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Transition Services Agreement By And Between Emergent Biosolutions Inc. And Aptevo Therapeutics Inc. Dated As Of July 29, 2016

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APTEVO THERAPEUTICS INC. | Aptevo Therapeutics Inc | EMERGENT BIOSOLUTIONS INC | Emergent Services Manager, Aptevo Services Manager, Emergent Local Services Manager and Aptevo Local Services

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Title: TRANSITION SERVICES AGREEMENT BY AND BETWEEN EMERGENT BIOSOLUTIONS INC. AND APTEVO THERAPEUTICS INC. DATED AS OF JULY 29, 2016
Governing Law: Delaware     Date: 8/2/2016

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Exhibit 10.2

 

TRANSITION SERVICES AGREEMENT

BY AND BETWEEN

EMERGENT BIOSOLUTIONS INC.

AND

APTEVO THERAPEUTICS INC.

DATED AS OF JULY 29, 2016

 

 

 

 


 

TABLE OF CONTENTS

 

Page

 

ARTICLE I DEFINITIONS

1

 

 

ARTICLE II SERVICES, DURATION AND SERVICES MANAGERS

3

 

 

Section

2.01.

Services

3

 

 

 

 

Section

2.02.

Duration of Services

3

 

 

 

 

Section

2.03.

Services Not Included

3

 

 

 

 

Section

2.04.

Additional Services

3

 

 

 

 

Section

2.05.

Personnel

4

 

 

 

 

ARTICLE III ADDITIONAL ARRANGEMENTS

5

 

 

Section

3.01.

Software and Software Licenses

5

 

 

 

 

Section

3.02.

Computer-Based and Other Resources

6

 

 

 

 

Section

3.03.

Connectivity to Host Systems

6

 

 

 

 

Section

3.04.

Access to Facilities

6

 

 

 

 

Section

3.05.

Cooperation

7

 

 

 

 

Section

3.06.

License Grants

7

 

 

 

 

Section

3.07.

Data Protection

7

 

 

 

 

ARTICLE IV COSTS AND DISBURSEMENTS

7

 

 

Section

4.01.

Costs and Disbursements

7

 

 

 

 

Section

4.02.

Tax Matters

9

 

 

 

 

ARTICLE V STANDARD FOR SERVICE

10

 

 

Section

5.01.

Standard for Service

10

 

 

 

 

Section

5.02.

Disclaimer of Warranties

11

 

 

 

 

Section

5.03.

Compliance with Laws and Regulations

11

 

 

 

 

ARTICLE VI REPRESENTATIONS; LIMITED LIABILITY AND INDEMNIFICATION

11

 

 

Section

6.01.

Representations

11

 

 

 

 

Section

6.02.

Consequential and Other Damages

11

 

 

 

 

Section

6.03.

Limitation of Liability

12

 

 

 

 

Section

6.04.

Obligation To Reperform; Liabilities

12

 

 

 

 

Section

6.05.

Release and Recipient Indemnity

12

i


 

 

 

 

 

Section

6.06.

Provider Indemnity

12

 

 

 

 

Section

6.07.

Indemnification Procedures

13

 

 

 

 

Section

6.08.

Liability for Payment Obligations

13

 

 

 

 

Section

6.09.

Exclusion of Other Remedies

13

 

 

 

 

Section

6.10.

Confirmation

13

 

 

 

 

ARTICLE VII TERM AND TERMINATION

13

 

 

Section

7.01.

Term and Termination

13

 

 

 

 

Section

7.02.

Effect of Termination

14

 

 

 

 

Section

7.03.

Force Majeure

14

 

 

 

 

ARTICLE VIII DISPUTE RESOLUTION; SERVICES MANAGERS

15

 

 

Section

8.01.

Disputes

15

 

 

 

 

Section

8.02.

Negotiation and Mediation

15

 

 

 

 

Section

8.03.

Arbitration

16

 

 

 

 

Section

8.04.

Interim Relief

17

 

 

 

 

Section

8.05.

Remedies

17

 

 

 

 

Section

8.06.

Expenses

17

 

 

 

 

Section

8.07.

Continuation of Services and Commitments

17

 

 

 

 

Section

8.08.

Transition Services Managers

17

 

 

 

 

ARTICLE IX GENERAL PROVISIONS

18

 

 

Section

9.01.

