Exhibit 10.1

CONSULTING SERVICES AGREEMENT BETWEEN 


SAVIENT PHARMACEUTICALS, INC. 


AND 


Lee S. Simon, MD 

 


THIS CONSULTING SERVICES AGREEMENT (hereinafter referred to
as the “Agreement”) effective as of the 22nd day of January, 2009
by and between Savient Pharmaceuticals, Inc., a corporation organized under the
laws of the State of Delaware with a place of business at One Tower Center, East
Brunswick, New Jersey 08816 (hereinafter referred to as “Company”),
and Lee S. Simon, MD (hereinafter
referred to as “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: 

	1.       	PROVISION
            OF SERVICES        - Consultant shall provide to Company, at the direction and under the
        supervision of the Company’s
      Board of Directors, and in cooperation with the Officers and employees
    of the Company, the following services: 

	 	 	 	 
	 	(a)        	To the
          extent reasonably required in the conduct of the business of Company,
          to place at the disposal of Company Consultant’s
      judgment and professional expertise in the field of rheumatology, as
      well as clinical, medical and regulatory affairs (the “Field”),
      and in rendering advice and consulting services to the Company, including,
    but not limited to: 

	 	 	 	 
	 	 	(i)       	The day-to-day management
          of the Company’s Medical
      Affairs and Regulatory Affairs operations with respect to all matters
      relating to the Biologics Licensing Application (“BLA”) for
      pegloticase which is pending before the US Food and Drug Administration
    (“FDA”); 

	 	 	(ii)	 Acting in the capacity of the Chair of the Board
    of Directors BLA Oversight Committee; 

	 	 	(iii)	 In conjunction
          with the Company’s President,
      provide clinical, medical and regulatory affairs oversight of the strategic
      review process being conducted by the Company with the assistance of
    its investment bankers, Lazard; 

	 	 	(iv)	In conjunction with
          the Company’s President,
      provide clinical, medical and regulatory affairs oversight of aspects
    of 



 










 

	          	 	
	the Company’s
    investor relations program relating the pegloticase BLA; and 

	 	 	(v)       	other related services
          deemed necessary and requested by the Company’s Board of Directors (collectively,
    the “Services”). 

	 	 	 	 
	 	(b)        	 Consultant
      shall not assign any obligations hereunder or retain other third parties
      for the performance of the Services without the prior written consent
    of Company. 

	 	 	 
	2.       	 COMPENSATION 

	 	 	 	 
	 	(a)        	 (i)
      Company agrees and shall compensate Consultant in consideration of
      Consultant’s performance of the Services hereunder by paying Consultant
      the aggregate sum of $500,000, payable in eleven (11) equal
        installments of $45,454.54, the first such payment being due and
        payable on February 27, 2009, with the remaining payments being due
        and payable on the last business day of each calendar month through
        December 31, 2009. 

	 	 	

	 	 	(ii)
          Consultant shall devote all business time, energies, attention, skill
          and effort necessary for the accomplishment of the objectives set by
          the Company’s Board
      of Directors relating to the Services. Services may be rendered by Consultant
      in person at the Company’s offices or remotely from Consultant’s
    office. 

	 	 	

	 	(b)        	In addition
          to the compensation set forth in paragraph 2(a)(i) above, the Company
          agrees to 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. 

	 	 	

	 	(c)        	Consultant
          shall submit Invoices to the Accounts Payable department of the Company
          for the unbilled amount of out-of-pocket expenses incurred by Consultant
          for the prior period for which Consultant seeks reimbursement. Such
          Invoices shall be payable within thirty (30) days of receipt. Consultant
          shall provide Company with supporting receipts and documentation for
          any out-of-pocket expenses which individually exceed $25 as an
          attachment to the billing statement. The
        Consultant shall be responsible for all taxes owing to any and all governmental
    agencies that may result 



 


2









	 	 	due to the existence of this
    Agreement and the remuneration for the Services provided hereunder. 

	 	 
	3.       	TERM & TERMINATION

	 	 	 
	 	(a)        	 This
          Agreement shall enter into force and effect at the date first written
          above and shall remain in force and effect for the period ending on
          the earlier of (i) the first pass approval
          of the pegloticase BLA by
          the FDA, (ii) the completion of the strategic review process with the
          announcement of a transaction approved by the Company’s Board
          of Directors, or (iii) December 31, 2009. In the event that this Agreement
          terminates prior to December 31, 2009 for a reason specified in clause
          (i) or (ii) of the preceding sentence, the full amount of the consulting
          compensation specified in paragraph 2(a)(i) shall be deemed earned
          by Consultant in full, provided, however, the monthly payments specified
          herein shall continue until the full amount of the consulting compensation
          has been paid. 

