June __, 2020
Roberto Gramignoli
[ADDRESS]
[ADDRESS]
Re: Independent Contractor Agreement
Dear Roberto:
We are pleased that you have agreed to become a consultant to Tandem Biotherapeutics, Inc. (the “Company”). This letter agreement (this “Agreement”) is effective as of the date written above (the “Effective Date”). In consideration of the mutual promises and covenants contained in this Agreement, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, we have agreed as follows:
- 1. Services. You agree to personally render to the Company the services described on Schedule A attached hereto and incorporated herein by reference, as well as such other duties which may be requested by the Company from time to time and which are necessary and reasonably related to the successful completion of the services described in Schedule A (together, the “Services”). It is anticipated that you will provide the Services up to [___ (__)] days per month during the Consultation Period (as defined below). You shall communicate with the Company, via the telephone, regarding the status of the Services at least once per week, and more often as reasonably requested by the Company from time to time.
- Consultation Period of Consulting Arrangement. This Agreement shall commence on the Effective Date and shall continue for a period of one (1) year and may be extended for one or more additional periods of one (1) year each (the term of effectiveness of this Agreement being referred to herein as the “Consultation Period”) upon mutual agreement, in writing, of you and the Company. Either you or the Company may terminate this Agreement at any time during the Consultation Period by giving not less than thirty (30) days prior written notice. Upon termination of this Agreement for any reason, you shall promptly deliver to the Company any and all property of the Company or its customers, licensees, licensors, or affiliates which may be in your possession or control. No termination, regardless of time or reason, shall relieve you from any obligations hereunder, including but not limited to any obligations which by their terms are intended to survive the termination of the Consultant’s association with the Company, including, but not limited to, the obligations in your Invention, Non-Disclosure and Non-Solicitation Agreement, discussed herein in Section 4.
- [Office1] . In consideration of your performance of the Services, the Company shall provide you with the following during the Consultation Period:
(a) Equity. In consideration of the services to be provided under the Agreement, subject to the approval of the Board of Directors of the Company (the “Board”), the Company shall grant to the Consultant the right to purchase 100,000 shares of the Common Stock of the Company at a price per share equal to $0.60 [Office2] [RG3] (the “Award”). Twenty-five percent (25%) of the shares underlying the Award shall vest on the date the Award is granted with the remainder of the Award vesting in substantially equal monthly installments over the next consecutive 36 months, such that all shares underlying the Award shall vest and all restrictions thereupon shall lapse on the third (3rd) anniversary of the date of grant, subject to the Consultant’s continued service to the Company. The Award shall be subject to all terms and other provisions set forth in a separate restricted stock purchase agreement.
(b) The Company will also reimburse you for reasonable out-of-pocket business and travel expenses incurred by you in performing the Services (including lodging expenses and coach class airfare). You shall record such approved expenses on the invoice described in paragraph (a) above, and the Company shall provide payment within fourteen (14) business days following receipt of such invoices. You must submit a prior written request to incur any such expenses in excess of one thousand dollars ($1,000), and may not incur such expense without the Company’s prior written approval. The Company shall have no obligation to reimburse you for unreasonable expenses, expenses that are not related to Company business, and/or expenses in excess of the threshold amount described above that were not approved in advance by the Company.
In the event this Agreement is terminated by you or by the Company for any reason, no compensation of any kind shall be payable or issuable to you after the effective date of such termination, other than a liability or obligation of either party which accrued prior to such termination. The Company shall have no obligation to make any payment pursuant to this Agreement unless you are in compliance with all its covenants and agreements[Office4] [RG5] .
