CONSULTANT AGREEMENT

Exhibit 10.39

This CONSULTANT AGREEMENT (“Agreement”), effective on the 1^ST day of February, 2017 (“Effective Date”), is by and between Xxxxxxxx X. Xxxxxxx, an individual whose address is 000 Xxxxxxxxxxx Xxxxx, Xxxxx, Xxxxxxx 00000 (“Consultant”) and RTI Surgical, Inc., a Delaware corporation with a principal address of 00000 Xxxxxxxx Xxxxxx, Xxxxxxx, XX 00000 (“RTI”) (each individually a “Party”, and collectively the “Parties”).

WHEREAS, RTI is involved with the processing and distribution of tissue for surgical implantation around the world, and seeks to promote the advancement of medical technologies related to medical devices and to tissue implantation, the enhancement of safe and effective use of medical technologies related to tissue implantation and medical devices, the encouragement of research and education, and the fostering of charitable donations and giving (the “Mission”);

WHEREAS, Consultant possesses and wishes to offer certain knowledge and expertise to RTI which may be of assistance to the Mission; and

WHEREAS, RTI desires to receive certain knowledge from the Consultant which would be of assistance to RTI.

NOW, THEREFORE, in consideration of the foregoing and the mutual covenants contained herein, RTI and Consultant agree as follows:

1 – CONSULTING MATTERS

1.1 Consultant shall provide consulting services (“Services”) as requested in writing by RTI in the Schedule of Services, a copy of which is attached hereto and incorporated herein by reference as Exhibit A. The Services to be provided by Consultant may be adjusted from time to time by amending the Schedule of Services as mutually agreed to in writing by the Parties. The exact services to be rendered shall be as directed by the Chief Executive Officer of RTI (including any Interim Chief Executive Officer) or his or her designee.

1.2 Consultant shall perform the Services in a professional manner, in compliance with all applicable federal, state, local and foreign laws, rules and regulations (“Laws”).

2 – COMPENSATION

2.1

Consultant shall receive the following compensation for Services performed hereunder, as requested by RTI:

2.1.1

Seven Thousand Five Hundred dollars ($7,500.00) per month for the first three months of the Term (as defined below). It is understood that the Consultant shall not be required to perform more than 20 hours of service for RTI in any month. Consultant will notify RTI’s designee upon having exhausted the 20 hour allotment of time for the month. Additional hours in a given month as agreed to by Consultant and RTI shall be compensated as provided for below at an hourly rate of $375. After the initial three-month period, Consultant’s services will be “on request” (as contemplated by Section 1.1 above) at an hourly rate of $375.00 for the remaining six months of the Term (as defined below).

2.1.2

Reimbursement for reasonable and documented out-of-pocket expenses incurred by Consultant in connection with performance of the Services.

2.1.3

All Consultant travel plans relating to this Agreement must be pre-approved by RTI. Consultant will be entitled to reimbursement of actual travel expenses in accordance with RTI’s travel policy in effect at the time of travel. It is understood that all air travel will be directly billed to the Company and that any cumulative air travel of eight hours or more shall be in business class (or the equivalent).

2.1.4

Consultant shall xxxx travel time at the rate of $187.50 per hour, capped at eight hours per one way trip outside of North America and four hours per one way trip inside of North America.

2.2 Consultant shall provide an invoice to RTI within thirty (30) days of Services rendered. The invoice shall at a minimum specify (1) the date(s) on which Services were rendered, (2) a detailed description of the Services performed on the corresponding date, (3) the time spent rendering such services measured in 0.1 hour increments, and (4) receipts for out-of-pocket expenses.

2.3 All undisputed amounts per Consultant’s invoice shall be due and payable net thirty (30) days of RTI’s receipt of invoice.