	 	 	 
	 	(b)        	Notwithstanding
          the foregoing, the Company may terminate this Agreement effective immediately
          upon delivery of written notice to Consultant in the event Consultant
          breaches in any material respect any provision of this Agreement and
          such breach continues uncured for 5 days following written notice of
          such breach by Company. In the event that this Agreement is terminated
          pursuant to this paragraph 3(b), Consultant shall only be entitled
          to payment hereunder and for expenses incurred prior to the effective
          date of termination. 

	 	 	 
	 	(c)	Paragraphs 4, 5,
          6, 7, 8 and 9 of this Agreement shall survive any termination of this
          Agreement. 

	 	 	 
	4.       	CONFIDENTIALITY OF INFORMATION
      AND DOCUMENTS - Company shall submit information and/or documents to
      Consultant in order to permit Consultant to perform the Services required
      under this Agreement and Consultant shall keep such information and/or
      documents in the strictest confidence using the same degree of care that
      Consultant uses in safeguarding Consultant’s own confidential information
      both during and after the completion of the services under this Agreement
      and for a period of ten (10) years after completion of the Services,
      unless Consultant shall receive from Company the consent of Company in
      writing to disclose such confidential information. However, nothing herein
      shall be interpreted as preventing Consultant from disclosing and/or
      using said information or documents which (i) are already rightfully
    in the possession of Consultant 



 

3









	 	without obligation of confidence, but
      were not obtained directly or indirectly from Company or its affiliates;
      or (ii) are independently developed by Consultant not as part of the
      Services rendered or called for under the terms of this
        Agreement and without reliance or use of Company’s confidential
        information or documents; or (iii) are or become available to the general
        public without breach of this Agreement; or (iv) are rightfully received
        by Consultant from a third party who is not under obligation of confidence,
        but who did not obtain them directly or indirectly from Company or its
        affiliates; or (v) are required to be disclosed pursuant to law or court
    order, or as may be authorized by Company. 

	 	 
	5.       	 LIABILITY OF
            CONSULTANT      - In furnishing Company with the Services provided herein, Consultant
      shall comply with all applicable laws, rules and regulations. In addition
      to the foregoing, Consultant agrees to abide by the guidelines contained
      in the most recent version of the Pharmaceutical Research and Manufacturers
      Association (PhRMA) Code on Interactions with Healthcare Professionals.
      Consultant agrees that, if Consultant as of the Effective Date of this
      Agreement and for a period of two (2) years following the termination
      of this Agreement is or becomes a member of a committee that sets formularies
      of covered medicines or which develops clinical practice guidelines
      that may influence the prescribing of medicines, Consultant shall disclose
      to such committee the existence of this Agreement and the nature of
    the relationship between Consultant and Company. 

	 	 
	 	Consultant shall
          not be liable to Company or its creditors for errors of judgment or
          for any matters, except for willful malfeasance, bad faith or gross
          negligence in the performance of the Services or the negligent breach
          of its obligations and duties under the terms of this Agreement. It
          is further agreed and understood that Consultant may rely upon information
          furnished to it by Company which Consultant reasonably believes to
          be accurate and reliable and that, except as provided herein, Consultant
          shall not be accountable for any loss suffered by Company by the reason
          of Company’s action
      or non-action on the basis of any advice, recommendation or approval
      of Consultant, its employees, officers, directors or agents, except as
    provided above. 

	 	 
	6.       	PUBLICATIONS - In the event, during the
      term of this Agreement and for a period of five (5) years from the expiration
      or other termination for any reason of this agreement, Consultant wishes
      to publish any scientific, business or other articles or papers related
      to the Services provided to or work with the Company, Consultant will
      submit such proposed articles and papers to the Company for its review
      and possible action to protect its patent rights at least three (3) months
    prior to the proposed publication or 



 


4









	 	disclosure
      date. The Company will review promptly Consultant’s proposed publications.
      If the Company, in its sole discretion, determines that it can do so
      without compromising its present or potential patent rights or competitive
      position, the Company will waive all or a portion of this three-month
      period. The Company further agrees to review portions of proposed publication,
      as Consultant makes such portions available, and to conduct its review
      of such portions in a manner comparable to its review of complete proposed
    publications. 

	 	 
	7.       	INVENTIONS        -
          To the extent Consultant has any invention rights, any invention, discovery,
          improvement or other work product, whether or not patentable, or any
          copyrightable work, which are conceived, made, created, prepared or
          developed during the term of this Agreement: by Consultant, alone or
          with others, (i) which are directly related to any question or problem
        with respect to which the Company has utilized Consultant’s services
        under this agreement, or (ii) which results from Consultant’s knowledge
        of confidential or non-public information received from the Company,
        (hereinafter “Inventions”)
      all such Inventions shall be and remain the sole and exclusive property
      of the Company and Consultant shall retain no rights in or to the same.
      Upon the request by the Company, Consultant will promptly execute all
      applications, assignments or other instruments which the Company deems
      necessary in order to apply for and obtain Letters Patent in the United
      States and foreign countries on any such Invention and in order to assign
      and convey to the Company the sole and exclusive right, title and interest
      in and to said Invention and any patent application or patent based thereon.
      It is understood that the Company will bear the entire cost of preparing
      and filing any such applications in the United States Patent Office and
    in the patent offices of foreign countries. 

