CONSULTING AGREEMENT

Exhibit 10.1

CONSULTING AGREEMENT

This Consulting Agreement (the “Agreement”) is made effective as of September 15, 2020 (the “Effective Date”), by and between Organovo, Inc., a Delaware corporation, with its principal place of business being 000 Xxxxxxx Xxxxxx, Xxxxx 000, Xxxxxx Xxxxx, XX 00000 (the “Company”) and Multi Dimensional Bio Insight LLC, a California limited liability corporation, with its principal place of business being 0 Xxxx Xxxx Xxxx, Xxxxxxx Xxxxx, XX 00000 (“MDBI”). The Company and MDBI are herein sometimes referred to individually as a “Party” and collectively as the “Parties.”

WHEREAS, the Company possesses know-how and proprietary technology related to 3D bioprinting and drug discovery; and

WHEREAS, MDBI and its consultants have expertise in corporate operations and strategy, especially within the Company’s areas of operation and technology expertise; and

WHEREAS, MDBI desires to serve as an independent consultant for the purpose of providing the Company with certain strategic and financial advice and support services, as more fully described in Exhibit A attached hereto, (the "Services"); and

WHEREAS, it is further contemplated that MDBI will provide Services of Executive Chairman and other such executive officer positions as may be determined by the Company and Xxxxxx from time to time; and

WHEREAS, the Company wishes to engage MDBI on the terms and conditions set forth herein.

NOW THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which are hereby acknowledged, the Parties agree and covenant as follows.

1. Services of Consultant. MDBI will assist the Company with matters relating to the Services. The Services are more fully described in Exhibit A attached hereto. MDBI and the Company will periodically review the Services to prioritize and implement any items listed on Exhibit A.

2. Compensation for Services. In full consideration of MDBI’s full, prompt and faithful performance of the Services, the Company shall compensate MDBI a consulting fee as set forth in Exhibit A. MDBI shall, from time to time, but not more frequently than once per calendar month, provide the Company with an itemized invoice for Services rendered for that month, and such invoice will be paid upon 30 days of receipt. Each month the Parties shall evaluate jointly the current fee structure and scope of Services. MDBI reserves the right to an annual increase in consultant rates of up to 4%, effective January 1 of each year. Upon termination of this Agreement pursuant to Section 3, no compensation or benefits of any kind as described in this Section 2 shall be payable or issuable to MDBI after the effective date of such termination. In addition, the Company will reimburse MDBI for reasonable out-of-pocket business expenses, including but not limited to travel and parking, incurred by MDBI in performing the Services hereunder, upon submission

 

by MDBI of supporting documentation in accordance with Company’s travel policy (attached as Exhibit B) and reasonably acceptable to the Company. Any expenses that exceeds $10,000 shall be submitted to the Company for its prior written approval.

Absent separate Company approval, the total hours provided by MDBI to the Company in any single Company fiscal year or calendar year and compensated as described in Exhibit A shall be no greater than 1,500 hours.

The Company agrees to provide compensation for services already rendered, covering the time period from July 15 to September 15, 2020, in the same manner as provided for in this Agreement. MDBI will provide an invoice for such services rendered subsequent to the signing of this Agreement, and the total amount of hourly compensation and reasonable expenses covered under this provision will be no greater than $50,000.

All MDBI invoices and billing matters should be addressed to:

Company Accounts Payable Contact: Xxxxxx Xxxxxxx, Assistant Controller Accounts Payable Email: XX@xxxxxxxx.xxx Phone: 000-000-0000 Organovo Holdings, Inc. 000 Xxxxxxx Xxxxxx, Xxxxx 000 Xxxxxx Xxxxx, XX 00000

All Company payments and billing inquiries should be addressed to:

MDBI Accounting: xxxxxxxxxxxxxx@xxxxx.xxx MDBI Attn: Organovo Consulting 0 Xxxx Xxxx Xxxx Xxxxxxx Xxxxx, XX 00000

3. Term and Termination. The term of this Agreement will commence on the Effective Date and will continue for a four year term. Notwithstanding the foregoing, this Agreement may be terminated by either Party hereto: (a) with Cause (as defined below), upon 30 days prior written notice to the other Party; or (b) without cause upon 60 days prior written notice to the other Party. For purposes of this Section 3, “Cause” shall include: (i) a breach of the terms of this Agreement which is not cured within 30 days of written notice of such default or (ii) the commission of any act of fraud, embezzlement or deliberate disregard of a rule or policy of the Company.

