Board (the "Compensation Committee") from time to time (the "Bonus"), with the actual amount of the Bonus, if any, determined based upon the Board or the Compensation Committee’s assessment of achievement of certain pre-determined performance goals....
EMPLOYMENT AGREEMENT
This Employment Agreement ("Agreement") is made as of the 24th day of July, 2017
by and between Jounce Therapeutics, Inc. (the "Company"), and ▇▇▇▇ ▇. ▇▇▇▇ (the
"Executive"). The effective date of this Agreement shall be first date of actual employment
with the Company. In the event that the Executive does not commence actual employment
with the Company, this Agreement shall become null and void and ofno further force or
effect.
1. Employment Term. The Company and the Executive desire to continue their
employment relationship, pursuant to this Agreement commencing as of the date hereof and
continuing in effect until terminated by either party in accordance with this Agreement ( the
"Term"). The Executive's employment with the Company will continue to be "at will," meaning
that the Executive's employment may be terminated by the Company or the Executive at any
time and for any reason subject to the terms of this Agreement. If the Executive's employment
with the Company is terminated for any reason during the Term, th� Company shall pay or
provide to the Executive (or to the Executive's authorized representative or estate) any earned
but unpaid base salary, unpaid expense reimbursements, accrued but unused PTO (as defined
below) and any vested benefits the Executive may have under any employee benefit plan of the
Company (the "Accrued Benefit").
2. Duties. The Executive will have such powers and duties as may from time to
time be prescribed by the executive to whom the Executive reports or the Board of Directors of
the Company (the "Board"). The Executive shall devote the Executive's full working time and
efforts to the business and affairs of the Company and will not engage in outside business
activities, including outside board work, without the prior consent of the Board or the Chief
Executive Officer of the Company. Notwithstanding the foregoing, the Executive may engage in
religious, charitable or other community activities as long as such services and activities do not
interfere with the Executive's performance of Executive's duties to the Company.
3. Compensation and Related Matters.
(a) Base Salary. During the Term, the Executive's annual base salary will be
$385,000, subject to redetermination by the Board. The annual base salary in effect at any
given time is referred to herein as "Base Salary." The Base Salary will be payable in a manner
that is consistent with the Company's usual payroll practices for senior executives.
(b) Starting Bonus. The Executive will receive a one-time starting bonus of
$50,000, subject to legally required tax withholdings. Should the Executive be terminated for
Cause or resign voluntarily within the first twelve (12) months of his employment, Executive
will be required to repay the full amount of such starting bonus, provided that Executive will
not be required to repay such starting bonus if the Executive resigns for Good Reason as set
forth in this Section 4(b)(ii).
(c) Bonus. During the Term, the Executive will be eligible to be considered
for annual cash bonus as determined by the Board or the Compensation Committee of the
Exhibit 10.8
Board (the "Compensation Committee") from time to time (the "Bonus"), with the actual
amount of the Bonus, if any, determined based upon the Board or the Compensation
Committee’s assessment of achievement of certain pre-determined performance goals. The
Executive’s initial annual target Bonus is 35% of the Base Salary, and such percentage is
subject to review and redetermination by the Board or the Compensation Committee (the
"Target Bonus Percentage"). The Executive’s Bonus, if any, will be paid by March 15
following the applicable Bonus year. To earn a Bonus, the Executive must be employed by the
Company on the day such Bonus is paid.
(d) PTO: During the Term, the Executive is eligible to earn paid-time-off
("PTO"), to be accrued on a pro rata basis and subject to the terms and conditions of the
Company’s policies and procedures relating to PTO.
(e) Other Benefits. During the Term, the Executive will be entitled to
continue to participate in the Company’s employee benefit plans, subject to the terms and the
conditions of such plans and to the Company’s ability to amend and modify such plans.
(f) Equity. The Executive’s equity compensation shall be governed by the
terms and conditions of the applicable Company equity incentive plan, as may be amended,
and the applicable stock option and/or restricted stock agreements associated with any grants
made to the Executive (collectively the "Equity Documents"). Provided, and notwithstanding
anything to the contrary in the Equity Documents, Section 5 of this Agreement shall apply in
the event of a Terminating Event within a Sale Event Period.
(g) Reimbursement of Business Expenses. The Company shall reimburse the
Executive
for travel, entertainment, business development and other expenses reasonably and
necessarily incurred by the Executive in connection with the Company’s business. Expense
reimbursement shall be subject to such policies the Company may adopt from time to time,
included with respect to pre-approval.
(h) Repayment Obligation. In the event that the Executive resigns from
employment without Good Reason at any time prior to the one year anniversary of the
Executive’s original start date, the Executive shall be required to repay the Company any
amount of the starting and relocation bonus that the Company provided to the Executive.
4. Certain Definitions.
(a) Sale Event: (i) the sale of all or substantially all of the assets of the
Company on a consolidated basis to an unrelated person or entity, (ii) a merger, reorganization
or consolidation pursuant to which the holders of the Company’s outstanding voting power
immediately prior to such transaction do not own a majority of the outstanding voting power of
the surviving or resulting entity (or its ultimate parent, if applicable), (iii) the acquisition of all
or a majority of the outstanding voting stock of the Company in a single transaction or a series
of related transactions by a person or entity or group of persons and/or entities, or (iv) any
other acquisition of the business of the Company, as determined by the Board; provided,
however, that the Company’s initial public offering, any subsequent public offering or any
other capital raising event, public or private, or a merger effected solely to change the
Company’s domicile shall not constitute a "Sale Event."
