Exhibit
10.43


 


PROFESSIONAL SERVICES AGREEMENT


 


THIS PROFESSIONAL SERVICES AGREEMENT (this “Agreement”)
is effective as of April 19, 2010 (the “Effective Date”), by and between
Ikaria Holdings, Inc., a Delaware corporation having an office at 6 Route
173, Clinton, NJ 08809 (“Company”), and the party indicated below (“Consultant”).


 


Name:                   Elizabeth A. Larkin


 


Acknowledged and Agreed to:


 


	
  Company

  	
   

  	
  Consultant

  
	
   

  	
   

  	
   

  
	
  By: /s/ James Briggs

  	
   

  	
  By: /s/ Elizabeth Larkin

  
	
  Signature

  	
   

  	
  Signature

  
	
   

  	
   

  	
   

  
	
  James Briggs

  	
   

  	
  Elizabeth A. Larkin

  
	
  Printed Name

  	
   

  	
  Printed Name

  
	
   

  	
   

  	
   

  
	
  SVP, Human Resources

  	
   

  	
  N/A

  
	
  Title

  	
   

  	
  Title (if applicable)

  
	
   

  	
   

  	
   

  
	
  April 19, 2010

  	
   

  	
  April 19, 2010

  
	
  Date

  	
   

  	
  Date

  



 


TERMS AND
CONDITIONS


 


1.     Services.


 


1.1.        Obligation to Provide Services; Work Orders.  Consultant shall provide consulting,
advisory, research, development, or other services as and when requested by the
Company from time to time (collectively, the “Services”), as may be more
particularly set forth in one or more work orders agreed to in writing by the
parties (each, a “Work Order”). 
Each Work Order shall be in substantially the same form attached hereto
as Exhibit A.  The parties
may agree at any time to modify a Work Order; provided, however, that all such
modifications must be in writing and signed by both parties.  Each Work Order, when signed by both parties,
shall become a part of, and shall be governed by the terms and condition of,
this Agreement.  If there is any
inconsistency or conflict between the provisions of the main body of this
Agreement and the provisions of any Work Order, the provisions of the main body
of this Agreement shall be controlling and shall govern unless expressly
superseded by the provisions of such Work Order.


 


1.2.        Quality of Services. 
Consultant represents and warrants to Company that the Services
performed by Consultant hereunder will be of professional quality, consistent
with generally-accepted industry standards and expectations for work of a
similar nature.  Consultant shall control
the manner and means by which it performs the Services, subject to the
parameters of the applicable Work Order and the express provisions of this
Agreement.  Consultant shall comply with
all applicable laws in performing the Services.


 


1.3.        Company’s Rules and Policies.  While at Company’s or Company’s customers’
facilities, Consultant shall observe and follow Company’s and Company’s
customers’ work rules, policies and standards as the same are communicated to
Consultant from time to time, including, without limitation, those rules,
policies and standards of Company and its customers relating to security of and
access to facilities, telephone systems, electronic mail systems and computer
systems.


 

















 


1.4.        Conflicts of Interest.


 


(a)        If a conflict of interest should arise during the performance
of this Agreement, Consultant shall immediately notify Company thereof and
Company shall have the option to pursue any and all remedies, equitable, legal
or otherwise, that may be available to Company in connection therewith.


 


(b)        If Consultant accepts employment of any type with a third
party (whether as a full or part time employee or as an independent
contractor), Consultant shall immediately notify Company thereof in writing via
certified mail addressed to: Ikaria Holdings, Inc., 6 Route 173, Clinton,
NJ 08809, Attn: Senior Vice President, Human Resources.


 


1.5.        Independent Contractor.  Consultant shall at all times be and remain
an independent contractor of Company and shall not at any time be considered an
employee, representative, agent, partner, or co-venturer.  Without limiting the generality of the
foregoing, Consultant shall not be entitled to participate in or receive any
benefits or rights as an employee of Consultant.  Consultant shall be solely responsible for
all taxes and payments concerning its employees and agents (including, without
limitation, withholding taxes, unemployment insurance and workers compensation
insurance).


