CONSULTING SERVICES AGREEMENT
Exhibit
10.1
This
Consulting Services Agreement (“Agreement”) is made effective the 1st day
of April 2010 (the “Effective Date”), by and between Emergent BioSolutions Inc.
(“Emergent”), a Delaware corporation, with offices at 0000 Xxxxxxxx
Xxxxxxxxx, Xxxxx 000, Xxxxxxxxx, Xxxxxxxx 00000, and The Xxxxx Group
(“Consultant”), located at 0000 Xxxxxxxxx Xxxx, Xxxxxxxxxx, XX 00000,
Emergent and Consultant are sometimes hereinafter referred to in the singular as
“Party” and collectively as the “Parties”.
WHEREAS, Emergent and its Affiliates
(as hereinafter defined) are engaged in the development, production, and
commercialization of biopharmaceutical products;
WHEREAS, Consultant is engaged in
providing consulting services as described in this Agreement; and
WHEREAS, Emergent and, as applicable, its Affiliates (as
hereinafter defined) desires to engage Consultant to provide certain
services from time to time as mutually agreed by the Parties, and Consultant
desires to be so engaged.
NOW,
THEREFORE, in consideration of the mutual covenants herein and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Parties, intending to be bound, agree as follows:
1. Services. Consultant agrees to
provide certain services from time to time as requested by Emergent or any of
Emergent’s Affiliates as specified in Exhibit A attached
hereto (the “Services”). In the event that Consultant is requested or
required to perform work for the Services beyond that which is specifically set
forth in Exhibit
A, any such additional services and an appropriate adjustment to the
amounts owed shall be negotiated in good faith and the Parties shall amend this
Agreement to reflect such additional services and any additional or modified
terms in respect thereof prior to the provision of such new
services.
2. Payment for
Services. Emergent shall compensate Consultant for Services in
accordance with the payment terms set forth in Exhibit A, and all
invoices for payment shall be submitted to Emergent as detailed
therein. Notwithstanding the foregoing, for any invoice to be
processed and paid, such invoice must refer to the applicable Emergent
Accounting Code designated in Exhibit
A. If Consultant bills on an hourly basis, all invoices must
be accompanied by a timesheet detailing the hours worked and signed by both
Consultant and Emergent. Payment of Consultant’s invoices shall be in
full compensation for the Services performed by Consultant unless expressly
agreed otherwise in writing by the Parties. Invoices shall be payable
within thirty (30) days of receipt by Emergent. Representatives of
Consultant performing Services hereunder will not receive employee benefits from
Emergent, including but not limited to paid vacation, sick leave or any
insurance benefits, even if such representatives are physically situated at
Emergent’s offices.
3. Expenses. Emergent
shall pay for or reimburse Consultant for out-of-pocket expenses reasonably
incurred in the performance of Services hereunder; provided, however, that
expenses shall only be paid for or reimbursed if in compliance with Emergent’s
Travel Policy (as previously provided to Consultant or as updated by Emergent
from time-to-time and disclosed to Consultant), or otherwise expressly
authorized in Exhibit
A or as agreed in writing by the Parties. Consultant shall submit monthly
invoices detailing expenses incurred during the immediately preceding month by
appropriate category and shall provide supporting documentation as is acceptable
to Emergent in its reasonable discretion. It is agreed that expenses
shall not be marked up. This Agreement relates to the provision of
Services only. In the event Consultant deems it necessary to purchase
equipment, goods, software or other tangible or intangible property for which it
will seek reimbursement from Emergent, no such purchase shall be made and
Emergent shall not be responsible for reimbursement to Consultant unless
Consultant has received Emergent's express, prior written
authorization.
