000
IMMUNOMEDICS and CONSULTANT hereby agree as follows:
1. Term
----
The term of this Agreement shall be for the twelve (12) month period to commence
with the first months billing, unless terminated sooner as provided for herein
(the "TERM OF THIS AGREEMENT").
2. Scope of Work
--------------
CONSULTANT shall perform the services for IMMUNOMEDICS described in Exhibit 1
(the "SERVICES") attached hereto and made fully a part hereof.
Page 2
3. Compensation
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In consideration for CONSULTANT's full and satisfactory performance of the
SERVICES, IMMUNOMEDICS shall pay CONSULTANT a fee in the amount and on the
terms specified in Exhibit 2 (the "FEE") attached hereto and made fully a
part hereof.
4. Professional Standards
----------------------
CONSULTANT represents that it has the requisite personnel, facilities,
equipment, expertise, experience and skill, to render the desired SERVICES
and that it shall utilize its best efforts to perform the SERVICES in a
timely, competent and efficient manner. CONSULTANT further represents that
it shall abide by all laws, rules and regulations that apply to the
performance of the SERVICES, including but not limited to, applicable
requirements regarding equal employment opportunity and, when on
IMMUNOMEDICS premises, CONSULTANT's employees shall comply with
IMMUNOMEDICS policies with respect to conduct of visitors.
5. Independent Contractor - Status of Personnel Employed by CONSULTANT
-------------------------------------------------------------------
This Agreement does not constitute CONSULTANT as the employee, agent
(except to the extent expressly set forth herein) or legal representative
of IMMUNOMEDICS for any purpose whatsoever; and the relationship of
CONSULTANT is that of an independent contractor to IMMUNOMEDICS. In this
regard, CONSULTANT agrees that CONSULTANT shall:
i. not create, incur or commit any liability or obligation for
IMMUNOMEDICS without the express prior written consent of
IMMUNOMEDICS. The final acceptance of any sales or other
agreement for PRODUCTS rests solely with IMMUNOMEDICS.
IMMUNOMEDICS, in its sole discretion, may refuse or reject
any sale or request for any PRODUCT (as defined in Exhibit 1
Section 1), cancel any sale or agreement for any PRODUCT,
either in whole or in part, before, during or after the
acceptance thereof, and/or consent to the modification or
variance of any agreement with respect thereto, in each case
without the consent of CONSULTANT.
ii. adhere strictly to and be governed by the policies of
IMMUNOMEDICS regarding the selling of IMMUNOMEDICS' PRODUCTS
as well as other policies of IMMUNOMEDICS to the extent
applicable to CONSULTANT. IMMUNOMEDICS expressly reserves the
right to change such policies at any time and from time to
time, without the consent of CONSULTANT, provided that any
change in such policies should be promptly communicated to
CONSULTANT.
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iii. use only such forms, records and printed matter as may be
furnished by IMMUNOMEDICS and keep, in a manner reasonably
satisfactory to IMMUNOMEDICS, accurate and complete records;
and immediately transmit to IMMUNOMEDICS all original
communications received from customers and potential
customers of IMMUNOMEDICS. All such records shall be and
remain the property of IMMUNOMEDICS. CONSULTANT agrees to
supply to IMMUNOMEDICS all other information with respect to
any of its activities on behalf of IMMUNOMEDICS as
IMMUNOMEDICS may request.
iv. have all checks and drafts of money due to IMMUNOMEDICS made
payable to IMMUNOMEDICS and instruct all customers to remit
their payments directly to IMMUNOMEDICS. If, for any reason,
any such payments are received by CONSULTANT, it shall report
and remit such payments immediately to IMMUNOMEDICS. All
xxxxxxxx shall be made by IMMUNOMEDICS. Credit on all
accounts shall, in all instances, be subject to approval by
IMMUNOMEDICS.
v. be responsible for any and all of its employees' acts,
omissions to act, representations and misrepresentations,
including such actions, if any, which may result in damage or
injury to IMMUNOMEDICS.
vi. comply with all laws and regulations, federal, state and
local.
vii. pay all of its own expenses (including, without limitation,
the compensation and benefits to CONSULTANT's REGIONAL SALES
SPECIALISTS set forth on Exhibit 4 to this Agreement) except
to the extent reimbursed by IMMUNOMEDICS as provided in this
Agreement.
viii. accept full and exclusive liability for the payment of any
and all taxes, contributions or other sums payable for
worker's compensation and unemployment compensation or
insurance and old age retirement benefits as well as all
other federal, state and local taxes payable by reason of
CONSULTANT's activities.
ix. pay, when due, to all appropriate insurance carriers and
governmental agencies such amounts as shall be required by
any mandatory employee insurance provisions of law (such as,
if applicable, medical and worker's compensation) and by any
governmental agencies based upon the amounts paid to its
employees (such as FICA, medicare, unemployment insurance,
etc.), as well as any amounts of employee taxes required to
be withheld and paid on behalf of any of its employees,
including, without limitation, CONSULTANT's REGIONAL SALES
SPECIALISTS.
x. in employing any personnel, advise such personnel that they
are employees of CONSULTANT, are not to consider themselves
to be employees of IMMUNOMEDICS and that in employing such
personnel, CONSULTANT is acting individually and not as an
agent for IMMUNOMEDICS; and such personnel are to be
compensated solely by CONSULTANT.