(b) Terminating Event. (i) termination by the Company other than for Cause
at any time; or (ii) termination by the Executive for Good Reason on or within the 12 month
period commencing with a Sale Event (such 12-month period, the "Sale Event Period") both as
set forth in this Section 4(b):
(i) Termination by the Company Other Than For Cause. Termination
by the Company of the Executive’s employment for any reason other than for Cause,
death or Disability. For purposes of this Agreement, "Cause" shall mean that the
Company has complied with the "Cause Process" (hereinafter defined) following, the
occurrence of any of the following events:
(A) Executive’s material breach of this Agreement or any other
agreement between the Company and Executive (including the Restrictive
Covenants (as defined below));
(B) Executive’s material failure to adhere to any written policy
of the Company generally applicable to employees of the Company related
to conduct or ethics;
(C) Executive’s appropriation (or attempted appropriation) of a
business opportunity of the Company, including attempting to secure or
securing any personal profit in connection with any transaction entered
into on behalf of the Company;
(D) Executive’s commission of an act constituting fraud,
embezzlement, breach of any fiduciary duty owed to the Company or its
stockholders or other dishonesty with respect to the Company;
(E) Executive’s willful misconduct or continued and willful
failure or refusal to perform any material duties reasonably requested by
the Board or the executive of the Company to whom Executive reports;
(F) Executive’s engaging in gross negligence or willful
misconduct in the performance of Executive’s duties for the Company.
"Cause Process" shall mean that (i) the Company reasonably determines, in good
faith, that one of the Causes has occurred; (ii) the Company notifies the Executive in
writing of the first occurrence of the Cause within 30 days of the Board becoming aware
of such condition; (iii) the Company cooperates in good faith with the Executive’s
efforts, for a period
of not less than seven days following such notice (the "Cause Cure
Period"), to remedy the Cause; (iv) notwithstanding such efforts, the Cause continues to
exist; and (v) the Company terminates the Executive’s employment within 30 days after
the end of the Cause Cure Period, provided that the Company will not be required to
provide a Cause Cure Period in the event that a Cause
(x) is incapable of being cured; or
(y) is required to be publicly disclosed under applicable securities law. If the Executive
3
cures all of the applicable Cause(s) during the applicable Cause Cure Period, Cause shall
be deemed not to have occurred. If the Company is not required to provide a Cause Cure
Period, the Cause Process will be satisfied if the Company notifies the Executive in
writing of the first occurrence of the Cause within 30 days of the Board becoming aware
of such condition
and terminates the Executive’s employment within 30 days of such
notice.
(ii) Termination by the Executive for Good Reason within the Sale
Event Period. Termination by the Executive of the Executive’s employment with the
Company for Good Reason
within the Sale Event Period. For purposes of this
Agreement, "Good Reason" shall mean that the Executive has complied with the "Good
Reason Process" (hereinafter defined) following, the occurrence of any of the following
events:
(A) a demotion in title or any material diminution in the
Executive’s position, responsibilities, authority or duties;
(3)
a material diminution in the Executive’s base salary; or
(C) a thirty (30) mile change in the geographic location at
which the Executive is required to provides services to the Company, not including
business travel and short-term assignments.
"Good Reason Process" shall mean that (i) the Executive reasonably determines in good
faith that a "Good Reason" condition has occurred; (ii) the Executive notifies the Company in
writing of the first occurrence of the Good Reason condition within 60 days of the first
occurrence of such condition; (iii) the Executive cooperates in good faith with the Company’s
efforts, for a period not less than 30 days following such notice (the "Cure Period"), to remedy
the condition; (iv) notwithstanding such efforts, the Good Reason condition continues to exist;
and (v) the Executive terminates Executive’s employment within 60 days after the end of the
Cure Period. If the Company cures the Good Reason condition during the Cure Period, Good
Reason shall be deemed not to have occurred.
A Terminating Event shall not be deemed to have occurred pursuant to this Section 4(b)
as a result of: (i) the ending of the Executive’s employment due to the Executive’s death or
Disability, (ii) Executive’s resignation for any reason, other than for Good Reason within the
Sale Event Period, (iii) the Company’s termination of the employment relationship for Cause; or
(iv) solely as a result of the Executive being or becoming an employee of any direct or indirect
successor to the business or assets of the Company rather than continuing as an employee of the
Company following a Sale Event. For purposes hereof, the Executive will be considered
"Disabled" if, as a result of the Executive’s incapacity due to physical or mental illness, the
Executive shall have been absent from Executive’s duties to the Company on a full-time basis
for 180 calendar days in the aggregate in any 12-month period.
5. Severance and Accelerated Vesting if a Terminating Event Occurs within the
Sale Event Period. In the event a Terminating Event occurs within the Sale Event Period,
subject to the Executive signing and complying with a separation agreement in a form and
4
manner satisfactory to the Company containing, among other provisions, a general release of
claims in favor of the Company and related persons and entities, confidentiality, return of
property and non-disparagement and reaffirmation of the Restrictive Covenants (the "Separation
Agreement and Release") and the Separation Agreement and Release becoming irrevocable, all
within 60 days after the Date of Termination, the following shall occur:
(a) the Company shall pay to the Executive an amount equal to the sum of
(i) twelve months of the Executive’s Base Salary in effect immediately prior to the
Terminating Event (or the Executive’s Base Salary in effect immediately prior to the Sale
Event, if higher); and (ii) a Bonus for the year during which the Date of Termination occurs,
calculated by multiplying the Executive’s Target Bonus Percentage by twelve months of the
Executive’s Base Salary.
