Exhibit 10.1


 


AMPLIPHI BIOSCIENCES CORPORATION


 


CONSULTING AGREEMENT


 


This Consulting Agreement (this “Agreement”)
is entered into by and between AmpliPhi Biosciences Corporation, a Washington corporation (the “Company”),
and Wendy S. Johnson (“Consultant”), on September 3, 2015 (the “Execution Date”),
and shall be deemed to be effective as of July 1, 2015 (the “Effective Date”). The Company and Consultant previously
entered into that certain Interim Chief Operating Officer Agreement, dated September 18, 2014, as amended on January 15, 2015 (the
“Prior Consulting Agreement”), and desire for this Agreement to set forth the parties’ rights and obligations
with respect to Consultant’s provision of services to the Company as a consultant in lieu of the Prior Consulting Agreement,
effective on the Effective Date. In consideration of the mutual promises contained herein, the parties agree as follows:


 


1.           Services
and Compensation. Consultant agrees to perform for the Company the services described in Exhibit A (the “Services”),
and the Company agrees to pay Consultant the compensation described in Exhibit A for Consultant’s performance
of the Services.


 


2.           Confidentiality.


 


(a)           Definition.
“Confidential Information” means any and all information and materials, in whatever form, tangible or
intangible, whether disclosed to or learned or developed by Consultant before or after the execution of this Agreement, whether
or not marked or identified as confidential or proprietary, pertaining in any manner to the business of or used by the Company
and its affiliates, or pertaining in any manner to any person or entity to whom the Company owes a duty of confidentiality. Confidential
Information includes, but is not limited to, the following types of information and materials: (i) trade secrets, inventions, ideas,
processes, formulas, algorithms, pre-clinical and clinical data, formulations, programs, other works of authorship, know-how, improvements,
discoveries, developments, designs and techniques; (ii) information regarding plans for research, development, new products, marketing
and selling, business plans, business methods, budgets and unpublished financial statements, licenses, prices and costs, suppliers
and customers; (iii) sensitive personnel information including the skills and compensation of other employees of the Company; and
(iv) any other information or materials relating to the past, present, planned or foreseeable business, products, developments,
technology or activities of the Company. Consultant understands that Confidential Information includes, but is not limited to,
information pertaining to any aspect of the Company’s business which is either information not known by actual or potential
competitors of the Company or other third parties not under confidentiality obligations to the Company, or is otherwise proprietary
information of the Company or its customers or suppliers, whether of a technical nature or otherwise. Consultant further understands
that Confidential Information does not include any of the foregoing items which has become publicly and widely known and made generally
available through no wrongful act of Consultant or of others who were under confidentiality obligations as to the item or items
involved.


 


(b)           Nonuse
and Nondisclosure. Consultant will not, during or subsequent to the term of this Agreement, (i) use the Confidential Information
for any purpose whatsoever other than the performance of the Services on behalf of the Company or (ii) disclose the Confidential
Information to any third party except as reasonably required to perform the Services and under appropriate confidentiality agreements.
Consultant agrees that all Confidential Information will remain the sole property of the Company. Consultant also agrees to take
all reasonable precautions to prevent any unauthorized disclosure of such Confidential Information.


 


(c)           Former
Client Confidential Information. Consultant agrees that Consultant will not, during the term of this Agreement, improperly
use or disclose any proprietary information or trade secrets of any former or current employer of Consultant or other person or
entity with which Consultant has an agreement or duty to keep in confidence information acquired by Consultant, if any. Consultant
also agrees that Consultant will not bring onto the Company’s premises any unpublished document or proprietary information
belonging to any such employer, person or entity unless consented to in writing by such employer, person or entity.


 




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(d)           Third
Party Confidential Information. Consultant recognizes that the Company has received and in the future will receive from third
parties their confidential or proprietary information subject to a duty on the Company’s part to maintain the confidentiality
of such information and to use it only for certain limited purposes. Consultant agrees that, during the term of this Agreement
and thereafter, Consultant owes the Company and such third parties a duty to hold all such confidential or proprietary information
in the strictest confidence and not to disclose it to any person, firm or corporation or to use it except as necessary in carrying
out the Services for the Company consistent with the Company’s agreement with such third party.


