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Exhibit
10.39
CONSULTING
AGREEMENT
T HIS C
ONSULTING A GREEMENT (the
“Agreement”) is made and entered into by and between
K OSAN B IOSCIENCES I
NCORPORATED , a Delaware corporation having an
address at 3832 Bay Center Place, Hayward, CA 94545 (the
“Company”), and M ARGARET A. H
ORN , an individual, having an address at
_________________, (“Consultant”), effective as set
forth in Section 8.3 herein.
R
ECITALS
W
HEREAS , Consultant previously served as the
Company’s Senior Vice President, Legal and Corporate
Development and General Counsel and has resigned her employment
effective August 24, 2007;
W
HEREAS , given her prior service to the Company,
Consultant has skills and knowledge in the Company’s field of
endeavor and thus is well suited to advise the Company;
and
W
HEREAS , the Company desires that Consultant
advise and consult with the Company in Consultant’s area of
expertise and on the terms and conditions set forth
herein.
N OW T
HEREFORE , in consideration of the mutual
obligations specified in this Agreement, the parties agree to the
following:
1. C
ONSULTING S ERVICES . Consultant
shall provide consulting services to the Company, the specific
nature and amount of which shall be as described generally in
Exhibit A and in accordance with the Company’s more specific
instructions. Exhibit A lists Consultant’s main contact
person for the Services, and this person will be the primary source
of Company’s more specific instructions regarding the
Services. The Company may change Consultant’s main contact
upon written notice. Consultant will perform the Services in strict
accordance with Exhibit A and the Company’s other directions,
using Consultant’s highest degree of professional skill and
expertise.
Consultant shall render the
Services at such times and in such quantities as are set forth in
Exhibit A. Consultant shall perform the Services at the
Company’s principal place of business, another Company
location, or at other places set forth in Exhibit A.
2. C
OMPENSATION . Company shall compensate
Consultant in accordance with Exhibit A for Services actually
provided by Consultant in accordance with this
Agreement.
3. A
MENDMENTS TO E XHIBIT
A . Exhibit A sets forth the specifics of the Services, the
location of the Services and compensation for the Services as of
the Effective Date. Exhibit A may only be amended by a writing
signed by an authorized representative of each party (in the case
of the Company, a person having a seniority level of Senior Vice
President or higher).
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4. I
NDEPENDENT C ONTRACTOR S
TATUS . It is understood and agreed that
Consultant is an independent contractor, is not an agent or
employee of the Company, and is not authorized to act on behalf of
the Company. Consultant agrees not to hold Consultant out as, or
give any person any reason to believe that Consultant is an
employee, agent, joint venturer or partner of the Company.
Consultant will not be eligible for any employee benefits, nor will
the Company make deductions from any amounts payable to Consultant
for taxes or insurance (except to the extent the Company is
required by law to do so). All payroll and employment taxes,
insurance, and benefits shall be the sole responsibility of
Consultant. Consultant retains the right to provide services for
others during the term of this Agreement and is not required to
devote Consultant’s services exclusively for the Company,
provided that, during the term of this Agreement, Consultant may
not provide services (as a consultant, employee, or in any other
status) to a competing entity of the Company, or engage in
activities that compete with the Company or that otherwise conflict
with his duties to the Company hereunder.
5. N O S
OLICITATION . During the term of this Agreement
and for one (1) year after its termination, Consultant will
not personally or through others recruit, solicit or induce, or
attempt to recruit, solicit or induce, any employee or independent
contractor of the Company to terminate his or her employment or
contractor relationship, as applicable, with the
Company.
6. C
ONFIDENTIAL I NFORMATION
.
6.1 Company
Information . During the term of this Agreement and in the
course of Consultant’s performance hereunder, Consultant may
receive or otherwise be exposed to confidential or proprietary
information relating to the Company’s technology know-how,
data, inventions, developments, plans, business practices or
strategies. Such confidential or proprietary information of the
Company (collectively referred to as “Information”) may
include but not be limited to: (i) confidential or proprietary
information supplied to Consultant with the legend
“Confidential” or equivalent; (ii) the
Company’s marketing and customer support strategies,
financial information (including sales, costs, profits and pricing
methods), internal organization, employee information, and customer
lists; (iii) the Company’s technology, including, but
not limited to, discoveries, inventions, research and development
efforts, data, software, trade secrets, processes, samples, media
and/or cell lines (and procedures and formulations for producing
any such samples, media and/or cell lines), vectors, viruses,
assays, plasmids, formulas, methods, product and know-how and
show-how; (iv) all derivatives, improvements, additions,
modifications, and enhancements to any of the above, including any
such information or material created or developed by Consultant
under this Agreement; or (v) information of third parties as
to which the Company has an obligation of confidentiality.