(b) if the Executive was participating in the Company’s group health plan
immediately prior to the Date of Termination and elects COBRA health continuation, then the
Company shall pay to the Executive a lump sum cash payment in an amount equal to the
monthly employer contribution that the Company would have made to provide health
insurance to the Executive if the Executive had remained employed by the Company for twelve
months after the Date of Termination; and
(c) all stock options and other stock-based awards held by the Executive with
time-based vesting shall immediately accelerate and become fully exercisable or nonforfeitable
as of the Date of Termination.
The amounts payable under Section 5(a) and (b), as applicable, shall be paid out in a lump sum
within 60 days after the Date of Termination; provided,
however, that if the 60-day period begins
in one calendar year and ends in a second calendar year, the amounts shall be paid in the second
calendar year no later than the last day of the 60-day period.
6. Severance if a Terminating Event Occurs Outside the Sale Event Period. In
the event a Terminating Event occurs at any time other than during the Sale Event Period,
subject to the Executive signing the Separation Agreement and Release and the Separation
Agreement and Release becoming irrevocable, all within 60 days after the Date of Termination,
the following shall occur:
(a) the Company shall pay to the Executive an amount equal to nine months
of the Executive’s annual Base Salary in effect immediately prior to the Terminating Event;
(b) if the Executive was participating in the Company’s group health plan
immediately prior to the Date of Termination and elects COBRA health continuation, then the
Company shall pay to the Executive a monthly cash payment for nine months or the
Executive’s COBRA health continuation period, whichever ends earlier, in an amount equal to
the monthly employer contribution that the Company would have made to provide health
insurance to the Executive if the Executive had remained employed by the Company.
The amounts payable under Section 6(a) and (b), as applicable, shall be paid out in substantially
equal installments in accordance with the Company’s payroll practice over nine months
commencing within 60 days after the Date of Termination; provided, however, that if the 60-day
5
period begins in one calendar year and ends in a second calendar year, the amounts payable shall
begin to be paid in the second calendar year by the last day of such 60-day period; provided,
further, that the initial payment shall include a catch-up payment to cover amounts retroactive to
the day immediately following the Date of Termination. Each payment pursuant to this
Agreement is intended to constitute a separate payment for purposes of Treasury Regulation
Section 1.409A-2(b)(2).
7. Restrictive Covenants. The terms of the Employee Non-Competition, Non-
Solicitation, Confidentiality and Assignment Agreement dated July 21, 2017 (the "Restrictive
Covenants"), appended hereto as Exhibit A, continue to be in full force and effect and are
incorporated by reference in this Agreement. The Executive hereby reaffirms the Restrictive
Covenants as material terms of this Agreement.
(a) Third-Party Agreements and Rights. The Executive hereby confirms that
the Executive is not bound by the terms of any agreement with any previous employer or other
party which restricts in any way the Executive’s use or disclosure of information or the
Executive’s engagement in any business that would prevent Executive from entering into
employment with or carrying out his responsibilities for the Company, or which is in any way
inconsistent with the terms of this Agreement_ The Executive represents to the Company that
the Executive’s execution of this Agreement, the Executive’s employment with the Company
and the performance of the Executive’s proposed duties for the Company will not violate any
obligations the Executive may have to any such previous employer or other party. In the
Executive’s work for the Company, the Executive will not disclose or make use of any
information in violation of any agreements with or rights of any such previous employer or other
party, and the Executive will not bring to the premises of the Company any copies or other
tangible embodiments of non-public information belonging to or obtained from any such
previous employment or other party.
(b) Litigation and Regulatory Cooperation. During and after the Executive’s
employment, the Executive shall cooperate fully with the Company in the defense or prosecution
of any claims or actions now in existence or which may be brought in the future against or on
behalf of the Company which relate to events or occurrences that transpired while the Executive
was employed by the Company. The Executive’s full cooperation in connection with such
claims or actions shall include, but not be limited to, being available to meet with counsel to
prepare for discovery or trial and to act as a witness on behalf of the Company at mutually
convenient times. During and after the Executive’s employment, the Executive also shall
cooperate fully with the Company in connection with any investigation or review of any federal,
state or local regulatory authority as any such investigation or review relates to events or
occurrences that transpired while the Executive was employed by the Company. The Company
shall reimburse the Executive for any reasonable out-of-pocket expenses incurred in connection
with the Executive’s performance of obligations pursuant to this Section 7(b).
(c) Relief. The Executive agrees that it would be difficult to measure any
damages caused to the Company which might result from any breach by the Executive of the
promises set forth in this Section 7, and that in any event money damages would be an
inadequate remedy for any such breach. Accordingly, the Executive agrees that if the Executive
breaches, or proposes to breach, any portion of this Agreement, the Company shall be entitled, in
6
addition to all other remedies that it may have, to an injunction or other appropriate equitable
relief to restrain any such breach without showing or proving any actual damage to the
Company. In addition, in the event the Executive breaches the Restrictive Covenants during a
period when the Executive is receiving Severance, the Company shall have the right to suspend
or terminate the Severance. Such suspension or termination shall not limit the Company’s other
options with respect to relief for such breach and shall not relieve the Executive of Executive’s
duties under this Agreement.
(d) Protected Disclosures The Executive
understands that nothing contained
in this Agreement or the Restrictive Covenants limits the Executive’s ability to communicate
with any federal, state or local governmental agency or commission, including to provide
documents or other information, without notice to the Company.
8. Additional Limitation.
(a) Anything in this Agreement to the contrary notwithstanding, in the event
that the amount of any compensation, payment or distribution by the Company to or for the
benefit of the Executive, whether paid or payable or distributed or distributable pursuant to the
terms of this Agreement or otherwise, calculated in a manner consistent with Section 2800 of
the Code and the applicable regulations thereunder (the "Severance Payments"), would be
subject to the excise tax imposed by Section 4999 of the Code, the following provisions shall
apply:
(i) If the Severance Payments, reduced by the sum of (A) the Excise
Tax and (B) the total of the federal, state, and local income and employment taxes
payable by the Executive on the amount of the Severance Payments which are in excess
of the Threshold Amount, are greater than or equal to the Threshold Amount, the
Executive shall be entitled to the full amount of Severance Payments.
