Exhibit 10.1
CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY [***], HAS BEEN OMITTED BECAUSE IT IS BOTH (I) NOT MATERIAL AND (II) WOULD LIKELY CAUSE COMPETITIVE HARM IF PUBLICLY DISCLOSED.
VIA ELECTRONIC MAIL
January 19, 2023
Marianne De Backer
Dear Marianne,
On behalf of Vir Biotechnology, Inc. (“VirBio” or the “Company”), I am pleased to offer you employment with the Company in the position of Chief Executive Officer. This letter agreement (the “Agreement”) sets forth the terms and conditions of your employment with VirBio, should you accept our offer.
and with or without notice; provided, however, that in the event you elect to terminate your employment without Good Reason or the Company elects to terminate your employment without Cause, you and the Company agree to provide the other party with at least thirty (30) days’ advance written notice. Your employment at-will status can only be modified in a written agreement signed by you and by an officer of the Company.
Claims subject to this arbitration provision shall include, but not be limited to, Claims for wages, bonuses, severance, incentive compensation or other equity, employee benefits, and other compensation, whether pursuant to contract or federal or state wage and hour laws, including, without limitation, the Fair Labor Standards Act; Claims alleging unlawful
discrimination, harassment, or retaliation on any basis protected by any applicable federal, state or local law or statute, including, without limitation, the Age Discrimination in Employment Act, Title VII of the Civil Rights Act of 1964, the Americans With Disabilities Act of 1990, the California Fair Employment and Housing Act, and the Equal Pay Act, all as amended; common law claims, including, without limitation, Claims for breach of contract, promissory estoppel, wrongful discharge, fraud, misrepresentation, defamation, and emotional distress; whistleblower Claims; individual Claims under California’s Private Attorney General Act of 2004; and all Claims arising out of your employment with and/or separation from the Company (including a Claim for retaliation) under any common law theory or any federal, state or local statute or ordinance not expressly referenced above (collectively, “Covered Claims”).
This arbitration provision does not cover the following Claims, which are explicitly excluded from this arbitration obligation: Claims for workers' compensation or unemployment insurance benefits, petitions or charges that could be brought before the National Labor Relations Board, and Claims under state and federal law which are not subject to mandatory binding pre-dispute arbitration pursuant to the Federal Arbitration Act, including Claims involving a sexual assault dispute and/or sexual harassment dispute, as those terms are defined in 9 U.S.C. § 401. In addition, nothing herein precludes you from filing a charge with, cooperating with, or participating in any investigation or proceeding before, the EEOC or a state fair employment practices agency (except that you acknowledge that you may not recover any monetary benefits in connection with any such charge, investigation, or proceeding, and you further waive any rights or claims to any payment, benefit, attorneys’ fees or other remedial relief in connection with any such charge, investigation or proceeding).
You acknowledge that by agreeing to this arbitration procedure, both you and the Company waive the right to resolve any and all Covered Claims through a trial by jury or judge. In addition, Covered Claims must be brought on an individual basis only, and arbitration on an individual basis is the exclusive remedy. Neither party may submit a class, collective, or representative action for resolution under this arbitration provision, and no arbitrator has authority to proceed with arbitration on such a basis. In the event a court determines this class action waiver is unenforceable with respect to any Claim, then this waiver shall not apply to that Claim, that Claim must be filed in a court of competent jurisdiction, and such court shall be the exclusive forum for that Claim.
You will have the right to be represented by legal counsel at any arbitration proceeding. Questions of whether a claim is subject to arbitration under this Agreement shall be decided by the arbitrator. Likewise, procedural questions which grow out of the dispute and bear on the final disposition are also matters for the arbitrator. The arbitrator shall: (a) have the authority to compel adequate discovery for the resolution of the dispute and to award such relief as would otherwise be permitted by law; and (b) issue a written statement signed by the arbitrator regarding the disposition of each claim and the relief, if any, awarded as to each claim, the reasons for the award, and the arbitrator’s essential findings and conclusions on which the award is based. The arbitrator shall be authorized to award all relief that you or the Company would be entitled to seek in a court of law. The Company shall pay all JAMS
arbitration fees and costs; provided, however, that if you initiate the arbitration, then you will pay an amount equivalent to the filing fees that you would have been required to pay to file the Claim in a court of competent jurisdiction were the Claim to be decided in a court of law. Nothing in this Agreement is intended to prevent either you or the Company from obtaining injunctive relief in court to prevent irreparable harm pending the conclusion of any such arbitration. Any awards or orders in such arbitrations may be entered and enforced as judgments in the federal and state courts of any competent jurisdiction.
If you are in agreement with the terms set forth above, please sign below and return the signed Agreement no later than January 23, 2023.
/s/ Vick Sato
Vicki Sato, Ph.D.
Chairman of the Board of Directors
Understood and Accepted:
/s/ Marianne De Backer Date: 1/18/2023
Marianne De Backer
Exhibit A – CIIAA
Exhibit B – Outside Activities
EXHIBIT A
EXHIBIT B
OUTSIDE ACTIVITIES
279877443 v4
For California Employees
SVIR BIOTECHNOLOGY, INC.