4. Confidentiality of
Information. Consultant acknowledges
that this Agreement creates a confidential relationship between Consultant and
Emergent. Consultant and Emergent acknowledge that, in order to
perform the Services, it will be necessary for Emergent to allow Consultant to
have access to certain commercially valuable, proprietary, and confidential
information of Emergent and its Affiliates. Consultant agrees to keep
confidential and not, without the prior written consent of Emergent, to publish,
disclose to any third party or use (except for purposes of performance under
this Agreement) any confidential information, in either written, electronic or
oral form whether or not marked as “confidential” or “proprietary,” and without
limitation, any and all information relating to the business, prospective
business, technical processes, finances, price lists, customer lists,
information relating to the licensing or approval of any of the products,
business plans, business prospects, employee information, information regarding
facilities, operations and financial condition and results, inventions,
improvements, trade secrets, know-how, processes, formulas, methods, assays,
data, instrumentation, sales and marketing information, standard operating
procedures, clinical trials, clinical trial data, clinical specimens, study
protocols, investigators’ brochures and instructions or other scientific or
technical information, and any documentation and materials specifically
developed or prepared for or by Consultant in performance of Services under this
Agreement (collectively, the "Confidential Information"). The obligations of
this paragraph do not pertain to information which is generally known or
hereafter becomes generally known to the public through no fault of Consultant
or is disclosed by Consultant with the written approval of
Emergent. Consultant shall return all such Confidential Information
to Emergent upon completion of the Services hereunder or upon Emergent’s
request. If
Confidential Information is sought by any source, including any governmental
organization, Consultant must immediately notify Emergent of such request and
refuse to divulge any such information at least until a representative of
Emergent is permitted to address the situation and either consents to the
disclosure or has the opportunity to engage legal means to protect the
disclosure of such information.
5. Authorized Contacts. With respect to the
performance of Services, Consultant shall report to the
Authorized Contact(s) identified in Exhibit A (or such
other person that may hold the same position at a later date) or such other
person(s) as such Authorized Contact(s) may designate from time to time in
writing.
6. Deliverables and
Reports. Consultant shall make weekly reports and such other
reports as Emergent or its Affiliates may from time to time
request.
7. Ownership of Work. All right,
title, and interest in and to all data, information, documents, materials and
inventions relating to or arising out of the Services shall belong to and be the
property of Emergent. Consultant agrees, without further payment by
Emergent, to make any assignments and execute all documents necessary to effect
Emergent's title thereto in all countries of the
world. Furthermore, all documents and
materials prepared by Consultant in the performance of its duties hereunder will
constitute works-made-for-hire and shall belong to and be the exclusive property
of Emergent and shall be surrendered by Consultant to Emergent upon request.
Consultant hereby assigns to Emergent all rights that Consultant may have to
data, information, documents, materials and inventions referred to in this
paragraph. The above assignments and surrender shall be made once
payment in full has been made by Emergent to Consultant as detailed in Exhibit
A.
8. Term and
Termination.
This
Agreement shall become effective as of the Effective Date set forth above and
shall continue in effect for one (1) year thereafter or until the Agreement
otherwise terminates under this Section 8 (the “Term”); provided, however, that
in the event that any requested Services are then outstanding, the Term shall be
automatically extended until such Services are completed or are terminated by
either Party.
This
Agreement shall terminate upon the expiration of the Term or the first to occur
of the following events:
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(i)
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On
the date Emergent provides Consultant with written notice (setting out
with particularity) that this Agreement is being terminated for
“cause.” For purposes of this Agreement, Consultant shall be
deemed terminated for cause if Emergent terminates Consultant after
Consultant:
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(a)
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shall
have committed any act or acts of embezzlement, theft or fraud against
Emergent;
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(b)
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shall
have been convicted of a felony or any crime involving moral turpitude,
whether or not related to the
Services;
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(c)
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shall
have committed any act or acts of negligence or willful misconduct;
or
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(d)
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shall
have committed a breach of the representations, warranties or covenants
contained in Sections 4, 7, 9, 11 or 16
herein.
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(ii)
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On
the date either Party terminates the Agreement for convenience on not less
than ten (10) days’ prior written
notice.
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Upon
termination of this Agreement, Emergent shall have no further liability other
than for payment in accordance with the terms of this Agreement for Services
provided prior to the termination date. If this Agreement is
terminated by Emergent under Section 8(b)(i)(d), in addition to any other rights
or remedies available at law or in equity, Consultant will surrender any claim
for payment under the Agreement and will refund any payments received under this
Agreement.
The
provisions of Sections 2, 3, 4, 7, 8, 11 (with respect to 11(d), only for twelve
months following termination or expiration), 13, 14, 15, 16 and 18 shall survive
the expiration or termination of this Agreement for any reason.
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9.
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Representations and
Warranties Consultant represents and warrants
that:
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(a) the
Services performed hereunder will be performed in a competent, diligent and
workmanlike manner consistent with the expected industry standards of
professional conduct;
(b) Consultant
and any of Consultant’s personnel performing Services will perform the Services
for Emergent hereunder and have been advised of the restrictions and obligations
set forth in this Agreement, including without limitation, the requirements of
confidentiality (Section 4), compliance with laws (Section 11) and
non-solicitation (Section 16); and
(c) Consultant
has full power to enter into and fully perform this Agreement and has the full
and unrestricted right to disclose to Emergent any information Consultant makes
available to Emergent under this Agreement.