- 4. Confidentiality[Office6] [RG7] . You agree at all times, both during the Consultation Period and thereafter, that you shall maintain in confidence and shall not, without the prior written consent of the Company, use (except in the course of performing the Services), or disclose or give to others, any Confidential Information, whether received by you prior to or during the Consultation Period. As used herein, the term “Confidential Information” shall mean any fact or information that is not generally available to the public, including, but not limited to, the Company’s any Invention, formula, compound, composition, formulation, vendor information, customer information, apparatus, equipment, trade secret, process, research, report, technical data, know-how, computer program, software, software documentation, hardware design, technology, marketing or business plan, forecast, unpublished financial statement, budget, license, price, cost and employee list that is communicated to, learned of, developed or otherwise acquired by you in the course of rendering Services to the Company or was communicated to you by the Company prior to the rendering of such Services. The Company has taken and shall continue to take all reasonable measures to protect the confidentiality of such Confidential Information because of the great value of such Confidential Information to the Company. All Confidential Information is and shall remain the sole property of the Company and you shall hold it in strictest confidence. Accordingly, you further agree (i) not to make any copies of such Confidential Information (except in the course of performing the Services or when duly and specifically authorized to do so) and (ii) promptly upon request, whether during or after the Consultation Period, to return to the Company any and all documentary, machine-readable or other elements or evidence of such Confidential Information, and any copies that may be in your possession or under your control.
- Ownership of Intellectual Property. You hereby agree that all ideas, discoveries, improvements, know‑how and inventions which you conceive, make or develop as a result of performing the Services during the Consultation Period and for a period of one (1) year thereafter, alone or in conjunction with any other party (all of the foregoing being hereinafter referred to as the “Inventions”), shall be the sole and exclusive property of the Company[Office8] [RG9] . Without limiting the foregoing, you also acknowledge that all original works of authorship which are made by you (solely or jointly with others) within the scope of the Services hereunder or which relate to the business of the Company and which are protectable by copyright are “works made for hire” pursuant to the United States Copyright Act (17 U.S.C. Section 101). You hereby assign to the Company all of your right, title and interest in and to all such Inventions and original works of authorship and hereby agree to maintain and furnish to the Company complete and current records of all such Inventions and original works of authorship and disclose to the Company in writing any such Inventions. You hereby agree that you will fully cooperate with the Company, its attorneys and agents, at the Company’s expense, in the preparation and filing of all papers and other documents as may be required to perfect and protect the Company’s rights in and to any such Inventions and original works of authorship. In the event that you are requested in any proceeding to disclose any Confidential Information, you shall give the Company prompt notice of such request so that the Company may seek an appropriate protective order. [Office10] [RG11] If, in the absence of a protective order, you are nonetheless compelled by order or subpoena of any court or tribunal of competent jurisdiction to disclose Confidential Information, you may disclose such information without liability hereunder; provided, however, that you shall give the Company notice of the Confidential Information to be disclosed as far in advance of its disclosure as is practicable and uses your reasonable best efforts to obtain assurances that confidential treatment will be accorded to such Confidential Information.
- 6. Continuing Obligations. Your obligations under Sections 4 and 5 of this Agreement shall not be affected by any termination of this Agreement, including termination by the Company.
- Records. You agree to make and maintain adequate and current written records, in a form specified by the Company, of all inventions, trade secrets and works of authorship assigned or to be assigned to the Company pursuant to this Agreement. Upon termination of your relationship with the Company, you shall deliver to the Company any property of the Company which may be in your possession including products, materials, memoranda, notes, records, reports, laboratory notebooks, or other documents or photocopies of the same, including without limitation any of the foregoing recorded on any computer or any machine readable medium.[Office12] [RG13]
- Indemnification and Insurance[Office14] [Office15] . You shall defend, indemnify and hold harmless the Company, its employees, officers and agents from and against any and all claims, demands, loss, damage or expense, including without limitation attorneys fees (herein, “Claims”), that arise as a result of your performance of or failure to perform the Services.
