Form of Consulting Agreement, dated as of September 14, 2020, by and between the Company and William S. Marshall, Ph.D
THIS CONSULTING AGREEMENT (the Agreement) by and between Miragen Therapeutics, Inc. (Client) and William S. Marshall, Ph.D. an individual (Consultant) is effective as of , 2020, (the Effective Date).
WHEREAS the parties desire for the Client to engage Consultant to perform the services described herein and for Consultant to provide such services on the terms and conditions described herein; and
WHEREAS, the parties desire to use Consultants independent skill and expertise pursuant to this Agreement as an independent contractor;
NOW THEREFORE, in consideration of the promises and mutual agreements contained herein, the parties hereto, intending to be legally bound, agree as follows:
1. Engagement of Services. Consultant agrees to provide consulting services to include, among other things, research and clinical development activities of the Company and other services upon request of the CEO (Executive) or Board of Directors of the Client. Consultant agrees to exercise the highest degree of professionalism and utilize his expertise and creative talents in performing these services. Consultant agrees to make himself available to perform such consulting services throughout the Consulting Period throughout the Consulting Period, and to be reasonably available to meet with the Client at its offices or otherwise.
2. Compensation; Specific Projects.
2.1 Monthly Retainer. In consideration for the services rendered pursuant to this Agreement and for the assignment of certain of Consultants right, title and interest pursuant hereto, during the Consulting Period, Client will pay Consultant a monthly retainer of $45,000 (the Retainer), to be paid within the first ten (10) days of each month, starting with the first month following the Effective Date of this Agreement. Consultant will submit invoices to the Client monthly, and the invoices shall contain at a minimum an accounting of activities performed and corresponding hours spent during the relevant period. Consultant will maintain, in accordance with generally-accepted accounting principles, complete and accurate records of the work performed sufficient to document the fees invoiced to Client for at least three (3) years following the date of the invoice, and will provide Client with such records at Clients request.
2.2 Specific Projects. In addition to the general consulting services described in Section 1 above, Client agrees to complete the following projects (together the Specific Projects):
Project #1 - Complete SOLAR and implement actions related to the FDA meeting (none envisaged for ATLL as of this point)
Project #2 - Select a lead candidate for the miR 29 program in IPF, applying the Clients typical rigorous data and selection standards (this has been done except we want to be sure we also have studies planned to elaborate the PK/PD profile more fully and to assess a reduction in lung fibrosis in a model (or models) of established fibrotic disease)
Project #3 Complete a comprehensive BD diligence room for all R&D assets for potential partnering
2.3 Success Fees for Specific Projects. If the Company determines that by December 31, 2020 Consultant has fully completed all three Specific Projects, then the Client will provide Consultant with a success fee of $260,500. If, however, the Client determines that by December 31, 2020 Consultant has fully completed two of three Specific Projects, then the Client will pay Consultant a success fee of $130,250. Consultant will not be eligible for any success fee if he does not fully complete at least two of the Specific Projects by December 31, 2020. Any such success fee under this Section will be paid to Consultant by March 15, 2021.
2.4 Performance Stock Unit Grants for Specific Projects. Subject to the approval of the Board, Consultant shall be granted performance-based restricted stock units (the PSUs), with the number of such PSUs to be determined as follows: (a) if the Client determines that by December 31, 2020 Consultant has fully completed all three Special Projects, 232,000 PSUs; (b) if the Client determines that by December 31, 2020 Consultant has fully completed two of three Special Projects, 154,667 PSUs; (c) if the Client determines that by December 31, 2020 Consultant has fully completed one of three Special Projects, 77,333 PSUs; and (d) if the Client determines that by December 31, 2020 Consultant has fully completed none of the Special Projects, zero PSUs. Such PSUs shall vest as of the date of grant and shall be subject to the terms of the Clients 2016 Equity Incentive Plan and form of restricted stock unit agreement thereunder.