10. Relationship of Parties. With
respect to the subject matter of this Agreement, the Parties are and remain
independent contractors. This Agreement shall not be deemed to create
an employer/employee relationship, joint venture, partnership, association, or
agency between the Parties. Consultant is not authorized to incur or
create any obligation express or implied on behalf of Emergent or to bind
Emergent in any manner whatsoever.
11. Compliance with Laws. In performing the
Services, Consultant shall comply with all applicable existing and future laws,
rules and regulations. Consultant covenants and agrees to perform its
duties and responsibilities under this Agreement in accordance with the highest
standards of ethical business conduct and will not engage in any acts or
activities that are illegal or that may adversely affect or reflect upon the
business, integrity or goodwill of Emergent. Without limiting the
generality of the foregoing, Consultant represents, warrants and agrees
that:
(a) Consultant
will comply with all applicable existing and future treaties,
laws, regulations, including but not limited to those governing
employment practices (including those governing employee recruiting and hiring),
anti-bribery, anti-corruption and anti-gratuities laws or other similar
laws.
(b) Consultant
will comply with all Emergent stated policies and procedures applicable to
consultants operating at Emergent’s offices, including without limitation, those
governing safety, health, harassment, and discrimination.
(c) Consultant
will prohibit its staff from involvement with the payment or giving of anything
of value, either directly or indirectly, to an official of any government,
political party or official thereof, any candidate for foreign political office,
or any official of an international organization, for the purpose of influencing
an act or decision in its official capacity, or inducing that official to use
his/her influence with any government, to assist Emergent in obtaining or
retaining business for or with, or directing business to, any person, or for
obtaining an improper advantage. Consultant agrees to comply with the
provisions of this Section 11(c) and take no action that it believes might cause
Emergent to be in violation of international, federal, state or local laws or
regulations, or Emergent’s policies and procedures, as well as any action by
Consultant that might be construed as a violation of international, federal,
state or local law, or Emergent’s policies and procedures.
(d) At such
times as may be requested by Emergent, Consultant will certify to Emergent in
writing that: (1) Consultant understands the requirements of applicable
anti-corruption or anti-bribery laws that apply to the Consultant and the
Agreement; (2) Consultant believes it has complied with all applicable laws,
regulations, and Emergent’s policies and procedures; (3) Consultant has,
specifically, not made, offered to give or agreed to give anything of value,
directly or indirectly, whether in cash or in kind to or for the benefit of any
government official or “foreign official,” political party or official thereof,
or candidate for political office, or official of an international organization,
for the purpose of carrying out this Agreement; (4) Consultant does not know or
have any reason to believe that any employee, agent, representative or other
person retained by Consultant has violated any of the foregoing undertakings;
and (5) Consultant will immediately advise Emergent if Consultant should learn
or have reason to believe that there has been a violation of any of the
foregoing undertakings.
(e) Emergent
BioSolutions Inc. (“EBSI”), is a publicly traded company on the New York Stock
Exchange. Consultant acknowledges the laws and regulations
prohibiting “xxxxxxx xxxxxxx,” including the purchase or sale of securities of a
company while in the possession of material information that has not been
generally disclosed in the marketplace. Consultant represents that it
may have access to certain material nonpublic information of EBSI, Emergent,
and/or their Affiliates and will not engage in xxxxxxx xxxxxxx or disclose such
information to any third parties.
12. Definition of
Affiliate. “Affiliate” shall mean any direct or indirect,
current or future subsidiary of a Party, or any other entity which is controlled
by a Party or which controls a Party. The term “control” as used
herein shall mean possession, directly or indirectly of at least fifty percent
(50%) of the voting equity of another entity (or other comparable interest for
an entity other than a corporation), or the power to direct or cause the
direction of the management or policies of an entity whether through ownership
of securities, by contract or otherwise.
13. Export Control
Technology. The Parties acknowledge that any products,
software, and technical information provided under this Agreement may be subject
to the United States, United Kingdom and other export laws and regulations and
any use or transfer of such products, software and technical information may
require authorization under those regulations. The parties agree that they will
not use, distribute, transfer, view or transmit such products, software or
technical information (even if incorporated in other products) except in
compliance with the applicable export regulations. The parties also agree to
sign written assurances and other export related documents as may be required
for compliance with applicable export regulations.