	 	 
	8.       	INDEPENDENT
    CONTRACTOR

	 	 	 
	 	(a)        	Execution of this
          Agreement in no way creates, nor shall this Agreement be interpreted
          or construed as creating, an employment, agency, partnership or joint
          venture relationship between Company and Consultant and it is
          understood Consultant will be acting as an independent contractor.
          Neither party shall have the authority to legally bind the other in
          contract, debt or otherwise or to represent itself as an agent, employee
          or in any other capacity of the other. 

	 	 	 
	 	(b)        	 Consultant shall
          not be entitled to any benefits, coverages or privileges, including,
          without limitation, social security, unemployment, medical or pension
          payments, made available to employees of the Company. 



 

5









	 	(c)        	Consultant shall have sole responsibility
      for payment of all federal, state and local taxes or contributions imposed
      or required under unemployment insurance, social security and income
      tax laws and for filing all required tax forms with respect to any amounts
    paid by the Company to Consultant hereunder. 

	 	 	 
	 	(d)        	Notwithstanding any contractual or other
      indemnification rights available to Consultant in his capacity as a director
      of the Company, Consultant shall indemnify and hold the Company harmless
      against any claim or liability of any kind (including penalties, fees
      or charges of any kind whatsoever) resulting from failure by Consultant
    to pay taxes as described in paragraph 8(c). 

	 	 	 
	 	(e)	For purposes of
          the indemnification provisions in each of the Company’s By-Laws
          and the Indemnity Agreement dated May 23, 2006
        between Company and Consultant (the “Indemnity Agreement”),
        Company and Consultant agree that Consultant shall be an “agent” of
        the Company for purposes of providing the Services pursuant to the terms
        of this Agreement. Company and Consultant agree that this Agreement shall
        not supersede any the Indemnity Agreement or any other indemnification
    agreement previously signed by the parties hereto. 

	 	 
	9.       	 MISCELLANEOUS

	 	 	 
	 	(a)        	 Nothing contained
          herein shall be deemed to require Company to take any action contrary
          to its Certificate of Incorporation or By-Laws, or any applicable
          statute or regulation, or to deprive its Board of Directors of their
          responsibility for any control of the conduct or the affairs of Company. 

	 	 	 
	 	(b)        	 The failure by
          Consultant to perform any services under this Agreement within the
          time-frame or to the specifications provided by Company due to (a)
          acts of God or the public enemy, fire, explosion, sabotage, flood,
          drought, war, riot, accident or embargo; (b) inadequacy or shortage
          or failure of normal sources of supply of materials, energy or equipment;
          (c) strikes or labor strike; (d) compliance by Consultant with any
          law, rule, regulation, order or action, of any governmental department,
          agency or authority; or (e) for any other cause or reason beyond the
          reasonable control of Consultant shall not constitute a breach of this
          Agreement or Consultant’s duties and obligations under this Agreement. 



 

6











 

	 	(c)        	This Agreement shall
          constitute the entire agreement between Company and Consultant relating
          to the Services to be performed, and no representations, promises,
          understandings, or agreements, oral or otherwise, not herein contained
          shall be of any force or effect. No modification or waiver of any provision
          of this Agreement shall be valid unless it is in writing and signed
          by both Company and Consultant. This Agreement shall be binding upon
          the heirs, executors, administrators, successors and assigns of the
          parties hereto.

	 	 	 
	 	(d)        	 Consultant warrants
          that Consultant is not now, nor has ever been, debarred or suspended
          by any agency of the government, or is excluded from participating
          any Federal healthcare program, or has received notice of intent to
          seek such action. Consultant further warrants that it shall not permit
          any person who is or has been debarred from performing any Services
          pursuant to this Agreement.

	 	 	 
	 	(e)	 This Agreement
          is not assignable by Consultant or Company without the prior written
          consent of the other party, which consent shall not be unreasonably
          withheld or delayed. 

	 	 
	          	(f)        	 This Agreement
          shall be governed by, and construed in accordance with, the laws of
          the State of New Jersey. 

	 	 	 
	 	(g)        	 Any notices required
          to be given hereunder, shall be sent to each respective party at the
          addresses first given above, addressed to the President of each entity,
          and shall be effective upon receipt by the addressee.




[the next page is the signature page]


 

 

 

 

7












  IN WITNESS WHEREOF, the parties hereto, by their
  duly authorized representatives, have signed this Agreement as of the date
first above written. 

	
Savient Pharmaceuticals, Inc.  	   	
Lee S. Simon, MD  
	  	 	 
	By:		                     	By:	        
	 	Stephen O. Jaeger	 	 	      Lee S. Simon, MD                             
	 	Chairman	 	 	 





  




 

 

 

 

 

 

 

 

 

 

8