Provisions from the SDA

18

 

 

 

 

Section

9.02.

No Agency

18

 

 

 

 

Section

9.03.

Treatment of Confidential Information

18

 

 

 

 

Section

9.04.

Further Assurances

18

 

 

 

 

Section

9.05.

Dispute Resolution

19

 

 

 

 

Section

9.06.

Notices

19

 

 

 

 

Section

9.07.

Entire Agreement

19

 

 

 

 

Section

9.08.

No Third-Party Beneficiaries

19

 

 

 

 

Section

9.09.

Interpretation

19

 

 

 

 

Section

9.10.

Assignability

20

 

 

 

 

Section

9.11.

Non-Recourse

21

 

 

 

 

Section

9.12.

Expenses

21

 

ii


 

Schedules & Exhibits :

 

Exhibit :

Exhibit A

Services Managers

Exhibit B

Quality Agreement

 

 

Schedule :

 

Schedule A-1

Analytical/Bioanalytical Services

Schedule A-2

Alzheimer’s Research and Development

Schedule A-3

Clinical Research

Schedule A-4

Clinical Data Management and Biostatistics

Schedule A-5

Distribution of WinRho in Uruguay

Schedule A-6

Finance

Schedule A-7

IT

Schedule A-8

Medical Affairs

Schedule A-9

Pharmacovigilance

Schedule A-10

Product Development (IXINITY)

Schedule A-11

Project Management (IXINITY)

Schedule A-12

Quality Assurance

Schedule A-13

Regulatory Affairs

Schedule A-14

Sales, Marketing and Supply Chain

Schedule B

Service Charges

Schedule C

Annual Services Work Hours Cap

 

 

 

iii


 

TRANSITION SERVICES AGREEMENT

This TRANSITION SERVICES AGREEMENT, dated as of July 29, 2016 (this “ Agreement ”), is entered into by and between Emergent BioSolutions Inc., a Delaware corporation (“ Emergent ”), and Aptevo Therapeutics Inc., a Delaware corporation (“ Aptevo ”).  Unless otherwise defined in this Agreement, all capitalized terms used in this Agreement shall have the meaning set forth in the Separation and Distribution Agreement, dated as of the date hereof, by and between Emergent and Aptevo (as amended, modified or supplemented from time to time in accordance with its terms, the “ SDA ”).

RECITALS

WHEREAS, the board of directors of Emergent has determined that it is in the best interests of Emergent and its shareholders that the Aptevo Business be operated by a newly incorporated publicly traded company;

WHEREAS, Emergent and Aptevo have entered into the SDA;

WHEREAS, in order to facilitate and provide for an orderly transition under the SDA, the Parties (as defined herein) desire to enter into this Agreement to set forth the terms and conditions pursuant to which members of the Emergent Group shall provide to members of the Aptevo Group the Services (as defined herein) for a transitional period; and

WHEREAS, the SDA requires execution and delivery of this Agreement by Emergent and Aptevo on or prior to the Distribution Date.

NOW, THEREFORE, in consideration of the foregoing and the mutual agreements contained in this Agreement, the Parties, intending to be legally bound, hereby agree as follows:

ARTICLE I
DEFINITIONS

The following capitalized terms used in this Agreement shall have the meanings set forth below:

Agreement ” shall have the meaning set forth in the Preamble .

Additional Services ” shall have the meaning set forth in Section 2.04 .

Aptevo ” shall have the meaning set forth in the Preamble .

Aptevo Local Service Manager ” shall have the meaning set forth in Section 8.08(b) .

Aptevo Services Manager ” shall have the meaning set forth in Section 8.08(b) .

Code ” shall mean the Internal Revenue Code of 1986, as amended.

Emergent ” shall have the meaning set forth in the Preamble .

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Emergent Local Service Manager ” shall have the meaning set forth in Section 8.08(a) .

Emergent Services Manager ” shall have the meaning set forth in Section 8.08(a) .

FATCA ” shall mean Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version thereof or any similar non-U.S. law), any current or future regulations or official interpretations thereof (including any Revenue Ruling, Revenue Procedure, Notice or similar guidance issued by the IRS thereunder as a precondition to relief or exemption from taxes under such provisions), and any intergovernmental agreements and any agreements entered into pursuant to Section 1471(b) of the Code.

