RESEARCH ADVISORY AND CONSULTING AGREEMENT BETWEEN DAVID SINCLAIR, Ph.D. AND SMITHKLINE BEECHAM CORPORATION, d/b/a GLAXOSMITHKLINE
Exhibit (e)(12)
RESEARCH
ADVISORY AND
CONSULTING AGREEMENT
CONSULTING AGREEMENT
BETWEEN
▇▇▇▇▇
▇▇▇▇▇▇▇▇, Ph.D.
AND
SMITHKLINE ▇▇▇▇▇▇▇ CORPORATION, d/b/a GLAXOSMITHKLINE
AND
SMITHKLINE ▇▇▇▇▇▇▇ CORPORATION, d/b/a GLAXOSMITHKLINE
This Consulting Agreement (“Agreement”) shall be
effective as of date on which the transaction under which
Sirtris Pharmaceuticals, Inc. is acquired by GSK is consummated
(the “Effective Date”) and shall set forth, together
with Appendices A, B, and C which are attached hereto and hereby
incorporated by reference, the full terms and conditions which
shall apply to the consulting and advisory services to be
provided hereunder by ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Ph.D. residing at ▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (hereinafter
“Consultant”) as a consultant to the [Sirtris]
Discovery Performance Unit (the “Unit”) of SmithKline
▇▇▇▇▇▇▇ Corporation, d/b/a GlaxoSmithKline, a Pennsylvania
Corporation with a place of business at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ (hereinafter “GSK”). Whereas,
GSK and Consultant, desiring and intending to be legally bound
by the terms and conditions hereof, do hereby enter into this
Agreement as of the Effective Date. This Agreement shall
terminate and be of no force or effect if the Agreement and Plan
of Merger, dated as of April 22, 2008, among Sirtris
Pharmaceuticals, Inc., SmithKline ▇▇▇▇▇▇▇ Corporation and
Fountain Acquisition Corporation is terminated without the
purchase of shares in the Offer (as such term is defined
therein).
RECITAL
As part of its ongoing program of research and development, GSK
desires to engage distinguished scientists and other qualified
individuals such as Consultant to advise the Unit with respect
to its strategy and to provide the “Services” as
defined below.
AGREEMENT
In consideration of the mutual covenants set forth below, the
parties hereby agree as follows:
1. Engagement of Services; Fees.
Consultant, pursuant to the provisions of this Agreement, is
hereby retained by GSK to perform certain consulting services
for the Unit as described in Appendix A (the
“Services”), the essence of which is to provide
independent professional insight and advice concerning the
Unit’s strategies and scientific direction in the area of
pharmaceutical research and development, and shall interface
directly with the head of the Unit as the primary point of
contact with GSK, although Consultant will also be asked to
interact with other Senior R&D Managers.
(a) The specific nature of Consultant’s Services is
more particularly described in Appendix A attached hereto,
which also sets forth the terms of this engagement,
Consultant’s fees for such work and such other terms and
conditions as shall be deemed appropriate or necessary for the
performance of the work. The terms in Appendix A and
Appendix B shall supplement the terms of this Agreement,
however, the Appendix A, B and C terms shall control and
prevail over any inconsistent or contrary terms elsewhere in
this Agreement. Consultant will make himself available to the
Unit during the term of this Agreement for performing the
Services for as many days as indicated under this Agreement.
(b) As part of the Services performed under this Agreement,
Consultant may be asked to attend certain meetings at GSK’s
facilities in the United States,
and/or the
United Kingdom,
and/or such
other place as GSK may designate. Consultant shall use
commercially reasonable best efforts at times convenient to
Consultant to attend such meetings at GSK’s expense.
(c) Any intention to modify Consultant’s role
and/or
expand the scope of work to be performed by Consultant during
the term of this Agreement, will be made effective by mutual
written agreement.
(d) As the full and complete consideration for
Consultant’s Services and for the discharge of all
Consultant’s obligations hereunder, GSK shall pay
Consultant the compensation set forth in Appendix A.
2. Independent Contractor.
It is understood and agreed that:
(a) Consultant is an Independent Contractor and not an
employee of GSK;
(b) Consultant has no authority to obligate GSK by contract
or otherwise;
(c) Consultant is expected to perform his activities under
this agreement to a professional standard, but otherwise GSK has
no authority to impose the manner in which he performs his
activities;
(d) Consultant will not be eligible for any employee
benefits, nor will GSK make any deductions from
Consultant’s fees for income tax, national insurance or
similar contributions. Payment of all such taxes or other
mandated deductions shall be the sole responsibility of
Consultant, and Consultant hereby indemnifies GSK and its
affiliated companies against any and all liabilities, claims,
costs, expenses, damages, charges and assessments stemming from
any failure by Consultant to pay any such taxes or mandated
deductions or to comply with any relevant law, court order,
judgment or the like, or any other requirement regarding the
same; and
(e) Given the specialized and unique nature of his
experience, which GSK values, Consultant shall not be permitted
to substitute any other individual or to subcontract to any
other person or party to perform any activities under this
contract without the consent of the head of the Unit.