  


(e)           Return
of Materials. Upon the termination of this Agreement, or upon Company’s earlier request, Consultant will deliver to the
Company all of the Company’s property, including but not limited to all electronically stored information and passwords to
access such property, or Confidential Information that Consultant may have in Consultant’s possession or control.


 


3.           Ownership.


 


(a)           Assignment.
Consultant agrees that all inventions (whether or not patentable), copyrightable material, notes, records, drawings, designs, improvements,
developments, discoveries and trade secrets conceived, discovered, developed or reduced to practice by Consultant, solely or in
collaboration with others, during the term of this Agreement that relate in any manner to the business of the Company that Consultant
may be directed to undertake, investigate or experiment with or that Consultant may become associated with in work, investigation
or experimentation in the Company’s line of business in performing the Services under this Agreement (collectively, “Inventions”),
are the sole property of the Company. Consultant also agrees to assign (or cause to be assigned) and hereby assigns fully to
the Company all Inventions and any copyrights, patents, mask work rights or other intellectual property rights relating to all
Inventions.


 


(b)           Further
Assurances. Consultant agrees to assist Company, or its designee, at the Company’s expense, in every proper way to secure
the Company’s rights in Inventions and any copyrights, patents, mask work rights or other intellectual property rights relating
to all Inventions in any and all countries, including the disclosure to the Company of all pertinent information and data with
respect to all Inventions, the execution of all applications, specifications, oaths, assignments and all other instruments that
the Company may deem necessary in order to apply for and obtain such rights and in order to assign and convey to the Company, its
successors, assigns and nominees the sole and exclusive right, title and interest in and to all Inventions, and any copyrights,
patents, mask work rights or other intellectual property rights relating to all Inventions. Consultant also agrees that Consultant’s
obligation to execute or cause to be executed any such instrument or papers shall continue after the termination of this Agreement.


 


(c)           Pre-Existing
Materials. Attached as Exhibit B is a list describing with particularity all inventions, improvements, developments,
concepts, discoveries or other proprietary information which were (i) made by Consultant prior to becoming a consultant to the
Company and (ii) could reasonably be deemed to be in or related to the business of the Company (collectively referred to as “Prior
Inventions”), which belong solely to Consultant or belong to Consultant jointly with another, which relate in
any way to any of the Company’s proposed businesses, products or research and development, and which are not assigned to
the Company hereunder; or, if no such list is attached, Consultant represents that there are no such Prior Inventions. Subject
to Section 3(a), Consultant agrees that if, in the course of performing the Services, Consultant incorporates into any Invention
developed under this Agreement any Prior Invention owned by Consultant or in which Consultant has an interest, (i) Consultant will
inform Company, in writing before incorporating such Prior Invention into any Invention, and (ii) the Company is hereby granted
a nonexclusive, royalty-free, perpetual, irrevocable, worldwide license to make, have made, modify, use and sell such Prior Invention
as part of or in connection with such Invention. Consultant will not incorporate any invention, improvement, development, concept,
discovery or other proprietary information owned by any third party into any Invention without Company’s prior written permission.


 


(d)           Attorney-in-Fact.
Consultant agrees that, if the Company is unable because of Consultant’s unavailability, dissolution, mental or physical
incapacity, or for any other reason, to secure Consultant’s signature for the purpose of applying for or pursuing any application
for any United States or foreign patents or mask work or copyright registrations covering the Inventions assigned to the Company
in Section 3(a), then Consultant hereby irrevocably designates and appoints the Company and its duly authorized officers and agents
as Consultant’s agent and attorney-in-fact, to act for and on Consultant’s behalf to execute and file any such applications
and to do all other lawfully permitted acts to further the prosecution and issuance of patents, copyright and mask work registrations
with the same legal force and effect as if executed by Consultant.