 


1.6.        No Debarment. 
Consultant represents and warrants that, as of the Signing Date and
throughout the term of this Agreement, it (and each of its employees and
agents) (a) is not currently excluded, debarred, or otherwise ineligible
to participate in the Federal health care programs as defined in 42 U.S.C.
1320a7b(f) (the “Federal Health Care Programs”); (b) has not
been convicted of a criminal offense related to the provision of healthcare
items or services but yet to be excluded, debarred, or otherwise declared
ineligible to participate in the Federal Health Care Programs; and (c) is
not under investigation or otherwise aware of any circumstances which may
result in it (or its agents, employees or any substitutes thereof performing
any duties under this Agreement) being excluded from participation in the
Federal Health Care Programs.  If, at any
point during the term of this Agreement, Consultant becomes excluded, debarred,
or otherwise ineligible to participate in the Federal Health Care Programs, or
comes under investigation or otherwise becomes aware of any circumstances which
may result in it (or its employees or agents) being excluded from participation
in the Federal Health Care Programs, Consultant shall immediately notify
Company thereof in writing.


 


2.     Compensation.  Consultant shall be paid for performance of
the Services as specified in the applicable Work Order.  Company agrees to reimburse Consultant for
all reasonable travel and related living expenses incurred by Consultant in
performing any Services at locations other than Consultant’s home office,
subject to any limitations set forth in the applicable Work Order and provided
that such expenses are approved by Company in advance and in writing.  Consultant shall invoice Company monthly (or
more or less frequently as may be specified in the applicable Work Order) for
all Services performed by Consultant under each Work Order and for any
reimbursable travel or related living expenses. 
Company will pay all valid invoices within 45 days after its receipt
thereof.  Consultant shall send all invoices
directly to: Ikaria Holdings, Inc., Attn: Accounts Payable, 6 Route 173,
Clinton, NJ 08809.


 


3.     Confidentiality.  The term “Confidential Information”
shall mean this Agreement and all business strategies, plans and procedures,
business information, proprietary information, scientific information, product
plans, sales information and plans, data, and trade secrets of Company, as well
as any other information and materials that are deemed confidential or
proprietary to or by Company (including, without limitation, all information
and materials of Company’s customers and their other consultants).  In addition, all Works (as defined below)
shall be treated by Consultant as Confidential Information. Notwithstanding the
foregoing, “Confidential Information” shall not include any information or
materials that: (a) are or become known to the general public through no
act or omission of Consultant or any other person with an obligation of
confidentiality to Company or any of Company’s customers, or (b) are
required to be disclosed pursuant to applicable law (provided, however, that
prior to any disclosure of Confidential Information as required by applicable
law, Consultant shall advise Company of such required disclosure promptly upon
learning thereof and shall cooperate with Company and Company’s customers in
order to afford them a reasonable opportunity to contest or limit such
disclosure).  Consultant (a) shall
maintain in strict confidence all Confidential Information provided to or
learned or developed by Consultant during the course of Consultant’s
performance 


 


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of the Services and (b) shall not use or copy
any Confidential Information, or authorize or permit others to use any such
Confidential Information, for any purposes other than to perform the
Services.  Upon the termination or
expiration of this Agreement, or at any other time upon the written request of
Company, Consultant shall promptly return to Company (or, at Company’s option,
destroy) all Confidential Information in Consultant’s possession or control,
together with all copies, summaries and analyses thereof, regardless of the
format in which such information exists or is stored, and shall provide written
certification thereof upon request.


 