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xi. render to IMMUNOMEDICS written reports of CONSULTANT's
activities on behalf of IMMUNOMEDICS, as reasonably requested
and in accordance with procedures established by IMMUNOMEDICS
from time to time; and furnish to IMMUNOMEDICS such other
information with respect to such activities as IMMUNOMEDICS
may reasonably request.
6. Confidentiality
---------------
The parties shall be subject to the confidentiality agreement set forth in
Exhibit 3 attached hereto and made fully a part hereof.
7. Tax Reporting and Payment
-------------------------
CONSULTANT acknowledges and agrees it shall be solely responsible for
withholding and paying the appropriate amount of all federal, state and
local taxes with respect to all compensation paid to CONSULTANT pursuant to
this Agreement, and that IMMUNOMEDICS shall have no responsibility
whatsoever for withholding or paying such taxes for or on behalf of
CONSULTANT. CONSULTANT further agrees to defend, indemnify and hold
IMMUNOMEDICS harmless from and against any and all damages, losses,
expenses, or penalties arising from or in connection with any claim brought
by any federal, state or local taxing authority with regard to CONSULTANT's
failure to withhold or pay required taxes or failure to file forms required
to be filed by CONSULTANT with regard to compensation paid to CONSULTANT by
IMMUNOMEDICS pursuant to this Agreement.
8. Insurance
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Both parties represent that they have and shall maintain during the term of
this Agreement, and for Three (3) years thereafter, insurance with policy
limits and coverage as follows:
IMMUNOMEDICS: Product Liability = [*]
CONSULTANT: Public Liability = [*];
Worker's Compensation in amounts required by law.
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9. Indemnification
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9.1 IMMUNOMEDICS shall indemnify and hold CONSULTANT and its agents,
directors, officers and employees, harmless from and against any
and all claims made against it or them by third parties,
regardless of the form in which such claim is made, for losses,
costs, damages, liabilities, fees or expenses, including
reasonable attorney's fees, relating to the manufacture, use or
sale of the PRODUCTS, including, without limitation, PRODUCTS
liability claims and claims relating to the advertising and
promotion of the PRODUCTS except for claims made as the result of
the CONSULTANT REGIONAL SALES SPECIALIST representations as to
PRODUCTS which are outside the scope of approved labeling.
9.2 In the event of any claim against CONSULTANT or any of its agents,
directors, officers or employees, in respect of which CONSULTANT
or any such person is or may be entitled to an indemnity under
this Agreement, neither CONSULTANT nor any other indemnified
person shall make any admission but shall promptly notify
IMMUNOMEDICS in writing of the claim and IMMUNOMEDICS shall be
entitled but not obliged to manage and control, at its sole
expense, the defense of the claim and its settlement. The benefit
of any indemnity by IMMUNOMEDICS under this Agreement in respect
of any claim shall not apply to any person if any admission made
by that person or any failure by the person to notify IMMUNOMEDICS
of the claim materially prejudices the defense of such claim. No
indemnified party shall settle any claim without the prior written
consent of the indemnifying party. CONSULTANT and all other
indemnified persons shall, if so required by IMMUNOMEDICS,
cooperate in all reasonable respects with IMMUNOMEDICS in the
defense of such a claim managed by IMMUNOMEDICS and may, at any of
their option and at their sole expense, be represented in any
action or proceeding arising out of such claim. IMMUNOMEDICS shall
not be liable for any litigation costs or expenses incurred by
CONSULTANT or by any other indemnified person without
IMMUNOMEDICS' written authorization, if such litigation is managed
by IMMUNOMEDICS.
9.3 The above shall not in any event apply to the extent that any
claim, loss, cost, damage, fee, expense or liability is the result
of any breach of this AGREEMENT by CONSULTANT or of any act or
omission or negligence, recklessness or willful misconduct of
CONSULTANT, its Affiliates, or their respective agents, directors,
officers or employees.
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9.4 CONSULTANT shall indemnify and hold IMMUNOMEDICS, its agents,
directors, officers and employees, harmless from and against any
and all claims made against it or them by third parties,
regardless of the form in which such claim is made, for losses,
costs, damages, liabilities, fees or expenses, including
reasonable attorney's fees, to the extent that they arise out of
or in connection with any unauthorized act or omission or
negligence, recklessness or willful misconduct of CONSULTANT, its
Affiliates, or their respective agents, directors, officers or
employees in relation to any of the PRODUCTS and the services to
be performed by CONSULTANT under or in connection with this
Agreement.