Interest Payment ” shall have the meaning set forth in Section 4.01(d) .

Party ” shall mean Emergent and Aptevo individually, and “ Parties ” means Emergent and Aptevo collectively, and, in each case, their permitted successors and assigns.

Provider ” shall mean any member of the Emergent Group providing (or causing to be provided) a Service under this Agreement.

Provider Host Systems ” shall mean the information technology systems and platforms of the Provider.

Provider Indemnified Party ” shall have the meaning set forth in Section 6.05 .

Provider Individual User ” shall mean those employees and contractors of the Provider who have a need to access the Recipient Host Systems in order to provide the Services.

Quality Agreement ” shall mean the Quality Agreement by and between Aptevo and Emergent attached hereto as Exhibit B .

Recipient ” shall mean any member of the Aptevo Group to whom a Service under this Agreement is being provided.

Recipient Host Systems ” shall mean the information technology systems and platforms of the Recipient.

Recipient Indemnified Party ” shall have the meaning set forth in Section 6.06 .

Recipient Individual User ” shall mean those employees and contractors of the Recipient who have a need to access the Provider Host Systems in order to receive the Services.

Reimbursement Charges ” shall have the meaning set forth in Section 4.01(c) .

Schedule(s) ” shall have the meaning set forth in Section 2.01 .

SDA ” shall have the meaning set forth in the Preamble .

Service Charges ” shall have the meaning set forth in Section 4.01(a) .

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Services ” shall have the meaning set forth in Section 2.01 .

Tax ” or “ Taxes ” shall have the meaning set forth in the Tax Matters Agreement.

Term ” shall have the meaning set forth in Section 7.01(a) .

Transfer Taxes ” shall have the meaning set forth in Section 4.02(a) .

VAT ” shall have the meaning set forth in Section 4.02(a) .

ARTICLE II
SERVICES, DURATION AND SERVICES MANAGERS

Section 2.01. Services .  Subject to the terms and conditions of this Agreement, Emergent shall use commercially reasonable efforts to provide or cause to be provided to the Recipient the services (the “ Services ”) listed on Schedules A-1 through A-14 (each a “ Schedule ”, and collectively, the “ Schedules ”) in accordance with the terms and conditions of this Agreement. For the avoidance of doubt, Services provided in different regions or countries (as indicated by such Services being listed on different subparts of the Schedules hereto) shall be considered separate Services hereunder, notwithstanding that such Services may be similar in nature. All of the Services shall be for the sole use and benefit of the respective Recipient and the members of its Group. Emergent shall be responsible for all actions and omissions of each Provider under this Agreement, and Aptevo shall be responsible for all actions and omissions of each Recipient under this Agreement. The Quality Agreement shall, together with this Agreement, apply to the provision of any Service solely to the extent such Service relates to quality assurance matters and is within the subject matter of the Quality Agreement. In the event of any conflict or inconsistency between the Quality Agreement and this Agreement solely with respect to quality assurance matters, the Quality Agreement shall control. In the event of any other conflict or inconsistency (including, for the avoidance of doubt, with respect to the respective remedies of the parties with respect to any Service), this Agreement shall control.

Section 2.02. Duration of Services .  Subject to the terms of this Agreement, Emergent shall use commercially reasonable efforts to provide or cause to be provided to the respective Recipient each Service until the earlier to occur of, with respect to each such Service, (a) the expiration of the term for such Service as set forth on the applicable Schedule or (b) the date on which such Service is terminated under Section 7.01(b) .

Section 2.03. Services Not Included .  It is not the intent of the Provider to render, nor of the Recipient to receive from the Provider, professional advice or opinions, whether with regard to Tax, legal or intellectual property matters.  The Recipient shall not rely on, or construe, any Service rendered by or on behalf of the Provider as such Tax, legal or intellectual property professional advice or opinions, and the Recipient shall seek all third-party professional advice and opinions with respect to such matters.  The Parties expressly agree that no Provider shall have any Liability under any professional code of conduct or other professional standards, duties or responsibilities.

