This Consulting Services Agreement involves
Title: CONSULTING AGREEMENT
Industry: Biotechnology and Drugs Sector: Healthcare
This Consulting Agreement (" Agreement "), effective as of 8:00 am on May 18, 2016 (" Effective Date "), is made by and between Emergent BioSolutions Inc. (" Emergent "), having its principal office at 400 Professional Drive, Suite 400, Gaithersburg, Maryland 20879, and John E. Niederhuber, M.D. (" Consultant "), having his principal office at **** ********** *****, *******, ** *****. Emergent and Consultant are hereinafter referred to individually as " Party " or collectively as the " Parties ". The Parties hereby agree as follows:
WHEREAS, Emergent plans to spin-off its biosciences business (the " Spin-off ") to create a separate, independent public company to be named Aptevo Therapeutics Inc. (" Aptevo ").
WHEREAS, it is anticipated that Consultant will cease to be a member of the Emergent board of directors prior to Emergent's 2016 annual meeting of shareholders and will become a member of the Aptevo board of directors upon the effectiveness of the Spin-off.
WHEREAS, Emergent desires to retain the services of Consultant to provide evaluative services, expert advice and guidance, general strategy recommendations, and other similar assistance regarding industry products, technology platforms, and research and development programs as may be reasonably requested from time to time by the Scientific Review Committee of the Emergent Board of Directors.
WHEREAS, it is further desired that the Consultant be able to maintain the status of "independent director" (as defined by the rules of the NASDAQ Stock Market LLC) of Aptevo, notwithstanding this Agreement.
NOW, THEREFORE, in consideration of the foregoing and subject to the covenants and conditions set forth herein, the Parties agree as follows:
1. Services; Orders. Beginning on the Effective Date, Consultant agrees to perform certain services (" Services ") for Emergent as mutually agreed from time to time in a fully-executed work order or purchase order (each, an " Order "), substantially similar to the form attached hereto as Exhibit A . Each Order shall identify the Services to be performed, the person(s) providing Services, applicable milestones and deliverables, and the fees and maximum compensation. If Consultant is requested or required to perform work beyond the Services necessarily contemplated by or specifically set forth in an applicable Order, any such additional work and an appropriate adjustment to amounts payable shall be negotiated in good faith and mutually agreed upon in writing prior to the performance thereof. If any Affiliate of Emergent enters into an Order with Consultant, for purposes of such Order and this Agreement "Emergent" shall mean and refer to such Affiliate, and "Parties" shall mean and refer to such Affiliate and Consultant. " Affiliate " shall mean any direct or indirect, current or future subsidiary of a Party, or any other entity controlled by, under common control with, or which controls such Party. " Control " shall mean direct or indirect possession of at least fifty percent (50%) of another entity's voting equity (or other comparable interest for a non-corporation), or the power to direct or cause the direction of the management or policies of such entity whether through ownership of securities, by contract or otherwise. Unless otherwise explicitly noted in an Order, this Agreement supersedes any provision of any Order or other document that is inconsistent with this Agreement. " Representatives " shall mean the members, principals, directors, shareholders, officers, employees, agents, Affiliates and advisors of a Party.
2. Federally-funded Services. In the event that Emergent uses a Federal grant or contract as the source of funding for any Services, Emergent shall notify Consultant and may require, as a condition of such grant or contract and for continued eligibility for such federal funding, that the Parties comply with additional contract provisions, including certain clauses of the Federal Acquisitions Regulation, agency supplements, policy directives or other terms and conditions (" Flowdown Provisions "). Emergent shall have the right to include applicable Flowdown Provisions in the relevant Order, and Consultant shall comply with such Flowdown Provisions. If Flowdown Provisions require Emergent to submit detailed and certified cost or pricing data for Consultant's performance of Services, Consultant shall promptly provide and certify such non-proprietary data as is reasonably required to permit Emergent to comply with the Flowdown Provisions. Consultant shall also provide any other cost or pricing data as is required for Consultant to comply with the Flowdown Provisions. Notwithstanding any indemnification provision(s) of this Agreement to the contrary, unless otherwise specified in the applicable Order, Consultant shall indemnify and hold harmless Emergent for any cost or price reduction effected by the Federal Government, to the extent caused by (a) certified cost or pricing data submitted by Consultant or its permitted subcontractors that is not accurate, current or complete as certified by Consultant, or (b) the failure of Consultant or its permitted subcontractors to disclose and consistently follow applicable cost accounting practices and standards or otherwise comply with the Flowdown Provisions (including any regulations promulgated by the Cost Accounting Standards Board).
3. Performance Standards. Services shall be provided in accordance with the terms of this Agreement, specific requirements of the Order, and best industry standards applicable thereto. Consultant shall have the right to control and determine the time, place, methods, manner and means of performing the Services. In performing the Services, the amount of time devoted by Consultant on any given day will be entirely within Consultant's control, and Emergent will rely on Consultant to put in the amount of time as is necessary to satisfactorily provide the Services. Consultant shall (a) provide the facilities and supplies necessary to perform Services unless otherwise specified in an applicable Order, (b) report to the authorized contact(s) identified in the applicable Order or such other person(s) as Emergent or its Affiliates may designate from time to time in writing, (c) provide Emergent with deliverables and reports described in the applicable Order or such other reports as Emergent or its Affiliates may from time to time request, and (d) not subcontract with or otherwise engage or consult any third party to provide Services or any part thereof without Emergent's prior written consent.
