CONSULTING AGREEMENT
Exhibit 10.38
THIS CONSULTING AGREEMENT (the “Agreement”) is made by and between ARTIVA BIOTHERAPEUTICS, INC. (“Company”) and XXXXX XXXXXXXX (“Consultant”), effective as of NOVEMBER 1, 2023 (the “Effective Date”).
Company desires to benefit from Consultant’s expertise and experience by retaining Consultant as a consultant, and Consultant wishes to perform consulting services for Company, as provided for below. Accordingly, Company and Consultant agree as follows:
1. ENGAGEMENT OF SERVICES. Subject to the terms of this Agreement, Consultant agrees to provide consulting services to Company as described in EXHIBIT A hereto (collectively, the “Services”) during the term of this Agreement. Consultant agrees to exercise diligence and the highest degree of professionalism in providing Services under this Agreement. Company will make its facilities and equipment available to Consultant when necessary. Consultant may not subcontract or otherwise delegate Consultant’s obligations under this Agreement without Company’s prior written consent. Consultant shall perform all Services in compliance with all applicable laws.
2. COMPENSATION. As sole compensation for the performance of the Services, Company will pay to Consultant the amounts and on the schedule specified in EXHIBIT A. Consultant will be reimbursed for expenses as specified in EXHIBIT A.
3. INDEPENDENT CONTRACTOR RELATIONSHIP. Consultant’s relationship with Company is that of an independent contractor, and nothing in this Agreement is intended to, or should be construed to, create a partnership, agency, joint venture or employment relationship with Company and Consultant. Consultant is not entitled to and will be excluded from participating in any of Company’s fringe benefit plans or programs as a result of the performance of the Services, including, but not limited to, health, sickness, accident or dental coverage, life insurance, disability benefits, accidental death and dismemberment coverage, unemployment insurance coverage, workers’ compensation coverage, and pension or 401(k) benefit(s) provided by Company to its employees (and Consultant waives the right to receive any such benefits). Consultant agrees, as an independent contractor, that Consultant is not entitled to unemployment benefits in the event this Agreement terminates, or workers’ compensation benefits in the event that Consultant (or employees thereof) is injured in any manner or becomes ill while performing the Services under this Agreement. Consultant is solely responsible for all tax returns, payments, or reports required to be filed with or made to any federal, state or local tax authority with respect to Consultant’s performance of Services and receipt of fees under this Agreement. Consultant has discretion to set Consultant’s own hours, and Consultant will use Consultant’s own computers, software, and other IT equipment. Consultant is not authorized to make any representation, contract or commitment on behalf of Company, unless specifically requested or authorized to do so by an executive officer of Company. No part of Consultant’s compensation will be subject to withholding by Company for the payment of any social security, federal, state or any other employee payroll taxes. Company will regularly report any amounts paid to Consultant by filing Form 1099-MISC with the Internal Revenue Service as required by law. Consultant xxxxxx agrees to indemnify and defend Company against any and all income and employment taxes or contributions owed as a result of any fees and payments made to Consultant hereunder, including penalties and interest.