4. Time Commitment. MDBI will devote such time to perform the Services under this Agreement as may reasonably be required.

5. Place of Performance. MDBI will perform the Services at such locations upon which the Company and MDBI may mutually agree. MDBI will not, without the prior written consent of the Company, perform any of the Services at any facility or in any manner that might give anyone other than the Company any rights to or allow for disclosure of any Confidential Information (as defined below).

 

6. Compliance with Policies and Guidelines. MDBI will perform the Services in accordance with all rules or policies adopted by the Company that the Company discloses in writing to MDBI.

7. Confidential Information. MDBI acknowledges and agrees that during the course of performing the Services, the Company may furnish, disclose or make available to MDBI business, technical, commercial and/or regulatory information, whether disclosed or provided in oral, written, graphic or electronic form including, but not limited to, material, compilations, data, licenses, formulae, models, discoveries, developments, inventions, techniques, patent disclosures, procedures, suppliers, pricing lists, processes, schematics, business plans, forecasts, projections, budgets, protocols, results of experimentation and testing, specifications, marketing plans, strategies and techniques, and all tangible and intangible embodiments thereof of any kind whatsoever (including, but not limited to, any apparatus, biological or chemical materials, animals, cells, compositions, documents, drawings, machinery, patent applications, records and reports), which is owned or controlled by the Company and is marked or designated as confidential at the time of disclosure or is of a type that is customarily considered to be confidential information (collectively the “Confidential Information"). MDBI acknowledges that the Confidential Information or any part thereof is the exclusive property of the Company and shall not be disclosed to any third party without first obtaining the written consent of the Company. MDBI further agrees to take all practical steps to ensure that the Confidential Information, and any part thereof, shall not be disclosed or issued to its affiliates, agents or employees, except on like terms of confidentiality. Notwithstanding the foregoing, Confidential Information shall not include any such information which Consultant can establish (i) was publicly known or made generally available prior to the time of disclosure to Consultant; (ii) becomes publicly known or made generally available after disclosure to Consultant through no wrongful action or inaction of Consultant; or (iii) is in the rightful possession of Consultant, without confidentiality obligations, at the time of disclosure as shown by Consultant’s then-contemporaneous written records; provided that any combination of individual items of information shall not be deemed to be within any of the foregoing exceptions merely because one or more of the individual items are within such exception, unless the combination as a whole is within such exception. The above provisions of confidentiality shall apply for a period of five years.

8. Consultant will hold in the strictest confidence, and take all reasonable precautions to prevent any unauthorized use or disclosure of Confidential Information, and Consultant will not (i) use the Confidential Information for any purpose whatsoever other than as necessary for the performance of the Services on behalf of the Company, or (ii) disclose the Confidential Information to any third party without the prior written consent of an authorized representative of Company, except that Consultant may disclose Confidential Information to the extent compelled by applicable law; provided however, prior to such disclosure, Consultant shall provide prior written notice to Company and seek a protective order or such similar confidential protection as may be available under applicable law. Consultant agrees that no ownership of Confidential Information is conveyed to the Consultant. Without limiting the foregoing, Consultant shall not use or disclose any Company property, intellectual property rights, trade secrets or other proprietary know- how of the Company to invent, author, make, develop, design, or otherwise enable others to invent, author, make, develop, or design identical or substantially similar designs as

 

those developed under this Agreement for any third party. Consultant agrees that Consultant’s obligations under this Section shall continue after the termination of this Agreement. Notwithstanding the foregoing, federal law provides immunity for any disclosure of trade secrets when such disclosure is made to a federal, state, or local government official, or to an attorney, if such disclosure is made solely for the purpose of reporting or investigating a suspected violation of law. In addition, the law provides immunity for any complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal. 18 U.S.C. § 1833(b). Disclosures made in compliance with 18 U.S.C. § 1833(b) shall not create liability, either criminally or civilly.”

9. Freedom to Work for Others. Except as expressly provided herein, nothing in this Agreement shall preclude MDBI or its service providers from consulting for or being employed by any other person or entity, provided that (a) such other service does not conflict with MDBI’s or its service providers obligations to the Company, (b) MDBI devotes to the Company the time reasonably required to provide the Services to the Company contemplated in this Agreement, and (c) MDBI discloses all potential conflicts of interest promptly for consideration by the Company.