Section 2.04. Additional Services .  During the Term, the Recipient may identify additional services it wishes to receive that are not set forth in the Schedule, provided that such

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services were provided to the Aptevo Business as of the Effective Time and are necessary for its operation as conducted as of the Effective Time, (collectively, the “ Additional Services ”). If the Provider agrees (in its sole discretion) to provide Additional Services, the Parties shall work together in good faith to determine the associated price, terms and conditions with respect to the performance of each Additional Service. Upon written agreement to such terms, such Additional Services shall be deemed Services hereunder and the Parties shall execute a written amendment to the then-current Schedules to reflect such Additional Service.  Notwithstanding the foregoing, the Provider will not have any obligation to agree to provide any Additional Services. 

Section 2.05. Personnel .

(a)The Provider of any Service will have the right, in its sole discretion, to (i) designate which personnel it will assign to perform any Service unless specific personnel are identified as the personnel to be providing the applicable Service in the Schedules and (ii) remove and replace such personnel at any time; provided , however , that, in the event of any such replacement, the Provider shall use commercially reasonable efforts to replace any such personnel with personnel of similar expertise, education, training, qualification and seniority (in each case to the extent such concepts are relevant to the delivery of the applicable Service) and any such removal or replacement shall not relieve the Provider of its obligation to provide any Service hereunder on the timeline set forth in the Schedules; and provided , further , that the Provider will use its commercially reasonable efforts to take such actions as may be reasonably necessary to limit the disruption to the Recipient in the transition of the Services to different personnel.  If the Recipient, in its reasonable discretion and following discussions with the Provider, requests the Provider to remove and/or replace any such personnel from their roles in respect of the Services provided by the Recipient, the Provider shall consider such request in good faith, and if such personnel are removed or replaced pursuant to the Recipient’s request, then the Provider shall be under no obligation to provide the Services previously provided by such personnel. Without limiting the foregoing, the Recipient shall have the right to remove or require the removal of any Provider personnel, agents or representatives from its premises whom the Recipient believes in good faith are in violation of applicable Law, the terms of this Agreement, or the Recipient’s reasonable policies generally applicable to its employees or other service providers and of which the Provider has knowledge based on written copies of such policies previously provided to the Provider by the Recipient.

(b)In the event that the provision of any Service by the Provider requires the cooperation and services of the personnel of the Recipient, the Recipient will use commercially reasonable efforts to make available to the Provider such personnel (who shall be appropriately qualified for purposes of so supporting the provision of such Service by the Provider) as may be necessary for the Provider to provide such Service, provided that nothing in this Agreement shall be construed as an obligation of the Provider or the Recipient to hire, or maintain the employment of, any individuals. If the Provider, in its reasonable discretion and following discussions with the Recipient, requests the Recipient to remove and/or replace any such personnel from their roles in respect of the Services being provided by the Provider, the Recipient shall consider such request in good faith.

(c)No Provider shall be liable under this Agreement for any Liabilities incurred by the Recipient Indemnified Parties that are primarily attributable to, or that are a

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consequence of, any actions or inactions of the personnel of the Recipient, except for any such actions or inactions undertaken pursuant to the written direction of the Provider. 

(d)A Provider may hire or engage one or more subcontractors to perform any or all of its obligations under this Agreement; provided , however , that (i) the Provider shall use the same degree of care in selecting any such subcontractor as it would if such subcontractor was being retained to provide similar services to the Provider and (ii) any contract with a subcontractor pertaining to the provision of any Service by such subcontractor will be consistent with the provisions of this Agreement. Without limitation of the foregoing, the Provider agrees that any subcontract relationship that is evidenced by a written agreement will obligate the subcontractor to provisions regarding standards of service, compliance with applicable Law, inspection, Intellectual Property and confidentiality no less stringent than those contained in this Agreement.  The engagement of any subcontractor in compliance with this Section 2.05(d) will not relieve the Provider of its obligations under this Agreement or any other Ancillary Agreement, including without limitation, with respect to the scope of the Services, the standard for services as set forth in ARTICLE V and the content of the Services provided to the Recipient.

(e)Nothing in this Agreement shall grant any Party, or its employees, agents, third-party providers and other Representatives, the right directly or indirectly to control or direct the employees, business or operations of the other Party or any member of its Group.  The employees, agents, third-party providers and other Representatives of a Party shall not be required to report to the management of the other Party nor be deemed to be under the management or direction of the other Party.  The Recipient acknowledges and agrees that, except as may be expressly set forth herein as a Service or in the Schedules or otherwise expressly set forth in the SDA, another Ancillary Agreement or any other applicable agreement, no Provider or any member of its Group shall be obligated to provide, or cause to be provided, any service or goods to any Recipient or any member of its Group.