9.5 In the event of any claim against IMMUNOMEDICS or any of its
agents, directors, officers or employees, in respect of which
IMMUNOMEDICS or any such person is or may be entitled to an
indemnity under this Agreement, neither IMMUNOMEDICS nor any other
indemnified person shall make any admission but shall promptly
notify CONSULTANT in writing of the claim and CONSULTANT shall be
entitled but not obliged to manage and control, at its sole
expense, the defense of the claim and its settlement. The benefit
of any indemnity by CONSULTANT under this Agreement in respect of
any claim shall not apply to any person if any admission made by
that person or any failure by that person to notify CONSULTANT of
the claim materially prejudices the defense of such claim. No
indemnified party shall settle any claim without the prior written
consent of the indemnifying party. IMMUNOMEDICS and all other
indemnified persons shall, if so required by CONSULTANT, cooperate
in all reasonable respects with CONSULTANT in the defense of such
a claim managed by CONSULTANT and may, at any of their option and
at their sole expense, be represented in any action or proceeding
arising out of such claim. CONSULTANT shall not be liable for any
litigation costs or expenses incurred by IMMUNOMEDICS or by any
other indemnified person, without CONSULTANT's written
authorization, if such litigation is managed by CONSULTANT.
10. Adverse Reaction Reporting and PRODUCT Quality Complaints
---------------------------------------------------------
CONSULTANT shall inform IMMUNOMEDICS' Quality Assurance Department
immediately of all and any PRODUCT quality complaints received by calling:
Xx. Xxxx X. Xxxxxx, M.D.
Vice President, Medical Affairs
Immunomedics, Inc.
000 Xxxxxxxx Xxxx
Xxxxxx Xxxxxx, XX 00000
(000) 000-0000
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11. Inquiries Regarding PRODUCTS
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IMMUNOMEDICS Professional Services Department shall handle all medical
inquiries concerning the PRODUCTS. CONSULTANT shall refer all routine
medical information requests to:
Xx. Xxxx X. Xxxxxx, M.D.
Vice President, Medical Affairs
Immunomedics, Inc.
000 Xxxxxxxx Xxxx
Xxxxxx Xxxxxx, XX 00000
(000) 000-0000
12. Government Contact
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Upon being contacted by the FDA or any other federal, state or local agency
for any regulatory purpose pertaining to this Agreement or the PRODUCTS,
CONSULTANT shall immediately notify IMMUNOMEDICS Regulatory Affairs and
will not respond to the agency until consulting IMMUNOMEDICS, provided
however, that CONSULTANT may permit unannounced FDA or similar inspections
authorized by law and respond to the extent necessary.
13. Intellectual Property
---------------------
CONSULTANT acknowledges that IMMUNOMEDICS or an Affiliate is the owner of
the PRODUCTS trademarks and that all rights accruing from their use shall
inure to the benefit of IMMUNOMEDICS. CONSULTANT agrees during the term of
this Agreement and thereafter not to contest or deny the validity of the
trademarks or IMMUNOMEDICS' title to the trademarks. CONSULTANT agrees that
it will not register the trademarks or any trademark which infringes
thereon or in any way assist a third party to do so anywhere in the world.
For the purpose of the Agreement "Affiliate" of any party shall mean any
person, firm or corporation which controls, is controlled by or is under
common control with such party. Control shall mean either the direct or
indirect ownership of fifty percent or more of the voting stock of the
subject entity.
CONSULTANT shall use the PRODUCT trademarks only in the form, manner and
logotype, including identifying the PRODUCT trademarks by any necessary
notices of trademark registration, specifically approved by IMMUNOMEDICS.
CONSULTANT agrees that it shall make no representations that it owns or has
any proprietary or property right or interest in the PRODUCT trademarks.
Page 8
CONSULTANT acknowledges that IMMUNOMEDICS or an Affiliate is the owner of
all patents for the PRODUCTS and that all rights accruing therefrom shall
inure to the benefit of IMMUNOMEDICS.
CONSULTANT agrees that, following termination of this Agreement for any
reason, it will claim no right, title or interest in, or any right to use
the trademarks or patents for the PRODUCTS anywhere in the world by reason
of its activities under this Agreement or otherwise.
14. Promotional Materials
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CONSULTANT or any of its agents or employees shall not create promotional
or advertising materials including telephone promotional messages for the
PRODUCTS and CONSULTANT shall disseminate to its agents or employees only
those promotional or advertising materials that have been provided or
approved by IMMUNOMEDICS for CONSULTANT's use. CONSULTANT or any of its
agents or employees shall not in any manner alter promotional or
advertising materials that have been provided by IMMUNOMEDICS.
15. Termination
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15.1 Right of Immediate Termination
------------------------------
i. Either party will have the right to terminate this Agreement,
effective immediately, upon written notice to the other party, in
the event of:
ii. a material breach by the other party of its obligations under
this Agreement and the failure of such other party to cure such
breach within ten (10) days after notice thereof;
iii. a judicial finding that the other party is insolvent or bankrupt;
iv. the commencement of a voluntary case under the Federal Bankruptcy
Code by the other party;
v. the commencement of an involuntary case under the Federal
Bankruptcy Code against the other party if not dismissed or
withdrawn within sixty (60) days thereafter;
vi. the appointment of a receiver or trustee for all or substantially
all of the property of the other party, or for any lesser portion
of such property if the result is to materially and adversely
affect the ability of the other party to fulfill any of such
party's obligations under this Agreement; or
vii. an assignment by the other party of substantially all of such
party's assets for the benefit of creditors.
