CONSULTANCY AGREEMENT
Exhibit
4.82
THIS
AGREEMENT IS MADE BETWEEN:
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1.
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AMARIN NEUROSCIENCE LIMITED
whose registered office is at Magdalen Centre North, Xxxxxx Xxxxxxx
Xxxx, Xxxxxx XX0 0XX, XX (“Amarin”); and
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2.
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DECISIONABILITY LLC of 0
Xxxx Xxxx Xxxx, Xxxxxxxxxx, XX 00000, XXX (“Consultant”).
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RECITALS:
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(A)
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Consultant
is engaged in the business of offering consultancy services in relation to
pharmaceutical product assessment and review, and has considerable skill,
knowledge and experience in that
field.
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(B)
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In
reliance upon that skill, knowledge and experience Amarin wishes to engage
the Consultant to provide services in relation to evaluation and due
diligence matters and the Consultant agrees to accept the engagement on
the following terms.
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NOW, IT IS HEREBY AGREED AS
FOLLOWS in consideration of the mutual covenants contained
herein:
1. THE
SERVICES
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1.1
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Consultant
shall at Amarin’s request perform the services described in Schedule 1 to
this Agreement (the “Services”).
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1.2
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For
the purposes of this Agreement and the provision of the Services, the
Consultant shall procure and make available to the Company the services,
skills and expertise of Xxxxxx Xxxxxxxx (the “Consultant’s
Representative”).
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1.3
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The
Consultant commenced provision of the Services on 1 January
2007.
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1.4
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Consultant
shall perform the Services in good faith, with reasonable care and skill,
in accordance with the terms of this Agreement and all applicable laws,
regulations and guidelines, including without limitation ICH-GCP, and in
accordance with the reasonable instructions of
Amarin.
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1.5
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The
Services shall be provided by the Consultant at such locations and at such
times as the parties may agree from time to
time.
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1.6
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In
the event that the Consultant’s Representative becomes for any reason
unable to perform the Services for a period in excess of 14 days, the
Consultant will promptly notify Amarin of that fact, the reason for and
the likely duration of such
inability.
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1.7
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In
the event that the Consultant and Amarin agree that the Consultant will
require additional third party resources in order to provide the Services,
the Consultant shall agree in advance in writing with
Amarin:
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1.7.1
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the
nature and identity of the third party resources that are
required;
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1.7.2
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the
fees payable to such third party
resources.
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Any
such services shall be provided directly to Amarin by such third
parties.
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2. FEES,
EXPENSES AND PAYMENT
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2.1
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In
consideration of the provision of the Services, Amarin shall pay to
Consultant during the term of this Agreement a fee of $3,000 per day,
(together with VAT thereon (if applicable)) (the “Fee”).
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2.2
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Consultant
shall submit invoices at the end of each calendar month. Invoices shall be
payable within 30 days of receipt of same by
Amarin.
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2.3
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Amarin
shall in addition reimburse the Consultant for reasonable out-of-pocket
expenses incurred in the provision of the Services agreed to in advance by
Amarin, provided that copy invoices or other evidence of such expenses can
be produced upon request. It is expressly understood by the
parties that the role may involve domestic and international
travel. Any such travel shall be conducted by the Consultant in
accordance with the Amarin Travel Policy (as may be amended from time to
time). Amarin will wherever reasonably practicable give the
Consultant at least three weeks prior notice of any international travel
requirements.
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2.4
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Consultant
shall maintain adequate records in respect of the time spent engaged in
the performance of the Services and shall produce such records in support
of each invoice.
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3. CONFIDENTIALITY
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3.1
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During
the term of this Agreement and for a period of 7 (seven) years thereafter,
Consultant undertakes to maintain as confidential all information, data
and materials, and intellectual property disclosed by Amarin or any
Affiliate of Amarin to Consultant (the “Amarin Confidential
Information”) on or prior to the date of last signature of this
Agreement (the “Effective Date”).
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“Affiliates” shall mean a
corporation or entity controlling, controlled by, or under the common
control with Amarin. For the purposes of this Agreement, “control” shall mean the
director indirect ownership of more than 50% of the issued voting shares
or other voting rights of the subject entity to elect directors, or if not
meeting the preceding criteria, any entity owned or controlled by or
owning or controlling at the maximum control or ownership right permitted
in the country where such entity
exists.
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3.2
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Amarin
Confidential Information shall not, without Amarin’s prior written
consent, be used by Consultant (or permitted by it to be used by any
person) for any purpose other than the proper performance of the
Services.