3. Ownership of Work Product. Consultant hereby irrevocably assigns, grants and conveys to Client all right, title and interest now existing or that may exist in the future in and to any document, development, work product, know-how, design, processes, invention, technique, trade secret, or idea, and all intellectual property rights related thereto, that is created by Consultant, to which Consultant contributes, or which relates to Consultants services provided pursuant to this Agreement (the Work Product), including all copyrights, trademarks and other intellectual property rights (including but not limited to patent rights) relating thereto. Consultant agrees that any and all Work Product shall be and remain the property of Client. Consultant will immediately disclose to the Client all Work Product. Consultant agrees to execute, at Clients request and expense, all documents and other instruments necessary or desirable to confirm such assignment. In the event that Consultant does not, for any reason, execute such documents within a reasonable time of Clients request, Consultant hereby irrevocably appoints Client as Consultants attorney-in-fact for the purpose of executing such documents on Consultants behalf, which appointment is coupled with an interest. Consultant shall not attempt to register any works created by Consultant pursuant to this Agreement at the U.S. Copyright Office, the U.S. Patent & Trademark Office, or any foreign copyright, patent, or trademark registry. Consultant retains no
rights in the Work Product and agrees not to challenge Clients ownership of the rights embodied in the Work Product. Consultant further agrees to assist Client in every proper way to enforce Clients rights relating to the Work Product in any and all countries, including, but not limited to, executing, verifying and delivering such documents and performing such other acts (including appearing as a witness) as Client may reasonably request for use in obtaining, perfecting, evidencing, sustaining and enforcing Clients rights relating to the Work Product.
4. Artists, Moral, and Other Rights. If Consultant has any rights, including without limitation artists rights or moral rights, in the Work Product which cannot be assigned (the Non-Assignable Rights), Consultant agrees to waive enforcement worldwide of such rights against Client. In the event that Consultant has any such rights that cannot be assigned or waived Consultant hereby grants to Client a royalty-free, paid-up, exclusive, worldwide, irrevocable, perpetual license under the Non-Assignable Rights to (i) use, make, sell, offer to sell, have made, and further sublicense the Work Product, and (ii) reproduce, distribute, create derivative works of, publicly perform and publicly display the Work Product in any medium or format, whether now known or later developed.
5. Representations and Warranties. Consultant represents and warrants that: (a) Consultant has the full right and authority to enter into this Agreement and perform his obligations hereunder; (b) Consultant has the right and unrestricted ability to assign the Work Product to Client as set forth in Sections 3 and 4 (including without limitation the right to assign any Work Product created by Consultants employees or contractors); (c) the Work Product has not heretofore been published in its entirety; and (d) the Work Product will not infringe upon any copyright, patent, trademark, right of publicity or privacy, or any other proprietary right of any person, whether contractual, statutory or common law. Consultant agrees to indemnify Client from any and all damages, costs, claims, expenses or other liability (including reasonable attorneys fees) arising from or relating to the breach or alleged breach by Consultant of the representations and warranties set forth in this Section 5.
6. Independent Contractor Relationship. Consultant is an independent contractor and not an employee of the Client. Nothing in this Agreement is intended to, or should be construed to, create a partnership, agency, joint venture or employment relationship. The manner and means by which Consultant chooses to complete the consulting services are in Consultants sole discretion and control. In completing the consulting services, Consultant agrees to provide his own equipment, tools and other materials at his own expense. Consultant is not authorized to represent that he is an agent, employee, or legal representative of the Client. Consultant is not authorized to make any representation, contract, or commitment on behalf of Client or incur any liabilities or obligations of any kind in the name of or on behalf of the Client. Consultant shall be free at all times to arrange the time and manner of performance of the consulting services. Consultant is not required to maintain any schedule of duties or assignments. Consultant is also not required to provide reports to the Client. In addition to all other obligations contained herein, Consultant agrees: (a) to proceed with diligence and promptness and hereby warrants that such services shall be performed in accordance with the highest professional standards in the field to the satisfaction of the Client; and (b) to comply, at Consultants own expense, with the provisions of all state, local, and federal laws, regulations, ordinances, requirements and codes which are applicable to the performance of the services hereunder.
7. Consultants Responsibilities. As an independent contractor, the mode, manner, method and means used by Consultant in the performance of services shall be of Consultants selection and under the sole control and direction of Consultant. Consultant shall be responsible for all risks incurred in the operation of Consultants business and shall enjoy all the benefits thereof. Any persons employed by or subcontracting with Consultant to perform any part of Consultants obligations hereunder shall be under the sole control and direction of Consultant and Consultant shall be solely responsible for all liabilities and expenses thereof. The Client shall have no right or authority with respect to the selection, control, direction, or compensation of such persons.