4.     Works.  Consultant
acknowledges that any and all reports, writings, documents, designs,
specifications, data software, findings, and other information or materials
that Consultant makes, conceives, develops, or discovers at any time as a
result of or in connection with Consultant’s performance of the Services or
exposure to any Confidential Information, together with any associated patent,
copyright, trademark, trade secret and other intellectual property rights
(collectively, “Works”), shall be deemed “works made for hire” and shall
be the sole and exclusive property of Company.  If any Works are not deemed “works made for
hire” under applicable law, then Consultant (on behalf of itself and each
employee and agent of Consultant that performs any portion of the Services)
agrees to, and does hereby, assign and transfer to Company any and all of
Consultant’s rights, title, and interest in and to the Works.  Consultant shall execute and deliver all
instruments and take all actions as may be necessary or reasonably requested by
Company to document the assignment and transfer of the Works to Company, or to
enable Company to secure, register, maintain, enforce or otherwise fully
protect its rights in and to the Works. 
Consultant represents and warrants to Company (i) that Consultant
has the right to make foregoing assignment, (ii) all Works shall conform
to their applicable specifications, if any, (iii) no Work will infringe or
misappropriate the patent, copyright, trademark, trade secret, or other
intellectual property rights of any third party, and (iv) all Works will
be free from any viruses, worms, or other computer codes, the purpose of which
are to disable or interrupt the operating of a computer system or destroy,
erase or otherwise harm any data, software, or hardware.  Consultant shall indemnify and hold harmless
Company and its affiliates, and their respective directors, employees, and
agents from and against any and all losses, damages, liabilities, obligations,
judgments, penalties, fines, awards, costs, expenses and disbursements
(including without limitation, the costs, expenses and disbursements, as and
when incurred, of investigating, preparing or defending any claim, action,
suit, proceeding or investigation) suffered or incurred by Company on account
of Consultant’s breach of any of representations and warranties set forth in
this Agreement.


 


5.     Noncompetition. During the “Noncompetition Period”,
Consultant shall not, without the prior written consent of Company, engage in
or become associated with a “Competitive Activity.”  For purposes of this Agreement: (i) the “Noncompetition
Period” means the period(s) of time during which any Work Order hereunder
is in effect; (ii) a “Competitive Activity” means any business or other
endeavor that engages in clinical or pre-clinical research or development,
manufacturing, marketing, sales, or commercialization of products or services
that directly or indirectly compete with, or are a therapeutic alternative to,
either (x) the products of, or services engaged in by, the Company or any
of its subsidiaries during the term of any Work Order in any geographic
location in the United States, or (y) the products proposed to be
developed or commercialized, or services proposed to be engaged in, by the
Company or any of its subsidiaries during the term of any Work Order in any
location in the United States (provided that clause (y) shall apply only
to any proposed business activity as to which the Company or any of its
subsidiaries during the term of any Work Order has devoted significant and
documented efforts during the term of any Work Order, whether internally or
through acquisition, licensing or other business development activities);
provided, however, that the Consultant shall not be engaged in a Competitive
Activity if he is providing services to a division or subsidiary of a
multi-division entity or holding company, so long as no division or subsidiary
to which the Consultant provides services is in competition with the Company or
its subsidiaries or affiliates, and the Consultant does not otherwise engage in
a Competitive Activity on behalf of a multi-divisional entity or any competing
division or subsidiary; and (iii) the Consultant shall be considered to
have become “associated with a Competitive Activity” if Consultant becomes
directly or


 


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indirectly involved as an
owner, investor (other than a passive stockholder of less than five percent
(5%) of a corporation the securities of which are traded on a national
securities exchange), employee, officer, director, consultant, independent
contractor, agent, partner, advisor, or in any other capacity calling for the
rendition of the Consultant’s personal services, with any individual,
partnership, corporation or other organization that is engaged directly or
indirectly in a Competitive Activity.


 


6.     Nonsolicitation.
During the Noncompetition Period, Consultant shall not, on his own behalf or on
behalf of any other person, firm or entity (x) directly or indirectly
solicit, induce or attempt to solicit or induce any employee of the Company or
any of its subsidiaries to terminate his employment with the Company or any of
its subsidiaries, or to provide any assistance whatsoever to any person, firm
or entity engaged in a Competitive Activity, or (y) directly or indirectly
induce any business, entity or person with which the Company or any of their
subsidiaries or affiliates has a business relationship to terminate or alter
such business relationship.


 


7.     Equitable
Relief.  Consultant hereby
acknowledges and agrees that damages at law may be an inadequate remedy for any
breach of Consultant’s obligations under Section 3
(Confidentiality), Section 4 (Ownership of Works), Section 5
(Noncompetition), or Section 6 (Nonsolicitation) and, accordingly,
Consultant agrees that Company will be entitled to such temporary, preliminary,
and permanent injunctive relief as may be necessary to remedy or limit such
breach, without the necessity of proving actual damages or posting any bond or
other security, including, without limitation, specific performance of such
obligations and an order enjoining Consultant from the continuation of, or from
any threatened, breach of such obligations. 
The rights set forth in this paragraph shall be in addition to, and not
in lieu of, any other rights which Company may have at law or in equity.