4. TRADE SECRETS; INTELLECTUAL PROPERTY RIGHTS.
4.1 Confidential Information. Consultant agrees during the term of this Agreement and thereafter that Consultant will take all steps necessary to hold Company’s Confidential Information in trust and confidence, will not use Confidential Information in any manner or for any purpose not expressly set forth in this Agreement, and will not disclose any such Confidential Information to any third party without first obtaining Company’s express written consent on a case-by-case basis. “Confidential Information” includes, but is not limited to, all information related to Company’s business and Consultant’s actual or anticipated research and development, including without limitation (a) trade secrets, inventions, ideas, processes, computer source and object code, formulae, data, programs, other works of authorship, know- how, improvements, discoveries, developments, designs, and techniques; (b) information regarding products or plans for research and development, marketing and business plans, budgets, financial statements, contracts, prices, suppliers, clients and customers; (c) information regarding the skills and compensation of Company’s employees, contractors, and any other service providers of Company; and (d) the existence of any business
1
discussions, negotiations, or agreements between Company and any third party. In addition, “Company Work Product” (defined below) shall constitute Confidential Information. Notwithstanding the other provisions of this Agreement, nothing received by Consultant will be considered to be Confidential Information if Consultant can demonstrate by clear and convincing evidence that: (i) it has been published or is otherwise readily available to the public other than by a breach of this Agreement; (ii) it has been rightfully received by Consultant from a third party without confidential limitations; (iii) it has been independently developed for Consultant by personnel or agents having no access to Company Confidential Information, as evidenced by Consultant’s written records; or (iv) it was known to Consultant prior to its first receipt from Company, except in the case of Company Work Product, which shall not be subject to the exception in this Section 4.1 Further, notwithstanding the other provisions of this Agreement, pursuant to 18 U.S.C. Section 1833(b), Consultant shall not be held criminally or civilly liable under any federal or state trade secret law for the disclosure of a trade secret that is made in confidence to a federal, state, or local government official, either directly or indirectly, or to an attorney, and solely for the purpose of reporting or investigating a suspected violation of law; or is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal.
4.2 Third Party Information. Consultant understands that Company has received and will in the future receive from third parties confidential or proprietary information (“Third Party Information”) subject to a duty on Company’s part to maintain the confidentiality of such information and use it only for certain limited purposes. Consultant agrees to hold Third Party Information in confidence and not to disclose to anyone (other than Company personnel who need to know such information in connection with their work for Company) or to use, except in connection with Consultant’s work for Company, Third Party Information unless expressly authorized in writing by an executive officer of Company.
4.2 No Conflict of Interest. Consultant agrees during the term of this Agreement not to accept work or enter into a contract or accept an obligation inconsistent or incompatible with Consultant’s obligations under this Agreement or the scope of services rendered for Company. Consultant warrants that to the best of Consultant’s knowledge, there is no other existing contract or duty on Consultant’s part inconsistent with this Agreement. Consultant further agrees not to disclose to Company, or bring onto Company’s premises, or induce Company to use any confidential information that belongs to anyone other than Company or Consultant. In addition, Consultant agrees that, during the term of this Agreement, Consultant will not perform, or agree to perform, any services for any third party that engages in the Company’s Business (as defined in section 6.5 below).
4.3 Disclosure of Work Product. As used in this Agreement, the term “Work Product” means any trade secrets, ideas, inventions (whether patentable or unpatentable), mask works, processes, procedures, formulations, formulas, software source and object codes, data, programs, other works of authorship, know-how, improvements, discoveries, developments, designs and techniques, trademarks, manufacturing techniques, or other copyrightable or patentable works. Consultant agrees to disclose promptly in writing to Company, or any person designated by Company, all Work Product that is solely or jointly conceived, made, reduced to practice, or learned by Consultant in the course of any work or Services performed for Company (“Company Work Product”).
4.4 Assignment of Company Work Product. Consultant irrevocably assigns to Company all right, title, and interest worldwide in and to Company Work Product and all applicable intellectual property rights related to Company Work Product, including without limitation, copyrights, trademarks, trade secrets, patents, moral rights, contract, and licensing rights (the “Proprietary Rights”). Consultant retains no rights to use Company Work Product and agrees not to challenge the validity of Company’s ownership in Company Work Product.
4.5 Waiver of Assignment of Other Rights. If Consultant has any rights to Company Work Product that cannot be assigned to Company, Consultant unconditionally and irrevocably waives the enforcement of such rights and all claims and causes of action of any kind against Company with respect to such rights. Consultant agrees, at Company’s request and expense, to consent to and join in any action to enforce such rights. If Consultant has any right to Company Work Product that cannot be assigned to Company or waived by Consultant, Consultant unconditionally and irrevocably grants to Company during the term of such rights, an exclusive, irrevocable, perpetual, worldwide, fully paid and royalty-free license, with rights to sublicense through multiple levels of sublicensees, to reproduce, create derivative works of, distribute, publicly perform and publicly display by all means now known or later developed, such rights.