4. Payment. Emergent shall compensate Consultant for Services rendered based on invoices submitted by Consultant under the applicable Order and in accordance with the terms of this Agreement and any Order. All invoices shall reference the Emergent Accounting Codes designated in the applicable Order. Invoices shall be payable within forty-five (45) days of receipt by Emergent. Payment of an invoice shall be in full compensation for the corresponding Services performed unless expressly otherwise agreed in writing by the Parties. Consultant shall not receive employee benefits (such as paid vacation, sick leave or any insurance benefits) from Emergent even if Consultant is physically situated at Emergent's offices. Consultant shall be fully responsible for payment of all income taxes, social security taxes, and for any other taxes or payment which may be due and owing by Consultant as the result of fees or amounts paid to Consultant by Emergent under this Agreement, and Consultant shall indemnify and hold harmless Emergent from and against any such tax or payment.
5. Expenses. Unless otherwise set forth in an applicable Order, Emergent shall reimburse Consultant for out-of-pocket expenses reasonably incurred in the performance of Services in addition to the compensation detailed in the applicable Order. Consultant shall submit monthly invoices detailing and categorizing expenses incurred during the immediately preceding month and shall provide supporting documentation as reasonably required by Emergent. Expenses shall not be marked up. Unless otherwise provided in the applicable Order, all travel must be in accordance with Emergent's policy, including, but not limited to, Emergent's Corporate Travel, Food and Lodging Policy. This Agreement relates to the provision of Services only, and Consultant shall not purchase equipment, goods, software or other tangible or intangible property for which it will seek reimbursement from Emergent without Emergent's express, prior written authorization.
6. Confidential Information. Consultant acknowledges that this Agreement creates a confidential relationship between the Parties, and that, in order to perform the Services, Consultant or its employees may need to have access to certain commercially valuable, proprietary, and non-public information that Emergent considers to be Confidential Information (" Confidential Information ") means any and all written, oral, electronic, graphic or other information relating directly or indirectly to Emergent, or its Affiliates, or the business, products, markets, customers, suppliers, condition (financial or otherwise), operations, assets, liabilities, results of operations, cash flows or prospects of Emergent or its Affiliates that is delivered, disclosed or furnished by or on behalf of Emergent or its Affiliates to Consultant or its Representatives whether before, on or after the Effective Date hereof, or which Consultant or its Representatives otherwise learns or obtains, through observation or through analysis of such information, and shall also be deemed to include all notes, analyses, compilations, studies, forecasts, interpretations or other documents prepared by Consultant or its Representatives to the extent such material contains, reflects or is directly based upon, in whole or in part, such information. Confidential Information may include, without limitation, technical information, business plans, identification or characterization of biological or other materials, results and/or design of experiments or preclinical or clinical testing, know-how, trade secrets, methods, methodologies, designs, specifications, clinical protocols, data, inventions, improvements, intellectual properties, devices, processes, procedures, financial analysis, accounting policies and procedures, employee staffing, employee compensation and benefits, manuals and marketing and advertising strategies disclosed directly or indirectly by Emergent or its Affiliates to Consultant (whether prepared by Emergent or its Representatives). The existence, terms and conditions of this Agreement, any Work Product (as defined below), and any communications related to the Services shall also be considered Confidential Information. Consultant agrees to keep confidential and not, without the prior written consent of Emergent, publish, disclose to any third party or use (except for purposes of performance under this Agreement) any Confidential Information. The obligations of this paragraph do not pertain to information which is generally known or hereafter becomes generally known to the public through no fault of Consultant. Consultant shall promptly return all Confidential Information (including any copies thereof) to Emergent upon completion of the Term (as defined below) or upon Emergent's request. Consultant shall be entitled to disclose Confidential Information as required by applicable law, regulation or court order only to the extent necessary to comply therewith; provided, however , Consultant shall provide Emergent an opportunity to seek to prevent disclosure of, or to obtain a protective order for, such Confidential Information by giving advance written notice of such required disclosure; provided further , that Consultant shall make such required disclosures in consultation with Emergent and shall cooperate with Emergent in connection with efforts to obtain any protective order or other remedy.
7. Ownership of Work Product. The Parties recognize that it is unlikely that Consultant will develop any inventions during the Term. However, it is expected that Consultant will prepare documents and information on behalf of Emergent, and it is expected that Consultant will work closely with scientific staff. Consequently, and for removal of any doubt, Consultant shall promptly disclose to Emergent in writing all data, information, documents, know-how, materials and inventions relating to or arising out of Services (" Work Product "), and agrees that all right, title, and interest in and to the Work Product shall belong to and be the property of Emergent. Consultant does hereby assign, transfer, and convey to Emergent and its successors and assigns all its rights, title and interest in and to the Work Product and shall promptly do and ensure that its Representatives do all acts and sign all documents necessary to perfect Emergent's rights, title, and interest in and to such Work Product as shall be requested by Emergent (at Emergent's expense). All documents and materials prepared by Consultant in the performance of Services constitute works-for-hire and shall belong to and be the exclusive property of Emergent, and shall be surrendered by Consultant to Emergent upon request.
8. Independent Contractor. With re