Form of Product Development Royalty Agreement

Exhibit 10.12

[name of consultant]

PRODUCT DEVELOPMENT ROYALTY AGREEMENT

This Product Development Royalty Agreement (“Agreement”) is entered into effective this      day of                 , 20     (“Effective Date”), by and between Treace Medical Concepts, Inc., a Delaware corporation with its principal office located at 203 Fort Wade Rd. Suite 150, Ponte Vedra, FL 32081, along with its affiliated companies (“Treace Medical”), and                 , an individual having an address at                                          (“Assignor”).

RECITALS

Treace Medical is in the business of researching, designing, developing and marketing medical devices used in connection with surgical applications.

Assignor has worked with employees and representatives of Treace Medical to help develop products defined by Treace Medical in accordance with the terms of this Agreement and of a Product Development Fee for Service Agreement dated                      between Assignor and Treace Medical (the “Product Development Agreement”).

Assignor desires to assign to Treace Medical all of Assignor’s rights in any and all Inventions and any and all associated Intellectual Property Rights.

Treace Medical desires to acquire all of Assignor’s rights with respect to any and all Inventions and all associated Intellectual Property Rights.

Treace Medical desires to utilize the technical skills and services of Assignor in order to conduct a commercially meaningful transfer of Assignor’s rights in the Inventions and all associated Intellectual Property Rights in order to fully carry out the development, clinical evaluation, marketing and commercialization of the Products.

Treace Medical and Assignor agree as follows:

DEFINITIONS

“Confidential Information” means the terms of this Agreement, information and materials concerning Treace Medical’s business affairs, business strategies, pricing, costs, employee compensation, marketing plans, developmental plans, customers, vendors, finances, properties, methods of operations, technology, procedures, computer programs and documentation, inventions, developments, trade secrets, and other such information, whether written or oral, that is confidential in nature.

“Excluded Sales” means sales of Products for use in connection with patients under the care and treatment of Assignor, any partner or associate surgeon with whom Assignor practices, any hospital or surgery center at which Assignor has privileges to perform surgery or any entity in which Assignor has an ownership interest that results in Assignor having the right to exercise control over the policies or business decisions of the entity. A list of facilities whose purchases will be excluded from royalties paid under this Agreement is attached as Exhibit B. Such facilities shall also include those associated with any other health care professional receiving royalties on the Products listed on Exhibit A.

“Invention” means the idea(s) and/or product(s) described in Section 3 and/or Exhibit A (attached), including any know-how and/or technical information relating to the Product(s) in the possession of Assignor, or hereinafter developed by Assignor in the course of Assignor’s providing services to Treace Medical pursuant to Section 6 of this Agreement or the Product Development Agreement.

“Intellectual Property Rights” or “IP Rights” means any patent and/or patent application relating to the Invention and/or Products and naming Assignor as an inventor or co-inventor. IP Rights include the following: any and all U.S. and foreign patents issuing from or claiming priority to any of the foregoing; any and all continuations, continuations-in-part, divisionals, reissues, or reexaminations based on or claiming priority to any of the foregoing; and any know-how and technology. IP Rights also include, without limitation, trade secrets; software; copyrights; trademarks; concepts; designs; techniques; formulae; inventions; trade names; trade dress; programs; advertising materials; and other documents, material, or information relating to the Invention(s) or Product(s).

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“Net Sales” means the invoice price charged by Treace Medical to third parties for the Product(s), less (i) any refunds, credits, or write-offs; (ii) any commissions paid; (iii) any discounts or allowances actually given or credited; and (iv) any excise or other taxes or duties paid by Treace Medical on the sale of the Product(s). Net Sales shall not include any Excluded Sales.

“Product” means each product listed in the attached Exhibit A. Treace Medical may amend Exhibit A periodically with written notification to Assignor to update the list of Products.

Assignor represents and warrants to Treace Medical the following:

Any amount received under this Agreement is gross of any taxes, fees, and levies of any nature whatsoever that may be imposed by an authority with jurisdiction over any amounts received by Assignor under this Agreement. Assignor shall pay any and all such taxes, fees, and levies.

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If Treace Medical requires that this Agreement or any document relating to the subject matter hereof to be notarized or submitted, filed, or registered with any government agency, Assignor must assist in complying with those requirements. Any such submission, filing, or registration will be made in the name of and for the benefit of Treace Medical at the expense of Treace Medical.

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The laws of Florida, USA, govern the construction and interpretation of the terms of this Agreement without regard to principles of conflict of laws. Any and all causes of action arising from this Agreement will be litigated in the Federal District Court, Middle District of Florida, Jacksonville Division.

Neither party may be liable to the other party for the failure to perform any duty or obligation that party may have under this Agreement, where such failure has been occasioned by an Act of God, fire, flood, civil commotion, riot, strike, legal moratorium, inevitable accident, war, regulatory delay, or any other cause outside the reasonable control of the party who had the duty or obligation to perform. The party whose performance has been interrupted shall give the other party notice of the interruption and the cause thereof and shall use every reasonable means to resume the full performance of the party’s duties and obligations under this Agreement as soon as possible.

The invalidity or unenforceability of any particular provision of this Agreement will not affect the validity or enforceability of any other provision of this Agreement. This Agreement will be construed and interpreted in all respects as if such invalid or unenforceable provision had not been contained in this Agreement, provided that any such provision be construed and interpreted by the courts as narrowly as necessary in order to make such provision valid and enforceable.

Neither this Agreement nor any of the rights conferred or obligations assumed hereby can be assigned, transferred, or otherwise disposed of by judicial process or otherwise to any person, firm, company, association, or entity without the prior written consent of the other party. However, upon written notice to Assignor, Treace Medical may assign this Agreement to any company which is a subsidiary or an affiliate of Treace Medical or to a purchaser of all or substantially all of the assets to which this Agreement pertains.

This Agreement contains the entire and exclusive understanding between the parties and supersedes any and all prior agreements, understandings, and arrangements, written or oral, between the Parties, relating to the subject matter hereof (provided that the Product Development Agreement shall not be affected). No amendment, change, modification, or alteration of the terms and conditions hereof, or any other writing or agreement, will be binding upon Assignor or Treace Medical unless in writing and signed by Assignor and a duly authorized officer of Treace Medical.

The waiver of any provision of this Agreement will not constitute a continuing waiver of that provision and will not prohibit any subsequent enforcement of that provision.

Any report, notice, disclosure, correspondence, or payment required, permitted, or given must be in writing and given personally or by facsimile, certified mail (return receipt requested), expedited delivery, or courier service and must be addressed to the parties’ respective address as set forth in this Agreement or at such other address as a party may designate in writing to the other party.

Sections 4, 5, 6, 7, 8, 9, 10, 11, and 12 will survive termination of this Agreement.

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This Agreement can be executed in one or more counterparts and by each party in separate counterparts, each of which when executed is an original, but all of which taken together will constitute one and the same agreement.

Treace Medical and Assignor have executed this Agreement through duly authorized representatives.

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EXHIBIT A TO ROYALTY AGREEMENT

This Exhibit will describe (a) the Product with respect to which Assignor has worked and will work with Treace Medical to develop; (b) the Inventions and IP Rights assigned to Treace Medical as a result of such work; and (c) the royalty rate to be paid, and the time period of such payment, as determined by Treace Medical in accordance with Section 4.2 of this Agreement.

Treace Medical Initials:                     

Assignor Initials:                     

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EXHIBIT B TO ROYALTY AGREEMENT

FACILITIES EXCLUDED FROM ROYALTY CALCULATIONS

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