2
4.6 Assistance. Consultant agrees to cooperate with Company or its designee(s), both during and after the term of this Agreement, in the procurement and maintenance of Company’s rights in Company Work Product, and to execute, when requested, any other documents deemed necessary by Company to carry out the purpose of this Agreement.
4.7 Enforcement of Proprietary Rights. Consultant will assist Company in every proper way to obtain, and from time to time enforce, United States and foreign Proprietary Rights relating to Company Work Product in any and all countries. To that end Consultant will execute, verify, and deliver such documents and perform such other acts (including appearances as a witness) as Company may reasonably request for use in applying for, obtaining, perfecting, evidencing, sustaining, and enforcing such Proprietary Rights and the assignment thereof. In addition, Consultant will execute, verify, and deliver assignments of such Proprietary Rights to Company or its designee. Consultant’s obligation to assist Company with respect to Proprietary Rights relating to such Company Work Product in any and all countries shall continue beyond the termination of this Agreement, but Company shall compensate Consultant at a reasonable rate after such termination for the time actually spent by Consultant at Company’s request on such assistance.
4.8 Execution of Documents. In the event Company is unable for any reason, after reasonable effort, to secure Consultant’s signature on any document needed in connection with the actions specified in the preceding Sections 4.7 and 4.8, Consultant hereby irrevocably designates and appoints Company and its duly authorized officers and agents as Consultant’s agent and attorney in fact, which appointment is coupled with an interest, to act for and in Consultant’s behalf to execute, verify, and file any such documents and to do all other lawfully permitted acts to further the purposes of the preceding paragraph with the same legal force and effect as if executed by Consultant. Consultant hereby waives and quitclaims to Company any and all claims, of any nature whatsoever, which Consultant now or may hereafter have for infringement of any Proprietary Rights assigned hereunder to Company.
5. CONSULTANT REPRESENTATIONS AND WARRANTIES. Consultant hereby represents and warrants that (a) Company Work Product will be an original work of Consultant; (b) neither Company Work Product nor any element thereof will be subject to any restrictions or to any mortgages, liens, pledges, security interests, encumbrances, or encroachments; (c) Consultant will not grant, directly or indirectly, any rights or interest whatsoever in Company Work Product to third parties; and (d) Consultant has full right and power to enter into and perform this Agreement without the consent of any third party.
6. TERM AND TERMINATION.
6.1 Term. Subject to Sections 6.1 and 6.2 below, the term of this Agreement will begin as of the Effective Date and will automatically terminate on the six-month anniversary of the Effective Date, unless the length of the term of this Agreement is extended in a writing signed by both parties.
6.2 Termination by Company. Company may terminate this Agreement at its convenience and without any breach by Consultant upon 14 days’ prior written notice to Consultant. Company may also terminate this Agreement immediately in its sole discretion upon Consultant’s material breach of Section 4, Section 6.4, Section 6.5 and/or Section 6.6.
6.3 Termination by Consultant. Consultant may terminate this Agreement at any time upon 14 days’ prior written notice to Company.
6.4 Noninterference. During the term of this Agreement and for a period of one year immediately following termination of this Agreement by either party, Consultant agrees not to solicit or induce (or attempt to solicit or induce) any employee, consultant, agent, or independent contractor to terminate or breach an employment, contractual, or other relationship with Company.