ARTICLE III
ADDITIONAL ARRANGEMENTS

Section 3.01. Software and Software Licenses .

(a)If and to the extent requested by the Provider, the Recipient shall use commercially reasonable efforts to assist the Provider in the Provider’s efforts to obtain licenses (or other appropriate rights) to use, duplicate and distribute, as necessary and applicable, certain computer software necessary for the provision of Services and the Recipient shall be responsible for any fees, payments or other Liabilities incurred by or on behalf of the Provider in connection with obtaining any such license or rights to the extent such license or rights relate exclusively to the provision of Services. The Parties acknowledge and agree that there can be no assurance that such efforts will be successful.  In the event that the Provider is unable to obtain such software licenses, the Parties shall work together using commercially reasonable efforts to obtain an alternative software license to allow the Provider to provide the applicable Services, and the Parties shall negotiate in good faith an amendment to the applicable Schedule to reflect any such new arrangement.

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(b)Without limitation of anything in Section 3.01(a) , in the event that there are any costs associated with obtaining software licenses in accordance with Section 3.01(a) , such costs shall be borne by the Recipient. 

Section 3.02. Computer-Based and Other Resources .  From and after the date of this Agreement, each Party and its Affiliates shall cause all of their personnel having access to the computer software, networks, hardware, technology or computer based resources of the other Party pursuant to the SDA, or any Ancillary Agreement, or in connection with performance, receipt or delivery of a Service, to comply with all security guidelines (including physical security, network access, internet security, confidentiality and personal data security guidelines) of such other Party to the extent made known to the first Party.  Each Party shall ensure that the access contemplated by this Section 3.02 shall be used by its personnel only for the purposes contemplated by, and subject to the terms of, this Agreement.  Without limiting the foregoing, subject to the terms and conditions of this Agreement, during the Term, (a) the Recipient shall permit the Provider and authorized Provider Individual Users to access the Recipient Host Systems for the sole purpose of providing the Services in accordance with the terms and conditions expressly stated in this Agreement and (b) the Provider shall permit the Recipient and authorized Recipient Individual Users to access the Provider Host Systems for the sole purpose of receiving the Services in accordance with the terms and conditions expressly stated in this Agreement.  Notwithstanding anything else to the contrary in this Agreement, (x) Emergent shall not permit any party (including contractors) other than Provider Individual Users to access the Recipient Host Systems without Aptevo’s prior written consent, which consent may be withheld in Aptevo’s sole discretion and (y) Aptevo shall not permit any party (including contractors) other than Recipient Individual Users to access the Provider Host Systems without Emergent’s prior written consent, which consent may be withheld in Emergent’s sole discretion .

Section 3.03. Connectivity to Host Systems .

(a)The Provider shall, at its sole expense, provide all equipment and network connectivity necessary for each of its Representatives and each Provider Individual User to connect to the Recipient Host Systems.

(b)The Recipient shall, at its sole expense, provide all equipment and network connectivity necessary for each of its Representatives and each Recipient Individual User to connect to the Provider Host Systems.

Section 3.04. Access to Facilities .  

(a)Subject to Section 2.05(a) , Aptevo shall, and shall cause its Subsidiaries to, allow Emergent and its Representatives reasonable access to the facilities of Aptevo necessary (including if more efficient) for Emergent to provide the Services in accordance with this Agreement.  Such access shall be conditioned on compliance with applicable Laws, the terms of this Agreement, and Aptevo’s reasonable policies generally applicable to its service providers or visitors of which the Provider has knowledge based on written copies of such policies previously provided to the Provider by the Recipient.

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(b)Notwithstanding the other rights of access of the Parties under this Agreement, each Party shall, and shall cause its Subsidiaries to, afford the other Party, its Subsidiaries and Representatives, following not less than ten (10) business days’ prior written notice from the other Party, reasonable access during normal business hours to the facilities, information, systems, infrastructure, and personnel of the relevant Providers as reasonably necessary for the other Party to verify the adequacy of internal controls over information technology, reporting of financial data and related processes employed in connection with the Services, including in connection with verifying compliance with Section 404 of the Sarbanes-Oxley Act of 2002; provided , however , that such access shall not unreasonably interfere with any of the business or operations of such Party or its Subsidiaries.  