3 - INTELLECTUAL PROPERTY MATTERS

3.1 For the purposes of this Agreement, “Work Product” is defined as all work product, deliverables, devices, inventions (whether or not patentable or reduced to practice), ideas, information and works of authorship (whether in written or other form and whether or not patentable or protectable by copyright), and know-how that have been discovered, developed or otherwise created by Consultant as a result of performance under this Agreement, or through the use of knowledge or information obtained from RTI under this Agreement or previous employment with RTI (including its subsidiaries and affiliates). Consultant shall disclose all Work Product to RTI. Work Product comprised of copyrightable works shall be deemed work made for hire for the benefit of RTI. Consultant acknowledges all Work Product, and all associated patent, copyright, trademark, trade secret and other intellectual property rights embodied in such Work Product, or otherwise created by Consultant in the course of performing hereunder (“IP Rights”), shall be the exclusive property of RTI. Consultant further acknowledges and agrees that RTI may, in its sole discretion, create derivative works from such Work Product, including, but not limited to, audio recordings, audiovisual recordings or any other form of derivative work in which such Work Product may be recast, transformed or adapted. Such derivative works shall also be the exclusive property of RTI. Consultant is not granted any rights, whether expressly, implied or by estoppel, to such Work Product, derivative works or IP Rights. To the extent exclusive right, title and interest in and to such Work Product, derivative works and IP Rights do not reside exclusively with RTI by operation of law or this Agreement, Consultant agrees to and hereby does assign to RTI all right, title and interest in and to such Work Product, derivative works and IP Rights. To the extent such Work Product, derivative works and/or IP Rights cannot be assigned to RTI, Consultant agrees to and hereby does waive all rights of Consultant in and to such Work Product, derivative works and IP Rights. Consultant will cooperate with all requests of RTI to perfect the assignments and waivers set forth in this Section, including cooperation in the form of execution and filing of additional assignment documents and patent applications.

3.1.1 Consultant represents and warrants that all Work Product shall be the original work of Consultant and that such Work Product, and Consultant’s provision of the Services hereunder, do not infringe or misappropriate the intellectual property rights of any third party.

3.2 During the Term (as defined below), as may be extended, and for a period of five (5) years following the termination or expiration of this Agreement, Consultant agrees to keep in confidence and not use any Confidential Information in any manner whatsoever, other than for the sole purpose of assisting RTI pursuant to this Agreement. Without limiting the generality of the foregoing, Consultant shall not use any Confidential Information for the purposes of trading securities. As used in this Agreement, “Confidential Information” means the Work Product, as well as RTI trade secrets, formulas, processes, methods, know-how and other information related to tissue engineering and surgical implants including, but not limited to, allograft and xenograft tissue grafts, and associated patents and patent applications, trade secrets, know-how, inventions, surgical instruments, technical data, drawings or specifications, testing and/or production methods, business or financial information, research and development activities, product and marketing plans, donor information, medical records, and customer and supplier information, which are proprietary and of a confidential nature, and when furnished, shown or disclosed to Consultant are specifically designated in writing or orally (followed by a written confirmation and summary) as “confidential”, or which are of such nature and character that a reasonable person in the trade would understand it to be confidential without the necessity of it being so designated. The obligations of Consultant under this Section 3 shall survive expiration or termination of this Agreement.

3.3 Consultant shall not disclose, publish, communicate, or reveal RTI’s Confidential Information to any third party unless:

express prior written permission is given by RTI and only after such third party executes an agreement with contractual obligations of confidentiality and non-use with respect to such Confidential Information that are at least as protective as those contained in this Agreement, and provided that Consultant remains ultimately responsible for such third party’s acts and omissions with respect to such Confidential Information; or

in the event Confidential Information is required to be disclosed to comply with applicable Laws, or with a court or administrative order, Consultant shall (i) provide RTI with immediate notice upon learning that such disclosure is required, (ii) use best efforts to assist RTI in taking all reasonable and lawful actions as deemed prudent by RTI to obtain confidential treatment for the Confidential Information for which disclosure is sought, and (iii) minimize the extent of such disclosure.

3.4. The provisions of this Agreement regarding confidentiality and non-use of Confidential Information will not apply to, and Confidential Information does not include, information which:

was independently developed or discovered by Consultant without use or benefit of RTI’s Confidential Information, as demonstrated by Consultant’s written records;

is already available to the public;

becomes available to the public through no fault of the Consultant; or

is provided to Consultant without obligations of confidentiality and non-use by a third party having the right to so provide such information.

Notwithstanding anything herein to the contrary, Consultant shall remain bound to any and all obligations of confidentiality for any knowledge gained under previous employment with RTI or its subsidiaries or affiliates.

