Independent Consultant Agreement - Quintiles Transnational Corp. and Santo J. Costa
INDEPENDENT CONSULTANT AGREEMENT
This Independent Consultant Agreement (the "Agreement") is made as of
the 20th day of November, 2001, by and between QUINTILES TRANSNATIONAL CORP., a
North Carolina corporation ("Quintiles"), and SANTO J. COSTA, a resident of
Cary, North Carolina ("Consultant").
RECITALS
A. Quintiles is a contract research organization that provides services
on behalf of entities engaged in the development, manufacture, distribution,
and/or sale of pharmaceutical products, biotechnology products, and/or medical
devices ("Clients"). Consultant is an individual who is professionally qualified
to provide consulting services relating to such Client services.
B. Quintiles desires to contract with Consultant for Consultant's
provision of consulting services, in accordance with the terms and conditions
set forth herein.
C. Consultant currently has a Contract of Employment dated February 22,
1994, as amended on October 1, 1999 ("Employment Agreement").
D. Effective December 31, 2001, Consultant shall retire from Quintiles.
AGREEMENTS
1. PROVISION OF CONSULTING SERVICES. Quintiles hereby engages
Consultant, and Consultant hereby accepts and confirms such engagement, to
provide certain consulting services, subject to terms and conditions contained
herein (the "Services"), as well as the terms of the Employment Agreement that
survive termination of employment. The nature and scope of the Services and
other specific details relating to the Services are set forth in a Scope of Work
which is attached hereto as Schedule 1 (the "Scope of Work"), and constitutes an
integral part of this Agreement. Consultant agrees that he will not assign or
subcontract this Agreement or use or retain any other person or entity to
perform the Services, without the prior written approval of Quintiles.
2. RELATIONSHIP OF THE PARTIES.
(a) Consultant acknowledges and agrees that this Agreement
involves specified fees for the completion of certain tasks, and that Quintiles
is not undertaking by virtue of this Agreement any responsibility for
supervising, controlling or directing the conduct or performance of Consultant's
obligations, and that Consultant shall exercise Consultant's own professional
judgement and shall control the manner by which the Services are performed,
subject only to the terms and standards of the this Agreement.
<PAGE>
(b) Notwithstanding any provision herein to the contrary or
any course of conduct between the parties, the parties hereto are independent
contractors, and nothing contained in this Agreement shall be construed to place
them in the relationship of partners, principal and agent, employer and
employee, or joint venturers. Each party agrees that it shall have no power or
right to bind or obligate the other, and neither party shall hold itself out as
having such authority. Consultant further represents that Consultant intends to
provide services for customers other than Quintiles and its affiliates, and
Consultant agrees to provide evidence of such other work upon request.
(c) Quintiles shall not be responsible for providing or paying
any benefits (including, but not limited to, unemployment, disability,
insurance, or medical, and any pension or profit sharing plans) to Consultant,
or to any employees of Consultant or any persons retained or used by Consultant
to perform Services hereunder, including independent contractors,
subcontractors, agents, and consultants (collectively, "Consultant Personnel").
Quintiles shall not be responsible for any federal, state, or local income tax
withholding, FICA contributions, contributions to state disability funds or
liability funds, or similar withholdings, or payment of any overtime wages or
workers' compensation, or compliance with any laws, rules or regulations
governing employees, as to Consultant or any Consultant Personnel. Quintiles has
no obligation to Consultant to maintain insurance to cover the risk, if any,
that Consultant creates in performing Services under this Agreement. Consultant
agrees that Consultant is and will continue to be solely responsible for: (i)
all matters relating to the payment of compensation and provision of benefits to
Consultant and any Consultant Personnel; (ii) payment of all taxes relating to
the Services, including payment of quarterly estimated taxes; and, (iii)
compliance with all applicable laws, rules and regulations governing
Consultant's provision of the Services, including, but not limited to, all
applicable laws, rules and regulations governing unemployment, taxation,
occupational safety and health, and discrimination.
3. COMPENSATION. Consultant shall be compensated in accordance with the
terms of the Scope of Work attached hereto, and Consultant agrees to accept the
payments described as payment in full for the Services. Prior to any payments
being made to Consultant, Consultant agrees to either complete a W-9 form and
supply Consultant's social security number to Quintiles. Consultant is
responsible for maintaining adequate records for tax purposes. If Consultant
requests summaries or break-downs of compensation in addition to the 1099 form
or analogous form that Quintiles provides, Quintiles will charge Consultant a
fee for preparing the requested documents, based on the amount of time expended
by Quintiles. Consultant shall invoice Quintiles monthly. If an invoice or any
portion thereof is the subject if a dispute, Quintiles shall withhold payment of
any disputed amounts pending resolution of the dispute.