14. Indemnification and Limitation of
Liability. Consultant shall hold
harmless and indemnify Emergent, its employees, agents and representatives, from
and against any and all suits, demands, losses, damages, judgments, claims,
costs, (including reasonable attorneys’ fees and costs) or other liability
(including, without limitation personal injury or death) (collectively
"Liability"), to the extent that such Liability arises from or is related to the
performance of Services under this Agreement or the negligence, act or omission
of Consultant or any of her agents or representatives.
15. Dispute
Resolution. All disputes or claims arising under this
Agreement that cannot be resolved by the Parties shall be submitted to
non-binding mediation for a period of thirty days, which may be extended by
written agreement of the Parties. If such dispute is not resolved
amicably through mediation or otherwise within the specified period, either
Party may pursue remedies available to it at law or in equity, subject to the
terms of this Agreement.
16. Non-Solicitation. Consultant
agrees that, during the term of this Agreement, and for a period of twelve (12)
consecutive months after termination of such Agreement, Consultant will not
knowingly (i) directly induce or attempt to induce or otherwise counsel, advise,
solicit or encourage any employee to leave the employ of Emergent or accept
employment with Consultant or any other person or entity, (ii) directly induce
or attempt to induce or otherwise counsel, advise, solicit or encourage any
person who at the time of such inducement, counseling, advice, solicitation or
encouragement had left the employ of Emergent within the previous six (6) months
to accept employment with any person or entity besides Emergent or (iii)
solicit, interfere with, or endeavor to cause any customer, client, or business
partner of Emergent to cease or reduce its relationship with Emergent or induce
or attempt to induce any such customer, client, or business partner to breach
any agreement that such customer, client, or business partner may have with
Emergent.
17. Force Majeure. Neither Party
shall be liable for delay or failure in the performance of any of its
obligations under this Agreement if and to the extent such delay or failure is
due to circumstances beyond the reasonable control of such Party, including but
not limited to fires, floods, explosions, accidents, acts of God, war, riot,
strike, lockout or other concerted acts of workers, acts of government and
shortages of materials. The Party claiming force majeure shall use its
commercially reasonable efforts to eliminate or prevent the cause so as to
continue performing its obligations under this Agreement. During such
time that the event of force majeure causes such a delay or failure of
performance, this Agreement and the Parties’ obligations and responsibilities
under it shall be deemed suspended until the event of force majeure
ceases.
18. Miscellaneous
Provisions.
(a) Governing Law and
Jurisdiction. This Agreement and its interpretation shall be
governed by the laws of the State of Delaware without reference to its conflict
of law or choice of law provisions.
(b) Non-Waiver. No
delay by or omission of any Party in exercising any right, power, privilege, or
remedy shall impair such right, power, privilege, or remedy or be construed as a
waiver thereof.
(c) Remedies. The
rights and remedies provided in this Agreement are cumulative and are not
exclusive of other rights or remedies provided by law.
(d) Taxes. Consultant
shall be fully responsible for payment of all income taxes, social security
taxes, and for any other taxes or payment which may be due and owing by
Consultant as the result of fees or amounts paid to it by Emergent under this
Agreement, and Consultant shall indemnify and hold harmless Emergent from and
against any such tax or payment.
(e) Notices. Any
notice hereunder shall be given by first class mail, express mail, or facsimile
(followed by confirmation), addressed to the Parties at the addresses given in
the preamble of this Agreement, or to such other address as a Party may later
designate in writing to the other Party. Notice given by Consultant
to Emergent shall be directed to the President of EBSI; provided, however that
Notice of any legal action, claim or other legal matter given by Consultant to
Emergent shall be directed to the Legal Department of EBSI.
(f) Use of
Name. Neither Party shall use the name, tradename or trademark
of the other Party in a press release, advertising, publicity or promotional
activity without the prior written consent of the other Party.
(g) Severability. In
the event that any section or any part of a section of this Agreement should be
declared void, invalid, or unenforceable by any court of law, for any reason,
such a determination shall not render void, invalid, or unenforceable any other
section or any part of any other section of this Agreement and the remainder of
this Agreement shall remain in full force and effect.
(h) Headings. Headings
and titles of parts and sections are for convenience only and have no
interpretative significance.
(i) Successors. This
Agreement and the covenants hereof are binding on the Parties and their
respective heirs, executors, representatives, trustees, permitted assigns, and
successors in interest.
(j) Assignability. This
Agreement may not be assigned by Consultant without the prior, express written
consent of Emergent. This Agreement may not be assigned by Emergent
without the prior, express written consent of Consultant; provided, however,
that this Agreement may, without Consultant’s written consent, be assigned and
transferred to any Affiliate of Emergent upon such assignee assuming Emergent’s
obligations hereunder, in which event Consultant agrees to continue to perform
the duties and obligations according to the terms hereof to or for such assignee
or transferee of this Agreement.