(ii) If the Threshold Amount is less than (x) the Severance Payments,
but greater than (y) the Severance Payments reduced by the sum of (A) the Excise Tax
and (B) the total of the federal, state, and local income and employment taxes on the
amount of the Severance Payments which are in excess of the Threshold Amount, then
the Severance Payments shall be reduced (but not below zero) to the extent necessary so
that the sum of all Severance Payments shall not exceed the Threshold Amount. In such
event, the Severance Payments shall be reduced in the following order: (1) cash
payments not subject to Section 409A of the Code; (2) cash payments subject to Section
409A of the Code; (3) equity-based payments and acceleration; and (4) non-cash forms of
benefits. To the extent any payment is to be made over time (e.g., in installments, etc.),
then the payments shall be reduced in reverse chronological order.
(b) For the purposes of this Section 8, "Threshold Amount" shall mean three
times the Executive’s "base amount’ within the meaning of Section 280G(b)(3) of the Code
and the regulations promulgated thereunder less one dollar ($1.00); and "Excise Tax" shall
mean the excise tax imposed by Section 4999 of the Code, and any interest or penalties
incurred by the Executive with respect to such excise tax.
7
(c) The determination as to which of the alternative provisions of Section 8(a)
above shall apply to the Executive shall be made by a nationally recognized accounting firm
selected by the Company (the "Accounting Firm"), which shall provide detailed supporting
calculations both to the Company and the Executive within 15 business days of the Date of
Termination, if applicable, or at such earlier time as is reasonably requested by the Company or
the Executive. For purposes of determining which of the alternative provisions of Section 8(a)
above shall apply, the Executive shall be deemed to pay federal income taxes at the highest
marginal rate of federal income taxation
applicable to individuals for the calendar year in
which the determination is to be made, and state and local income taxes at the highest marginal
rates of individual taxation in the state and locality of the Executive’s residence on the Date of
Termination, net of the maximum reduction in federal income taxes which could be obtained
from deduction of such state and local taxes. Any determination by the Accounting Firm shall
be binding upon the Company and the Executive.
9. Section 409A.
(a) Anything in this Agreement to the contrary notwithstanding, if at the time
of the Executive’s "separation from service" within the meaning of Section 409A of the Code,
the Company determines
that the Executive is a "specified employee" within the meaning of
Section 409A(a)(2)(B)(i) of the Code, then to the extent any payment or benefit that the
Executive becomes entitled to under this Agreement on account of the Executive’s
separation
from service would be considered deferred compensation subject to the 20 percent additional
tax imposed pursuant to Section 409A(a) of the Code as a result of the application of Section
409A(a)(2)(B)(i) of the Code, such payment shall not be payable and such benefit shall not be
provided until the date that is the earlier of (A) six months and one day after the Executive’s
separation from service,
or (B) the Executive’s death.
(b) The parties intend that this Agreement will be administered in accordance
with Section 409A of the Code. To the extent that any provision of this Agreement is
ambiguous as to its compliance with Section 409A of the Code, the provision shall be read in
such a manner so that all payments hereunder comply with Section 409A of the Code. The
parties agree that this Agreement may be amended, as
reasonably requested by either party,
and as may be necessary to fully comply with Section 409A of the Code and all related rules
and regulations in order to preserve the payments and benefits provided hereunder without
additional cost to either party.
(c) All in-kind benefits provided and expenses eligible for reimbursement
under this Agreement shall be provided by the Company or incurred by the Executive during
the time periods set forth in this Agreement. All reimbursements shall be paid as soon as
administratively practicable, but in no event shall any reimbursement be paid after the last day
of the taxable year following the taxable year in which the expense was incurred. The amount
of in-kind benefits provided or reimbursable expenses incurred in one taxable year shall not
affect the in-kind benefits to be provided or the expenses eligible for reimbursement
in any
other taxable
year. Such right to reimbursement or in-kind benefits is not subject to liquidation
or exchange for another benefit.
8
(d) To the extent that any payment or benefit described in this Agreement
constitutes "non-qualified deferred compensation" under Section 409A of the Code, and to the
extent that such payment or benefit is payable upon the Executive’s termination of
employment, then such payments or benefits shall be payable only upon the Executive’s
"separation from service." The determination of whether and when a separation from service
has occurred shall be made in accordance with the presumptions set forth in Treasury
Regulation Section I .409A-1(h).
(e) The Company makes no representation or warranty and shall have no
liability to the Executive or any other person if any provisions of this Agreement are
determined to constitute deferred compensation subject to Section 409A of the Code but do not
satisfy an exemption from, or the conditions of, such Section.
10. Withholding. All payments made by the Company to the Executive under this
Agreement shall be net of any tax or other amounts required to be withheld by the Company
under applicable
law.
11. Notice and Date of Termination.
(a) Notice of Termination. The Executive’s employment with the Company
may be terminated by the Company or the Executive at any time and for any reason. During
the Term, any termination of the Executive’s employment (other than by reason of death) shall
be communicated by written Notice of Termination from one party hereto to the other party
hereto in accordance with this Section 11. For purposes of this Agreement, a "Notice of
Termination" shall mean a notice which shall indicate the specific termination provision in this
Agreement
relied upon.