At those times when Consultant is working on site at a GSK
facility, GSK will make reasonable efforts to make available
suitable office facilities, computer equipment and access and
administrative support, as necessary, but otherwise Consultant
will be expected to provide his own equipment.
3. Additional Activities.
(a) During the period in which Consultant provides
advisory, consulting and related Services to and for the Unit
(the “Consulting Period”), Consultant will not
directly or indirectly, for Consultant’s own account or for
the account of others:
(i) as an individual proprietor, partner, stockholder,
officer, employee, consultant, director, joint venture,
investor, lender, or in any other capacity whatsoever (other
than as the holder of not more than one percent (1%) of the
total outstanding stock of a publicly held company), participate
in the promotion, financing, ownership, operation, or management
of, or assist in the or carry on through proprietorship, a
corporation, partnership or other form of business entity which
conducts business in the field of
inhibitors/activators/regulators or any sirtuin enzyme or gene
activity (the “Field”); provided, however, that the
foregoing shall not prevent Consultant from engaging in any
(i) academic research, work performed solely for non-profit
organizations and governmental entities (and not in connection
with, collaboration with, or in the context of any research or
other work that is sponsored or otherwise funded by any
for-profit or commercial entity), teaching or related activities
in the Field, (ii) duties required to be performed for
Consultant’s Employer and (iii) other activities in
the Field that are specifically listed in Appendix A as
being exempted by GSK; or (ii) recruit, solicit or induce,
or attempt to induce, any employee or employees of the Unit to
terminate their employment with, or otherwise cease their
relationship with, GSK; or (iii) solicit, divert or take
away, or attempt to divert or take away, the business or
patronage of any of the clients, customers or accounts,
prospective clients, customers or accounts, if any, of GSK that
were contacted, solicited or served by Consultant during the
Consulting Period.
(b) The restrictions set forth in Paragraph 3(a) are
considered by the parties to be reasonable for the purposes of
protecting the business of GSK from any conflict of interest by
Consultant. However, if any restriction is found by any court of
competent jurisdiction to be unenforceable because it extends
for too long a period of time or over too
2
great a range of activities or in too broad a geographic area,
it shall be interpreted to extend only over the maximum period
of time, range of activities or geographic area as to which it
may be enforceable.
Consideration to the Consultant for agreeing to these
restrictions to his freedoms as an independent consultant are
hereby agreed to be part of the overall fee rates and
compensation as set forth in Appendix A. There will be no
separate or additional compensation.
4. No Conflicting Obligation.
(a) It is understood that Consultant is presently
affiliated with or performing work for or on behalf of certain
third party institutions (the “Affiliates”) as well as
any other full-time or part-time employers of Consultant (the
“Employers”), each as identified in Appendix A.
Consultant hereby represents and warrants to GSK that
Consultant’s performance of all the terms of this Agreement
and Consultant’s Services as a consultant to GSK pursuant
to this Agreement does not and will not breach or present any
conflict of interest with respect to the terms of any agreement
with his/her
Affiliates, Employers, or with any other third party, to keep in
confidence any proprietary information of another entity
acquired by Consultant in confidence or in trust prior to on or
after the date of this Agreement.
(b) Consultant has not entered into, and hereby agrees not
to enter into during the Consulting Period, any agreement,
either written or oral, which would present or result in a
conflict with any provision of this Agreement, or which would
result in a conflict of interest between any of the rights,
covenants or obligations of Consultant under this Agreement and
any such other agreement, including without limitation, the
scope or nature of Consultant’s role and responsibilities
with any of the Affiliates. Moreover, subject to the exceptions
listed in Paragraph 3(a)(i), Consultant agrees that during
the term of this Agreement, Consultant shall not, without the
prior written consent of the Senior Vice President, Human
Resources, Research & Development enter into any
consulting arrangement which entails the performance of services
that would be inconsistent with the provisions of
Paragraphs 3 or 4 of this Agreement. In the event that
Consultant becomes aware of any such conflicting agreement,
conflict of interest, or the breach of any provision of this
subparagraph (b), Consultant shall immediately notify GSK in
writing within five (5) business days of such perceived
conflict, and GSK shall have the right, at its sole discretion,
to either waive the conflict and continue the Agreement, or to
terminate this Agreement in its entirety with immediate effect,
in each case upon providing written notice to Consultant.