15.2 Right of Forty-Five (45) Day Termination
----------------------------------------
IMMUNOMEDICS may terminate this Agreement at any time and for any reason
upon at least forty-five (45) days' prior written notice to CONSULTANT,
which notice sets forth the proposed effective date of termination.
15.3 Fees Payable Upon Termination
-----------------------------
Upon termination of this Agreement pursuant to paragraph (15.2) above,
CONSULTANT will be entitled to receive, when due;
i. reimbursement of all reimbursable expenses under this Agreement for
which appropriate documentation has been delivered to IMMUNOMEDICS;
ii. payment of all fees due for periods ended on or prior to the effective
date of termination;
iii. as liquidated damages (and not as a penalty), the sum of [*], less the
amount of all fees paid or payable for periods ended on or prior to the
effective date of termination.
16. Competing Products
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During the TERM OF THIS AGREEMENT, CONSULTANT shall not engage in the
promotion, sale, marketing or distribution of any products or services
which, in the reasonable judgment of IMMUNOMEDICS, are directly or
indirectly competitive with any of the PRODUCTS, without IMMUNOMEDICS'
prior written consent thereto.
17. Public Announcements
--------------------
CONSULTANT shall not publicly disclose the specific terms of this Agreement
without the prior written consent of IMMUNOMEDICS. CONSULTANT would be
permitted, however, to list IMMUNOMEDICS as a client on CONSULTANT's
materials with IMMUNOMEDICS' prior written approval which shall not be
unreasonably withheld. Any mention of any other parties involved will
require written approval of such party.
Page 10
18. Micellaneous Provisions
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Assignability
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No assignment by CONSULTANT of this Agreement or any of its rights, duties or
obligations hereunder, shall be binding on IMMUNOMEDICS without IMMUNOMEDICS'
prior written consent. IMMUNOMEDICS may assign this Agreement in connection with
the sale of all or substantially all of its assets or business or its merger or
consolidation with another entity.
Complete Agreement
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This Agreement, together with the Exhibits hereto, supersedes all prior
Agreements and understandings between the parties related to the subject matter
of this Agreement.
Amendment
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This Agreement may not be altered, changed or amended except by a writing signed
by each of the parties hereto.
Survival
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The provisions of Articles 6, 7, 9, 10 and 12 of this Agreement shall survive
the expiration and/or termination of this Agreement.
Severability
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In the event that any provision of this Agreement is held illegal or invalid for
any reason, such provision shall not effect the remaining parts of this
Agreement, but this Agreement shall be construed and enforced as if that illegal
and invalid provision had never been inserted herein.
Notices
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All notices, authorizations, requests, deliveries, consents, waivers, agreements
and other communications required or permitted to be given hereunder
(collectively, "COMMUNICATIONS") shall be in writing and shall be delivered
personally or sent by telefax, recognized overnight courier service, or
certified mail, postage prepaid, addressed to the other party at its address set
forth in this Agreement, to the attention of the President of such party, or to
such other or additional person or address as either party may thereafter
specify by notice to the other. All COMMUNICATIONS shall be deemed received on
the date delivered personally, one business day after being sent by overnight
courier, three business days after mailing and upon written acknowledgment of
the receipt of any telefax.
Page 11
Extraordinary Relief
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In the event of the actual or threatened breach by either party of any of the
terms of Article 6 hereof, the other party shall have the right to specific
performance and injunctive relief. The rights granted by this paragraph are in
addition to all other remedies and rights available at law or in equity.
Solicitation
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DURING THE TERM OF THIS AGREEMENT, neither party shall solicit any employee or
independent contractor of the other party with whom it has interacted or come in
contact with for the purposes of the performance of this Agreement by either
party, to leave the employment of the other party and accept employment with the
first party. Following the expiration of the Agreement, IMMUNOMEDICS may solicit
and hire any of CONSULTANT's REGIONAL SALES SPECIALISTS without incurring
liability to CONSULTANT.
Arbitration
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Any controversy or claim arising out of or relating to this AGREEMENT, the
making, interpretation or the breach thereof, shall be settled by arbitration in
New York County, New York in accordance with the commercial rules of the
American Arbitration Association which are then obtaining. Judgment upon the
award rendered by the arbitrator or arbitrators may be entered in any court
having jurisdiction thereof and any party to the arbitration may, if it so
elects, institute proceedings in any court having jurisdiction for the specific
performance of any award. The powers of the arbitrator or arbitrators shall
include, but not be limited to, the awarding of injunctive or other equitable
relief but shall not include the power to modify or amend in any respect the
provisions of this AGREEMENT. The arbitrator or arbitrators shall include in any
award the amount of the reasonable attorneys' fees and disbursements and
expenses of the arbitration incurred by the prevailing party and a direction
that it be paid by the other party or parties within 30 days after the making of
such award. In the event that the arbitrator or arbitrators do not rule in favor
of the prevailing party in respect of all the claims alleged by such party, the
arbitrator or arbitrators shall include in any award the portion of the amount
of the reasonable attorneys' fees and disbursements and other expenses of the
arbitration incurred by the prevailing party as the arbitrator or arbitrators
deem just and equitable under the circumstances, together with a direction that
such amounts be paid by the other party or parties within 30 days thereof.