- Independent Contractor Status; No Employment Created. You acknowledge that your relationship to the Company is at all times that of an independent contractor. This Agreement does not constitute, and shall not be construed as constituting, an employment relationship between the Company and any persons or as an undertaking by the Company to hire you or any persona as an employee of the Company. The Company will not provide you with an office or any other space from which to conduct the Services, and you shall have the sole control and discretion as to where to perform the Services. You will perform the Services free of the direction and control of the Company, but consistent with the objectives it sets, and will bear the benefit/risk of any profit or loss from rendering the Services. You will not be considered an employee of the Company for any purpose, including without limitation, any Company employment policy or any employment benefit plan, and will not be entitled to any benefits under any such policy or benefit plan (including without limitation Workers Compensation insurance). The Company will record payments to you on an Internal Revenue Service Form 1099, and will not withhold any federal, state or local employment taxes on your behalf. You will be solely responsible for the payment of all federal, state and local taxes and contributions imposed or required on income, and for all unemployment insurance, social security contributions and any other payment.
- Notice Pursuant to Defend Trade Secrets Act. Notwithstanding any provision of this Agreement prohibiting the disclosure of the Company’s trade secrets or other Proprietary Information, you understand that you may not be held criminally or civilly liable under any federal or state trade secret law for the disclosure of a trade secret that (A) is made (i) in confidence to a federal, state or local government official, either directly or indirectly, or to an attorney, and (ii) solely for the purpose of reporting or investigating a suspected violation of law, or (B) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal. In addition, if you file a lawsuit or other court proceeding against the Company for retaliating against you for reporting a suspected violation of law, you may disclose such trade secret to the attorney representing you and use such trade secret in the court proceeding, provided that you file any document containing such trade secret under seal and do not disclose such trade secret, except pursuant to court order.
- Non-Solicitation[Office16] [RG17] . During the Consultation Period and for a period of twelve (12) months thereafter, you shall not, either alone or in association with others, (i) solicit, or permit any organization directly or indirectly controlled by you to solicit, any employee or consultant of the Company to leave the employ or consultancy, as applicable, of the Company, or (ii) solicit for employment, hire or engage as an independent contractor, or permit any organization directly or indirectly controlled by you to solicit for employment, hire or engage as an independent contractor, any person who was employed by the Company at any time during the Consultation Period; provided, that this clause (ii) shall not apply to any individual whose employment with the Company has been terminated for a period of six (6) months or longer.
- Miscellaneous.
(a) No Conflicts. You hereby represent and warrant that (i) you have no agreement with a third party in conflict with your obligations to the Company hereunder, and your engagement hereunder does not require you to breach any agreement entered into by you; (ii) your engagement hereunder does not violate any order, judgment or injunction applicable to you; and (iii) all facts the you have presented to the Company are accurate and true, including, but not limited to, all oral and written statements made to the Company pertaining to education, training, qualifications, licensing and prior work experience. You hereby agree to indemnify and hold the Company harmless against any claim based upon circumstances alleged to be inconsistent with such representations and/or warranties.
(b) Notices. Any notice or other communication required or permitted hereunder shall be deemed sufficiently given if sent by facsimile transmission, recognized courier service or certified mail, postage and fees prepaid, addressed to the party to be notified as follows: if to the Company to its address set forth above in Section 1, and if to you to your address set forth above, or in each case to such other address as either party may from time to time designate in writing to the other. Such notice or communication shall be deemed to have been given as of the date sent by facsimile or delivered to a recognized courier service, or three days following the date deposited with the United States Postal Service.
(c) Governing Law; Arbitration. This Agreement shall be governed by and construed and enforced in accordance with the laws of the Commonwealth of Massachusetts[Office18] , without application of the conflicts of law provisions thereof. Except with respect to the terms of Sections 4, and 5 hereof (for which the Company expressly reserves the right to seek injunctive relief in the event of a breach or threatened breach, as described in paragraph (d) below), any controversy, dispute or claim arising out of or in connection with this Agreement, or the breach, termination or validity hereof, shall be settled by final and binding arbitration to be conducted by a single arbitrator in Boston, Massachusetts, pursuant to the Commercial Rules of the American Arbitration Association. The decision or award of the arbitrator shall be final, and judgment upon such decision or award may be entered in any competent court or application may be made to any competent court for judicial acceptance of such decision or award and an order of enforcement. In the event of any procedural matter not covered by the aforesaid rules, the procedural law of the Commonwealth ofMassachusetts shall govern.