Consultant agrees that any Information provided to Consultant prior
to the Effective Date shall be considered “Information”
and protected hereunder.
Consultant acknowledges the
confidential and secret character of the Information and agrees
that the Information (with the exception of information in category
(v)) is the sole, exclusive and extremely valuable property of the
Company. Accordingly, Consultant shall not reproduce any of the
Information without the applicable prior written consent of the
Company, use the Information except in the performance of this
Agreement, nor disclose all or any part of the Information in any
form to any third party, either during or after the term of this
Agreement. Upon termination of this Agreement for any reason,
including expiration of term, Consultant agrees to cease using and
to return to the Company all whole and partial copies of the
Information.
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Consultant shall not remove
from the premises of Company or otherwise transfer to any third
party any materials to which Company provides Consultant access,
unless Consultant has express advance written consent from
Company.
6.2 Other Employer
Information . Consultant agrees that Consultant will not,
during Consultant’s engagement with the Company, improperly
use or disclose any proprietary information or trade secrets of
Consultant’s former or concurrent employers or companies with
which Consultant has or has had a consulting or other relationship,
if any, and that Consultant will not bring onto the premises of the
Company any unpublished documents or any property belonging to
Consultant’s former or concurrent employers or companies
unless consented to in writing by said employers or
companies.
6.3 Third Party
Information . Consultant recognizes that the Company has
received and in the future will receive from third parties their
confidential or proprietary information subject to a duty on the
Company’s part to maintain the confidentiality of such
information and, in some cases, to use it only for certain limited
purposes. Consultant agrees that Consultant owes the Company and
such third parties, both during the term of Consultant’s
engagement and thereafter, a duty to hold all such confidential or
proprietary information in the strictest confidence and not to
disclose it to any person, firm or corporation (except in a manner
that is consistent with the Company’s agreement with the
third party) or use it for the benefit of anyone other than the
Company or such third party (consistent with the Company’s
agreement with the third party).
7. I
NVENTIONS .
7.1 Disclosure of
Inventions . Consultant shall promptly and fully disclose to
the Company any and all ideas, improvements, inventions, know-how,
techniques and works of authorship learned, conceived or developed
by Consultant pursuant to Consultant’s performance of the
Services for the Company or pursuant to any services provided to
the Company prior to the Effective Date (together with all
intellectual property rights therein (including without limitation
patent applications and patents), the “Consulting
Inventions”). Consultant shall keep and maintain adequate and
current records (in the form of notes, sketches, drawings or in any
other form that may be required by the Company) of all work
performed relating to the Services, including all proprietary
information developed relating thereto. Such records shall be
available to and remain the sole property of the Company at all
times.
7.2 Inventions
Assigned to the Company . Consultant agrees that any and all
Consulting Inventions shall be the sole and exclusive property of
the Company. Accordingly, Consultant hereby assigns to the Company
all Consultant’s right, title and interest in and to the
Consulting Inventions, and agrees to execute and deliver all
documents and take all reasonable, lawful actions to assist the
Company to evidence or record such assignment or perfect or enforce
the Consulting Inventions. Further, if Company is unable, after
making reasonable inquiry, to obtain Consultant’s signature
on any such documents, Consultant hereby appoints Company as
Consultant’s attorney-in-fact to execute and deliver such
documents.
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7.3 Proprietary
Information and Inventions of Concurrent Employers. The
Company acknowledges that Consultant may be concurrently
employed by others during the course of this Agreement. The
Company shall have no rights to the proprietary information or
inventions developed by Consultant during the course of
his employment with such concurrent employers.
8. R
ELEASE OF C LAIMS
. In exchange for the compensation and benefits to be provided to
Consultant by the Company pursuant to this Agreement (including the
continued vesting of Consultant’s Stock Options as set forth
in Exhibit A), Consultant hereby provides the following
Release:
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