EXHIBIT 10.19
[*] --Certain information omitted and filed separately with the Commission
pursuant to a confidential treatment request under Commission Rule 24b-2.
MASTER SERVICES AGREEMENT
THIS MASTER SERVICES AGREEMENT (the "Agreement") is made as of the 1st
day of January, 2001 by and between Quintiles Transnational Corporation, a North
Carolina corporation (the "Company"), and A. M. Xxxxxx & Associates, LLC, a
North Carolina limited liability company ("AMP&A").
BACKGROUND
AMP&A has experience beneficial to the Company's business and has
access to a network of business associates and consultants with experience
beneficial to the Company's business.
The Company and AMP&A desire for the Company to engage AMP&A to provide
certain consulting services to the Company on the terms and conditions set forth
herein.
NOW, THEREFORE, the Company and AMP&A agree as follows:
ARTICLE I
CONSULTING SERVICES
Section 1.01 Engagement. On the terms and subject to the conditions set
forth in this Agreement, the Company hereby engages AMP&A to perform, and AMP&A
hereby agrees to provide, the consulting services agreed by the Company and
AMP&A from time to time and set forth in written project statements separately
executed by the Company and AMP&A (each, a "Project Statement"). Each Project
Statement will specify for the corresponding project, as applicable, the
services to be performed by AMP&A or at its direction, the compensation to be
paid by the Company, and such other matters as the Company and AMP&A determine,
and will constitute part of this Agreement. In the event of any inconsistency
between the body of this Agreement and a Project Statement, the Project
Statement will control. An optional sample form of Project Statement is attached
as Exhibit A to this Agreement.
Section 1.02 Status of AMP&A. The parties acknowledge and agree that
AMP&A will be an independent contractor to the Company and will have the
responsibility to provide all necessary employees, agents or consultants to
properly perform its obligations under this Agreement.
(a) AMP&A understands that it is responsible for paying its own income
tax in accordance with United States law as well as all applicable state and
local taxes. AMP&A further understands that it may be liable for Social Security
("FICA") tax, to be paid in accordance with all applicable laws with respect to
its own employees.
(b) The Company will not be required to withhold state and Federal
income taxes, or to make payments for FICA, unemployment insurance or any other
payroll taxes, with regard to any employees, agents or consultants of AMP&A.
(c) Consistent with its duties and obligations under this Agreement,
AMP&A shall at all times maintain sole and exclusive control and discretion over
its business, operations, employees, agents, and consultants and the manner of
performance of the services required to be rendered by AMP&A hereunder,
including with respect to staffing and resource allocation. All decisions
regarding whether or what assistance AMP&A will enlist in performing services
pursuant to this Agreement will be entirely within the discretion of AMP&A,
which will be free to employ or engage any person, firm, corporation or other
entity to assist AMP&A in performing services pursuant to this Agreement,
subject only to the requirements of Section 3.01 hereof regarding the disclosure
of confidential information.
(d) The Company shall not be responsible for and shall not obtain
worker's compensation, disability benefits insurance, unemployment or employment
security insurance coverage for any person whom AMP&A shall employ or engage to
assist AMP&A in performing services pursuant to this Agreement. To the extent
that any such insurance coverage, or any other type of insurance coverage, is or
shall become required by law, it will be obtained by AMP&A at its own expense.
(e) AMP&A is not eligible for, nor entitled to, and shall not
participate in, any of the Company's pension, health or other fringe benefit
plans, if any such plans exist, such participation in these fringe benefit plans
being limited solely to the Company's employees.
(f) At no time will either party hold itself out to be the employer,
employee, lessee, sublessee, partner or joint venturer of the other party.
Neither party hereto shall have the express or implied right or authority to
assume or create any obligation on behalf of or in the name of the other party,
or to bind the other party in regard to any contract, agreement or undertaking
with any third party, unless otherwise agreed in a writing signed by both
parties.
(g) AMP&A and its agents, employees and contractors retain the right to
perform work for others during the term of this Agreement, including work of the
same kind as contemplated hereunder, pursuant to Section 3.03 hereof.