4. REPRESENTATIONS AND COVENANTS OF CONSULTANT. Consultant agrees and
covenants without limitation that:
(a) Consultant and any Consultant Personnel are professionally
trained and duly qualified and have the equipment (if applicable), experience
and expertise to perform the Services, and all such Services shall be performed
in a manner commensurate with professional standards generally applicable in
this industry.
-2-
<PAGE>
(b) Consultant has sufficient time to dedicate to the
provision of the Services to ensure that the Services are completed within any
time frames or deadlines set forth in this Agreement, including any Schedules
attached hereto.
(c) Consultant and any Consultant Personnel shall perform all
Services in compliance with: (i) all applicable federal and state laws,
statutes, rules, regulations and orders (including all applicable approval and
qualification requirements thereunder), including, without limitation, the
Federal Food, Drug and Cosmetic Act, as amended, and all regulations thereunder;
(ii) all applicable good clinical practices and guidelines; (iii) all applicable
standard operating procedures; (iv) all applicable Protocols; and, (iv) the
provisions of this Agreement.
(d) Consultant and any Consultant Personnel have not been, and
will not use in any capacity in the performance of this Agreement, the services
of any person or entity, currently or ever debarred under 21 U.S.C. ss.335a or
convicted of a felony for conduct relating to the regulation or handling of any
drug product.
(e) Consultant shall notify Quintiles immediately if, during
the term of this Agreement, Consultant or any Consultant Personnel comes under
investigation by the U.S. Food & Drug Administration (the "FDA") for debarment
or disqualification or is debarred or disqualified. Consultant shall notify
Quintiles immediately if the FDA or any other regulatory authority requests
permission to or does inspect Consultant's records in connection with the
Services provided under this Agreement, and Consultant will deliver to Quintiles
promptly all materials, correspondence, statements, forms, and records which
Consultant receives, obtains or generates pursuant to any such inspection.
(f) Consultant will not divulge or improperly use any
confidential information of any third party or infringe upon any intellectual
property right of third party, (including, but not limited to, any current or
former employer or client) in performing the Services.
(g) During the term of this Agreement, Consultant will permit
Quintiles' representatives to examine the work performed hereunder and the
facilities at which the work is conducted at reasonable times and in a
reasonable manner to determine that the project assignment is being conducted in
accordance with the agreed task and that the facilities are adequate.
(h) Consultant agrees that Consultant will not act in a manner
that will detrimentally affect the operations, prospects, or reputation of
Quintiles.
5. CONFIDENTIAL AND PROPRIETARY INFORMATION. It is understood that
during the course of this Agreement, Consultant may be exposed to documents,
information and materials which are confidential and proprietary to Quintiles
and/or the Client, including, but not limited to the Work Product (as defined in
Section 6 below) and any data, materials, know-how, methods, techniques,
inventions, processes, trade secrets, improvements, procedures, manuals,
personnel data, financial
-3-
<PAGE>
information, computer technical expertise, and other intellectual properties and
assets relating to: (a) the Client's or Quintiles' business operations,
procedures, methods, software, or pricing; or, (b) the research, development,
manufacture, characteristics, use, testing, packaging, labeling, storage,
distribution, processing or destruction of any pharmaceutical product,
biotechnology product or medical device to which the Services pertain
(hereinafter "Confidential Information"). All Confidential Information, whether
written, verbal, electronic, tangible or intangible, made available, disclosed
or otherwise made known to Consultant as a result of services under this
Agreement shall be considered strictly confidential, and shall be considered the
sole property of Quintiles and/or the Client, as the case may be. Consultant
will not reveal, publish or otherwise disclose any such Confidential Information
to any third party without the prior written consent of Quintiles. The
Confidential Information shall be used by Consultant and disclosed to and used
by Consultant Personnel only to the extent needed to perform the Services.
Consultant agrees to ensure that all Consultant Personnel to whom Confidential
Information is disclosed are informed of the confidential nature of the
Confidential Information and agree to be bound by the provisions of Sections 5
and 6 herein. Consultant will be responsible for any disclosure or misuse by any
Consultant Personnel of any Confidential Information.
The duty of confidentiality in this Section shall not apply to
disclosure of Confidential Information: (a) which Consultant can demonstrate
from written records was previously known to it; (b) which is publicly available
other than by breach of this Agreement by Consultant or Consultant Personnel;
(c) which is lawfully disclosed to Consultant on a non-confidential basis by a
third party who is not obligated to Quintiles and/or Client or any other party
to retain such information in confidence; or (d) which is required by law to be
disclosed; provided that, to the extent possible, Consultant gives prior notice
to Quintiles of such required disclosure and cooperates in Quintiles' or
Client's attempts to restrict such disclosure. The originals and all copies of
Confidential Information and Work Product shall be promptly returned to
Quintiles without request, in good order, upon completion or termination of the
Services, or at any other time upon the request of Quintiles.