 


8.     Term
and Termination.


 


8.1.        Term.  This
Agreement shall commence on the Effective Date and shall remain in effect until
terminated as set forth below.


 


8.2.        Termination. 
This Agreement or any Work Order hereunder may be terminated by either
party for the material breach of any term or condition of this Agreement or the
applicable Work Order by the other party that remains uncured for 30 days after
written notice thereof by the terminating party.  In addition, Company may terminate this
Agreement or any Work Order hereunder upon written notice to Consultant,
provided that Company shall be required to pay Consultant for Services actually
completed as of the effective date of such termination.


 


8.3.        Survival.  The
provisions of Sections 1.5, 3, 4, 6, 8.3 and
9 shall survive any expiration or earlier termination of this Agreement.


 


9.     Miscellaneous.


 


9.1.        Entire Agreement; Amendments.  This Agreement (including all Work Orders)
constitutes the entire agreement and understanding of the parties with respect
to its subject matter, and shall supersede all oral negotiations and prior
writings with respect thereto, provided, however, that any confidentiality
agreements entered into between the parties prior to the Effective Date shall
remain in full force and effect.  This
Agreement may be amended, modified or supplemented only by a written instrument
duly executed by each of the parties.


 


9.2.        Governing Law. 
This Agreement shall be governed by and construed in accordance with the
laws of the State of New Jersey, without reference to any principles governing
conflicts of law.  The parties agree that
the state and federal courts in and for the State of New Jersey shall be the
courts of exclusive jurisdiction and venue for any actions or proceedings which
may be brought under or in connection with this Agreement, or which may concern
the subject matter of this Agreement, and each party hereby irrevocably accepts
the exclusive jurisdiction and venue of such courts.


 


9.3.        Headings.  The
section headings in the Agreements are for reference and convenience only and
shall not be considered in the interpretation of the Agreements.


 


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9.4.        Publicity. 
Consultant shall not disclose to any third party any information about the
Services provided or to be provided by Consultant for or on behalf of Company
(including the fact that such Services are being performed), except as may be
required by law or as Company may otherwise agree in writing.


 


9.5.        Assignment.  The
rights and duties of Consultant are personal to Consultant and may not be
subcontracted, delegated, assigned or transferred by Consultant without Company’s
prior written consent.  Otherwise, this
Agreement shall inure to the benefit of and be binding upon the parties and
their successors and assigns.


 


9.6.        Waivers.  No
term or provision of this Agreement will be considered waived and no breach
consented to by either party unless such waiver or consent is in writing signed
on behalf of the party against whom it is asserted.  No consent to or waiver of a breach of this
Agreement by either party, whether express or implied, will constitute a
consent to, waiver of, or excuse for any other, different, or subsequent breach
of this Agreement by such party.


 


9.7.        Notices.  Any notice
or communication given pursuant to this Agreement shall be deemed effective
upon receipt, and shall be in writing and (a) delivered personally, (b) sent
by commercial overnight courier with written verification of receipt, (c) sent
by certified or registered U.S. mail, postage prepaid and return receipt
requested, to the party to be notified, or (d) sent by confirmed facsimile
or e-mail transmission.  Notices to
Consultant shall be sent to the address on the first page of this
Agreement.  Notices to Company shall be
sent to Consultant’s primary contact at the Company, with copy to the Company’s
General Counsel at the address on the first page of this Agreement.


 


9.8.        Standard Forms. 
In connection with the provision of Services by Consultant to Company
hereunder, Consultant and Company may employ their respective forms of purchase
order, invoice, and other standard documents (collectively, “Standard Forms”).  The parties agree that the use of Standard
Forms is for convenience only and no term or condition set forth in any
Standard Form shall operate to modify, delete, or supersede any term or
condition of this Agreement or in any Work Order hereunder.  Company’s acceptance of Services hereunder is
hereby expressly made conditional on the terms and conditions of this Agreement
and the applicable Work Order to the exclusion of all other terms and
conditions.