Except as provided above, each party shall bear its own attorneys' fees,
disbursements and other expenses and the parties shall bear equally all other
costs and expenses of the arbitration.
Counterpart Originals
---------------------
This Agreement may be executed in any number of counterparts, each of which when
executed, shall be deemed to be an original and all of which together shall
constitute one and the same document.
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Choice of Law
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This Agreement is entered into in the state of New York and shall be construed
and governed according to the laws of that state for contracts made within that
state.
IN WITNESS WHEREOF, the parties hereto have executed, or have caused their duly
authorized representatives to execute, this Agreement as of June 23, 1997.
MMD SPECIALTY SERVICES, Inc. IMMUNOMEDICS, Inc.
By: /s/ Xxxxxxx Xxxxxxxx By: /s/ Xxxxx X. Xxxxxxxxxx
------------------------- ----------------------------
Xxxxxxx Xxxxxxxx Xxxxx X. Goldenger, Sc.D., M.D.
President Chairman and Chief Executive Officer
Date: June 20, 1997 Date: June 30, 1997
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Guaranty
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In order to induce IMMUNOMEDICS, INC. to enter into the foregoing AGREEMENT with
MMD SPECIALTY SERVICES, INC., a New York corporation ("Subsidiary") which is a
wholly-owned subsidiary of MMD, INC., a New York corporation ("Guarantor"),
Guarantor hereby unconditionally guarantees the prompt and complete performance
by Subsidiary of all of its obligations under the foregoing AGREEMENT and the
payment of all damages, costs and expenses which become recoverable as a result
of non-performance by Subsidiary of such obligations or as a result of
non-performance of this Guaranty.
This Guaranty is irrevocable, shall continue in effect notwithstanding any
amendment to, or modification of, the foregoing AGREEMENT, or the assumption
thereof by any other party, and shall continue in effect until all of the terms
of the foregoing AGREEMENT have been performed by Subsidiary.
IMMUNOMEDICS, INC. may, at its option, proceed against Guarantor for performance
of any obligation under the foregoing AGREEMENT, or for damages for default in
the performance thereof, without first proceeding against Subsidiary.
Guarantor waives notice of acceptance of this Guaranty, notice of
non-performance by Subsidiary, or any other notice, the failure of which would
operate as a legal or equitable discharge of a guarantor.
This Guaranty shall inure to the benefit of IMMUNOMEDICS, INC. and its
successors and shall be binding upon Guarantor and its successors.
MMD SPECIALTY SERVICES, Inc.
By: /s/ Xxxxxxx Xxxxxxxx
---------------------------
Xxxxxxx Xxxxxxxx
President
Date: June 20, 1997
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Exhibit 1
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DESCRIPTION OF SERVICES:
------------------------
1. During the TERM OF THIS AGREEMENT, CONSULTANT shall locate and employ
members of a full-time specialty oncology sales force (each such member a
"CONSULTANT's REGIONAL SALES SPECIALIST") for the marketing and sale of
IMMUNOMEDICS' in-vivo cancer diagnostic imaging agent known as
"CEA-Scan(R)", and such other IMMUNOMEDICS products as may be specified by
IMMUNOMEDICS (the "PRODUCTS"). These SALES SPECIALISTS are to be
professional sales people with experience in Radiology, Oncology, Nuclear
Medicine, and/or surgery. Additionally, these specialists should have
hospital selling experience in short cycle direct sales. These SALES
SPECIALISTS will be engaged exclusively in the marketing and sales of the
PRODUCTS. No CONSULTANT's REGIONAL SALES SPECIALIST shall be employed by
CONSULTANT without the prior written consent of IMMUNOMEDICS, after
IMMUNOMEDICS shall have completed such participation in, and review of,
CONSULTANT's proposed hiring of the CONSULTANT's REGIONAL SALES SPECIALIST
as IMMUNOMEDICS shall deem appropriate. Upon the occurrence of the
resignation, termination or other event making the services of any
CONSULTANT's REGIONAL SALES SPECIALISTS unavailable, CONSULTANT shall
notify IMMUNOMEDICS promptly of such occurrence and of CONSULTANT's plans
for replacement of such REGIONAL SALES SPECIALIST.
2. During the TERM OF THIS AGREEMENT CONSULTANT's REGIONAL SALES SPECIALISTS
shall use their best efforts to sell IMMUNOMEDICS' PRODUCTS and in
connection therewith, shall VISIT (as hereinafter defined) prospective
customers selected by IMMUNOMEDICS and located in the target market areas
defined by IMMUNOMEDICS. These prospective customers will include (but not
be limited to) hospitals and clinics and may encompass a large geographical
area and require overnight travel.
During the TERM OF THIS AGREEMENT, CONSULTANT agrees to provide
approximately sixteen (16) CONSULTANT's REGIONAL SALES SPECIALISTS
supported by one (1) National Field Sales Manager. CONSULTANT's REGIONAL
SALES SPECIALISTS will make dedicated VISITS during the TERM OF THIS
AGREEMENT in accordance with the instructions of IMMUNOMEDICS.