(b) Date of Termination. "Date of Termination" shall mean: (i) if the
Executive’s employment is terminated by Executive’s death, the date of Executive’s death; (ii)
if the Executive’s employment is terminated on account of Executive’s Disability or by the
Company for Cause or without Cause the date on which Notice of Termination is given; (iii) if
the Executive’s employment is terminated by the Executive for any reason except for Good
Reason during a Sale Event Period, 30 days after the date on which a Notice of Termination is
given, and (v) if the Executive’s employment is terminated by the Executive with Good Reason
within a Sale Event Period, the date on which a Notice of Termination is given after the end of
the Cure Period. Notwithstanding the foregoing, in the event that the Executive gives a Notice
of Termination to the Company, the Company may unilaterally accelerate the Date of
Termination and such acceleration shall not result in a termination by the Company for
purposes of this Agreement.
12. No Mitigation. The Company agrees that, if the Executive’s employment by the
Company is terminated during the term of this Agreement, the Executive is not required to seek
other employment or to attempt in any way to reduce any amounts payable to the Executive by
the Company pursuant to Section 5 or Section 6 hereof. Further, the amount of any payment
provided for in this Agreement shall not be reduced by any compensation earned by the
Executive as the result of employment by another employer.
13. Consent to Jurisdiction. The parties hereby consent to the jurisdiction of the
state and federal court in the Commonwealth of Massachusetts. Accordingly, with respect to any
such court action, the Executive (a) submits to the personal jurisdiction of such courts; (b)
consents to service of process; and (c) waives any other requirement (whether imposed by
statute, rule of court, or otherwise) with respect to personal jurisdiction or service of process.
14. Integration. This Agreement constitutes the entire agreement
between the parties
with respect to compensation,
severance pay, benefits and accelerated vesting and supersedes in
all respects all prior agreements between the parties concerning such subject matter, including
without limitation any offer letter or employment agreement relating to the Executive’s
employment relationship
with the Company. Provided, and notwithstanding the foregoing, the
Restrictive Covenants and any other agreement relating to confidentiality, noncompetition,
nonsolicitation or assignment of inventions shall not be superseded by this Agreement and the
Executive acknowledges and agrees that any such agreement shall
remain in full force and effect.
15. Successor to the Executive. This Agreement shall inure to the benefit of and be
enforceable by the Executive’s personal representatives,
executors, administrators, heirs,
distributees, devisees and legatees. In the event of the Executive’s death after a Terminating
Event but prior to the completion by the Company of all payments due the Executive under this
Agreement,
the Company shall continue
such payments to the Executive’s beneficiary
designated in writing to the Company prior to Executive’s death (or to Executive’s estate, if the
Executive fails to make such designation).
16. Enforceability. If any portion or provision of this Agreement (including, without
limitation, any portion or provision of any Section of this Agreement) shall to any extent be
declared illegal or unenforceable by a court of competent jurisdiction, then the remainder of this
Agreement, or the application of such portion or provision in circumstances other than those as
to which it is so declared illegal or unenforceable, shall not
be affected thereby, and each portion
and provision of this Agreement
shall be valid and enforceable to the fullest extent permitted by
law.
17. Waiver. No waiver of any provision hereof shall be effective unless made in
writing and signed by the
waiving party. The failure of any party to require the performance of
any term or obligation of this Agreement, or the waiver by any party of any breach of this
Agreement, shall not prevent any subsequent enforcement of such term or obligation or be
deemed a waiver of any subsequent breach.
18. Notices. Any notices, requests, demands and other communications provided for
by this Agreement shall be sufficient if in writing and delivered in person or sent by a nationally
recognized overnight ▇▇▇▇▇▇▇ service of by
registered or certified mail, postage prepaid, return
receipt requested, to the Executive at the last address the Executive has filed in writing with the
Company, or to the Company at its main office, attention of the Board.
19. Amendment. This Agreement may
be amended or modified only by a written
instrument
signed by the Executive and by a duly authorized representative of the Company.
10
20. Effect on Other Plans and Agreements. An election by the Executive to resign
for Good Reason
during a Sale Event Period under the provisions of this Agreement shall not be
deemed a voluntary termination of employment by the Executive for the purpose of interpreting
the provisions of any of the Company’s benefit plans, programs or policies. Nothing in this
Agreement shall be construed to limit the rights of the Executive under the Company’s benefit
plans, programs or policies except as otherwise provided in Section 7 hereof, and except that the
Executive shall have no rights to any severance benefits under any Company severance pay plan,
offer letter or otherwise. In the event that the Executive is party to an agreement
with the
Company providing for payments or benefits under such agreement and this Agreement, the
terms of this Agreement shall govern and Executive may receive payment under this Agreement
only and not both. Further, Section 5 and Section 6 of this Agreement are mutually exclusive
and in no event shall Executive be entitled to payments or benefits pursuant to Section 5 and
Section 6 of this Agreement.
21. Governing Law. This is a Massachusetts contract and shall be construed under
and be governed in all respects by the laws of the Commonwealth of Massachusetts, without
giving effect to the conflict of laws principles.
22. Successor to Company. The Company shall require any successor (whether
direct or indirect, by purchase, merger, consolidation or otherwise) to all or substantially all of
the business or assets of the Company expressly to assume and agree to perform this Agreement
to the same extent that the Company would be required to perform it if no succession had taken
place. Failure of the Company to obtain an assumption of this Agreement at or prior to the
effectiveness of any succession shall be a material breach of this Agreement.
23. Gender Neutral. Wherever used herein, a pronoun in the masculine or feminine
gender shall be considered as including the opposite gender unless the context clearly indicates
otherwise.
24. Counterparts. This Agreement may be executed in any number of counterparts,
each of which when so executed and delivered shall be taken to be an original; but such
counterparts shall together
constitute one and the same document.