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3.3
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The
Consultant shall not, without Amarin’s prior written consent, disclose the
Amarin Confidential Information to any other person, save as may be
strictly necessary in order to perform the Services, and provided that
Consultant first ensures that such third party is under a duty of
confidentiality to the Consultant to protect the confidentiality of the
Amarin Confidential Information on no less onerous terms than as set out
in this Clause 3.
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3.4
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The
obligations of confidentiality set out in this Clause shall not apply to
any Amarin Confidential Information
which:
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3.4.1
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came
lawfully into Consultant’s possession prior to the date of
disclosure;
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3.4.2
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is
or becomes public knowledge through no fault or omission of
Consultant;
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3.4.3
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is
required to be disclosed by law, in which case Consultant shall give
Amarin as much advance notice of the proposed disclosure as is practical
(including a copy of any written
request
or order), and shall cooperate with Amarin in any effort to limit or
restrict such disclosure, via a protective order or
otherwise;
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3.4.4
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is
furnished or made known to Consultant by a third party otherwise than in
breach of any obligation of confidentiality to
Amarin;
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3.4.5
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is
independently developed by the Consultant without access to the Amarin
Confidential Information.
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3.5
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The
Consultant agrees to maintain as strictly confidential the subject matter
of this Agreement and the fact that the parties have entered into this
Agreement, and agrees to make no public announcement or publish in any
manner whatsoever any information referring to any transaction
contemplated or completed as a result of a referral pursuant to this
Agreement.
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3.6
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Amarin
does not make any representation or warranty as to the accuracy or
completeness of the Amarin Confidential
Information.
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3.7
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Save
for the right to use the Amarin Confidential Information for the sole
purpose of performing its obligations under this Agreement, the Consultant
agrees that the Amarin Confidential Information is and shall remain the
sole property of Amarin and that nothing in this Agreement shall be
understood as granting, expressly or by implication, any rights to the
Consultant under any Amarin Confidential
Information.
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3.8
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Upon
termination or expiration of this Agreement, Consultant shall promptly
return, or at Amarin’s request destroy, all Amarin Confidential
Information.
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4. OWNERSHIP
AND INTELLECTUAL PROPERTY RIGHTS
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4.1
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This
Clause 4 applies to any Data and Intellectual Property conceived,
discovered, developed, made, produced or created as a result of performing
the Services hereunder by the Consultant, its servants or agents,
including without limitation the Consultant’s
Representative.
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4.2
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Subject
to Clause 4.3, the Consultant agrees
that:
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4.2.1
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all
data, materials and reports (“Data”) conceived,
discovered, developed, made, produced or created as a result of performing
the Services hereunder and all rights therein shall be solely owned by
Amarin (the “Amarin
Data”); and
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4.2.2
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any
patent right, invention, registered design, copyright, database right,
design right, trade xxxx, service xxxx, application to register any of the
aforementioned rights, trade secret or rights (including rights of
confidentiality) in know-how (“Intellectual Property”)
conceived, discovered, developed, made, produced or created as a result of
performing the Services hereunder and all rights therein, shall be owned
exclusively by Amarin (the “Amarin Intellectual
Property”).
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4.3
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All
Intellectual Property owned by the Consultant as at the Commencement Date
(the “Consultant
Intellectual
Property”) shall continue to be owned by the Consultant, and any
improvements to the Consultant Intellectual Property conceived,
discovered, developed, made, produced or created as a result of performing
the Services hereunder, and all rights therein, shall be owned by the
Consultant.
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4.4
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The
Consultant agrees to:
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4.4.1
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hold
on trust for the benefit of Amarin any such Amarin Intellectual Property
to the extent that the same may not be, and until the same is, vested
absolutely in Amarin; and
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4.4.2
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assign
to Amarin (or as Amarin shall direct) all right, title and interest in and
to all Amarin Intellectual Property and further agrees to execute all such
documents, make such applications, give such assistance and do such acts
and things as may be necessary or desirable to vest in and register or
obtain letters patent in the name of Amarin and otherwise to protect and
maintain such Amarin Intellectual
Property.
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4.5
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The
Consultant irrevocably appoints Amarin to be his attorney or agent in its
name and on its behalf to do all such acts and things and to sign all such
deeds and documents as may be necessary in order to give Amarin the full
benefit of the provisions of this Agreement and, in particular but without
limitation of this clause, the Consultant agrees that, with respect to any
third party, a certificate signed by any duly authorised officer of Amarin
that any act or thing or deed or document falls within the authority
hereby conferred shall be conclusive evidence that this is the
case.