 


[EXHIBIT IMMEDIATELY
FOLLOWS]


 


5

















 


EXHIBIT A


 


FORM OF WORK ORDER


 


WORK
ORDER NO.     


Attached
to


PROFESSIONAL
SERVICES AGREEMENT


by and
between


Ikaria
Holdings, Inc.  (“Company”)
and


Elizabeth
A. Larkin (“Consultant”)


 


This Work Order is executed pursuant to the Professional
Services Agreement by and between Company and Consultant dated as of April 19,
2010 (the “Agreement”), and shall be deemed to be a part thereof.


 


1.                                       Scope of Work to be provided: [Provide detailed description of scope of
project]


 


2.                                       Estimated Length of Engagement: 
[Provide estimated date for completion of project]


 


3.                                       Fees and cost estimate:  [Provide
hourly or flat rate fees and estimate of costs for project]


 


4.                                       Special Provisions. [Describe any special provisions or agreements
relating to project, including without limitation any terms that conflict with
or differ from those outlined in the Services Agreement]


 


	
  Consultant shall send all invoices directly to:

  	
  Ikaria Holdings, Inc.

  
	
   

  	
  Attn: Accounts Payable

  
	
   

  	
  6 Route 173

  
	
   

  	
  Clinton, NJ 08809

  



 


5.                                       Maximum Fees and Costs (Consultant’s fees and costs may not exceed this
amount for this Work Order without written agreement from Company):


 


Acknowledged and Agreed to:


 


	
  Company

  	
   

  	
  Consultant

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
  [FORM ONLY/DO NOT SIGN]

  	
   

  	
  By:

  	
  [FORM ONLY/DO NOT SIGN]

  
	
   

  	
  Signature

  	
   

  	
   

  	
  Signature

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Printed Name

  	
   

  	
   

  	
  Printed Name

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Title

  	
   

  	
   

  	
  Title (if applicable)

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Date

  	
   

  	
   

  	
  Date

  



 

















 


WORK ORDER NO. 1


Attached
to


PROFESSIONAL
SERVICES AGREEMENT


by and
between


Ikaria
Holdings, Inc. (“Company”) and


Elizabeth
A. Larkin (“Consultant”)


 


This Work Order is executed pursuant to the Professional
Services Agreement by and between Company and Consultant dated as of April 19,
2010 (the “Agreement”), and shall be deemed to be a part thereof.


 


1.                                       Scope of Work to be provided: Consultant shall provide consulting
services on an as needed basis regarding IPO preparation including S-1
revisions and data room population, due diligence supporting the IPO and beyond
on historical matters, ad hoc support any and all financials, business model
and information technology initiatives.


 


2.                                       Length of Engagement:  April 19,
2010 through December 31, 2011.


 


3.                                       Fees and cost estimate:  Consultant
will receive a monthly retainer fee of $2,500 for the Length of
Engagement.  Consultant will be paid $300
per hour for Services rendered. Monthly hours completed in the month of April,
were 3.


 


	
  Consultant shall send all invoices directly to:

  	
  Ikaria Holdings, Inc.

  
	
   

  	
  Attn: Accounts Payable

  
	
   

  	
  6 Route 173

  
	
   

  	
  Clinton, NJ 08809

  



 


4.                                       Special Provisions. 
Notwithstanding Section 8.2 of the Agreement, Ikaria
shall not be permitted to terminate this Work Order other than for material
breach by Consultant.


 


Acknowledged and Agreed to:


 


	
  Company

  	
   

  	
  Consultant

  
	
   

  	
   

  	
   

  
	
  By: /s/ James Briggs

  	
   

  	
  By: /s/ Elizabeth Larkin

  
	
  Signature

  	
   

  	
  Signature

  
	
   

  	
   

  	
   

  
	
  James Briggs

  	
   

  	
  Elizabeth A. Larkin

  
	
  Printed Name

  	
   

  	
  Printed Name

  
	
   

  	
   

  	
   

  
	
  SVP, Human Resources

  	
   

  	
   

  
	
  Title

  	
   

  	
  Title (if applicable)

  
	
   

  	
   

  	
   

  
	
  5/1/2010

  	
   

  	
  April 28, 2010

  
	
  Date

  	
   

  	
  Date

  



 


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