(k) Counterparts. This
Agreement may be signed in two identical copies, each of which shall be deemed
to be an original copy, and a facsimile copy shall constitute a legally binding,
enforceable document.
(l)
Integration. This
Agreement, along with the corresponding Exhibit, constitutes the entire
agreement of the Parties, supersedes all prior discussions, negotiations and
understandings verbal and written, if any, and may only be amended or modified
by a written agreement signed by both Parties. In the event of a
conflict between the terms of this Agreement and the terms of any Exhibit or
attachment hereto, proposal, quotation or any Consultant documentation, the
terms of this Agreement shall prevail.
IN
WITNESS WHEREOF, the Parties have executed this Agreement as of the date set
forth in the preamble.
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By
/s/Xxxxxx X.
Xxxxx-Nabi
By: Xxxxxx
X. Xxxxx-Nabi
Title:President
& Chief Operating Officer
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The Xxxxx Group
By
/s/ Xxxxxx
Xxxxx
By:
Xxxxxx Xxxxx
Title: Chief
Executive Officer
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EXHIBIT
A
Scope
of Work and Compensation
The
Services shall include, without limitation, the following:
Contract
Objective:
To assist
Emergent BioSolutions in enhancing its corporate image and visibility, and
expanding opportunities for BioThrax and its pipeline product
candidates.
Summary
of expected activities:
Strategic Support of Corporate
Objectives
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Consultation
to CEO, President and Senior Management on corporate strategic
issues
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General
consultation and directed project support to including but not limited
to:
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Relationship
management with targeted media outlets and
reporters;
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Introductions
to relevant government officials;
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Introductions
to potential commercial partners.
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● Other
projects as may be directed by the CEO, President or Senior
Management
Domestic and International
Marketing
· Target
audiences:
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KOLs,
decision makers or senior officials in health or emergency planning
departments or agencies of foreign
governments
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Senior
leadership and decision makers in first responder communities in major
cities in the US, including individuals such as the Chief of Police, Fire
Chiefs, Head of HAZMAT units, Head of Counter-Terrorism Units, Head of
EMS/Paramedics Units (both independent and those attached to fire
departments) and other groups who may believe themselves to be at high
risk for exposure to anthrax
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Senior
leadership and decision makers in health departments in major cities in
the US to help support decision makers in the first responder communities
when making a medical decision surrounding the use of
BioThrax
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· Specific
activities targeted at these markets including the following:
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Contacting
individuals within the target audiences, prioritizing and arranging
initial meetings/teleconferences with senior leadership and decision
makers within the first responder and health department
communities
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As
needed and appropriate, attend meetings with Emergent executives when
meeting with these key officials
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Provide
input and information on senior leadership and decision makers prior to
meetings to ensure meeting materials and messaging are appropriate and
tailored for the audience
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2
to 4 meetings will be arranged per month with target
audiences.
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Place of
Services: All Services shall be performed on-site at
Emergent’s offices (as specified in the preamble to this Agreement), unless
otherwise directed by Emergent. Consultant agrees that he may be
required to travel domestically and internationally to satisfy the scope of work
and identified objectives.
Authorized
Contact(s): Xxxxxx
X. Xxxxx-Nabi
President
0000
Xxxxxxxx Xxxx., Xxxxx 000
Xxxxxxxxx,
XX 00000
Phone:
(000) 000-0000
XxxxxXxxxX@xxxx.xxx
Compensation: In
exchange for the services provided above, Emergent shall compensate Consultant
at the rate of $15,000.00 per month.
Agreement Start Date:
April 1, 2010
Travel: The Parties
agree that Consultant may book his own air travel for reservations in business
class longer than 2.5 hours of flight time. All other travel will be pursuant to
Emergent's Travel Policy (as provided to Consultant and updated by Emergent from
time-to-time in writing) and all necessary lodging, rental car and other travel
reservations shall be made by an Emergent Administrative Assistant and MAY NOT
be made directly by Consultant. Emergent will not reimburse
for expenses that fail to comply with this process. If
airline, lodging, rental car or other travel reservations are to be made in
connection with Services provided under this Agreement, it is Consultant's
responsibility to contact the Emergent Authorized Contact to request that such
arrangements be made.
Emergent
Accounting Code: 650081-10020/10025 (Payments will be applied
evenly between cost centers.) Code must be noted on all invoices in
order for payment to be processed