11
IN WITNESS WHEREOF, the parties have executed this Agreement effective on this
date and year first written.
JOUNCE THERAPEUTICS, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: President & Chief Executive Officer
EXECUTIVE:
/s/ ▇▇▇▇ ▇. ▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇
Chief Business Officer
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EXHIBIT A
Employee Non-Competition, Non-Solicitation, Confidentiality
and Assignment Agreement dated July 21, 2017
JOUNCE THERAPEUTICS, INC.
Employee Non-Competition, Non-Solicitation, Confidentiality and Assignment Agreement
In consideration and as a condition of my employment or continued employment by Jounce Therapeutics, Inc., a Delaware
corporation (the “Company”), I agree as follows:
1. Proprietary Information. I agree that all
information, whether or not in writing, concerning the
Company’s business, technology, business relationships or
financial affairs which the Company has not released to the
general public (collectively, “Proprietary Information”) is
and will be the exclusive property of the Company. By
way of illustration, Proprietary Information may include
information or material which has not been made generally
available to the public, such as: (a) corporate information,
including plans, strategies, methods, policies, resolutions,
negotiations or litigation; (b) marketing information,
including strategies, methods, customer identities or other
information about customers, prospect identities or other
information about prospects, or market analyses or
projections; (c) financial information, including cost and
performance data, debt arrangements, equity structure,
investors and holdings, purchasing and sales data and price
lists; (d) operational and technological information,
including plans, specifications, manuals, forms, templates,
software, designs, methods, procedures, formulas,
discoveries, inventions, improvements, concepts and ideas;
and (e) personnel information, including personnel lists,
reporting or organizational structure, resumes, personnel
data, performance evaluations and termination
arrangements or documents. Proprietary Information also
includes information received in confidence by the
Company from its customers or suppliers or other third
parties.
2. Recognition of Company’s Rights. I will not, at
any time, without the Company’s prior written permission,
either during or after my employment, disclose or transfer
any Proprietary Information to anyone outside of the
Company, or use or permit to be used any Proprietary
Information for any purpose other than the performance of
my duties as an employee of the Company. I will cooperate
with the Company and use my best efforts to prevent the
unauthorized disclosure of all Proprietary Information. I
will deliver to the Company all copies and other tangible
embodiments of Proprietary Information in my possession
or control upon the earlier of a request by the Company or
termination of my employment.
3. Rights of Others. I understand that the Company
is now and may hereafter be subject to non-disclosure or
confidentiality agreements with third persons which
require the Company to protect or refrain from use of
Proprietary Information. I agree to be bound by the terms
of such agreements in the event I have access to such
Proprietary Information.
4. Commitment to Company; Avoidance of
Conflict of Interest. While an employee of the Company,
I will devote my full-time efforts to the Company’s
business and I will not engage in any other business activity
that conflicts with my duties to the Company. I will advise
the president of the Company or his or her nominee at such
time as any activity of either the Company or another
business presents me with a conflict of interest or the
appearance of a conflict of interest as an employee of the
Company. I will take whatever action is requested of me
by the Company to resolve any conflict or appearance of
conflict which it finds to exist.
5. Developments. I will make full and prompt
disclosure to the Company of all inventions, discoveries,
designs, developments, methods, modifications,
improvements, processes, algorithms, databases, computer
programs, formulae, techniques, trade secrets, graphics or
images, audio or visual works and other works of
authorship (collectively “Developments”), whether or not
patentable or copyrightable, that are created, made,
conceived or reduced to practice by me (alone or jointly
with others) or under my direction during the period of my
employment. I acknowledge that all work performed by
me is on a “work for hire” basis, and I hereby do assign and
transfer and, to the extent any such assignment cannot be
made at present, will assign and transfer, to the Company
and its successors and assigns all my right, title and interest
in all Developments that (a) relate to the business of the
Company or any customer of or supplier to the Company
or any of the products or services being researched,
developed, manufactured or sold by the Company or which
may be used with such products or services; or (b) result
from tasks assigned to me by the Company; or (c) result
from the use of premises or personal property (whether
tangible or intangible) owned, leased or contracted for by
the Company (“Company-Related Developments”), and all
related patents, patent applications, trademarks and
trademark applications, copyrights and copyright
applications, and other intellectual property rights in all
countries and territories worldwide and under any
international conventions (“Intellectual Property Rights”).
To preclude any possible uncertainty, I have set forth on
Exhibit A attached hereto a complete list of Developments
that I have, alone or jointly with others, conceived,
developed or reduced to practice prior to the
commencement of my employment with the Company that
I consider to be my property or the property of third parties
and that I wish to have excluded from the scope of this
Agreement (“Prior Inventions”). If disclosure of any such
Prior Invention would cause me to violate any prior
confidentiality agreement, I understand that I am not to list
such Prior Inventions in Exhibit A but am only to disclose
a cursory name for each such invention, a listing of the
party(ies) to whom it belongs and the fact that full
disclosure as to such inventions has not been made for that
reason. I have also listed on Exhibit A all patents and
patent applications in which I am named as an inventor,
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other than those which have been assigned to the Company
(“Other Patent Rights”). If no such disclosure is attached,
I represent that there are no Prior Inventions or Other
Patent Rights. If, in the course of my employment with the
Company, I incorporate a Prior Invention into a Company
product, process or machine or other work done for the
Company, I hereby grant to the Company a nonexclusive,
royalty-free, paid-up, irrevocable, worldwide license (with
the full right to sublicense) to make, have made, modify,
use, sell, offer for sale and import such Prior Invention.