6.5 Noncompetition. In order to protect Company’s Confidential Information, Consultant agrees that (a) during the term of this Agreement, and (b) for the one year period after the termination date of this Agreement, Consultant will not perform services anywhere in the world for, or in any way manage, operate, join, control or participate in the ownership, management, operation or control of, or be connected to as an employee, shareholder,
3
director, manager, member, consultant, adviser, volunteer, partner or otherwise, whether for compensation or not, any entity (including for my own account), that engages in Company’s Business (as defined below). This provision does not require Consultant to liquidate any investments Consultant may have as of the Effective Date, and does not prohibit Consultant (x) from being a passive investor of not more than 2% of the outstanding stock of any class of a corporation which is publicly traded, so long as Consultant has no active participation in the business of such corporation; or (y) from joining a separate division of an entity or business, even if another division of such entity or business engages in Company’s Business, provided that Consultant does not (i) perform any services for such other division, or (ii) provide any formal or informal advice or guidance to such other division. “Company’s Business” means the research, development, manufacturing, production, marketing or sale of natural killer cell therapies. In addition, during the term of this Agreement, in the event that Consultant agreement to perform services anywhere in the world for, or in any way manage, operate, join, control or participate in the ownership, management, operation or control of, or be connected to as an employee, shareholder, director, manager, member, consultant, adviser, volunteer, partner or otherwise, whether for compensation or not, any entity that engages in the research, development, manufacturing, production, marketing or sale of (i) cellular immunotherapies not utilizing natural killer cells, or (ii) bispecific antibodies, in either case for use in oncology or autoimmunity, Consultant shall immediately notify Company, and Company shall have the right to immediately terminate this agreement. In the event that Company terminates the Agreement under this Section 6.5, Company shall owe Consultant a pro-rated retainer fee for the month in which the termination occurs, and vesting of any equity awards shall ceases as of the termination date.
6.6 Return of Company Property. Unless otherwise authorized by Company, upon termination of the Agreement or earlier as requested by Company, Consultant will deliver to Company any and all drawings, notes, memoranda, specifications, devices, formulas, and documents, together with all copies thereof, and any other material containing or disclosing any Company Work Product, Third Party Information, or Proprietary Information of Company. Consultant further agrees that any property situated on Company’s premises and owned by Company, including all forms of storage media, filing cabinets or other work areas, is subject to inspection by Company personnel at any time with or without notice.
6.7 Survival. The following provisions shall survive termination of this Agreement: Section 4, Section 5, Section 6.4, Section 6.5, Section 6.6, Section 7 and Section 8.
7. INDEMNIFICATION. Consultant will indemnify, defend and hold Company harmless from and against any and all losses, claims, and expenses (including reasonable attorneys’ fees) directly or indirectly arising out of, or resulting from, (a) Consultant’s commission of any act or omission related to the Services Consultant performs; (b) Consultant’s unauthorized use of any Confidential Information; or, (c) Consultant’s material breach of any representation, warranty, or covenant contained in this Agreement, or otherwise made to the Company.
8. GENERAL PROVISIONS.
8.1 Governing Law. This Agreement shall be governed and construed in accordance with the laws of the State of California and all claims relating to or arising out of this Agreement, or the breach thereof, whether sounding in contract, tort or otherwise, shall likewise be governed by the laws of the state of California. The parties consent to and agree that service of any summons and complaint or other process in any such action or proceeding may be made by registered or certified mail in addition to personal service, or any other form of service contemplated by the laws of the state of California.
8.2 Severability. In case any one or more of the provisions contained in this Agreement shall, for any reason, be held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect the other provisions of this Agreement, and this Agreement shall be construed as if such invalid, illegal, or unenforceable provision had never been contained herein. If moreover, any one or more of the provisions contained in this Agreement shall for any reason be held to be excessively broad as to duration, geographical scope, activity, or subject, it shall be construed by limiting and reducing it, so as to be enforceable to the extent compatible with the applicable law as it shall then appear.
8.3 No Assignment. This Agreement may not be assigned by Consultant without Company’s consent, and any such attempted assignment shall be void and of no effect.
4
8.4 Notices. All notices, requests, and other communications under this Agreement must be in writing and must be mailed by registered or certified mail, postage prepaid and return receipt requested, electronic mail, or delivered by hand to the party to whom such notice is required or permitted to be given. If mailed, any such notice will be considered to have been given five (5) business days after it was mailed, as evidenced by the postmark. If emailed, any such notice will be considered to have been given upon acknowledgment of receipt of electronic transmission. If delivered by hand, any such notice 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 address for notice to either party will be the address shown on the signature page of this Agreement. Either party may change its address by notice as provided by this section.