(c) Notwithstanding anything to the contrary in this
Agreement, the provisions of this Agreement are subject to the
understanding that Consultant is affiliated with the Employers
and Affiliates and must fulfill certain obligations to the
Employers and Affiliates pursuant to the guidelines or policies
adopted by the Employers and Affiliates. By way of example and
not limitation, GSK acknowledges that: (i) Consultant is a
member of the faculty of Harvard Medical School (“HMS”
or “University” or “Institution”);
(ii) Consultant is subject to certain policies of the
University, as such policies may be revised from time to time,
including, among others, policies concerning consulting,
conflicts of interest and commitment, and intellectual property;
(iii) this Agreement is subject to such policies; and
(iv) and any provision of this Agreement that conflicts
with such policies shall be superseded by such policies.
Further, the Company agrees that this Agreement is subject to
the “Addendum to Consulting Agreement” attached hereto
as Exhibit C, the terms of which are incorporated herein by
reference. In addition, GSK and the Consultant understand and
agree that the Consultant, as an employee and faculty member of
HMS, is prohibited by HMS conflict of interest policies from
holding any “Executive Position” (defined in the
policy as “any position responsible for a material part of
the operation of a for-profit Business engaged in commercial or
research activities of a biomedical nature”), including
that of “Scientific Director,” and that the entire and
overall relationship between GSK and the Consultant, both as
described in this Agreement and otherwise, does not and will not
constitute any such Executive Position so long as the Consultant
remains a full time HMS faculty member.
(d) If Consultant is required to disclose any GSK
Inventions owned by GSK hereunder to any of the Affiliates
pursuant to any applicable requirement under any agreement with
an Affiliate,
he/she shall
promptly notify GSK in writing of such obligation, specifying
the precise nature of such disclosure requirement and
identifying the applicable guideline or policy under which
disclosure is required, prior to making such disclosure. As of
the Effective Date, neither party is aware of any such
obligations.
3
(e) Consultant shall not have the right to publish any
data, results, discoveries, inventions, analysis, opinion or
other work product resulting from the performance of the
Services by Consultant for GSK hereunder, without the advance
prior written approval of GSK, which approval shall be at the
sole discretion of GSK.
5. No Improper Use of Materials.
Consultant agrees not to bring to GSK or to use in the
performance of the Services for the Unit materials or documents
of a present of former employer of Consultant, or any materials
or documents obtained by Consultant under a binder of
confidentiality imposed by reason of another of
Consultant’s consulting relationships, unless such
materials or documents are generally available to the public or
Consultant has authorization from such present or former
employer or client for the possession and unrestricted use of
such materials. Consultant understands that Consultant is not to
breach any obligation of confidentiality that Consultant has to
present or former employers or clients, and agrees to fulfill
all such obligations during the term of this Agreement.
6. Term and Termination.
Unless extended by the mutual written agreement of the parties
or terminated early as set forth below, the term of this
Agreement shall expire three (3) years from the Effective
Date (the “Initial Term”). The Agreement may be
terminated earlier as follows:
(a) Either party may terminate this Agreement in the event
of a material breach by the other party of any of the provisions
or covenants contained herein if such breach continues uncured
for a period of thirty (30) days after written notice of
such breach; and
(b) In any other circumstances, either party may terminate
this Agreement at any time for convenience, with or without
cause, upon sixty (60) days written notice, unless the
parties mutually agree to a shorter notice period. Except as set
forth in this Agreement, neither party shall incur any
additional cost, expense or liability other than that which is
due and accrued as of the effective date of such termination as
the result of any termination by either party under this
subparagraph 6(b), and
(c) GSK shall have the right to terminate this Agreement
with immediate effect in the event of any breach by Consultant
of Paragraph 3, 4 or 5 that is injurious to GSK, or in the
event of any gross or willful misconduct with respect to any
working environment, health and safety or security issues, or
any material violation of a federal, state or local law,
regulation or ordinance.
For clarity, the parties understand and agree that, in the event
of any conflict, the terms of Appendix A shall supersede
the terms of this Paragraph 6.