10. Non Solicitation. All personnel representing MDBI are employees or contracted agents of MDBI. Accordingly, except for Xxxxxx’x service and as otherwise agreed to by the Company in writing, they are not retainable by the Company. Unless agreed to in writing by MDBI, the Company hereby agrees not to solicit, attempt to hire or retain their services for so long as they are employees or contracted agents of MDBI and for one year thereafter. The above notwithstanding, it is not a breach of this provision to hire an individual who applies to Company’s job posting without being recruited by Company, in which case no liquidated damages shall be owed.

11. No Implied Warranty. MDBI represents and warrants to the Company that MDBI possesses the business, professional and technical expertise and the resources, including without limitation equipment, facilities and employees to perform these Services. Except for any express warranties stated herein, the Services are provided on an "as is" basis, and the Company disclaims any and all other warranties, conditions, or representations (express, implied, oral or written), relating to the Services or any part thereof.

12. Indemnification. Consultant agrees to indemnify and hold MDBI hereto, its directors, officers, agents and employees harmless against any claim based upon circumstances alleged to be inconsistent with such representations and/or warranties contained in this Agreement. Further, MDBI shall indemnify and hold harmless the Company against any claims, losses, damages or liabilities (or actions in respect thereof) that arise out of or are based on the Services performed hereunder, except for any such claims, losses, damages or liabilities arising out of the negligence or willful misconduct of the Company or any of its subcontractors.

13. Independent Contractor. MDBI is not, nor shall MDBI be deemed to be at any time during the term of this Agreement, an employee of the Company, and therefore MDBI shall not be entitled to any benefits provided by the Company to its employees, if applicable. MDBI’s status and relationship with the Company shall be that of an independent contractor and consultant. MDBI shall not state or imply, directly or indirectly, that MDBI is empowered to bind the Company without the Company's prior written consent,

 

provided that this sentence shall not prohibit a consultant for MDBI working as an officer of the Company may bind the company in their capacity as an officer determined by the Company and MDBI from time to time. Nothing herein shall create, expressly or by implication, a partnership, joint venture or other association between the parties. MDBI will be solely responsible for payment of all charges and taxes arising from its relationship to the Company as a consultant.

14. Records. Upon termination of MDBI’s relationship with the Company, MDBI shall deliver to the Company any property or Confidential Information of the Company relating to the Services which may be in its possession including products, project plans, materials, memoranda, notes, records, reports, laboratory notebooks, or other documents or photocopies and any such information stored using electronic medium.

15. Data Protection. Depending on the Services Service Provider performs, MDBI may be required to access, collect, retain, disclose or otherwise process individually identifiable health information or information identifying or, in combination with other information, identifiable to a living individual (“Personal Data”). For purposes of this Agreement, “Processing” (and its conjugates, including, without limitation, “Process”) means any operation or set of operations that is performed upon Personal Data, including, without limitation, any collection, recording, retention, organization, storage, adaptation, alteration, retrieval, consultation, blocking erasure use, disclosure, access, transfer, or destruction, whether or not by electronic means. In that event, MDBI agrees to collect and process Personal Data solely as described in this Agreement and not use such Personal Data further for any other purpose or in any other manner except where such further use is required by applicable law, regulation or governmental authority. Further, MDBI agrees to abide by all applicable data protection and privacy laws while performing the Services, and shall afford Personal Data all the protections applicable to Confidential Information as set forth in this Agreement. MDBI shall maintain appropriate safeguards to ensure the confidentiality and security of the Personal Data and shall inform Company within three (3) days about any unauthorized or unintentional access to or disclosure of Personal Data (“Security Breach”), including the timing and nature of the Security Breach, and provide all reasonable assistance to remedy the Security Breach. Where applicable data protection laws require the parties to enter into additional agreements or undertakings, including international data transfer agreements, MDBI shall undertake to ensure that all necessary agreements are implemented and in place. In the event of a Security Breach, MDBI shall also

(i) reasonably cooperate with Company in connection with the investigation of such Security Breach and not make any public announcements relating to such Security Breach without Company’s prior written approval;

(ii) take all necessary and appropriate corrective action, including without limitation, at the request of Company and at the expense of MDBI, provide notice to all persons whose Personal Information may have been affected by such Data Security Breach, whether or not such notice is required by applicable law; and

(iii) reimburse Company for all reasonable costs, including attorneys’ fees, Company may incur in connection with remediation efforts.