(d) Injunctive Relief; Severability; Blue Pencil. You hereby expressly acknowledge that any breach or threatened breach of any of the terms and/or conditions set forth in Sections 4 and 5 of this Agreement may result in substantial, continuing and irreparable injury to the Company. Therefore, you hereby agree that, in addition to any other remedy that may be available to the Company, the Company shall be entitled to seek injunctive or other equitable relief by a court of appropriate jurisdiction in the event of any breach or threatened breach of the terms of Sections 4 or 5 of this Agreement. In addition, the parties intend Sections 4 and 5 of this Agreement to be enforced as written. However, (i) if any provision of such sections is to any extent declared illegal or unenforceable by a duly authorized court having jurisdiction, then the remainder of such sections, or the application of such provision in circumstances other than those as to which it is so declared illegal or unenforceable, will not be affected thereby, and each provision of such sections will be valid and enforceable to the fullest extent permitted by law; and (ii) if any provision of such sections, or part thereof, is held to be unenforceable because of the duration of such provision or the geographic area covered thereby, the court making such determination will have the power to reduce the duration and/or geographic area of such provision, and/or to delete specific words and phrases (“blue-penciling”), and in its reduced or blue-penciled form such provision will then be enforceable and will be enforced.
(e) Entire Agreement. This Agreement embodies the entire agreement and understanding between the parties hereto and supersedes all prior oral or written agreements and understandings relating to the subject matter hereof. No statement, representation, warranty, covenant or agreement of any kind not set forth in this Agreement shall affect, or be used to interpret, change or restrict, the express terms and provisions of this Agreement.
(f) Assignment. The Company may assign its rights and obligations hereunder to any person or entity that succeeds to all or substantially all of the Company’s business or that aspect of the Company’s business in which you are principally involved. Your rights and obligations under this Agreement may not be assigned without the prior written consent of the Company.
(g) Modification; Amendment; Waiver. This Agreement shall not be modified, amended or extended except by an instrument in writing signed by or on behalf of the parties hereto. Waiver by either party of a breach of any provision of this Agreement or failure to enforce any such provision shall not operate or be construed as a waiver of any subsequent breach of any such provision or of such party’s right to enforce any such provision. No act or omission of a party shall constitute a waiver of any of its rights hereunder except for a written waiver signed by or on behalf of such party.
(h) Counterparts. This Agreement may be executed in one or more counterparts each of which will be deemed an original, but all of which together shall constitute one and the same instrument.
[Remainder of Page Intentionally Left Blank]
Very truly yours,
Tandem Biotherapeutics, Inc.
By:
David Paolella, President and
Chief Executive Officer
Agreed to and Accepted:
___________________________________
Name: Roberto Gramignoli
Address:
Schedule A
Description of Services
Schedule B
Patents
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[Office1]Are you getting any payment (salary or commission) besides the Company mentioned in the contract? Because even if you shall have the equity, I find it wrong that you are purchasing it and shall lose in case the contract expires or is terminated. You should bargain for a salary/commission besides the company equity. Also take into consideration the fact that earnings off the equity are not predictable.
[Office2]It needs to be changed in 0.20 per share, as stated in the consolidated warrant document (a separate document I received for the assignment of IP)
You can take that approach or ask for a salary.
[RG3]What I really need from you it’s a way to propose such concept (shares in exchange of year 1 counselling, extension for a second year would require additional share or monetary compensation. Thanks
The Company shall pay the Consultant ______ Dollars per day for the consultancy services rendered herein, plus any reasonable out of pocket expenses covered by the Consultant while performing their obligations. Payments shall be made once monthly within ____ Days of receiving an invoice from the Consultant stipulating the services performed within that period.
[Office4]I think this part should be revised, including that “if company terminates I get all the resulting shares or economic compensation immediately, if I quit, I get only what I achieved so far.
That is in order
[RG5]Do you mean it’s fine as it is? But if the company terminates for any reason, even few days before the end of year 1, they have no obligations to pay. Or I understood wrong?