7. Effect of Termination.
Upon the expiration or termination of this Agreement, each party
shall be released from all obligations and liabilities to the
other occurring or arising after the date of such termination,
except that any termination or expiration of this Agreement for
any reason shall not relieve (i) Consultant of
Consultant’s obligations under Paragraphs 2, 4(e) and
under the Supplemental Terms and Conditions attached as
Appendix B, (ii) GSK of GSK’s obligations under
Paragraph 4 of Appendix A (Payment of Services), nor
(iii) either party of its obligations under
Paragraphs 9-13
hereof, all of which provisions specified in the foregoing
clauses (i) through (iii) shall each survive any
expiration or termination of this Agreement in accordance with
their respective terms and conditions (and where no duration is
stated, shall survive indefinitely), nor shall any such
termination relieve Consultant or GSK from any liability arising
from any breach of this Agreement. Upon termination of this
Agreement for any reason whatsoever, Consultant shall promptly
surrender and deliver to GSK all documents, notes, laboratory
notebooks, drawings, specifications, calculations, sequences,
data and other materials of any nature pertaining to
Consultant’s work with GSK, and any documents or data of
any description (or any reproduction of any documents or data)
containing or pertaining to any Proprietary Information.
Consultant agrees that in the event of such termination,
Consultant will cooperate with GSK in completing and signing
GSK’s termination statement for scientific consultants.
4
8. Extension of Term.
The parties may by mutual written agreement, at any time prior
to termination or expiration, renew this Agreement for an
additional period or periods.
9. Assignment.
The rights and liabilities of the parties hereto shall bind and
inure to the benefit of their respective successors, heirs,
executors and administrators, as the case may be; provided that,
as GSK has specifically contracted for Consultant’s
Services, Consultant may not assign, subcontract, sublicense or
otherwise delegate any part or all of the Services or of
Consultant’s rights and obligations under this Agreement to
any person or party, without the express prior written consent
of GSK.
10. Legal and Equitable Remedies.
Because Consultant’s Services are personal and unique and
because Consultant may have access to and become acquainted with
the Proprietary Information of GSK, GSK shall have the right to
enforce this Agreement and any of its provisions by seeking an
injunction, specific performance or other equitable relief under
all applicable laws, without prejudice to any other rights and
remedies that GSK may have for a breach of this Agreement.
11. Governing Law; Severability.
This Agreement shall be governed by and construed according to
the laws of Commonwealth of Massachusetts. If any provision of
this Agreement is found by a court of competent jurisdiction to
be unenforceable, that provision shall be severed and the
remainder of this Agreement shall continue in full force and
effect.
12. Complete Understanding; Modification.
This Agreement, together with the Appendices A-C hereto,
constitutes the final, exclusive and complete understanding and
agreement of the parties hereto and supersedes all prior
understandings and agreements between Consultant and Sirtris
Pharmaceuticals, Inc., GSK or any of their affiliates. Any
waiver, modification or amendment of any provision of this
Agreement shall be effective only if in writing and signed by
the parties hereto.
13. Notices.
Any notices required or permitted hereunder shall be given to
the appropriate party at the address specified in this Agreement
or at such other address as the party shall specify in writing.
Such notice shall be deemed given upon personal delivery to the
appropriate address or sent by certified or registered mail,
three (3) days after the date of mailing.
5
IN WITNESS WHEREOF, and intending to legally bound, the parties
hereto have executed this Agreement so that it is effective as
of the Effective Date.
AGREED TO:
SMITHKLINE ▇▇▇▇▇▇▇ CORPORATION, d/b/a
GLAXOSMITHKLINE
GLAXOSMITHKLINE
| By: |
/s/ ▇▇▇▇▇
▇. ▇▇▇▇
|
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
| Title: | Vice President and Secretary |
AGREED TO BY:
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Ph.D.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Ph.D.
|
/s/ ▇▇▇▇▇
▇▇▇▇▇▇▇▇
|
CONSULTANT
6
APPENDIX A
1. ▇▇▇▇▇
▇▇▇▇▇▇▇▇ Ph.D., ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇
2. Listing
of “Affiliates” or “Employers” with whom
Consultant is Affiliated:
A. Harvard Medical School (employee)
B. Genocea Biosciences, Inc. (co-founder, director and
consultant)
C. ▇▇▇▇▇ ▇▇▇▇▇▇ Inc. (consultant)
▇. ▇▇▇ Capital Management (venture partner)
GSK has agreed to the continuation of your activities as noted
above.
| 3. | Specific Description of duties of Consultant and Services to be provided to GSK: |
For the purposes of this Agreement your point of contact within
GSK R&D will be the head of the Unit although you will also
be required to interact with other senior executives within
R&D. Your key advisory and consulting roles will be to
perform such tasks related to the business of the Unit as the
head of the Unit may reasonably request. It is anticipated that
the Services will include presenting data to the Unit’s
Scientific Advisory Board and GSK’s Board of Directors,
fundraising, grant writing, assisting the Senior Vice President
of Research and Director of Biology in the design of experiments
and clinical trials, evaluation and recruitment of employees,
business development, strategic planning, providing scientific
advice and intellectual property unless it is confidential or
conflicts with the policy of Harvard Medical School regarding
information dissemination.