8. Tax Treatment. Consultant and the Client agree that the Client will treat Consultant as an independent contractor for purposes of all tax laws (local, state and federal) and file forms consistent with that status. Consultant agrees, as an independent contractor, that neither he nor his employees are entitled to unemployment benefits in the event this Agreement terminates, or workers compensation benefits in the event that Consultant, or any employee of Consultant, is injured in any manner while performing obligations under this Agreement. Consultant will be solely responsible to pay any and all local, state, and/or federal income, social security and unemployment taxes for Consultant and his employees. The Client will not withhold any taxes or prepare W-2 Forms for Consultant, but will provide Consultant with a Form 1099, if required by law. Consultant is solely responsible for, and will timely file all tax returns and payments required to be filed with, or made to, any federal, state or local tax authority with respect to the performance of services and receipt of fees under this Agreement. Consultant is solely responsible for, and must maintain adequate records of, expenses incurred in the course of performing services under this Agreement, except as provided herein. No part of Consultants compensation will be subject to withholding by Client for the payment of any social security, federal, state or any other employee payroll taxes. Client will regularly report amounts paid to Consultant with the appropriate taxing authorities, as required by law. Payments and benefits provided hereunder are intended to be exempt from the application of Section 409A of the Code (Section 409A) or, if not so exempt, to comply with the provisions of Section 409A, and this Agreement shall be interpreted and construed accordingly. The parties intend that the number of hours of service required hereunder shall not be greater than eight (8) hours per week.
9. No Employee Benefits. Consultant acknowledges and agrees that neither he nor anyone acting on his behalf shall receive any employee benefits of any kind from the Client. Consultant (and Consultants agents, employees, and subcontractors) is excluded from participating in any fringe benefit plans or programs as a result of the performance of services under this Agreement, without regard to Consultants independent contractor status. In addition, Consultant (on behalf of himself and on behalf of Consultants agents, employees, and contractors) waives any and all rights, if any, to participation in any of the Clients fringe benefit plans or programs including, but not limited to, health, sickness, accident or dental coverage, life insurance, disability benefits, severance, accidental death and dismemberment coverage, unemployment insurance coverage, workers compensation coverage, and pension or 401(k) benefit(s) provided by the Client to its employees. Notwithstanding the above, this Agreement does not amend or abrogate in any manner any benefit continuation or conversion rights provided by the provision of a benefit plan or by law arising out of Consultants previous employment relationship with Client.
10. Expenses and Liabilities. Consultant agrees that as an independent contractor, he is solely responsible for all expenses (and profits/losses) he incurs in connection with the performance of services. Consultant understands that he will not be reimbursed for any supplies, equipment, or operating costs, nor will these costs of doing business be defrayed in any way by the Client. In addition, the Client does not guarantee to Consultant that fees derived from Consultants business will exceed Consultants costs. Notwithstanding the foregoing, the Client shall reimburse Consultant for reasonable out-of-pocket expenses incurred or paid by Consultant with respect to travel (or other reasonable expenses), all of which must be pre-approved in writing by Client.
11. Non-Exclusivity. The Client reserves the right to engage other consultants to perform services, without giving Consultant a right of first refusal or any other exclusive rights. Consultant reserves the right to perform services for other persons, provided that the performance of such services do not conflict or interfere with services provided pursuant to or obligations under this Agreement.
12. No Conflict of Interest. During the term of this Agreement, unless written permission is given by the Executive, Consultant will not accept work, enter into a contract, or provide services to any third party that provides products or services which compete with the products or services provided by the Client nor may Consultant enter into any agreement or perform any services which would conflict or interfere with the services provided pursuant to or the obligations under this Agreement. Consultant warrants that there is no other contract or duty on his part that prevents or impedes Consultants performance under this Agreement. Consultant agrees to indemnify Client from any and all loss or liability incurred by reason of the alleged breach by Consultant of any services agreement with any third party.
13. No Solicitation. During the Consulting Period, and for a period of one (1) year thereafter, Consultant will not, directly or indirectly (whether for compensation or without compensation), without prior, express written approval from the Board of the client (i) recruit, solicit or induce, or attempt to induce, any employee, consultant, or contractor of the Client to terminate their employment, contractual or other relationship with the Client; or (ii) solicit the business of any client or customer of the Company other than as expressly directed to by the Client.