Section 1.03. Information about the Company. The Company will cooperate
with AMP&A and provide to AMP&A all such materials and information regarding the
Company and its business and financial condition as AMP&A may request from time
to time during and in connection with AMP&A's engagement hereunder. The Company
acknowledges that AMP&A will rely primarily upon information so provided,
without any independent investigation, and that AMP&A does not assume any
responsibility for the accuracy or completeness thereof.
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ARTICLE II
COMPENSATION AND INDEMNIFICATION
Section 2.01 Consulting Fee.
(a) The Company shall pay AMP&A at the rate(s) specified in each
corresponding Project Statement for each day of consulting work in the United
States (each, a "USA Work Day") and each day of consulting work in markets other
than the United States (each, an "International Work Day"). Collectively, USA
Work Days and International Work Days shall be referred to herein as "Work
Days". Each USA Work Day shall consist of eight (8) accumulated hours of
consulting time and each International Work Day shall consist of ten (10)
accumulated hours of consulting time, which shall include travel on behalf or at
the request of the Company.
(b) In addition, the Company shall pay AMP&A the success fees (if any)
specified in each corresponding Project Statement for AMP&A's role in
transactions between the Company and third parties.
(c) Promptly upon execution of each Project Statement, the Company will
pay AMP&A a retainer in the amount specified in such Project Statement, which
AMP&A will apply to payment of AMP&A's invoices for services rendered in
connection with such Project Statement. The portion of the retainer (if any)
designated in each Project Statement as non-refundable will be non-refundable.
AMP&A promptly will refund the Company any remaining balance of the refundable
portion of any such retainer after resolution of AMP&A's final invoice upon
termination or conclusion of the corresponding Project Statement.
(d) Except as set forth in the applicable Project Statement, AMP&A will
render monthly invoices by the last business day of each month for the total
number of Work Days (including any fraction thereof) performed during that
month, which shall be paid by the Company within fifteen (15) days of receipt.
(e) In the event of termination of this Agreement for any reason, AMP&A
shall render a final invoice, due and payable promptly following receipt by the
Company, for all Work Days (including any fraction thereof) performed by AMP&A
prior to termination and for all expenses incurred or committed to by AMP&A
prior to termination.
Section 2.02 Expenses. The Company will reimburse AMP&A within fifteen
(15) days of receipt of AMP&A's invoice for all reasonable out-of-pocket and
administrative expenses incurred by AMP&A in performing services pursuant to
this Agreement, including, without limitation, travel, food, lodging, telephone
and telecopier expenses, as well as the fees and expenses of any third party
consultants engaged by AMP&A in connection with rendering services hereunder.
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Section 2.03 Limited Liability. With regard to the services to be
performed by AMP&A (which term shall include its affiliates and its and their
respective officers, directors, employees, agents and consultants in this
Section 2.03) pursuant to the terms of this Agreement, AMP&A shall not be liable
in any manner whatsoever under this Agreement or otherwise to the Company, or to
anyone who may claim any right due to AMP&A's relationship with the Company,
except for damages determined in a final judgment by a court of competent
jurisdiction to have resulted from actions taken or omitted due to AMP&A's
willful misconduct, gross negligence or knowing violation of law.
Notwithstanding the foregoing, AMP&A shall not have any liability for any
special, incidental or consequential damages, including without limitation
damages for any loss of opportunity, revenue or profit, for or in connection
with the engagement contemplated hereby or the existence, furnishing,
functioning, use or application of any information, data, documentation, work
product, conclusion, recommendation or report provided pursuant to this
Agreement, regardless of whether AMP&A shall have been advised or should have
known of the possibility of such damages. ************
Section 2.04 Indemnification.