Any other activities falling outside the scope described above
shall be approved by the Senior Vice President, Drug Discovery.
| 4. | Payment for Services: |
A.
Fees:
1. GSK agrees to pay Consultant on a monthly basis in
arrears the sum of twelve thousand five hundred dollars
($12,500), pro rated for any partial month. Payment of the
amounts described in this paragraph are subject to the
effectiveness of the Agreement during all or any portion of the
applicable month for which payments are due.
2. In consideration of the restrictions accepted by
Consultant pursuant to Paragraphs 3 and 4 of the Agreement
and in addition to any sums payable under the first paragraph
above, GSK hereby agrees to pay Consultant on a monthly basis in
arrears a per diem amount of five thousand dollars ($5,000) for
each day (up to a maximum of 20 days per year) on which
Consultant renders Services (pro rated for any day on which
Consultant renders fewer than eight (8) hours of Service)
Payment of the amounts described in this paragraph are subject
to the continued effectiveness of the Agreement through the date
on which such Services were rendered.
3. On or not later than three days after each of the first,
second and third anniversaries of the Effective Date, the
Company will pay the Executive $129,000 in cash in a lump sum,
subject with regard to each such payment to the continuation of
the Agreement in effect on such anniversary date.
4. Notwithstanding anything to the contrary in this
Agreement, if prior to the expiration of the Initial Term
(i) GSK and Consultant mutually agree to terminate the
Agreement, (ii) the Agreement is terminated by GSK other
than by reason of a material breach of the Agreement by the
Consultant, or (iii) the Consultant dies or becomes
disabled during the term of the Agreement, then any remaining
unpaid amounts under paragraphs 3 above for the entirety of
the Initial Term shall be immediately paid to Consultant.
5. The Consultant shall participate in the following stock
rollover and additional incentive arrangement:
(a) An amount equal to 25% of the assumed after-tax gain
(based on a 40% net tax rate) from cash-out of the unvested
Sirtris Pharmaceuticals, Inc. (“Sirtris”)
shareholdings of Consultant on the Closing Date, as such
A-1
term is defined in that certain Merger Agreement between
Sirtris, SmithKline ▇▇▇▇▇▇▇ Corporation and Fountain Acquisition
Corporation., dated as of April 22, 2008, including both
options and restricted stock which would be unvested at such
time but for the closing of the acquisition of Sirtris by GSK,
shall be withheld, which amount based upon projected vesting
through the Closing Date is $359,306. These funds will be placed
into a custody account (the “After-Tax Investment
Account”) and will be invested in GSK american depositary
shares (“shares”). The account will be designed so
that it should be treated as your property for US federal income
tax purposes, and therefore it should be eligible for long term
capital gains treatment under current tax law. The account value
will move with the GSK share price, and dividends will be
accrued and reinvested as shares. You will receive an IRS 1099
form for annual dividend income and will be responsible for
annual income tax on dividends as well as any capital gains tax
when shares are sold.
(b) The value of the After-Tax Investment Account will vest
be distributed over three years at the end of each year
(331/3%
at the first anniversary of the Effective Date, 50% of remaining
balance at the second anniversary of the Effective Date, and
100% of the remaining balance at the third anniversary of the
Effective Date).
(c) GSK will pay the Consultant, at the time as each
distribution described in paragraph (b) above, an amount in
cash equal to 50% of the value of the GSK shares so distributed
at the time of distribution, such amount representing payment of
additional consulting fee that shall be treated as such for all
US federal income tax purposes.
(d) Distribution of the amounts described in paragraph
(b) above are subject to the continued effectiveness of the
Agreement through the required distribution date, provided that
if GSK and Consultant mutually agree to terminate the Agreement,
if the Agreement is terminated by GSK other than by reason of a
material breach of the Agreement by the Consultant, or the
Consultant dies or becomes disabled during the term of the
Agreement, then any remaining undistributed amounts shall be
immediately distributed. Payment of the amounts described in
paragraph (c) above are subject to the continued
effectiveness of the Agreement through the required payment
date, provided that if the Agreement is terminated by GSK other
than by reason of a material breach of the Agreement by the
Consultant, or the Consultant dies or becomes disabled, then GSK
will pay Consultant an amount equal to 50% of the value of the
GSK shares distributed at that time pursuant to the immediately
preceding sentence of this paragraph (d).