3.5 Consultant shall not publish or share any Work Product or Confidential Information developed or received under this Agreement without the prior written consent of RTI.

3.6 Upon the expiration or termination of this Agreement, or within ten (10) days from receipt of request by RTI, Consultant shall return to RTI all originals, copies, and summaries of documents, material, and other tangible manifestations of Work Product and Confidential Information in the possession or control of Consultant, and destroy all intangible manifestations thereof (e.g., electronic files). The obligation of Consultant to return Work Product and Confidential Information to RTI and to destroy intangible manifestations thereof shall survive until fulfilled.

3.7 Consultant acknowledges that RTI processes and distributes allograft and xenograft tissue products for transplantation throughout the world and stipulates that the restrictions set forth herein are necessary to protect the legitimate business interests of RTI in guarding trade secrets and patentable subject matter, preserving the goodwill of its customers and business, preventing solicitation of its customers, and preventing the unauthorized use of its Confidential Information and the Work Product created hereunder.

4 - TERM AND TERMINATION

4.1 The term of this Agreement shall commence on the Effective Date and continue until September 30, 2017 (the “Term”), unless otherwise terminated early as set forth in Section 4.2 herein. This Agreement may be extended with the mutual written agreement of the Parties.

4.2 Either Party hereto may terminate this Agreement at any time, with or without cause, by providing the other Party with thirty (30) days’ advance written notice. Sections 3, 4.2 and 5 herein shall survive the termination or expiration of this Agreement. The expiration of outstanding options shall be governed by Section 4 of the Executive Separation Agreement between RTI and Xxxxxxx.

5 – GENERAL PROVISIONS

5.1 Consultant represents and warrants that she is not cognizant of any issues that would be a conflict of interest with the terms and provisions of this Agreement or Consultant’s

performance hereunder. In the event RTI or Consultant identifies a conflict of interest issue, the identifying Party will immediately notify the other Party in writing, and the Parties will work together to rectify the conflict of interest issue. Any such conflict of interest shall be resolved to the satisfaction of RTI within forty eight (48) hours of such notice, or this Agreement is otherwise immediately terminable by RTI in its sole discretion.

5.2 This Agreement may not be transferred or assigned by the Consultant, in whole or in part, except with the prior written consent of RTI. RTI may in its sole discretion assign this Agreement or its rights hereunder. Notwithstanding the above, the Consultant may assign this Agreement to Regulatory Strategies LLC (“RSL”) upon written notice to RTI. However, at all times during the term the Consultant must: (a) personally perform all services required under this Agreement; (b) remain the only equity holder of RSL; (c) remain personally liable for the performance of all obligations due to RTI under this Agreement of RSL and (d) remain bound by the terms of this Agreement, including, without limitation, those set forth in Section 3. After the written notification of assignment has been received by RTI, RTI shall direct all payments under this Agreement to RSL.

5.3 This Agreement is governed by and shall be construed and enforced in accordance with the laws of the State of Florida, without regard to conflict of law rules. Venue for any legal proceeding or action at equity or law arising out of or for purposes of this Agreement shall lie in the state courts of Alachua County, Florida, or the United States District Court for the Northern District of Florida, Gainesville Division, and Consultant agrees that such courts shall have personal jurisdiction over Consultant and hereby waives any objection thereto. The prevailing Party in any dispute arising under, out of, or in relation to this Agreement shall be entitled to recover reasonable attorneys’ fees and costs from the non-prevailing Party, including, as applicable, any cost of appeal.

5.4 Nothing in this Agreement shall be construed as granting by implication, estoppel, or otherwise, any license or rights under patents, trade secrets, know-how, copyrights, or other intangible rights of RTI other than those specifically set forth herein.

5.5 The Parties do not intend that this Agreement shall confer on any third party any right, remedy or benefit or that any third party shall have any right to enforce any provision of this Agreement.

5.6 OTHER THAN ANY WARRANTY EXPRESSLY MADE IN THIS AGREEMENT, RTI MAKES NO REPRESENTATIONS AND EXTENDS NO WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE. TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, IN NO EVENT SHALL (A) RTI BE LIABLE HEREUNDER FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER RTI KNEW OF THE POSSIBILITY OF SUCH DAMAGES; OR (B) RTI’S AGGREGATE LIABILITY HEREUNDER EXCEED THE AMOUNTS ACTUALLY PAID BY RTI TO CONSULTANT HEREUNDER.