(c)Except as otherwise permitted by the other Party in writing, each Party shall permit only its authorized Representatives, contractors, invitees or licensees to access the other Party’s facilities, and shall permit such access only to the extent necessary to perform obligations under this Agreement.

Section 3.05. Cooperation .   It is understood that it will require the significant efforts of both Parties to implement this Agreement and to ensure performance of this Agreement by the Parties at the agreed-upon levels in accordance with all of the terms and conditions of this Agreement.  The Parties will cooperate, acting in good faith and using commercially reasonable efforts, to permit the Provider to provide the relevant Services and to effect a smooth and orderly transition of the Services provided under this Agreement from the Provider to the Recipient; provided , however , that this Section 3.05 shall not require either Party to incur any out-of-pocket costs or expenses exceeding one thousand dollars ($1,000) during any one (1) month period.

Section 3.06. License Grants .  Subject to the terms and conditions of this Agreement, Aptevo hereby grants to Emergent a non-exclusive, non-sublicenseable (except to those other members of the Emergent Group or third-party service providers performing the Services on behalf of Emergent), non-transferable (except in accordance with Section 9.10 ), limited license, to use during the Term the intellectual property that is owned or controlled by Aptevo now or in the future, solely to the extent necessary or reasonably useful for Emergent to perform the Services.

Section 3.07. Data Protection .   The Provider shall only process personal data which it may receive from the Recipient, while carrying out its duties under this Agreement: (a) in such a manner as is necessary to carry out those duties and (b) in accordance with the instructions of the Recipient.

ARTICLE IV
COSTS AND DISBURSEMENTS

Section 4.01. Costs and Disbursements .

(a)Except as otherwise provided in this Agreement, Aptevo shall pay, or cause to be paid, to the Provider of Services the fee for the Services (or category of Services, as applicable) (each fee constituting the “ Service Charge ” and, collectively, “ Service Charges ”) as listed on Schedule B; provided, that, Emergent shall give written notice to Aptevo when, in its

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reasonable business judgment, Emergent believes in good faith that it is likely that Aptevo will request that Services be provided by Emergent during any contract year after the Effective Time exceeding the number of hours in the “Annual Services Work Hours Cap” set forth on Schedule C. Emergent shall neither have any obligation to provide nor have any right to charge for such Services above such Annual Services Work Hours Cap without the prior written consent of Aptevo. With respect to each Service or category of Services, the applicable Schedule shall set forth (i) the Recipient that will be invoiced the Service Charge for such Service or category of Services and (ii) the Provider that will be paid such Service Charge. 

(b)In addition, during the Term, the amount of a Service Charge for any Services (or category of Services, as applicable) may increase: (i) as expressly set forth on the applicable Schedule, (ii) as mutually agreed to by the Parties in writing in advance of any such increase, provided that Aptevo may withhold such agreement in its sole discretion, (iii) to the extent of any increase in the Provider’s actual and direct costs of providing a Service are increased as a result of any increase in the rates or charges imposed by any unaffiliated third-party provider that is providing Services or (iv) to reflect the removal or replacement of personnel pursuant to Section 2.05(a), prorated with respect to the portion of Services provided under this Agreement; provided that , with respect to foregoing clause (iii), the Provider shall provide the Recipient with reasonably detailed written documentation evidencing the increased fees from the applicable third-party provider and setting forth the calculation of the Provider’s increased direct costs of providing the applicable Service.

(c)Notwithstanding Section 3.05 , the Recipient shall reimburse the Provider for reasonable out-of-pocket costs and expenses exceeding $1,000 during any one (1) month period incurred by the Provider or its Affiliates in connection with providing the Services (including necessary travel-related expenses) (each such cost or expense, a “ Reimbursement Charge ” and, collectively, “ Reimbursement Charges ”); provided , however , that any such cost or expense that is materially inconsistent with the Provider’s historical practice for any Service (including business travel and related expenses) shall require advance approval of the Recipient.