As the Clause stands now, the Company shall not be obligated to make any payments after termination. However, if you negotiate a salary in the place of company equity, you shall be entitle to a any salary/payments due before the termination is made effective.
[Office6]I would like to add clause to grant freedom to publish my own results. Specifically, I can grant a thirty (30) days period for review and comment prior to publication. Notwithstanding the foregoing, the Company shall have the right, it its sole discretion, to a 90 days maximum delay of the release of any infomration that may impact the ability to adequately pretect the IP associated with the corresponding generated new information or research. what do you think about this?
[RG7]I really need your legal opinion in such regards and more important how to proposed such concept
From a legal perspective, the Confidentiality Clause herein is okay. Why? Because the Company is protecting its interests and I have not seen anywhere your interests as the Consultant have been jeopardized. If you wish to publish your own results separately, then such publications have to be different from the work done for the Company. In any legal work/service or consultancy agreement as this one, you are forbidden from publishing work whose ownership has been transferred to another.
[Office8]So far we have submitted only one provisional application “entitled “Cell-based therapies and uses thereof”, filed May 8, 2020, serial number 63/021,929. Such technology and relative provisional application as you can read is quite wide range, but I would like to have my consultancy limited to this technology only. Any additional ideas or discoveries or know-how should be my sole property or object for an additional consultant agreement, don’t you think so?
From a legal perspective, the Confidentiality Clause is meant to protect the Company against any proprietary claims you may have over the work you provide. The Company is paying you for a service, which include you transferring ownership over to the Company.
So to answer your question, I don’t think the Company shall agree to pay you for any work if you refuse to transfer ownership rights to the Company.
[RG9]I don’t refuse to transfer my knowledge or ownership, but I want to limit such service to one field of expertise, not including everything (i.e., if another company wants me to counsel on something different, I would like to have freedom to offer such task
[Office10]Once again, I would limit such intervention to 30 or 90 days
That would be in order
[RG11]Do you mean it’s fine as it is? My career and work is based on scientific publications. I need to maintain freedom to publish my results. With other companies or funding agencies, we are commonly limiting the veto to 30/90days before submission to give company time to submit protection.
Again as pointed out previously, you have the liberty to publish you works, however they should not be work covered under this Agreement.
[Office12]This is impossible. As employee at karolinska Institutet (an academic institute), such documents are my employer’s property and I can only offer a copy of .
I think you didn’t understand this, you shall only be required to return the COMPANY’S things that are in your possession. It doesn’t include your material that you have been using for Company projects.
[RG13]Ok, if I understto right, you’re saying that this clause is limited to material, notes, lab notebooks,… the company provided me during the year of consulting, right?
Yes that is right. Any previous work or current work, projects, materials, notes etc in your possession that is not from the Company and does not related to the consultancy provided for the Company is not covered here and shall not be subject to this Clause.
[Office14]It is written your disadvantage. Have that changed. Maybe limit the Company’s liability to you for personal injuries. However, you should have a right to make claims regarding any breach of contract by the company or non payments.
[Office15]You’re right. What do you suggest to protect me and my own independent work?
I would suggest this entire clause be deleted and in its place have a limitation of liability statement. Where the Company can be held liable for actions such as failure to pay you etc and you have a right to sue and to attorney’s fees
[Office16]Once again I would like to have this section limited to the technology we agreed to exploit with the company (provisional application above. Any legal suggestion on how I should rephrase it? yes
[RG17]Thanks for agreeing in offering suggestions on how to rephrase this part. I am looking forward to receive such suggestion
The issue in this Clause is not in the technology covered but the time limitation. Change the 12 month limitation to 3 months.
[Office18]Any way I can request an international, third-country audit? Maybe Bruxelles?
The company has mentioned “..without application of any laws that would cause conflict of laws” meaning that the Company seeks to ensure that whatever law, be it federal, state, or international that you might wish included shall not affect their choice of laws and jurisdiction,
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