(e) GSK will use commercially-reasonable best efforts to
ensure that any shares deliverable under the foregoing
arrangement are freely transferable at the time of delivery.
6. The Consultant shall be eligible for a Discovery
Performance Bonus. Upon any positive “Commit to Medicine
(i.e., late stage) Development” decision at GSK’s
Portfolio Management Board (“PMB”) for a Sirtris
asset, you will be granted a cash bonus of $250,000, payable as
soon as practical following the PMB decision, provided that the
Agreement continues in effect through the time of the decision
by the PMB. “Commit to Medicine Development” will be
determined by GSK’s PMB (consisting of senior executives of
R&D and Commercial), which meets monthly for this purpose,
as referred to in and consistent with the terms of
R&D’s bonus program.
7. GSK agrees that in the event it shall be determined that
any of the payments or benefits received or to be received by
the Consultant as a result of the transactions contemplated by
the Merger Agreement would be subject to the excise tax imposed
by Section 4999 of the Code, together with any interest or
penalties imposed with respect to such excise tax (the
“Excise Tax”), then the Consultant shall be entitled
to promptly receive from GSK an additional lump sum cash payment
(the
“Gross-Up
Payment”) in an amount such that, after payment by the
Consultant of all taxes related to such payments and benefits,
including any income taxes and the Excise Tax imposed upon the
Gross-Up
Payment, the Consultant retains an amount of the
Gross-Up
Payment equal to the Excise Tax imposed upon such payments and
benefits. Payment of the amounts described in this paragraph are
not subject to the continued effectiveness of the Agreement.
B.
Reimbursal of Consultant’s Out-of-Pocket
Expenses:
GSK will reimburse Consultant for all reasonable out of pocket
expenses, such as round trip travel, accommodation and living
expenses actually incurred by the Consultant at GSK’s
request in the performance
A-2
of the Services hereunder for the Unit, subject to the following
specific limitations in accordance with GSK’s normal
expense reimbursement policies:
| • | Where the Consultant is required to undertake travel outside North America in connection with the Services, these trips will be via business class travel (e.g. British Airways Club World travel or the equivalent). | |
| • | Where the Consultant is required to undertake travel within North America in connection with the Services, these trips will be via business class or economy class travel. | |
| • | All business mileage traveled by car, including travel to and from GSK sites. |
C.
Invoices and Payments:
All requests for expense reimbursement shall be presented to GSK
monthly in arrears. Such requests shall be addressed to:
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
GlaxoSmithKline
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Each invoice for amounts described in 4.A.1 and 2 above shall
show the following: (i) Sales Taxes and other indirect
taxes as a separate and additional item, if payable;
(ii) the Services for which charges are payable by GSK,
together with a breakdown of the relevant period in which
Services were performed (iii) the name of the Consultant
and (iv) GSK’s agreement reference number, if
previously provided by GSK.
It is expressly understood and agreed by Consultant and GSK that
the above noted payments of fees and reimbursement of expenses
as stated in paragraphs A and B of this Part 4
“Payment for Services” are the full and complete
consideration for all of the Services provided and all the
obligations, covenants and restrictions assumed by Consultant
under this Agreement and for all Inventions and related Property
Rights assigned under this Agreement.
| 5. | SITE ISSUES |
Consultant, prior to carrying out any Services at a GSK site,
shall be responsible for procuring and maintaining at all times
(at Consultant’s sole expense) coverage for travel and
professional liability insurance. In addition, Consultant shall
at all times during the performance of the Services use
reasonable efforts to ensure that he conforms in all material
respects with all GSK’s policies and procedures with regard
to working environment, health & safety, civil rights,
security and similar matters and that the Services should be
conducted in material compliance with the principles of which he
has knowledge that are laid down in, where applicable, the
Declaration of Helsinki, ICH GCP, FDA, local national laws and
regulations of the United Kingdom and European Union, federal,
state and local laws of the United States and GSK’s
Standard Operating Procedures (SOPs). Consultant shall at all
times during the performance of the Services comply with such
reasonable requirements as may be notified to the Consultant
from time to time.
| 6. | OPERATIONAL ISSUES |
Insofar as GSK deems it necessary for the proper performance of
the Services hereunder, GSK agrees that it will provide the
Consultant with access to administrative support as necessary
for arranging travel and meetings, and to guest office space at
GSK sites.