5.7 The right of either Party to terminate this Agreement, as provided under Section 4 herein, shall not be an exclusive remedy, and either Party shall be entitled, if the circumstances warrant, alternatively or cumulatively, to damages for breach of this Agreement, or to an order or injunction requiring performance of the obligations of this Agreement or to any other remedy available at law or equity.

5.8 This Agreement constitutes the entire agreement and understanding of the Parties with regard to the subject matter hereof and supersedes all prior discussions, negotiations, understandings and agreements between the Parties concerning the subject matter hereof. This Agreement may be amended only by written agreement of the Parties hereto. If any term of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then this Agreement, including all of the remaining terms, will remain in full force and effect as if such invalid or unenforceable term had never been included.

5.9 In the event any portion of this Agreement may be deemed less stringent than applicable Laws, regulations, or official guidance from an applicable governmental authority, the Parties agrees to confer and negotiate in good faith to amend this Agreement to comply with the more stringent standard.

5.10 Each Party to this Agreement hereby agrees to execute, acknowledge and deliver all such further instruments as may be necessary or appropriate to carry out the intent and purposes of this Agreement.

5.11 The headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement.

5.12 Neither party shall be responsible or liable to the other party for nonperformance or delay in performance of any terms or conditions of this Agreement, except for those relative to the protection of proprietary rights, due to circumstances beyond the control of the nonperforming or delaying party including, but not limited to, acts of God, acts of government, wars, riots, third party criminal acts, strikes or other labor disputes, shortages of labor or materials, fires and floods; provided the nonperforming or delaying party provides to the other party written notice of the existence and reason for such nonperformance or delay. Notwithstanding the foregoing, the nonperformance or delay by any party in excess of thirty (30) days shall constitute cause for termination of this Agreement with such notice given in writing by one Party to the other.

5.13 Any notice or other communication required under this Agreement shall be in writing and delivered to the other Party as follows:


Consultant:

Xxxxxxxx X. Xxxxxxx
000 Xxxxxxxxxxx Xxxxx
Xxxxx, XX 00000

RTI:		With copy to:

Chief Executive Officer		Legal Department
RTI Surgical, Inc.		RTI Surgical, Inc.
00000 Xxxxxxxx Xxxxxx		00000 Xxxxxxxx Xxxxxx
Xxxxxxx, XX 00000		Xxxxxxx, XX 00000

All notices shall be deemed duly served on the date delivered to the other Party at the address stated above, whether in person, by certified mail, postage prepaid, return receipt requested, or sent by Federal Express (or other similar recognized courier) postage prepaid. Either Party may change its address for purposes of this Agreement by giving the other Party written notice of such as provided herein.

5.14 RTI and Consultant each acknowledge that they are independent contractors with regard to the subject matter hereof. Nothing in this Agreement shall be interpreted or construed as creating or establishing the relationship of employer and employee between RTI and Consultant. Both Parties acknowledge that Consultant is not an employee of RTI for state or federal tax purposes, workers’ compensation, or any other purpose or benefit. Neither Consultant nor RTI shall have any right to enter into any contract or commitment in the name of, or on behalf of the other, or to bind the other in any respect whatsoever.

5.15 This Agreement may be executed in several counterparts, each of which shall be deemed an original, and all of which taken together shall constitute but one and the same instrument.

[Signature Page Follows]

IN WITNESS WHEREOF, the Parties have caused this instrument to be executed.


Xxxxxxxx X. Xxxxxxx		RTI Surgical, Inc.

Signature:	/s/ Xxxxxxxx X. Xxxxxxx	By:	/s/ Xxxxxx X Xxxxxxxx
		Name:	Xxxxxx X. Xxxxxxxx
		Title:	Interim President and Chief Executive Officer
Date:	January 31, 2017	Date:	January 31, 2017

EXHIBIT A

Schedule of Services

Consulting relating to Regulatory Affairs, Quality Assurance and Clinical matters.

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Table of Contents

CONSULTANT AGREEMENT

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