  


 




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4.           Conflicting
Obligations. Consultant certifies that Consultant has no outstanding agreement or obligation that is in conflict with any of
the provisions of this Agreement or that would preclude Consultant from complying with the provisions of this Agreement. Consultant
will not enter into any such conflicting agreement during the term of this Agreement. Consultant’s violation of this Section
4 will be considered a breach of a material provision of this Agreement under Section 6(b)(i)(1).


 


5.           Reports.
Consultant also agrees that Consultant will, from time to time during the term of this Agreement or any extension thereof, keep
the Company advised as to Consultant’s progress in performing the Services under this Agreement. Consultant further agrees
that Consultant will, as requested by the Company, prepare written reports with respect to such progress.


 


6.           Term
and Termination.


 


(a)         Term.
This Agreement is effective as of the Effective Date and will terminate on the earlier of (i) July 1, 2016 or (ii) termination
as provided in Section 6(b) below. The term of this Agreement may be extended upon mutual written agreement of the parties.


 


(b)       Termination.


 


		(i)	Termination by the Company.



 


(1) For Cause. The Company
may terminate this Agreement immediately and without prior notice if Consultant refuses to or is unable to perform the Services
or is in breach of any material provision of this Agreement. Such right to terminate this Agreement for cause shall be in addition
to any other remedies available to the Company at law or in equity.


 


(2) Without Cause. The Company
may terminate this Agreement for any reason, or no reason, upon at least 90 days’ prior written notice to Consultant; provided,
however, in no event may the effective date of any termination pursuant to this Section 6(b)(i)(2) occur before March 31, 2016.
 


 


		(ii)	Termination by Consultant.



 


(1) For Cause. Consultant
may terminate this Agreement upon written notice to the Company if the Company is in breach of any material provision of this Agreement
and does not cure the breach within thirty (30) days following receipt of written notice thereof from Consultant. Such right to
terminate this Agreement for cause shall be in addition to any other remedies available to Consultant at law or in equity.


 


(2) Without Cause. Consultant
may terminate this Agreement for any reason, or no reason, upon at least 45 days’ prior written notice to the Company.


 


(c)         Survival.
Upon such termination, all rights and duties of the Company and Consultant toward each other shall cease except:


 


(i)           The
Company will pay, within 30 days after the effective date of termination, all amounts owing to Consultant for Services completed
and accepted by the Company prior to the termination date and related expenses, if any, submitted in accordance with the Company’s
policies and in accordance with the provisions of Section 1 of this Agreement; and


 


(ii)           Section
2 (Confidentiality), Section 3 (Ownership), Section 6 (Term and Termination—Survival), Section 7 (Independent Contractor;
Benefits) and Section 9 (Miscellaneous) will survive termination of this Agreement.


 




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7.           Independent
Contractor; Benefits.


 


(a)         Independent
Contractor. It is the express intention of the Company and Consultant that Consultant perform the Services as an independent
contractor to the Company. Nothing in this Agreement shall in any way be construed to constitute Consultant as an employee of the
Company. Consultant agrees to furnish (or reimburse the Company for) all tools and materials necessary to accomplish this Agreement
and shall incur all expenses associated with performance, except as expressly provided in Exhibit A. Consultant acknowledges
and agrees that Consultant is obligated to report as income all compensation received by Consultant pursuant to this Agreement.
Consultant agrees to and acknowledges the obligation to pay all self-employment and other taxes on such income.


 


(b)         Benefits.
The Company and Consultant agree that Consultant will receive no Company-sponsored benefits from the Company. If Consultant is
reclassified by a state or federal agency or court as Company’s employee, Consultant will become a reclassified employee
and will receive no benefits from the Company, except those mandated by state or federal law, even if by the terms of the Company’s
benefit plans or programs of the Company in effect at the time of such reclassification, Consultant would otherwise be eligible
for such benefits.


 


8.           Indemnification
Agreement. The Company and Consultant acknowledge that the Company and Consultant have entered into that certain Indemnification
Agreement, dated June 1, 2014 (the “Indemnification Agreement”), and that nothing herein is intended to limit
or modify the parties’ rights or obligations under the Indemnification Agreement.