In order to enable the Consultant to perform the Services, GSK
may during the term of the Agreement loan to the Consultant the
following equipment (together with any other equipment loaned
during the term of the Agreement, the “Equipment”):
| • | A laptop with secure access and connectivity to GSK systems and databases as deemed appropriate by GSK; and | |
| • | A mobile phone, providing global access to the GSK network via its short-code access numbers, as deemed appropriate by GSK |
A-3
Consultant shall take all reasonable care of the Equipment and,
where it becomes aware that any Equipment in its care is stolen,
lost, destroyed or damaged, it shall promptly inform GSK to that
effect in writing. On request, Consultant shall immediately
return the Equipment to GSK in good repair.
Consultant shall not, without the prior written consent of GSK:
(1) use the Equipment other than for the purpose of
performing the Services hereunder; or
(2) transfer possession or control of the Equipment to a
third party.
Consultant shall indemnify GSK against any loss, damage, costs
or expenses incurred by GSK arising out of (i) the
unauthorized use of the Equipment, or (ii) the loss or
destruction of, or damage to, the Equipment.
All other equipment/materials used in providing the Services
hereunder shall be provided by the Consultant and shall be of a
high standard, as established by current practice within the
Field of the Services.
▇-▇
▇▇▇▇▇▇▇▇ ▇
Supplemental
Terms and Conditions (“Terms”)
1. Establishment
of Confidential Relationship.
Consultant recognizes that GSK is engaged in a continuous
program of research and development respecting its present and
future business activities. Consultant understands that:
(a) As part of Consultant’s Services performed for the
Unit, Consultant will be involved in discussions that relate to
GSK’s technology and business strategy, and, in the course
of performing the Services for the Unit, may develop new ideas
or inventions or make other contributions of value to the Unit.
(b) This Agreement creates a relationship of trust and
confidence between the Consultant and GSK with respect to any
information within the Field that is:
(i) applicable to the business of the Unit or any client or
customer of the Unit; and
(ii) is made known to Consultant by GSK or by any client or
customer of GSK, or is learned by Consultant while rendering
Services for the Unit.
(c) GSK possesses and will continue to possess information:
(i) that has been created, discovered or developed by GSK
(including without limitation information created, discovered,
or developed by Consultant in connection with the performance of
the Services by the Consultant); or
(ii) in which property rights have been assigned or
otherwise conveyed to GSK by another entity, which information
has commercial value in the business in which GSK is engaged and
is treated by GSK as confidential. All such information is
referred to in this Agreement as “Proprietary
Information”. By way of illustration, but not limitation,
Proprietary Information includes: (i) inventions,
developments, designs, applications, improvements, trade
secrets, formulae, know-how, method of processes, discoveries,
techniques and data (collectively referred to in this Agreement
as “Inventions”); and (ii) plans for research,
development, new products, marketing and selling, information
regarding business plans, budgets and unpublished financial
statements, licenses, prices and costs, information concerning
suppliers and customers, and information regarding the skills
and compensation of employees of GSK. Notwithstanding the
foregoing, “Proprietary Information” shall not include
any information that (i) is in the public domain through no
fault of Consultant; (ii) has been rightfully independently
communicated to Consultant free of any obligation of confidence;
or (iii) was developed by Consultant independently of and
without reference to any information communicated to Consultant
by GSK or by any client or customer of GSK. In addition,
Consultant may disclose Proprietary Information if required to
do so by a valid order of a court or other governmental body of
competent jurisdiction, or, if in the opinion of
Consultant’s counsel, Consultant is otherwise required to
disclose such Proprietary Information by applicable law.
Certain specific obligations of Consultant arising out of
Consultant’s confidential relationship with GSK are set
forth in Terms 2, 3, 4 and 6 of this Appendix.
2. Recognition
of GSK’s Rights; Nondisclosure.
(a) All Proprietary Information shall be the sole property
of GSK and its assigns, and GSK and its assigns shall be the
sole owner of all patents, copyrights and other rights relating
to such Proprietary Information.
(b) At all times, both during the term of this Agreement
and after its termination, Consultant will keep in confidence
and trust all Proprietary Information and shall not use or
disclose any Proprietary Information or anything related to such
information without the written consent of GSK, except as may be
required in the ordinary
B-1
course of performing Services as a Consultant to the Unit. GSK
will make reasonable efforts to identify or ▇▇▇▇ information it
expects to be protected hereunder as “CONFIDENTIAL” or
“PROPRIETARY.”
3. Nondisclosure
of Third-Party Information.
Consultant understands that GSK has received and in the future
will receive from third parties information that is confidential
or proprietary (“Third-Party Information”) subject to
a duty on the part of GSK to maintain the confidentiality of
such information and to use it only for certain limited
purposes. During the term of this Agreement and thereafter,
Consultant will hold all information that Consultant knows or
has reason to know is Third-Party Information in the strictest
confidence and will not disclose or use any such Third Party
Information except as permitted by the agreement between GSK and
such Third-Party Information, unless expressly authorized to act
otherwise by an officer of GSK in writing. To the extent
reasonably practical, all Third Party Information will be marked
“CONFIDENTIAL” or “PROPRIETARY.”