For the purposes of the Agreement, "VISIT" shall mean a face-to-face
presentation by a CONSULTANT's REGIONAL SALES SPECIALIST, which
presentation shall be dedicated solely to the marketing and sales of the
PRODUCTS. The presentation must include a discussion of features and
benefits of the PRODUCTS. As part of the VISIT, CONSULTANT's REGIONAL SALES
SPECIALISTS shall present prospective customers solely with IMMUNOMEDICS
provided PRODUCT literature. Also, as part of the VISIT, CONSULTANT's
REGIONAL SALES SPECIALISTS will conduct face-to-face presentations at
selected sites with prospective customers. VISITS shall be made (and a
Sales Summary Report with respect to each VISIT shall be provided to
IMMUNOMEDICS) in accordance with instructions of IMMUNOMEDICS as described
in training and other COMMUNICATIONS and as amended from time to time.
Page 15
During the TERM OF THIS AGREEMENT, CONSULTANT's REGIONAL SALES SPECIALISTS
shall VISIT each of the target prospective hospitals every [*] weeks and
each of the target prospective customers every [*] weeks. All prospective
leads shall be contacted within [*] working days after receipt of lead from
IMMUNOMEDICS by the REGIONAL SALES SPECIALIST.
Within ten (10) working days following June 30, 1998 or upon the
termination of this Agreement, whichever occurs sooner, CONSULTANT shall
return to IMMUNOMEDICS all unused promotional and advertising materials,
marketing plans, sales training materials, territory lists, reports, all
equipment in good condition or good working order, and any and all other
tangible items. CONSULTANT agrees that is shall pay to IMMUNOMEDICS an
amount equal to the fair market value of any equipment (including without
limited, any laptop computer) not so returned, or that IMMUNOMEDICS may set
off such amount against any sums then owing to CONSULTANT by IMMUNOMEDICS.
3. CONSULTANT shall ensure that no claims or representations in respect of the
PRODUCTS or the characteristics thereof are made by or on behalf of it
(and, in particular, by CONSULTANT's REGIONAL SALES SPECIALISTS) which do
not represent a reasonable summary or explanation of the labeling of the
PRODUCTS.
During the TERM OF THIS AGREEMENT, subject to Section 11 of the Agreement,
IMMUNOMEDICS shall provide CONSULTANT with information known to
IMMUNOMEDICS which is relevant or appropriate, to enable CONSULTANT to
respond promptly to questions or inquiries which are directed to CONSULTANT
from members of the medical and paramedical professions relating to the
PRODUCTS. CONSULTANT shall not publish, disclose or use any information
provided to CONSULTANT by IMMUNOMEDICS pursuant to this Agreement for any
purpose other than for the purpose of responding to such questions and
inquiries to which CONSULTANT is otherwise unable to respond. Nothing in
this Agreement shall be deemed to impose any obligation on CONSULTANT or
any of its employees to make any such response which violates professional
ethics.
4. COMMUNICATIONS to and from CONSULTANT's employees shall be handled through
CONSULTANT or directly by IMMUNOMEDICS as appropriate under the
circumstances.
5. CONSULTANT's National Field Sales Manager in charge of the program covered
by this Agreement will be involved in the recruitment and hiring by
CONSULTANT of competent REGIONAL SALES SPECIALISTS, and the training of the
REGIONAL SALES SPECIALISTS. The National Field Sales Manager will attend
the REGIONAL SALES SPECIALISTS' training meeting, ride with CONSULTANT's
REGIONAL SALES SPECIALISTS in the field, provide monthly field reports, and
be a resource to IMMUNOMEDICS management in regards to this program.
Page 16
6. IMMUNOMEDICS' request, CONSULTANT will allow IMMUNOMEDICS to examine and
audit its records, and to monitor CONSULTANT's REGIONAL SALES SPECIALISTS'
performance at reasonable times and at IMMUNOMEDICS' sole expense.
7. In the event IMMUNOMEDICS shall determine that any CONSULTANT's REGIONAL
SALES SPECIALIST has violated the terms of this Agreement or should
otherwise be removed for cause (which term shall include, without
limitation, sales production which, in the reasonable judgment of
IMMUNOMEDICS, is inadequate), IMMUNOMEDICS shall have the right to require
that such CONSULTANT's REGIONAL SALES SPECIALIST be removed immediately
from the program covered by this Agreement. CONSULTANT agrees to replace
any such CONSULTANT's REGIONAL SALES SPECIALIST as expeditiously as
possible.
8. CONSULTANT agrees that its REGIONAL SALES SPECIALISTS will be available to
attend specified IMMUNOMEDICS sales meetings and also to participate in
discussions with IMMUNOMEDICS sales management.
Page 17
Exhibit 2
---------
FEE ARRANGEMENTS:
-----------------
1. The annual fee for each CONSULTANT's REGIONAL SALES SPECIALIST is [*] (the
"ANNUAL FEE") [*] per month, pro-rated for any portion of a month during
which such REGIONAL SALES SPECIALIST was so employed).