EMPLOYEE CONFIDENTIAL INFORMATION AND INVENTION ASSIGNMENT AGREEMENT
In consideration of my employment or continued employment by Vir Biotechnology, Inc., its subsidiaries, parents, affiliates, successors and assigns (together “Company”), and the compensation paid to me now and during my employment with Company, I hereby enter into this Employee Confidential Information and Invention Assignment Agreement (the “Agreement”) and agree as follows:
1.1 Recognition of Company’s Rights; Nondisclosure. I understand and acknowledge that my employment by Company creates a relationship of confidence and trust with respect to Company’s Confidential Information (as defined below) and that Company has a protectable interest therein. At all times during and after my employment, I will hold in confidence and will not disclose, use, lecture upon, or publish any of Company’s Confidential Information, except as such disclosure, use or publication may be required in connection with my work for Company, or unless an officer of Company expressly authorizes such disclosure. I will obtain Company’s written approval before publishing or submitting for publication any material (written, oral, or otherwise) that discloses and/or incorporates any Confidential Information. I hereby assign to Company any rights I may have or acquire in such Confidential Information and recognize that all Confidential Information shall be the sole and exclusive property of Company and its assigns. I will take all reasonable precautions to prevent the inadvertent accidental disclosure of Confidential Information.
Notwithstanding the foregoing, pursuant to 18 U.S.C. Section 1833(b), I understand that:
(a) 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: (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.
(b) An individual who files a lawsuit for retaliation by an employer for reporting a suspected violation of law may disclose the trade secret to the attorney of the individual and use the trade secret information in the court proceeding, if the individual files any document containing the trade secret under seal; and does not disclose the trade secret, except pursuant to court order.
Employee Confidential Information and Inventions Assignment Agreement
Page 1
I agree to keep and maintain adequate and current records (in the form of notes, sketches, drawings and in any other form that is required by Company) of all Confidential Information developed by me and all Company Inventions made by me during the period of my employment at Company, which records will be available to and remain the sole property of Company at all times.
I agree that during the period of my employment by Company, I will not, without Company’s express written consent, directly or indirectly engage in any employment or business activity which is directly or indirectly competitive with, or would otherwise conflict with, my employment by Company. I further understand and acknowledge that I am bound by a duty of loyalty pursuant to the California Labor Code.
I represent that my performance of all the terms of this Agreement and as an employee of Company does not and will not breach any agreement to keep in confidence information acquired by me in confidence or in trust prior to my employment by Company. I have not entered into, and I agree I will not enter into, any agreement either written or oral in conflict with this Agreement.
When I leave the employ of Company, I will deliver to Company any and all drawings, notes, memoranda, specifications, devices, formulas and documents, together with all copies thereof, and any other material containing or disclosing any Company Inventions, Third Party Information or Confidential Information of Company. I agree that I will not copy, delete, or alter any information contained upon my Company computer or Company equipment before I return it to Company. In addition, if I have used any personal computer, server, or e-mail system to receive, store, review, prepare or transmit any Company information, including but not limited to, Confidential Information, I agree to provide Company with a computer-useable copy of all such Confidential Information and then permanently delete and expunge such Confidential Information from those systems; and I agree to provide Company access to my system as reasonably requested to verify that the necessary copying and/or deletion is completed. I further agree that any property situated on Company’s premises and owned by Company, including disks and other storage media, filing cabinets or other work areas, is subject to
inspection by Company’s personnel at any time with or without notice. Prior to leaving, I will cooperate with Company in attending an exit interview and completing and signing Company’s termination statement if required to do so by Company.
Upon separation from employment with the Company, I agree to immediately sign and deliver to the Company the “Termination Certification” in a form identical or similar to the sample attached hereto as Exhibit B.
I acknowledge that I have no reasonable expectation of privacy in any computer, technology system, correspondence, calendar entries, telephone logs, and other business records, such as emails, voicemails, text messages, instant messages (IMs), instant messages, calendars, word processing files, spreadsheets, PDFs, JPEGs, PowerPoint presentations, databases, cloud-based storage, external media, hard drives, DVDs, CDs, USBs, thumb drives, temporary internet files, cookies, .ZIP files, and all other forms of electronic information, wherever it resides, including the Internet or the Company’s network. All information, data, and messages created, received, sent, or stored in these systems are, at all times, the property of the Company. As such, the Company has the right to audit and search all such items and systems, without further notice to me, to ensure that the Company is licensed to use the software on the Company’s devices in compliance with the Company’s software licensing policies, to ensure compliance with the Company’s policies, and for any other business-related purposes in the Company’s sole discretion. I understand that I am not permitted to add any unlicensed, unauthorized, or non-compliant applications to the Company’s technology systems, including, without limitation, open source or free software not authorized by the Company, and that I shall refrain from copying unlicensed software onto the Company’s technology systems or using non-licensed software or websites. I understand that it is my responsibility to comply with the Company’s policies governing use of the Company’s documents and the internet, email, telephone, and technology systems to which I will have access in connection with my employment.