6. WORK PRODUCT. All data, information, analyses, materials,
documentation, reports, computer programs, forms, inventions, improvements,
modifications or works of authorship, generated, created, conceived or derived
by Consultant or Consultant Personnel in connection with or as a result of the
performance of Services by Consultant or Consultant Personnel (collectively,
"Work Product") shall be considered works made for hire and shall be owned,
together with all worldwide rights therein under patent, copyright, trade
secret, confidential information, or other property rights or laws, by Quintiles
or the Client, as the case may be. Consultant shall hold all Work Product in
trust for Quintiles or the Client, as the case may be. If any of the Work
Product may not, by operation of law, be considered work made for hire, or if
ownership of all right, title and interest of the intellectual property rights
therein shall not otherwise vest exclusively in Quintiles or the Client, as
appropriate, Consultant hereby assigns (and agrees to ensure that any Consultant
Personnel assigns) and upon the future creation thereof automatically assigns,
to Quintiles or the Client, as appropriate, without further consideration, the
ownership of all Work Product.
Consultant agrees to perform such further acts as may be reasonably
necessary or desirable to transfer, perfect and defend Quintiles' or the
Client's ownership of the Work Product, provided
-4-
<PAGE>
that Consultant shall be reimbursed for reasonable expenses and time committed
to such actions. If Quintiles is unable for any reason to secure Consultant's
signature to apply for or to pursue any application for any United States or
foreign letters patent, copyright registrations or other registrations covering
inventions assigned hereunder to Quintiles or the Client, then Consultant
irrevocably designates and appoints Quintiles and its authorized officers and
agents as Consultant's agent and attorney-in-fact, to act for and in
Consultant's behalf and stead to execute and file any such application and to do
all other lawfully permitted acts to further the prosecution and issuance of
letters patent, and registration of copyrights or trademarks, with the same
legal force and effect as if executed by Consultant. Consultant shall disclose
to Quintiles all Work Product made by Consultant or Consultant Personnel to
permit a determination as to whether or not the Work Product should be the
property of Quintiles or the Client, as appropriate. Consultant agrees that the
Client shall be deemed a third-party beneficiary to this Agreement as to any
Work Product or Confidential Information is owned by the Client, and the Client
shall be entitled to enforce the provisions of Sections 5 and 6 with respect
thereto.
Any inventions or other intellectual property rights that Consultant
can show by reliable evidence were developed by Consultant independently of any
Confidential Information or Work Product, and independently of any other data,
equipment or facilities supplied pursuant to this Agreement, shall remain the
exclusive property of Consultant.
7. TERM AND TERMINATION. The term of the consulting engagement provided
for in this Agreement shall commence upon the date written in Schedule 1 and
shall continue until terminated pursuant to Schedule 1. Following expiration of
the term of this Agreement, Consultant shall fully cooperate with Quintiles in
all matters relating to the closure of Consultant's work on behalf of Quintiles,
and with the orderly transfer of (and will not retain any copies of) all Work
Product, Confidential Information, or other documents and materials relating to
this Agreement to Quintiles. Consultant agrees that, upon termination,
expiration, or completion of this Agreement, Consultant will sign and deliver to
Quintiles a "Termination Certification" in the form attached hereto as
Exhibit A.
8. RELEASE OF INFORMATION. Consultant shall not disclose publicly or
utilize in any statement, advertisement or publicity the existence of this
Agreement or Consultant's association with Quintiles or Client or use the name
of Quintiles or Client without the authorization of Quintiles. Consultant shall
also hold in confidence the nature of the Services to be performed hereunder.
9. MISCELLANEOUS.
(a) Any notice to be given by one party to the other shall be
in writing and delivered either personally, by a recognized overnight courier
service, or by mail and shall be deemed given, if personally, upon presentation
to an office of the other, if by overnight courier, upon delivery, and if by
mail, seventy-two (72) hours after deposit in United States Mail in the mail
district of the depositor, certified postage prepaid, addressed to the address
of the other as set forth below, which addresses may be changed by giving notice
thereof as provided herein.
-5-
<PAGE>
If to Quintiles: If to Consultant:
John S. Russell, Esq. Santo J. Costa
4709 Creekstone Drive, Ste.200 108 Martinique Place
Durham, NC 27703 Cary, NC 27511
Phone: (919) 998-2418 Phone: (919) 467-1121
Fax: (919) 998-2090 Fax: (919) 380-7433
(b) This Agreement sets forth the entire Agreement and all
representations between the parties concerning the Services except those
provisions in the Employment Agreement that survive upon termination of
employment. No oral statements or written material not specifically incorporated
herein shall be of any force or effect. No modification or waiver of this
Agreement shall be effected unless in writing and duly executed and delivered by
each party to the other.