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4.6
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The
Consultant hereby assigns to Amarin by way of future assignment of
copyright the copyright subsisting in the copyright works and in the
documents generated by the Consultant during the course of, or otherwise
related to, the provision of the
Services.
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4.7
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The
Consultant agrees to promptly disclose to Amarin any Amarin Data and
Amarin Intellectual Property conceived, developed, produced, or created as
a result of performing the Services hereunder and to provide copies of all
documents relating to same to Amarin at its request at any time whether
during or after expiry or the termination for any reason of this
Agreement.
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4.7
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Reports and Record
Retention
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4.7.1
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The
Consultant will provide reports in writing (each a “Report”) on a regular
basis.
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4.7.2
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If
for any reason any Report is not to the satisfaction of Amarin acting
reasonably, the Consultant shall reproduce such Report to the satisfaction
of Amarin.
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4.7.3
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The
Consultant shall not disclose or publish any Report prepared for Amarin,
or use the Reports for any purpose other than to perform its obligations
hereunder, without the prior written consent of
Amarin.
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4.7.4
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In
consideration of the Fee described in Clause 2, the Consultant hereby
irrevocably assigns all copyright in the Reports to
Amarin.
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4.8
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The
Consultant shall maintain all books, records, data, reports, pictures and
other documents (both in electronic and paper form) relating to the
Services (the “Records”) for the
maximum period required by law (the “Retention
Period”). The Parties agree that all Records shall
constitute Amarin Confidential Information and the provisions of Clause 3
(Confidentiality) shall apply to all such Records. Upon expiry
of the Retention Period, the Consultant shall provide all original Records
(both in electronic and paper form), and all copies thereof, to
Amarin.
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5. TERM
AND TERMINATION
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5.1
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This
Agreement shall be effective from the date of last signature of this
Agreement (the “Effective
Date”) and shall remain in force until terminated in accordance
with the terms of this Agreement.
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5.2
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Either
party shall be entitled forthwith to terminate this Agreement by notice in
writing to the other if:
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5.2.1
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that
other party commits any material breach of any of the provisions of this
Agreement and, in the case where the breach is capable of remedy, fails to
remedy the same within
fourteen
(14) days of receipt of notice from the party seeking to terminate,
specifying the breach and requiring it to be remedied;
or
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5.2.2
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the
other party makes an arrangement with its creditors or is adjudged
insolvent, bankrupt or goes into liquidation (other than for the purposes
of a bona fide reconstruction) or has a receiver appointed over most of
the other party’s property or assets or any event analogous to the
foregoing occurs in relation to the other party in any relevant
jurisdiction outside England.
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5.3
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Each
of the parties may on the giving of 30 days prior written notice terminate
this Agreement.
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6. NATURE
OF RELATIONSHIP
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6.1
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The
parties agree that the Consultant is acting as an independent contractor
to Amarin for all purposes, including without limitation for U.S. Federal
(including social security and unemployment), state and local tax
purposes, with regard to the performance of the Services hereunder and
that there is no contract of employment or partnership between the
parties.
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6.2
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The
parties agree that the Consultant’s Representative is not, and will not
become, an employee of the Company.
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6.3
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The
Consultant shall not, and shall procure that its servants and agents
including without limitation the Consultant’s Representative shall not,
without Amarin’s express prior written authority, make representations to
third parties about Amarin’s business or enter into binding obligations
with third parties on Amarin’s behalf, nor will they hold themselves out
as having authority to do so.
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6.4
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The
Consultant shall be solely responsible for paying when due all Federal,
state and local income tax, self-employment or other tax obligations
arising in connection with its consultancy for
Amarin.
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6.5
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Should
Amarin be required to pay any such tax or payment, the Consultant shall
indemnify Amarin against (and promptly reimburse it for) such tax or
payments, including any interest and penalties with respect thereto.
Should it be determined that any payment hereunder is subject to
withholding of tax under applicable law, all payments to be made hereunder
shall be net of applicable income, employment, social security or other
taxes required to be withheld
therefrom.
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6.6
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Unless
otherwise agreed in writing by the parties, the Consultant’s servants and
agents, including without limitation the Consultant’s Representative,
shall not be entitled to any salary, pension, bonus, or other fringe
benefits from Amarin.
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6.7
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The
indemnity contained in this clause 6 shall remain in full force and effect
notwithstanding termination of this Agreement by either party in any
manner whatsoever.
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7.