4. Assignment
of Proprietary Rights.
Consultant hereby assigns to GSK Consultant’s entire right,
title and interest in and to any and all Inventions (and all
Property Rights such as, without limitation, all rights, title
and interest in and to any patents, trademarks and copyrights,
as well as all applications therefore and all foreign
equivalents and counterparts thereof anywhere in the world with
respect to any such Inventions) whether or not patentable or
registrable under patent, copyright or similar statutes anywhere
in the world, made or conceived of or reduced to practice or
learned by Consultant, either alone or jointly with GSK, during
the term of this Agreement in the course of performing the
Services hereunder (all such Inventions together with their
related Property Rights are collectively referred to in this
Agreement as “GSK Inventions”). Consultant agrees that
all such GSK Inventions shall be the sole and exclusive property
of GSK. For the avoidance of doubt, this Term 4 shall not apply
to any Inventions which (i) were made by the Consultant
prior to the Effective Date or (ii) were not generated in
the course of the Services performed hereunder nor generated as
a consequence of Proprietary Information supplied directly or
indirectly by GSK or its corporate affiliates, for the purposes
hereof. Consultant understands that, to the extent this
Agreement shall be construed in accordance with the laws of any
state or country which precludes a requirement in an agreement
to assign certain classes of Inventions made by an individual
acting as a consultant, this Term 4 shall be interpreted not to
apply to any Invention which a court rules
and/or GSK
agrees falls within such classes. Except as set forth in this
Agreement, Consultant hereby represents and warrants to GSK that
neither its Employers, nor its Affiliates, nor any other third
party has any right, title, or interest in or to, or any license
or other claim or encumbrance in or upon any Invention to be
made hereunder or to any related Property Rights.
5. Enforcement
of Proprietary Rights.
Consultant further agrees to assist GSK in every reasonable and
proper way to obtain from time-to-time and to enforce United
States, P.C.T. and foreign national patents, copyrights,
and other rights and protections relating to GSK Inventions in
any and all countries of the world. To that end, Consultant will
execute, verify and deliver such documents and perform such
other acts (including appearances as a witness) as GSK may
reasonably request for use in applying for, obtaining,
sustaining, perfecting and enforcing GSK’s title as the
sole owner of all such patents, copyrights and other rights and
protections in and to GSK Inventions. In addition, Consultant
agrees to execute, verify and deliver assignments of such
patents, copyrights, and other rights and protections to GSK or
its designee in order to perfect GSK’s title as the sole
owner thereof. Consultant’s obligation to assist GSK in
obtaining, perfecting and enforcing GSK’s title as sole
owner of all patents, copyrights, and other rights and
protection relating to such GSK Inventions in any and all
countries shall continue beyond the termination of this
Agreement, but GSK shall compensate Consultant at a reasonable
rate (in addition to any other compensation due to Consultant in
accordance with this Agreement) after such termination for the
time actually spent by Consultant at GSK’s request on such
assistance. In the event GSK is unable, after reasonable effort,
to secure Consultant’s signature on any document needed to
apply for, prosecute or maintain or assign to GSK any patent,
copyright, or other right or protection relating to a GSK
Invention, Consultant hereby irrevocably designates and appoints
GSK and its duly authorized officers and agents as
his/her
agent and attorney in fact, to act for and on
his/her
behalf to execute, verify and file any such applications and to
do all other lawfully permitted acts to further the prosecution
and issuance, maintenance
B-2
and assignment to GSK of all patents, copyrights, and other
rights and protections thereon with the same legal force and
effect as if executed by Consultant. Copies of all such
documents shall be promptly forwarded to Consultant.
6. Obligation
to Keep GSK Informed.
During the term of this Agreement, Consultant shall promptly
disclose to GSK, or any persons designated by it, fully and in
writing and will hold in trust for the sole right and benefit of
GSK any and all GSK Inventions, whether or not patentable or
protectable by copyright, of which Consultant becomes aware that
are in the Field; however, Consultant shall not be obligated to
disclose
(i) information received by Consultant from others under a
contractual binder of confidentiality or
(ii) information subject to an obligation of
confidentiality under any applicable Employer or Affiliate
guideline or policy referred to in Paragraph 4(c) of the
Agreement.
7. Prior
Invention.
Inventions, if any, patented or unpatented, which Consultant
made prior to the execution of this Agreement, are excluded from
the scope of this Agreement.
B-3