(c) The validity of and the rights and duties of the parties
under this Agreement shall be governed by the laws of the State of North
Carolina, where this Agreement is deemed to have been entered into, exclusive of
its choice of law provisions.
(d) The waiver by any party of the breach or violation of this
Agreement shall not operate as, or be construed to be, a waiver of any
subsequent breach of the same or other provision hereof.
(e) This Agreement and amendments thereto shall be in writing
and may be executed in duplicate copies. Each such duplicate copy shall be
deemed an original, but each duplicate copy shall constitute one and the same
instrument.
(f) Quintiles' corporate affiliates may use the services of
Consultant under the terms of this Agreement. Any such Quintiles affiliate shall
be subject to all of the terms and conditions applicable to Quintiles under this
Agreement and entitled to all rights and protections afforded Quintiles under
this Agreement.
(g) Any controversy or claim arising out of or relating to
this Agreement or the breach thereof shall be settled by arbitration
administered by the American Arbitration Association ("AAA") under its
Commercial Arbitration Rules, and judgment on the award rendered by the
arbitrator shall be binding and may be entered in any court having jurisdiction
thereof. Such arbitration shall be filed and conducted at the office of the AAA
closest to the Quintiles office where this Agreement was signed, and shall be
conducted in English by one arbitrator mutually acceptable to the parties
selected in accordance with AAA Rules.
(h) Notwithstanding the termination, completion, or expiration
of this Agreement, the rights and obligations under this Agreement which by
intent or meaning have validity beyond the terms hereof (including, but not
limited to, the rights and obligations surrounding confidentiality and work
product) shall survive the termination or expiration of this Agreement.
-6-
<PAGE>
IN WITNESS WHEREOF, this Agreement was entered into as of the date last
written below.
QUINTILES TRANSNATIONAL CORP. Consultant:
By: /s/ John S. Russell By: /s/ Santo J. Costa
----------------------------------------- ------------------------------
(Print Name): John S. Russell (Print Name): Santo J. Costa
------------------------------- --------------------
Title: Sr. Vice President & General Counsel Title:
-------------------------------------- ---------------------------
Date: 11/27/01 Date: 20 November 2001
--------------------------------------- ----------------------------
-7-
<PAGE>
EXHIBIT A
CONSULTING TERMINATION CERTIFICATION
This is to certify that neither I nor any Consultant Personnel have
possession of, or have failed to return, any devices, records, data, notes,
reports, proposals, lists, correspondence, business plans, financial
information, specifications, standard operating procedures, drawings,
blueprints, sketches, materials, equipment, Confidential Information, Work
Product, documents or other property, or copies or reproductions thereof
(whether in electronic, paper, audio, video or any other format), belonging to
Quintiles or to any Client, or their affiliates, successors, or assigns.
I further agree that I understand and agree that I and any Consultant
Personnel must continue to abide by the confidentiality and proprietary
information provisions contained in the Master Independent Consultant Agreement.
Date Nov 20, 2001 /s/ Santo J . Costa
------------------------------- -------------------------------------
Signature
Santo J. Costa
-------------------------------------
(Type or Print Name)
-8-
<PAGE>
SCHEDULE 1
SCOPE OF WORK
TERM: One (1) year, beginning on January 1, 2002. The parties shall review
this Agreement in May of 2002, to determine whether to extend it for
an additional period of time.
FEE: Up to One Hundred Thousand Fifty Dollars ($150,000) per year to be
paid as follows: Consultant shall receive $2,000 per day for
business conducted in the United States, and $3,000 per day for
business conducted outside of the United States. Consultant shall be
paid monthly, and is to submit invoices for amounts charged on a
daily basis and for reimbursement for expenses incurred. The Company
can authorize additional services over the $150,000 maximum above.
EXPENSES: Consultant shall be reimbursed for reasonable and necessary business
expenses, including travel expenses of incurred in performing
Consulting Services pursuant to this Agreement
OTHER: (1) Consultant's title shall be "Senior Consulting Executive";
(2) Consultant shall maintain an office at Quintiles, complete with
computer system, e-mail account and business telephone connection
(including cellular telephone), along with administrative
assistance; and (3) Consultant will be reimbursed for membership
dues to the Governor's Club.
SERVICES: Consulting Services shall include, but are not limited to, the
following:
o Maintain status as one of the senior relationship partners on
the GlaxoSmithKline and J&J accounts
o Assist PharmaBio team in identifying opportunities and
providing access to senior executives
o Assist Sr. VP of Corporate Strategic Development in
identification of commercial opportunities, and the creation
and review of customer relationship strategies
o Harvest and channel business opportunities to Quintiles
o Represent the company as necessary with PhRMA, as well as
related industry associations
and such other projects as reasonably requested by the Company.
Consulting Services shall be rendered in Durham, North Carolina, or
such locations as reasonably requested by the Company.
-9-