14. Confidential Information. Consultant agrees to hold Clients Confidential Information (as defined below) in strict confidence and not to disclose such Confidential Information to any third parties. Consultant also agrees not to use any of Clients Confidential Information for any purpose other than performance of Consultants services hereunder. Confidential Information as used in this Agreement shall mean all information disclosed by Client to Consultant, or otherwise, regarding Client or its business obtained by Consultant pursuant to services provided under this Agreement that is not generally known in the Clients trade or industry and shall include, without limitation, (a) concepts and ideas relating to the development and distribution of content in any medium or to the current, future and proposed products or services of Client or its subsidiaries or affiliates; (b) trade secrets, drawings, inventions, know-how, software programs, and software source documents; (c) information regarding plans for research, development, new service offerings or products, marketing and selling, business plans, business forecasts, budgets and unpublished financial statements, licenses and distribution arrangements, prices and costs, suppliers and customers; and (d) any information regarding the
skills and compensation of employees, contractors or other agents of the Client or its subsidiaries or affiliates. Confidential Information also includes proprietary or confidential information of any third party who may disclose such information to Client or Consultant in the course of Clients business. Consultants obligations set forth in this Section shall not apply with respect to any portion of the Confidential Information that Consultant can document by competent proof that such portion: (i) is in the public domain through no fault of Consultant; (ii) has been rightfully independently communicated to Consultant free of any obligation of confidence; or (iii) was developed by Consultant independently of and without reference to any information communicated to Consultant by Client. In addition, Consultant may disclose Clients Confidential Information in response to a valid order by a court or other governmental body, as otherwise required by law. All Confidential Information furnished to Consultant by Client is the sole and exclusive property of Client or its suppliers or customers. Upon request by Client, Consultant agrees to promptly deliver to Client the original and any copies of such Confidential Information. Notwithstanding the foregoing or anything to the contrary in this Agreement or any other agreement between Client and Consultant, nothing in this Agreement shall limit Consultants right to discuss Consultants engagement with the Client or report possible violations of law or regulation with the Equal Employment Opportunity Commission, United States Department of Labor, the National Labor Relations Board, the Securities and Exchange Commission, or other federal government agency or similar state or local agency or to discuss the terms and conditions of Consultants engagement with others to the extent expressly permitted by applicable provisions of law or regulation, including but not limited to whistleblower statutes or other similar provisions that protect such disclosure. Further, notwithstanding the foregoing, 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: (1) 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 (2) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal. Consultants duty of confidentiality under this Consulting Agreement does not amend or abrogate in any manner Consultants continuing duties under any prior agreement between Consultant and the Client.
15. Term and Termination.
15.1 Term. The term of this Agreement and the Consulting Period is for 12 months from the Effective Date set forth above, unless earlier terminated as provided in this Agreement.
15.2 Termination. Either party may terminate this Agreement for any reason, or no reason, upon thirty (30) days advance written notice. The Client may terminate this Agreement before its expiration immediately if the Consultant materially breaches the Agreement. The parties agree that a Material Breach by Consultant shall occur if he: (i) fails to abide by any recognized professional standard, including any ethical standard; (ii) fails to provide services as reasonably requested by the Executive; (iii) secures other full-time employment that prohibits his ability to provide services to the Client; (iv) breaches any other material obligations of this Agreement, or (v) violates local, state, or federal laws.
15.3 Effect of Termination. Upon any termination or expiration of this Agreement, Consultant (i) shall immediately discontinue all use of Clients Confidential Information delivered under this Agreement; (ii) shall delete any such Client Confidential Information from Consultants computer storage or any other media, including, but not limited to, online and off-line libraries; and (iii) shall return to Client, or, at Clients option, destroy, all copies of such Confidential Information then in Consultants possession. In the event the Client terminates this Agreement, or if Consultant terminates this Agreement, Consultant will not receive any additional consulting fees or other compensation as of the date of termination.
15.4 Survival. The rights and obligations contained in Sections 3-6, 8-9, 13-14, 15.3, 15.4, and 16-24 will survive any termination or expiration of this Agreement.