2. The ANNUAL FEE shall be payable as follows:
a. Upon execution of this Agreement, IMMUNOMEDICS shall pay an amount
equal to one-twelfth (1/12) of the ANNUAL FEE for sixteen (16) of
CONSULTANT's REGIONAL SALES SPECIALISTS, which payment shall be applied
to the fee for each of CONSULTANT's REGIONAL SALES SPECIALISTS actually
employed during the first month of the TERM OF THIS AGREEMENT
(pro-rated for the portion of the month so employed) and to the
reimbursement of CONSULTANT for any expenses set forth in paragraph 4,
below, paid by CONSULTANT.
b. Upon invoice in each subsequent month of the TERM OF THIS AGREEMENT for
one-twelfth (1/12) of the ANNUAL FEE multiplied by the number of
CONSULTANT's REGIONAL SALES SPECIALISTS actually employed at the end of
the preceding month (pro-rated for the portion of the month so
employed), less a credit for the excess of any sums paid under section
a., above, over the amount actually required thereunder, until such
credit is exhausted.
3. The ANNUAL FEE covers all services and costs of CONSULTANT (including
CONSULTANT's National Field Sales Manager) and CONSULTANT's REGIONAL SALES
SPECIALISTS, except as provided in paragraph 4, below. Unless excluded in
paragraph 4, below, all costs and expenses relating to the performance of
this Agreement are the responsibility of CONSULTANT.
4. The following costs and expenses are the responsibility of IMMUNOMEDICS:
a. Travel expenses for CONSULTANT's staff members related to scheduled
strategy meetings.
b. Call Reporting/Order Processing.
c. Voice Mail System.
d. Out-of-Pocket Expenses for National Field Sales Manager.
e. The costs of an Incentive Bonus Compensation Plan, if adopted, as set
forth in Exhibit 4.
Page 18
f. Expenses for one (1) Training Meeting. These costs include the REGIONAL
SALES SPECIALISTS', National Field Sales Manager's and three (3)
CONSULTANT's staff members' reasonable travel expenses to and from the
meeting place, meals, gratuities, and miscellaneous incurred expenses.
(Billed at CONSULTANT's actual cost, estimated at [*]) Any difference
in cost will be reconciled on a subsequent invoice.
All travel and related expenses for which CONSULTANT seeks reimbursement from
IMMUNOMEDICS pursuant to paragraphs a., d., and f., above, must be in accordance
with, and subject to the limitations contained in, IMMUNOMEDICS' policy with
respect to such expenses, a copy of which has been delivered to CONSULTANT. Such
policy may be changed from time to time, and any such change shall be effective
upon delivery of a copy thereof to CONSULTANT.
Page 19
Exhibit 3
---------
CONFIDENTIAL INFORMATION STATEMENT
----------------------------------
1. As used herein, "CONFIDENTIAL INFORMATION" shall mean information relating
to the business, products or services of a party (the "DISCLOSING PARTY")
which is either non-public, confidential or proprietary in nature, whether
in written or oral form and including summaries or notes thereof, and which
has been disclosed to the other party hereto (the "RECEIPIENT"). Without
limiting the generality of the foregoing, CONFIDENTIAL INFORMATION shall
include (i) information which related to any of the PRODUCTS and its
manufacture, sale or use, including financial statements, costs and expense
data, production data, know-how, trade secrets, secret processes and
formulae, technical data and reports, manufacturing and formulation data,
or any other information relating to the PRODUCTS which is not generally
ascertainable from public or published information, regardless of whether
such information was provided pursuant to the terms of this Agreement, by
request of the RECEIPIENT or in any other manner; (ii) information related
to the PRODUCTS contained in all documents submitted in connection with
regulatory submissions covering the PRODUCTS, and (iii) marketing and
consumer data, including development plans, strategies and forecasts, and
customer and prospect lists.