(a) The Company shall indemnify and hold AMP&A (which term
shall include its affiliates and its and their employees, agents and consultants
in this Section 2.04) free and harmless to the full extent permitted by law or
in equity, for and from any and all losses, obligations, liabilities, damages,
costs, expenses, claims, actions, judgments, attorneys' fees and attachments,
joint or several, arising from or in connection with third-party claims under
this Agreement or any third-party claim, matter or transaction occurring prior
to the date hereof related to AMP&A's services hereunder, except to the extent
the same shall be determined in a final judgment by a court of competent
jurisdiction to have resulted from actions taken or omitted due to AMP&A's
willful misconduct, gross negligence or knowing violation of law.
(b) Subject to Section 2.03, AMP&A shall indemnify and hold
the Company (which term shall include its affiliates and its and their
employees, agents and consultants in this Section 2.04) free and harmless to the
full extent permitted by law or in equity, for and from any and all losses,
obligations, liabilities, damages, costs, expenses, claims, actions, judgments,
attorneys' fees and attachments, joint or several, arising from or in connection
with third-party claims under this Agreement or any third-party claim, matter or
transaction occurring prior to the date hereof related to AMP&A's services
hereunder, but only to the extent the same shall be determined in a final
judgment by a court of competent jurisdiction to have resulted from actions
taken or omitted due to AMP&A's willful misconduct, gross negligence or knowing
violation of law.
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(c) At its option, the Company shall defend AMP&A against any
such claim or action or obtain separate counsel for AMP&A. If AMP&A is provided
separate counsel, the fees and expenses of such counsel shall be indemnified
expenses hereunder. The Company further agrees that it will not, without the
prior written consent of AMP&A, settle, compromise, or consent to entry of
judgment in respect of any matter for which AMP&A may seek indemnification
hereunder unless AMP&A is the beneficiary of a general release from any and all
liability in connection therewith.
(d) At its option, AMP&A shall defend the Company against any
such claim or action or obtain separate counsel for the Company. If the Company
is provided separate counsel, the fees and expenses of such counsel shall be
indemnified expenses hereunder. AMP&A further agrees that it will not, without
the prior written consent of the Company, settle, compromise, or consent to
entry of judgment in respect of any matter for which the Company may seek
indemnification hereunder unless the Company is the beneficiary of a general
release from any and all liability in connection therewith.
Section 2.05 ************
Section 2.06 Force Majeure. AMP&A shall not be liable to the Company
nor be deemed to have defaulted under or breached this Agreement for any
failures, errors, delays or other conditions or consequences arising from or
caused by events beyond AMP&A's control, including, without limitation,
sabotage, failures or delays in transportation, equipment or communication,
labor disputes, accidents or acts of nature.
ARTICLE III
DISCLOSURE; BUSINESS OPPORTUNITIES
Section 3.01 Non-Disclosure of Confidential Information.
(a) In the course of AMP&A's engagement hereunder, AMP&A may have
access to confidential information and trade secrets relating to the Company's
business. During the term of this Agreement and thereafter for a period of five
(5) years, AMP&A shall not directly or indirectly disclose to any third person
any such confidential information or trade secrets without the Company's prior
consent, except as required by law or in the course of AMP&A's engagement
hereunder.
(b) The following information shall not be considered confidential or
secret:
(i) Information which is already or hereafter becomes
generally available to the public, except as a result of the breach of AMP&A's
duty of confidentiality hereunder.
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(ii) Information which the Company agrees may be disclosed.
(iii) Information which was known to AMP&A prior to the
transmittal thereof from the Company.
(iv) Information which AMP&A received from a third party which
had the right to possess and to disclose the information.
(v) The existence of this Agreement and the consulting
relationship between AMP&A and the Company.
Section 3.02 Disclosure of Consulting Relationship. AMP&A shall have
the right to disclose the existence of this consulting relationship with the
Company pursuant to this Agreement; provided, however, that AMP&A shall not
disclose any confidential information or trade secrets of the Company covered by
Section 3.01 hereof, and that any disclosures to the media shall be made only
with the consent of the Company.