  


9.           Miscellaneous.


 


(a)           Governing
Law. This Agreement shall be governed by the laws of the Commonwealth of Virginia without regard to conflicts of law rules.


 


(b)           Assignability.
Consultant may not sell, assign or delegate any rights or obligations under this Agreement without the express prior written consent
of the Company. The Company may assign (i) this Agreement to a Company affiliate or (ii) this Agreement in the event of a merger,
acquisition or sale of all or substantially all of the assets of the Company. Subject to the foregoing, this Agreement will be
binding upon and inure to the benefit of the parties hereto, their successors and assigns. Any attempted assignment in violation
of this provision will be null and void.


 


(c)           Entire
Agreement. This Agreement and the Indemnification Agreement constitute the entire agreement between the parties with respect
to the subject matter hereof and thereof and supersede all prior written and oral agreements between the parties regarding the
subject matter hereof and thereof. The Company and Consultant hereby agree that the Prior
Consulting Agreement shall be deemed to have been in continuous effect from the effective date thereof to the Effective Date. Effective
on the Effective Date, the Prior Consulting Agreement is hereby terminated and of no further force or effect; provided, however,
nothing in the foregoing will relieve either party of any obligations accrued under the Prior Consulting Agreement prior to the
Effective Date, nor will it affect the survival of any provision intended to survive the termination of the Prior Consulting Agreement.


 


(d)           Headings.
Headings are used in this Agreement for reference only and shall not be considered when interpreting this Agreement.


 


(e)           Notices.
Any notice or other communication required or permitted by this Agreement must be in writing and must be (i) mailed by nationally
recognized overnight courier, with written verification of delivery, (ii) sent by email or facsimile, or (iii) delivered by hand
to the party to whom such notice is required or permitted to be given. If mailed by overnight courier, any such communication will
be considered to have been given one (1) business day after it was mailed, as evidenced by written verification from such courier.
If delivered by email or facsimile, any such communication will be considered to have been given on the day of its transmission
if sent during normal business hours of the recipient, and if not during normal business hours of the recipient, then on the next
business day. If delivered by hand, any such communication will be considered to have been given when received by the party to
whom notice is given, as evidenced by written and dated receipt of the receiving party. The mailing address, email address and
facsimile number for notice to either party will be as shown on the signature page of this Agreement. Either party may change its
mailing address, email address or facsimile number by notice as provided by this Section 9(e). 


 




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(f)           Attorneys’
Fees. In any court action at law or equity that is brought by one of the parties to this Agreement to enforce or interpret
the provisions of this Agreement, the prevailing party will be entitled to reasonable attorneys’ fees, in addition to any
other relief to which that party may be entitled.


 


(g)           Severability.
If any provision of this Agreement is found to be illegal or unenforceable, the other provisions shall remain effective and enforceable
to the greatest extent permitted by law.


 


(h)           Amendments.
This Agreement may be amended or waived only upon written consent of the Consultant and the Company.


 


(i)           Counterparts.
This Agreement may be executed in two or more counterparts, each of which shall be deemed an original and all of which together
shall constitute one instrument.


 


[Remainder of page intentionally left
blank.]


 




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IN WITNESS WHEREOF, the parties hereto have
executed this Consulting Agreement as of the date first written above.


 


	AmpliPhi Biosciences Corporation	 
	 	 	 
	By: 	/s/ Michael Scott Salka	 
	Name: 	Michael Scott Salka	 
	Title: 	Chief Executive Officer	 
	 	 	 
	Address:	 	 
	 	 	 
	 	 	 
	 	 	 
	Email: 	mss@ampliphibio.com	 
	 	 	 
	Consultant	 
	 	 	 
	By: 	/s/ Wendy S. Johnson	 
	 	Wendy S. Johnson	 
	 	 	 
	Address:	 	 
	 	 	 
	 	 	 
	 	 	 
	Email: 	Wendy@geminiwest.net	 


 




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EXHIBIT A


 


SERVICES AND COMPENSATION


 


1.           Services.
Consultant shall serve as the interim Chief Operating Officer of the Company and shall perform the duties, and have the responsibilities,
that are customary for persons serving in such office. Consultant will provide the Services on an as-needed basis during the term
of the Agreement, subject to a minimum commitment of 120 hours per month (the “Minimum Services”).