I am aware that the Company has or may acquire software and systems that are capable of monitoring and recording all network traffic to and from any computer I may use. The Company reserves the right to access, review, copy, and delete any of the information, data, or messages accessed through these systems with or without notice to me and/or in my absence. This includes, but is not limited to, all e-mail and instant messages sent or received, all website visits, all chat sessions, all news group activity (including groups visited, messages read, and postings by me), and all file transfers into and out of the Company’s internal networks. The Company further reserves the right to retrieve previously deleted messages from instant messaging systems, e-mail or voicemail and monitor usage of the Internet, including websites visited and any information I have downloaded. In addition, the Company may review Internet and technology systems activity and analyze usage patterns and may choose to publicize this data to assure that technology systems are devoted to legitimate business purposes.
[signatures to follow on next page]
Employee Confidential Information and Inventions Assignment Agreement
EMPLOYEE or CONSULTANT: |
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I certify and acknowledge that I have read all of the provisions of this agreement carefully, that I understand its terms, and will fully comply with such provisions. I have completely filled out Exhibit A to this Agreement.
I further understand that this agreement is effective as of the date my employment or |
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/s/ Marianne De Backer |
(Signature) |
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Marianne De Backer |
Name |
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1/18/2023 |
Date |
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[***] |
COMPANY: | ||
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Accepted and agreed | ||
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Vir Biotechnology, Inc. | ||
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By: | /s/ Vicki Sato | |
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| Name: | Vicki Sato |
| Title: | Chairman, VIRBio |
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Email: | [***] |
Employee Confidential Information and Inventions Assignment Agreement
Signature Page
Exhibit A
Excluded Inventions
TO: | Vir Biotechnology, Inc. |
FROM: |
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DATE: |
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This List of Pre-Employment Inventions, along with any attached pages, is part of and incorporated by reference into the attached Confidential Information and Invention Assignment Agreement.
INSTRUCTIONS TO EMPLOYEE: Please identify below pre-existing documents which describe, and upon which you will rely to establish your ownership of, your pre-employment inventions. Please do not disclose to the Company your pre-employment inventions in detail unless the Company expressly requests that you do.
In filling out this document, please note that witnesses are people who have read and understood the referenced document and who therefore can testify to the existence of the inventions, ideas or works of authorship. Also, inventions, ideas, or works of authorship not owned by you (for example because they have been assigned to a prior employer) are not to be listed here. If any documents are identified below, then the Company may request you to provide the documents and other information to determine if any impediments to employment by the Company exist.
1. Excluded Inventions Disclosure. Except as listed in Section 2 below, the following is a complete list of all Excluded Inventions:
☒ | No Excluded Inventions. |
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☐ | See below: |
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☐ | Additional sheets attached. |
2. Due to a prior confidentiality agreement, I cannot complete the disclosure under Section 1 above with respect to the Excluded Inventions generally listed below, the intellectual property rights and duty of confidentiality with respect to which I owe to the following party(ies):
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☐ | Additional sheets attached. |
Employee Confidential Information and Inventions Assignment Agreement
3. Limited Exclusion Notification.
This is to notify you in accordance with Section 2872 of the California Labor Code that the foregoing Agreement between you and Company does not require you to assign or offer to assign to Company any Invention that you develop entirely on your own time without using Company’s equipment, supplies, facilities or trade secret information, except for those Inventions that either:
a. Relate at the time of conception or reduction to practice to Company’s business, or actual or demonstrably anticipated research or development; or
b. Result from any work performed by you for Company.
To the extent a provision in the foregoing Agreement purports to require you to assign an Invention otherwise excluded from the preceding paragraph, the provision is against the public policy of this state and is unenforceable.
This limited exclusion does not apply to any patent or Invention covered by a contract between Company and the United States or any of its agencies requiring full title to such patent or Invention to be in the United States.
Employee Confidential Information and Inventions Assignment Agreement
Exhibit B
SAMPLE Termination Certification
This is to certify that I do not have in my possession, nor have I failed to return, any keys, devices, records, data, notes, reports, proposals, lists, correspondence, specifications, drawings, formulas, sketches, materials, equipment, any other Company documents or property, or reproductions of any and all aforementioned items belonging to Vir Biotechnology, Inc., its subsidiaries, affiliates, successors or assigns (together, the “Company”).
I further certify that I have complied with all the terms of the Company’s Confidential Information, and Invention Assignment Agreement (CIIAA) signed by me, including the reporting of any inventions and original works of authorship (as defined therein) conceived or made by me (solely or jointly with others), as covered by that agreement.
I further agree that, in compliance with the CIIAA, I will preserve as confidential all Company Confidential Information and associated Third Party Information, including trade secrets, confidential knowledge, data, or other proprietary information relating to products, processes, know-how, designs, formulas, developmental or experimental work, computer programs, databases, other original works of authorship, customer lists,, business plans, financial information, or other subject matter pertaining to any business of the Company or any of its employees, clients, partners, consultants, or licensees.
Date: 1/18/2023
/s/ Marianne De Backer
Signature
Marianne De Backer
Name of Employee (typed or printed)
Address for Notifications:
4816-9839-5840, v. 1
279930955 v2
Employee Confidential Information and Inventions Assignment Agreement