Section 3.03 Other Business Opportunities. Neither this Agreement nor
any policy of the Company shall prevent or restrict AMP&A from engaging in any
other business activities for its own account or on behalf of others including,
without limitation, business activities of the type conducted by the Company, or
from investing in or performing any consultation services for any other
individual or entity including, without limitation, investing in or performing
the type of consultation provided under or contemplated by this Agreement for
any individual or entity engaged in business activities of the type conducted by
the Company. AMP&A shall inform the Company of all other individuals and
entities engaged in business activities of the type conducted by the Company for
whom AMP&A provides or intends to provide consultation services, or with whom
AMP&A holds a directorate. The Company acknowledges and agrees that (a) AMP&A
may obtain information about other companies and persons in the course of
AMP&A's activities therewith; (b) except with such companies' or persons'
consent, AMP&A will not make such information available to the Company, nor will
AMP&A make any such information about the Company available to such companies or
persons except as permitted by this Agreement; and (c) the Company shall not
assert any claim or defense against AMP&A for AMP&A's failure to furnish any
such information to the Company or by reason of AMP&A's activities with such
other companies and persons.
ARTICLE IV
MISCELLANEOUS
Section 4.01 Termination. Either party hereto may terminate this
Agreement or any Project Statement, with or without cause, upon written notice
delivered sixty (60) days in advance to the other party. This Agreement shall
remain in effect until so terminated. Termination of this Agreement will
constitute termination (on the same basis) of all Project Statements then in
effect. AMP&A shall render a final invoice upon termination as provided
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in Section 2.01 above. Upon delivery of written notice of termination to AMP&A
by the Company, AMP&A shall immediately cease to perform work for or on behalf
of the Company, unless authorized in writing by the Company.
Section 4.02 Severability. If any provision or portion of this
Agreement is judicially or administratively interpreted or construed as being in
violation of controlling law in any jurisdiction, such provision or portion
shall be inoperative in such jurisdiction and the remainder of this Agreement
shall remain binding upon the parties hereto in such jurisdiction with the
Agreement as a whole unaffected elsewhere.
Section 4.03 Notices and Other Communications. Every notice required
under or contemplated by this Agreement shall be given in writing and shall be
deemed effectively given upon personal delivery to the party to be notified or
one (1) day after deposit with any nationally recognized overnight carrier or
three (3) days after deposit with the U.S. Post Office by registered or
certified mail, postage prepaid and addressed to the party to be notified as
follows:
To AMP&A: A. M. Xxxxxx & Associates, LLC
0000 Xxxxxx Xxxx-Xxxxxx Xxxxxxx
Xxxx Xxxxxxxx, Xxxxx 000
Xxxxxx, XX 00000
Attention: Xx. Xxxx X. Xxxxxx
Senior Vice President
To the Company: Quintiles Transnational Corp.
0000 Xxxxxxxxxx Xxxxx
Xxxxxxxxxx Xxxxxxxx, Xxxxx 000
Xxxxxxxxxxx, XX 00000
Attention: Xxx Xxxxxx
Senior Vice President, Finance
or at such other address as the intended recipient previously shall have
designated by written notice to the other party in like manner. It is the
responsibility of the party giving notice to obtain a receipt for delivery of
the notice, if that party considers such a receipt advisable.
Section 4.04 Counterparts. This Agreement may be executed in any number
of counterparts and each counterpart shall constitute an original instrument,
but all such separate counterparts shall constitute one and the same instrument.
Section 4.05 Law to Govern. The validity, construction and
enforceability of this Agreement shall be governed in all respects by the law of
the State of North Carolina, without regard to its conflicts of laws rules, and
the parties hereby irrevocably consent to the
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non-exclusive jurisdiction and venue of the State and Federal courts located
within North Carolina.
Section 4.06 Written Agreement to Govern. This Agreement, together with
all Project Statements, sets forth the entire understanding and supersedes all
prior and contemporaneous agreements between the parties relating to the subject
matter contained herein and merges all prior and contemporaneous discussions
between them, and no party shall be bound by any definition, condition,
representation, warranty, covenant or provision other than as expressly stated
in or contemplated by this Agreement or as subsequently shall be set forth in
writing and executed by a duly authorized representative of the party to be
bound thereby.