(d)The Service Charges and Reimbursement Charges due and payable hereunder shall be invoiced and paid in the currency expressly applicable to such Service in the relevant Schedule hereto.  Each month the Provider shall provide to the Recipient an invoice setting forth the Service Charges and Reimbursement Charges for the immediately preceding month, and the Recipient shall pay the amount of each monthly invoice by wire transfer (or such other method of payment as may be agreed between the Parties) to the Provider within forty-five (45) days of the receipt of each such invoice.  Each invoice provided by the Provider to the Recipient shall also include reasonably detailed documentation to support the calculation of such Service Charges and Reimbursement Charges. In the absence of a timely notice of a billing dispute in accordance with the provisions of Article VIII of the SDA, if the Recipient fails to pay such amount by the due date, the Recipient shall be obligated to pay to the Provider, in addition to the amount due, interest at an annual default interest rate of twelve percent (12%), or the maximum legal rate, whichever is lower (the “ Interest Payment ”), accruing from the date the payment was due through the date of actual payment.  In the event of any billing dispute, the Recipient shall promptly pay any undisputed amount.

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(e)Subject to the confidentiality provisions set forth in Section 9.03 , Emergent shall, and shall cause its Affiliates to, provide, upon ten (10) business days’ prior written notice from Aptevo, any information within Emergent’s or the Provider’s possession or control that Aptevo reasonably requests in connection with any Services being provided to Aptevo by an unaffiliated third-party provider, including any applicable invoices, agreements documenting the arrangements between such third-party provider and the Provider and other supporting documentation. 

(f)If any amount to be paid under this Agreement is originally stated or expressed in a currency other than United States Dollars, then, for the purpose of determining the amount to be so paid, such amount shall be converted into United States Dollars at the exchange rate between those two currencies most recently quoted in The Wall Street Journal in New York as of the business day immediately prior to (or, if no such quote exists on such business day, on the closest business day prior to) the day on which the Party is required to make such payment.

Section 4.02. Tax Matters .

(a)Without limiting any provisions of this Agreement, the Recipient shall be responsible for (i) all excise, sales, use, transfer, stamp, documentary, filing, recordation and other similar Taxes, (ii) any value added, goods and services or similar recoverable indirect Taxes (“ VAT ”) and (iii) any related interest and penalties (collectively, “ Transfer Taxes ”), in each case imposed or assessed as a result of the provision of Services by the Provider.  In particular, but without prejudice to the generality of the foregoing, all amounts payable pursuant to this Agreement are exclusive of amounts in respect of VAT.  Where any taxable supply for VAT purposes is made pursuant to this Agreement by the Provider to the Recipient, the Recipient shall either (i) on receipt of a valid VAT invoice from the Provider, pay to the Provider such additional amounts in respect of VAT as are chargeable on the supply of the services at the same time as payment is due for the supply of the services; or (ii) where required by legislation to do so, account directly to the relevant Governmental Authority for any such VAT amounts.  The Party required to account for Transfer Tax shall provide to the other Party evidence of the remittance of the amount of such Transfer Tax to the relevant Governmental Authority, including, without limitation, copies of any Tax returns remitting such amount.  The Provider agrees that it shall take commercially reasonable actions to cooperate with the Recipient in obtaining any refund, return, rebate, or the like of any Transfer Tax, including by filing any necessary exemption or other similar forms, certificates, or other similar documents.  The Recipient shall promptly reimburse the Provider for any costs incurred by the Provider or its Affiliates in connection with the Recipient obtaining a refund or overpayment of refund, return, rebate, or the like of any Transfer Tax.  For the avoidance of doubt, any applicable gross receipts-based or net income-based Taxes shall be borne by the Provider.

(b)The Recipient shall be entitled to deduct and withhold Taxes required by any Governmental Authority to be withheld on payments made pursuant to this Agreement.  To the extent any amounts are so withheld, except for amounts withheld (i) attributable to the failure of the Provider to comply with the next sentence of this Section 4.02(b) , (ii) attributable to backup withholding under Section 3406 of the Code or any similar provision of state, local, or non-U.S. law, or (iii) pursuant to FATCA, the Recipient shall (A) pay, in addition to the amount otherwise due to the Provider under this Agreement, such additional amount as is necessary to

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ensure that the net amount actually received by the Provider will equal the full amount the Provider would have received had no such deduction or withholding been required, (B) pay such deducted and withheld amount to the proper Governmental Authority, and (C) promptly provide to the Provider evidence of such payment to such Governmental Authority.  The Provider shall, prior t


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