2. RECEIPIENT agrees to accept such CONFIDENTIAL INFORMATION in accordance
with the following terms:
a. RECEIPIENT agrees not to disclose to anyone and to protect the
confidentiality of any and all CONFIDENTIAL INFORMATION disclosed to it
by the DISCLOSING PARTY under this Agreement with the exception of the
following:
i. Disclosure permitted by paragraph 5, below;
ii. CONFIDENTIAL INFORMATION which, at the time of disclosure by the
DISCLOSING PARTY, is generally known to the public;
iii. CONFIDENTIAL INFORMATION which, after disclosure by the DISCLOSING
PARTY, becomes part of the public knowledge by publication or
otherwise, except by breach of this Agreement;
iv. CONFIDENTIAL INFORMATION which was in RECIPIENT's possession at
the time of disclosure by the DISCLOSING PARTY and which was not
acquired, directly or indirectly, from the DISCLOSING PARTY,
provided RECEIPIENT furnishes the DISCLOSING PARTY with
satisfactory written documentation thereof prior to any disclosure
of such CONFIDENTIAL INFORMATION to a third party;
Page 20
v. CONFIDENTIAL INFORMATION which RECEIPIENT received from third
parties who have the legal right to disclose such CONFIDENTIAL
INFORMATION, provided such CONFIDENTIAL INFORMATION was not, to
the knowledge of RECEIPIENT, obtained by said third parties,
directly or indirectly, from the DISCLOSING PARTY on a
confidential basis;
vi. CONFIDENTIAL INFORMATION which RECEIPIENT can verify with written
documentation results solely from research and development by
RECEIPIENT independent of disclosures from the DISCLOSING PARTY;
or
vii. CONFIDENTIAL INFORMATION required to be disclosed by applicable
laws, regulations or judicial process provided the DISCLOSING
PARTY received ten (10) days advance notice of such required
disclosure in order for the DISCLOSING PARTY to oppose such
disclosure in its discretion; provided however, if disclosure must
be made in a period shorter than ten (10) days based on the
receipt of an opinion of counsel by the recipient, in order to
comply with the rules and regulations of the Security and Exchange
Commission for the rules and regulations of any international
exchange, then upon such advance notice as shall be practicable
under the circumstances. RECEIPIENT will cooperate with the
DISCLOSING PARTY's efforts to obtain a protective order or other
appropriate remedy concerning any such disclosure. In the event
that such a protective order or other remedy is not obtained, or
that the DISCLOSING PARTY waives compliance with the provisions of
this paragraph, RECEIPIENT shall furnish only that portion of the
CONFIDENTIAL INFORMATION legally required to be disclosed and
RECEIPIENT will exercise its best efforts to obtain reliable
assurance that confidential treatment will be accorded the
CONFIDENTIAL INFORMATION required to be so disclosed.
3. RECEIPIENT agrees that it will not use the CONFIDENTIAL INFORMATION, which
it is required hereunder to keep confidential for any purpose other than in
connection with the marketing of the PRODUCTS in accordance with this
Agreement (the "INTENDED PURPOSE").
4. RECEIPIENT acknowledges that irreparable damage will result to the
DISCLOSING PARTY if any CONFIDENTIAL INFORMATION is improperly disclosed to
a third party or is used for any purpose other than the INTENDED PURPOSE.
Page 21
5. RECEIPIENT will disclose such CONFIDENTIAL INFORMATION only to such of its
officers and employees, or its direct subsidiaries' officers and employees,
who are directly concerned with the marketing of the PRODUCTS, and will
advise such officers and employees, upon disclosing such CONFIDENTIAL
INFORMATION to them, of the confidential nature thereof and require each
such person to acknowledge in writing their receipt of a copy of this
Confidential Information Statement and their agreement to be bound by the
terms hereof. In addition, RECEIPIENT will take all reasonable precautions
to prevent such CONFIDENTIAL INFORMATION from being acquired by an
unauthorized person, firm or company, including, but not limited to, those
that it takes to protect its own proprietary and confidential information.
6. At any time with thirty (30) days notice, upon the request of the
DISCLOSING PARTY, RECEIPIENT will return all documentation relating to the
CONFIDENTIAL INFORMATION to the DISCLOSING PARTY without retaining any
copies, summaries or notes thereof.
7. In the event of any breach or threatened breach of this Agreement, the
DISCLOSING PARTY shall, in addition to any other remedies which may be
available, be entitled to injunctive and other equitable relied in any
court of competent jurisdiction.
8. The obligations set forth in the Confidential Information Statement shall
be continuing and shall survive the expiration or termination of this
Agreement for a period of five (5) years.
Page 22
Exhibit 4
---------
COMPENSATION AND BENEFITS - CONSULTANT'S REGIONAL SALES SPECIALISTS
-------------------------------------------------------------------
CONSULTANT represents that it provides not less than the following average
compensation and benefits to CONSULTANT's REGIONAL SALES SPECIALISTS and will
continue to provide such compensation and benefits (or the substantial
equivalent of such benefits) during the TERM OF THIS AGREEMENT:
1. BASE PAY - [*]
2. MEDICAL - [*]
3. DENTAL - [*]
4. LIFE INSURANCE - [*]
5. ACCIDENTAL HEALTH/DISMEMBERMENT - [*]
6. SHORT TERM DISABILITY INSURANCE - [*]
7. LONG TERM DISABILITY INSURANCE - [*]
8. 401 (k) - [*]
9. VACATION - [*]
10. AUTOMOBILE EXPENSE REIMBURSEMENT - [*]
11. INCENTIVE BONUS COMPENSATION PLAN - [*]
Page 23
Rider to Exhibit 4, MMD Specialty Services, Inc. Agreement
----------------------------------------------------------
IMMUNOMEDICS, in its discretion, may adopt an Incentive Bonus Compensation Plan
(the "Bonus Plan"), which shall be in writing and shall be delivered to
CONSULTANT. The costs of funding the Bonus Plan shall be borne by IMMUNOMEDICS
and shall be paid to CONSULTANT for distribution to Bonus Plan participants,
subject to Articles 5 and 7 of this AGREEMENT. The Bonus Plan may not be revised
or modified except by a writing signed by a duly authorized officer of
IMMUNOMEDICS. Except as to bonus payments theretofore accrued thereunder, the
Bonus Plan may be terminated by IMMUNOMEDICS at any time.
Page 24