Section 4.07 Assignability. Neither this Agreement nor any right or
obligation hereunder is assignable in whole or in part, whether by operation of
law or otherwise, by either party hereto without the express written consent of
the other party, and any such attempted assignment shall be void and
unenforceable. Notwithstanding the above, AMP&A may assign all of its rights
hereunder to or cause services required of AMP&A hereunder to be performed by
any entity or association owned or controlled by AMP&A without the Company's
prior written consent. This Agreement and the rights and obligations hereunder
shall be binding upon, and shall inure to the benefit of any proper successor or
assignee.
Section 4.08 No Waiver of Rights. All waivers hereunder must be made in
writing, and failure of any party at any time to require another party's
performance of any obligation under this Agreement shall not affect the right
subsequently to require performance of that obligation. Any waiver of any breach
of any provision of this Agreement shall not be construed as a waiver of any
continuing or succeeding breach of such provision or a waiver or modification of
the provision.
Section 4.09 Attorneys' Fees. If any obligation to compensate AMP&A
arising out of this Agreement shall not be paid when due and AMP&A shall engage
an attorney to collect that indebtedness, the Company shall be liable to pay
AMP&A its reasonable attorneys' fees as well as all other costs and expenses
incurred with respect to the collection of that indebtedness.
Section 4.10 Subject Headings. The subject headings of the Articles and
Sections of this Agreement are included for purposes of convenience only, and
shall not affect the construction or interpretation of any of the provisions of
this Agreement.
Section 4.11 Survival. Notwithstanding any provision in this Agreement
to the contrary, the provisions of Sections 2.01 (Consulting Fee), 2.02
(Expenses), 2.03 (Limited Liability), 2.04 (Indemnification), 3.01 (Disclosure
of Confidential Information), 3.03 (Other Business Opportunities), 4.09
(Attorneys' Fees), and 4.12 (Non-Solicitation) hereof shall survive any
termination of this Agreement and AMP&A's engagement hereunder.
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Section 4.12 Non-Solicitation. During the term of this Agreement and
for six (6) months after the termination hereof, the Company shall not, without
the payment to AMP&A of a separation fee in an amount equal to fifty percent
(50%) of such person's total compensation package being offered, but not less
than $1,000,000, directly or indirectly employ or otherwise engage any officer,
director, employee or agent of AMP&A or any of its affiliates.
Section 4.13 Dispute Resolution. Each party shall use its respective
best, good faith efforts to resolve amicably any dispute arising out of or in
any way relating to this Agreement or AMP&A's engagement by the Company. The
parties shall submit any such dispute not so resolved and concerning the
determination of AMP&A's fees hereunder to the accounting firm of Xxxxxx
Xxxxxxxx (or any other "Big Five" accounting firm upon which the parties shall
agree) for resolution, and such firm's determination shall be final and binding
upon the parties. The parties shall submit any other such dispute not so
resolved to mediation and, if necessary, binding arbitration administered in
Raleigh, North Carolina by the American Arbitration Association in accordance
with its then-current commercial rules. Subject to Section 4.05 above, any court
of competent jurisdiction may enter judgment upon any accounting determination
or arbitration award so made.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first written above.
QUINTILES TRANSNATIONAL CORPORATION A. M. XXXXXX & ASSOCIATES, LLC
By: /s/ Xxx Xxxxxx By: /s/ Ford S. Worthy
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Its: SVP - Finance Its: Senior Vice President
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EXHIBIT A
A. M. XXXXXX & ASSOCIATES, LLC/QUINTILES TRANSNATIONAL CORPORATION
PROJECT STATEMENT NO. __
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This document constitutes a "Project Statement" made under the Master
Services Agreement dated as of January 1, 2001 between A. M. Xxxxxx &
Associates, LLC and Quintiles Transnational Corporation (the
"Company").
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Project Name:
Project Date:
Project Term:
Services
to be Provided:
Compensation:
The parties have agreed to and executed this Project Statement as of
the Project Date set forth above.
Quintiles Transnational Corporation A. M. Xxxxxx & Associates, LLC
By:_________________________ By:_________________________
Its:_________________________ Its:_________________________
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