 


Consultant will report to the Chief Executive
Officer of the Company.


 


2.           Compensation.


 


Monthly Fees:


 


The Company will pay Consultant a monthly
fee of $25,000 for Services performed during the term of the Agreement, subject to proration on an hourly basis in the event Consultant
does not provide the Minimum Services for any calendar month. The monthly fees will be payable in arrears, subject to Consultant
complying with Consultant's obligation to submit invoices as described below. The Company’s payment obligations for Services
performed by Consultant during the term of the Agreement will be net of any compensatory payments made by the Company to Consultant
as of the Execution Date.


 


The Company will reimburse Consultant for
reasonable travel and other business expenses incurred by Consultant in the performance of her duties, consistent with the Company’s
reimbursement policies. Consultant will provide receipts to the Company documenting such expenses.


 


Consultant agrees to provide the Company
with an invoice for fees and expenses due in respect of the Services supplied on the 1st day of each month, commencing
October 1, 2015. The Company agrees to pay each such invoice within 30 days of it being received and approved.


 


Additional Cash Payment:


 


The Company will pay Consultant the applicable
cash payment(s) specified below upon the achievement of the applicable milestone(s), in each case, subject to the Agreement remaining
in effect as of the applicable milestone achievement date:


 


	Milestone*	 	Cash
    Payment	 	 	Payment
    Timing
	Milestone
    A: Dosing, on or before December 31, 2015, of the first patient in the first clinical
    trial initiated by the Company after the Effective Date.	 	$	175,000	 	 	Within 10 days following the achievement of Milestone A.
	Milestone B:
    Dosing, after December 31, 2015 but before March 31, 2016, of the first patient in the first clinical trial initiated
    by the Company after the Effective Date.	 	$	75,000	 	 	Within 10 days following the achievement of Milestone B.
	Milestone C:
    Dosing, before March 31, 2016, of the first patient in the second clinical trial initiated by the Company after the Effective
    Date, provided such second clinical trial and/or the first clinical trial contemplated by Milestones A and B above is conducted
    under a U.S. IND.	 	$	25,000	 	 	Within 10 days following the achievement of Milestone C.



 





 






* For clarity, Milestone A and Milestone
B above will be mutually exclusive.


 


Option Grant:


 


Subject to approval by the Company’s
Board of Directors (the “Board”) or an authorized committee thereof, Consultant will be granted, under the Company’s
Stock Incentive Plan, a stock option to purchase a number of shares of common stock equal to 0.5% of the total number of outstanding
shares of common stock of the Company on the Effective Date, which option will vest as follows:


 







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		·	50% of the shares subject to the option will vest on an equal monthly basis over the 12 months
following the Effective Date, subject, in each case, to the Agreement remaining in effect as of the applicable vesting date; and



 


		·	50% of the shares subject to the option will vest upon the achievement of Milestone A or Milestone
B above, subject to the Agreement remaining in effect as of the achievement of such milestone.



 


The per share exercise price of the option
will be the fair market value of the Company’s common stock on the date of grant, as determined by the Board or an authorized
committee thereof.


 


3.           Other
Engagements. Consultant may accept other consulting assignments, and engage in other business activities, so long as they do
not interfere with her obligations under this Agreement.


 




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EXHIBIT B


 


LIST OF PRIOR INVENTIONS EXCLUDED UNDER
SECTION 3(C)


 


	Title	 	Date	 	
        Identifying Number

        or Brief Description

	 	 	 	 	 
	 	 	 	 	 


 


		x	No inventions or improvements



 


		 ̈	Additional Sheets Attached



 


	Signature of Consultant: 	/s/ Wendy S. Johnson	 


 


	Print Name of Consultant: 	Wendy S. Johnson