Notwithstanding the foregoing, I will not incorporate, or
permit to be incorporated, Prior Inventions in any
Company-Related Development without the Company’s
prior written consent.
This Agreement does not obligate me to assign to the
Company any Development which, in the sole judgment of
the Company, reasonably exercised, is developed entirely
on my own time and does not relate to the business efforts
or research and development efforts in which, during the
period of my employment, the Company actually is
engaged or reasonably would be engaged, and does not
result from the use of premises or equipment owned or
leased by the Company. However, I will also promptly
disclose to the Company any such Developments for the
purpose of determining whether they qualify for such
exclusion. I understand that to the extent this Agreement
is required to be construed in accordance with the laws of
any state which precludes a requirement in an employee
agreement to assign certain classes of inventions made by
an employee, this paragraph 5 will be interpreted not to
apply to any invention which a court rules and/or the
Company agrees falls within such classes. I also hereby
waive all claims to any moral rights or other special rights
which I may have or accrue in any Company-Related
Developments.
6. Documents and Other Materials. I will keep
and maintain adequate and current records of all
Proprietary Information and Company-Related
Developments developed by me during my employment,
which records will be available to and remain the sole
property of the Company at all times.
All files, letters, notes, memoranda, reports, records, data,
sketches, drawings, notebooks, layouts, charts, quotations
and proposals, specification sheets, program listings,
blueprints, models, prototypes, or other written,
photographic or other tangible material containing
Proprietary Information, whether created by me or others,
which come into my custody or possession, are the
exclusive property of the Company to be used by me only
in the performance of my duties for the Company. Any
property situated on the Company’s premises and owned
by the Company, including without limitation computers,
disks and other storage media, filing cabinets or other work
areas, is subject to inspection by the Company at any time
with or without notice. In the event of the termination of
my employment for any reason, I will deliver to the
Company all files, letters, notes, memoranda, reports,
records, data, sketches, drawings, notebooks, layouts,
charts, quotations and proposals, specification sheets,
program listings, blueprints, models, prototypes, or other
written, photographic or other tangible material containing
Proprietary Information, and other materials of any nature
pertaining to the Proprietary Information of the Company
and to my work, and will not take or keep in my possession
any of the foregoing or any copies.
7. Enforcement of Intellectual Property Rights. I
will cooperate fully with the Company, both during and
after my employment with the Company, with respect to
the procurement, maintenance and enforcement of
Intellectual Property Rights in Company-Related
Developments. I will sign, both during and after the term
of this Agreement, all papers, including without limitation
copyright applications, patent applications, declarations,
oaths, assignments of priority rights, and powers of
attorney, which the Company may deem necessary or
desirable in order to protect its rights and interests in any
Company-Related Development. If the Company is
unable, after reasonable effort, to secure my signature on
any such papers, I hereby irrevocably designate and
appoint each officer of the Company as my agent and
attorney-in-fact to execute any such papers on my behalf,
and to take any and all actions as the Company may deem
necessary or desirable in order to protect its rights and
interests in any Company-Related Development.
8. Non-Competition and Non-Solicitation. In
order to protect the Company’s Proprietary Information
and good will, during my employment and for a period of
twelve (12) months following the termination of my
employment for any reason (the “Restricted Period”), I will
not directly or indirectly, whether as owner, partner,
shareholder, director, consultant, agent, employee, co-
venturer or otherwise, (1) engage, participate, or invest in,
be employed by, consult or otherwise associated with any
other business, enterprise or venture that, as its primary
business activity, performs research or services, or
develops, manufactures or markets any products that are
same as, similar to or competitive with the research,
services or products of the Company or that the Company
has under development or active planning (the "Restricted
Field"), or (2) perform or otherwise be involved in any
business activity related to the Restricted Field. This
paragraph 8 shall not prohibit any possible investment in
publicly traded stock of a company representing less than
one percent of the stock of such company. In addition,
during the Restricted Period, I will not, directly or
indirectly, in any manner, other than for the benefit of the
Company, (a) call upon, solicit, divert or take away any of
the customers, business or prospective customers of the
Company or any of its suppliers, and/or (b) solicit, entice
or attempt to persuade any other employee or consultant of
the Company to leave the services of the Company for any
reason. I acknowledge and agree that if I violate any of the
provisions of this paragraph 8, the running of the Restricted
Period will be extended by the time during which I engage
in such violation(s).
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9. Government Contracts. I acknowledge that the
Company may have from time to time agreements with
other persons or with the United States Government or its
agencies which impose obligations or restrictions on the
Company regarding inventions made during the course of
work under such agreements or regarding the confidential
nature of such work. I agree to comply with any such
obligations or restrictions upon the direction of the
Company. In addition to the rights assigned under
paragraph 5, I also assign to the Company (or any of its
nominees) all rights which I have or acquired in any
Developments, full title to which is required to be in the
United States under any contract between the Company
and the United States or any of its agencies.
10. Prior Agreements. I hereby represent that,
except as I have fully disclosed previously in writing to the
Company, I am not bound by the terms of any agreement
with any previous employer or other party to refrain from
using or disclosing any trade secret or confidential or
proprietary information in the course of my employment
with the Company or to refrain from competing, directly or
indirectly, with the business of such previous employer or
any other party. I further represent that my performance of
all the terms of this Agreement as an employee of the
Company does not and will not breach any agreement to
keep in confidence proprietary information, knowledge or
data acquired by me in confidence or in trust prior to my
employment with the Company. I will not disclose to the
Company or induce the Company to use any confidential
or proprietary information or material belonging to any
previous employer or others.