8.5 Legal Fees. If any dispute arises between the parties with respect to the matters covered by this Agreement which leads to a proceeding to resolve such dispute, the prevailing party in such proceeding shall be entitled to receive its reasonable attorneys’ fees, expert witness fees, and out-of-pocket costs incurred in connection with such proceeding, in addition to any other relief it may be awarded.
8.6 Injunctive Relief. A breach of any of the promises or agreements contained in this Agreement may result in irreparable and continuing damage to Company for which there may be no adequate remedy at law, and Company is therefore entitled to seek injunctive relief as well as such other and further relief as may be appropriate.
8.7 Waiver. No waiver by Company of any breach of this Agreement shall be a waiver of any preceding or succeeding breach. No waiver by Company of any right under this Agreement shall be construed as a waiver of any other right. Company shall not be required to give notice to enforce strict adherence to all terms of this Agreement.
8.8 Entire Agreement. This Agreement is the final, complete, and exclusive agreement of the parties with respect to the subject matter hereof. This Agreement supersedes all prior discussions between the parties. No modification of or amendment to this Agreement, nor any waiver of any rights under this Agreement, will be effective unless in writing and signed by Consultant and an executive officer of Company. The terms of this Agreement will govern all Services undertaken by Consultant for Company.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
5
IN WITNESS WHEREOF, the parties have caused this Consulting Agreement to be executed by their duly authorized representative.
| COMPANY: | ||
| ARTIVA BIOTHERAPEUTICS, INC. | ||
| By: | /s/ Xxxx Xxxxx | |
| Name: | Xxxx Xxxxx | |
| Title: | CEO | |
| Address: | Artiva Biotherapeutics |
| 0000 Xxxxxxxxx Xxxxx |
| Suite 100 San Diego, CA 92121 |
| USA |
Email: Xxxxx@xxxxxxxxx.xxx
CONSULTANT:
XXXXX XXXXXXXX
| /s/ Xxxxx Xxxxxxxx |
| (Signature) |
| Address: |
|
|
|
|
6
EXHIBIT A
SERVICES
7
Amendment No. 1 to Consulting Agreement
This Amendment No. 1 (the “Amendment”), effective as of May 1, 2024, amends certain provisions of the Consulting Agreement dated November 1, 2023 (the “Agreement”), between Artiva Biotherapeutics, Inc. (“Company”), having its principal place of business at 0000 Xxxxxxxxx Xxxxx, Xxxxx 000, Xxx Xxxxx, XX 00000 and Xxxxx Xxxxxxxx (“Consultant”).
WHEREAS, Company and Consultant find it in their respective interests to amend the provisions of the Agreement.
NOW THEREFORE, pursuant to such provision and for consideration duly given, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree to the following:
| 1. | Except as expressly amended hereby, the Agreement shall continue to remain in full force and effect in accordance with its terms. |
| 2. | The first sentence of Section 6 of the Agreement is hereby deleted in its entirety and replaced with the following: “Subject to Sections 6.2 and 6.3 below, the term of this Agreement will begin as of the Effective Date and will continue through December 31, 2024.” |
| 3. | This Amendment may be executed in one or more counterparts, each of which shall be an original and all of which shall constitute together the same document. The Parties agree that signatures transmitted by electronic means (e.g. facsimile or a scanned version of the executed agreement in PDF format attached to an e-mail) shall bind the Parties. This Amendment is otherwise governed by the terms and conditions of the Original Agreement, except as amended hereby. |
[Signature Page Follows]
IN WITNESS WHEREOF, each of the undersigned parties have had this Amendment executed by its duly authorized representatives.
| ARTIVA BIOTHERAPEUTICS, INC. | XXXXX XXXXXXXX | |||||||
| By: | /s/ Xxxxxxxx Xxxx |
/s/ Xxxxx Xxxxxxxx | ||||||
| Printed Name: Xxxxxxxx Xxxx | Email: | |||||||
| Title: Chief Operating Officer | ||||||||
| Email: xxxxx@xxxxxxxxx.xxx | ||||||||