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REPRESENTATIONS
AND WARRANTIES
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7.1
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The
Consultant warrants and represents to Amarin
that:
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7.1.1
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the
Consultant is not currently retained by a third party to provide services
in relation to products which compete with Amarin’s products and
undertakes to promptly inform Amarin in the event that it proposes to
commence the provision of such
services;
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7.1.2
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the
performance of the Consultant’s obligations hereunder are not inconsistent
with and/or will not breach any third party obligations whether express or
implied;
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7.1.3
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the
Consultant’s Representative is sufficiently competent and has appropriate
professional skills and qualifications in order to perform the
Services;
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7.1.4
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the
Consultant will supply the Services in good faith, with reasonable care
and skill, in accordance with the terms of this Agreement and all
applicable laws regulations and guidelines, and in accordance with the
reasonable instructions of Amarin;
and
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7.1.5
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the
Consultant has agreements in place with all servants and agents, including
without limitation the Consultant’s Representative, that impose
confidentiality obligations on such servants and agents, effectively vest
in Consultant any rights such servants and agents might otherwise have in
any Intellectual Property, permit Consultant to assign all such rights to
Amarin, and otherwise enable Consultant to comply with the terms of this
Agreement.
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8. INDEMNITY
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8.1
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Consultant
shall indemnify and hold harmless Amarin and its Affiliates and their
respective employees, agents, officers and directors from and against any
all and any claims (whether successful or otherwise), loss, liability,
damages and expenses, including reasonable attorneys’ fees and expenses
and legal costs incurred or sustained by Amarin arising out of or in
connection with any:
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8.1.1
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breach
of any representation, covenant, warranty or obligation by the Consultant
or the Consultant’s Representative hereunder;
or
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8.1.2
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negligent
or wilful act or omission or failure to comply with applicable laws and
regulations on the part of the Consultant, the Consultant’s Representative
or any of its other employees, agents, officers and directors in the
performance of this Agreement.
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9. MISCELLANEOUS
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9.1
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No
variation to the terms of this Agreement shall be effective unless in
writing and signed on behalf of each party by an authorised
person.
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9.2
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The
Consultant may not assign, transfer or sub-contract all or any of his
rights and obligations under this
Agreement.
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9.3
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The
Schedules to this Agreement form part of and shall be deemed to be
incorporated into this Agreement.
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9.4
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This
Agreement contains the whole agreement between the parties and supersedes
all previous agreements and understandings between the parties with
respect to the subject matter of this
Agreement.
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9.5
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This
Agreement and the obligations of the parties shall be governed by and
construed in accordance with the laws of England and subject to the
exclusive jurisdiction of the English
courts.
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9.6
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No
waiver of any right under this Agreement shall be deemed effective unless
contained in a written document signed by the party charged with such
waiver, and no waiver of any breach or failure to perform shall be deemed
to be a waiver of any future breach or failure to perform or of any other
right arising under this Agreement.
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9.7
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Neither
party to this Agreement shall be liable for delay or failure in the
performance of any of its obligations hereunder to the extent such delay
or failure results from causes beyond its reasonable control,
including, without limitation, acts of God, fires, strikes, acts of war,
or intervention of a government authority, non-availability of raw
materials, but any such delay or failure shall be remedied by such party
as soon as practicable.
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9.8
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If
any provision in this Agreement is agreed by the parties to be, or is
deemed to be, or becomes invalid, illegal, void or unenforceable under any
law that is applicable hereto:
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9.8.1
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such
provision will be deemed amended to conform to applicable laws so as to be
valid and enforceable or, if it cannot be so amended without materially
altering the intention of the parties, it will be deleted, with effect
from the date of such agreement or such earlier date as the parties may
agree; and
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9.8.2
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the
validity, legality and enforceability of the remaining provisions of this
Agreement shall not be impaired or affected in any
way.
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9.9
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The
provisions of Clauses 3, 4, 6, 8, 9.5 and 9.9 shall survive the
termination for any reason of this
Agreement.
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Signed
by
_____________________________________
for and
on behalf of
AMARIN
NEUROSCIENCE LIMITED
_____________________________________
Date
_____________________________________
Signed
by
_____________________________________
for and
on behalf of
DECISIONABILITY
LLC
_____________________________________
Date
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SCHEDULE
1
THE
SERVICES
The
Consultant shall perform the following services on behalf of
Amarin:
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To
provide detailed strategic portfolio assessment and
review;
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To
provide strategic project input into Amarin’s combinatorial lipid
programme.
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