16. Indemnification. Client agrees to release, defend, indemnify and hold Consultant harmless from any and all potential liabilities, losses or damages (including penalties, costs, attorney fees and liability to third parties) resulting from, related to or arising out of any claim, action, suit or proceeding against Consultant related to the wrongful or negligent conduct or performance, or failure of Client to comply with or perform its obligations and duties under this Agreement, including violations of any federal, state, or local statutes, laws, or regulations. This duty to hold harmless will extend beyond the term of this Agreement for events occurring within the term of this Agreement. Excepting events for which Client has specifically assumed sole responsibility under this Agreement, Consultant agrees to release, defend, indemnify and hold Client harmless from any and all potential liabilities, losses or damages (including penalties, costs, attorney fees and liability to third parties) resulting from, related to or arising out of any claim, action, suit or proceeding against Client which is in any way related to Consultants performance under this Agreement, including violations of any federal, state, or local statutes, laws, or regulations and any claims related to workers compensation, wage and hour laws, employment taxes and benefits. This duty to hold harmless will extend beyond the term of this Agreement for events occurring within the term of this Agreement.
17. Insurance. Consultant will obtain for himself and his personnel before providing services, at his own expense, General Liability (GL) insurance coverage for consulting services performed under this Agreement and (if available under state law) workers compensation coverage.
18. Successors and Assigns. Consultant may not subcontract or otherwise delegate his obligations under this Agreement without Clients prior written consent. Client may assign this Agreement. Subject to the foregoing, this Agreement will be for the benefit of Clients successors and assigns, and will be binding on Consultants subcontractors or delegatees.
19. Notices. Any notice required or permitted by this Agreement shall be in writing and shall be delivered as follows with notice deemed given as indicated: (i) by overnight courier upon written verification of receipt; or (ii) by telecopy or facsimile transmission upon acknowledgment of receipt of electronic transmission. Notice shall be sent to the addresses set forth below or such other address as either party may specify in writing.
20. Governing Law. This Agreement shall be governed in all respects by the laws of the State of Colorado, as such laws are applied to agreements entered into and to be performed entirely within Colorado between Colorado residents. Any suit involving this Agreement shall be brought in a court sitting in Colorado. The parties agree that venue shall be proper in such courts, and that such courts will have personal jurisdiction over them.
21. Severability. Should any provisions of this Agreement be held by a court of law to be illegal, invalid or unenforceable, the legality, validity and enforceability of the remaining provisions of this Agreement shall not be affected or impaired thereby.
22. Waiver. The waiver by Client of a breach of any provision of this Agreement by Consultant shall not operate or be construed as a waiver of any other or subsequent breach by Consultant.
23. Injunctive Relief for Breach. Consultants obligations under this Agreement are of a unique character that gives them particular value; breach of any of such obligations will result in irreparable and continuing damage to Client for which there will be no adequate remedy at law; and, in the event of such breach, Client will be entitled to injunctive relief and/or a decree for specific performance, and such other and further relief as may be proper (including monetary damages if appropriate and attorneys fees).
24. Entire Agreement. This Agreement is being entered into as part of a Separation Agreement between Client and Consultant and will only become effective following execution of the Separation Agreement by Consultant and upon signature by the Client following receipt of the Separation Agreement. If Consultant signs but then revokes the Separation Agreement, then this Agreement will immediately termination upon the date of Consultants revocation. This Agreement constitutes the entire understanding of the parties relating to the subject matter and supersedes any previous oral or written communications, representations, understanding, or agreement between the parties concerning such subject matter. This Agreement shall not be changed, modified, supplemented or amended except by express written agreement signed by Consultant and the Client. The parties have entered into separate agreements related to Consultants previous employment relationship with Miragen Therapeutics, Inc. These separate agreements govern the previous employment relationship between Consultant and Miragen Therapeutics, Inc., have or may have provisions that survive termination of Consultants relationship with Client under this Agreement, may be amended or superseded without regard to this Agreement, and are enforceable according to their terms without regard to the enforcement provision of this Agreement.
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IN WITNESS WHEREOF, the parties have executed this Agreement effective as of the date first written above.
|MIRAGEN THERAPEUTICS, INC.||WILLIAM S. MARSHALL PH.D.|
|Name (print):||Name (print): William S. Marshall|