11. Remedies Upon Breach. I understand that the
restrictions contained in this Agreement are necessary for
the protection of the business and goodwill of the Company
and I consider them to be reasonable for such purpose. Any
breach of this Agreement is likely to cause the Company
substantial and irrevocable damage and therefore, in the
event of such breach, the Company, in addition to such
other remedies which may be available, will be entitled to
specific performance and other injunctive relief.
12. Use of Voice, Image and Likeness. I give the
Company permission to use my voice, image or likeness,
with or without using my name, for the purposes of
advertising and promoting the Company, or for other
purposes deemed appropriate by the Company in its
reasonable discretion, except to the extent expressly
prohibited by law.
13. Publications and Public Statements. I will
obtain the Company’s written approval before publishing
or submitting for publication any material that relates to my
work at the Company and/or incorporates any Proprietary
Information. To ensure that the Company delivers a
consistent message about its products, services and
operations to the public, and further in recognition that
even positive statements may have a detrimental effect on
the Company in certain securities transactions and other
contexts, any statement about the Company which I create,
publish or post during my period of employment and for
six (6) months thereafter, on any media accessible by the
public, including but not limited to social media sites,
electronic bulletin boards and Internet-based chat rooms,
must first be reviewed and approved by an officer of the
Company before it is released in the public domain.
Notwithstanding the foregoing, any statement relating to
any Proprietary Information shall not be published or
posted on any media anytime during or after my
employment without the Company’s prior written consent.
14. No Employment Obligation. I understand that
this Agreement does not create an obligation on the
Company or any other person to continue my employment.
I acknowledge that, unless otherwise agreed in a formal
written employment agreement signed on behalf of the
Company by an authorized officer, my employment with
the Company is at will and therefore may be terminated by
the Company or me at any time and for any reason.
15. Survival and Assignment by the Company. I
understand that my obligations under this Agreement will
continue in accordance with its express terms regardless of
any changes in my title, position, duties, salary,
compensation or benefits or other terms and conditions of
employment. I further understand that my obligations
under this Agreement will continue following the
termination of my employment regardless of the manner of
such termination and will be binding upon my heirs,
executors and administrators. The Company will have the
right to assign this Agreement to its affiliates, successors
and assigns. I expressly consent to be bound by the
provisions of this Agreement for the benefit of the
Company or any parent, subsidiary or affiliate to whose
employ I may be transferred without the necessity that this
Agreement be resigned at the time of such transfer.
16. Disclosure to Future Employers. The Company
has the right to provide a copy of this Agreement to any
future employer, partner or coventurer.
17. Severability. In case any provisions (or portions
thereof) contained in this Agreement shall, for any reason,
be held 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.
18. Interpretation. This Agreement will be deemed
to be made and entered into in the Commonwealth of
Massachusetts, and will in all respects be interpreted,
enforced and governed under the laws of the
Commonwealth of Massachusetts. I hereby agree to
consent to personal jurisdiction of the state and federal
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courts situated within Suffolk County, Massachusetts for
purposes of enforcing this Agreement, and waive any
objection that I might have to personal jurisdiction or
venue in those courts.
19. Modification; Waiver. No modification,
amendment, waiver or termination of this Agreement or of
any provision hereof will be binding unless made in writing
and signed by an authorized officer of the Company.
Failure of the Company to insist upon strict compliance
with any of the terms, covenants or conditions hereof will
not be deemed a waiver of such terms, covenants or
conditions. In the event of any inconsistency between this
Agreement and any other contract between the Company
and me, the provisions of this Agreement will prevail.
20. Protected Disclosures. I understand that nothing
contained in this Agreement limits my ability to
communicate with any federal, state or local governmental
agency or commission, including to provide documents or
other information, without notice to the Company. I also
understand that nothing in this Agreement limits my ability
to share compensation information concerning myself or
others, except that this does not permit me to disclose
compensation information concerning others that I obtain
because my job responsibilities require or allow access to
such information.
21. Defend Trade Secrets Act of 2016. I understand
that pursuant to the federal Defend Trade Secrets Act of
2016, I shall not be held criminally or civilly liable under
any federal or state trade secret law for the disclosure of a
trade secret that (a) is made (i) in confidence to a federal,
state, or local government official, either directly or
indirectly, or to an attorney; and (ii) solely for the purpose
of reporting or investigating a suspected violation of law;
or (b) is made in a complaint or other document filed in a
lawsuit or other proceeding, if such filing is made under
seal.
[End of Text]
I UNDERSTAND THAT THIS AGREEMENT AFFECTS IMPORTANT RIGHTS. BY SIGNING BELOW, I
CERTIFY THAT I HAVE READ IT CAREFULLY AND AM SATISFIED THAT I UNDERSTAND IT COMPLETELY.
IN WITNESS WHEREOF, the undersigned has executed this Agreement as a sealed instrument as of the date set forth
below.
Signed: /s/ ▇▇▇▇ ▇. ▇▇▇▇
(Employee’s full name)
Type or print name: ▇▇▇▇ ▇. ▇▇▇▇
Date: July 21, 2017
EXHIBIT A
To: Jounce Therapeutics, Inc.
From: ▇▇▇▇ ▇. ▇▇▇▇
Date: July 21, 2017
SUBJECT: Prior Inventions
The following is a complete list of all inventions or improvements relevant to the subject matter of my employment by the
Company that have been made or conceived or first reduced to practice by me alone or jointly with others prior to my engagement by
the Company:
X No inventions or improvements
__ See below:
_______________________________________________________________
_______________________________________________________________
_______________________________________________________________
__ Additional sheets attached
The following is a list of all patents and patent applications in which I have been named as an inventor:
X None
See below:
_______________________________________________________________
_______________________________________________________________
_______________________________________________________________