 

16. Notices. Any notice under this Agreement shall be in writing (except in the case of verbal communications, emails and teleconferences updating either Party as to the status of work hereunder) and shall be deemed delivered upon electronic delivery via email with confirmed receipt, personal delivery, one day after being sent via a reputable nationwide overnight courier service or two days after deposit in the mail or on the next business day following transmittal via facsimile. Notices under this Agreement shall be sent to the following representatives of the Parties:

	If to the Company:
	Name:	Organovo, Inc.
	Title:	Legal Department
	Address:	000 Xxxxxxx Xxxxxx, Xxxxx 000, Xxxxxx Xxxxx, XX 00000
	Phone:	000-000-0000
	E-mail:	xxxxx@xxxxxxxx.xxx

	If to MDBI:
	Name:	Multi Dimensional Bio Insight
	Title:	Attn: Organovo Consulting
	Address:	0 Xxxx Xxxx Xxxx
		Xxxxxxx Xxxxx, XX 00000
	E-mail:	xxxxxxxxxxxxxx@xxxxx.xxx

17. Assignment, Subcontracting, and Successors. This Agreement may not be assigned by a Party without the consent of the other which consent shall not be unreasonably withheld, except that each Party may assign this Agreement and the rights, obligations and interests of such Party, in whole or in part, to any of its Affiliates, to any purchaser of all or substantially all of its assets or to any successor corporation resulting from any merger or consolidation of such Party with or into such corporation. MDBI may not engage subcontracting companies under this Agreement without the Company’s prior written approval, not to exclude sole providers, individuals or individual consultants providing services through MDBI.

18. Force Majeure. Neither Party shall be liable for failure of or delay in performing obligations set forth in this Agreement, and neither shall be deemed in breach of its obligations, if such failure or delay is due to natural disasters or any causes beyond the reasonable control of either Party. In the event of such force majeure, the Party affected thereby shall use reasonable efforts to cure or overcome the same and resume performance of its obligations hereunder.

19. Headings. The Section headings are intended for convenience of reference only and are not intended to be a part of or to affect the meaning or interpretation of this Agreement.

 

20. Integration; Severability. This Agreement is the sole agreement with respect to the subject matter hereof and shall supersede all other agreements and understandings between the Parties with respect to the same. If any provision of this Agreement is or becomes invalid or is ruled invalid by any court of competent jurisdiction or is deemed unenforceable, it is the intention of the Parties that the remainder of the Agreement shall not be affected.

21. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California, excluding choice of law principles. The Parties agree that any action or proceeding arising out of or related in any way to this Agreement shall be brought solely in a Federal or State court of competent jurisdiction sitting in San Diego County in the State of California.

22. 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.

23. Counterparts. This Agreement may be executed in counterparts, each of which will be deemed an original, but all of which together will constitute one agreement.

If you are in agreement with the foregoing, please sign where indicated below, whereupon this Agreement shall become effective as of the Effective Date.

MDBI, LLC

ORGANOVO, INC.

By:

/s/ Xxxxx Xxxxxx

By:

/s/ Xxxxx Xxxxxxxx

Print Name:

Xxxxx Xxxxxx

Print Name:

Xxxxx Xxxxxxxx

Title:

President

Title:

President

 

EXHIBIT A

Description of Services and Schedule of Fees

MDBI will perform mutually agreed to functions which are necessary to support the management and operations of the Company, certain of which are set forth below.

Consulting Services ($375/hour): Xxxxx Xxxxxx

Consultant may provide the following services:

• Serve as an executive officer of the Company, including its Principal Executive Officer or Executive Chair

• Oversee Company staff activities

• Participate in longer-term strategic planning process

• Participate in financing activities, including additional capital raises and/or debt and equity restructurings

• Oversee an MDBI engagement team to provide totality of needed services

• Board, Audit, Compensation, and Corporate Governance committee meeting preparation, support and attendance

• Provide support for operational planning

• Participate in contract negotiation and cost reduction planning

• Assist with corporate and business development/licensing initiatives

• Perform planning and analysis

• Strategic opportunity assessment