Exhibit 10.2
CONSULTING SERVICES AGREEMENT
This Consulting Services Agreement (this “Agreement”), effective as of February 4, 2023, (“Effective Date”) is between INVIVYD, Inc. a Delaware corporation having a place of business at 1601 Trapelo Road, Suite 178, Waltham, MA 02451, and its successors or assignees (“Invivyd” or the “Company”) and RDBio Consulting LLC, a Pennsylvania Limited Liability Company (“Consultant”).
Whereas, as of February 3, 2023, Consultant’s employment as Chief Technology and Manufacturing Officer of the Company will end;
Whereas, as of the Effective Date, the Company desires to retain Consultant as an independent contractor to perform consulting services for the Company as further detailed herein;
Whereas, Consultant has agreed to execute the Waiver and General Release annexed hereto as Exhibit B on the Effective Date; and
Whereas, Consultant is willing to perform the services, on the terms and conditions set forth below.
Now, Therefore, in consideration of the mutual promises contained herein, the parties agree as follows:
8.2 Consultant shall ensure that all statements and claims regarding Company’s products made or proposed by Consultant in connection with the Services, including intended use, efficacy and safety, are consistent with Applicable Laws and the requirements of any applicable Regulatory Authority (as defined below) and are accurate, truthful and fairly balanced. Consultant shall not make any representation, statement, warranty or guaranty, oral or written, with respect to any Company product that is inconsistent
with Applicable Laws or such applicable Regulatory Authority, that is deceptive or misleading in any way, or that disparages Company or any Company product. “Regulatory Authority” means any United States federal, state, or local government, or political subdivision thereof, or any authority, agency or commission entitled to exercise any administrative, executive, judicial, legislative, police, regulatory or taxing authority or power, any court or tribunal (or any department, bureau or division thereof), or any governmental arbitrator or arbitral body with responsibility for granting approvals necessary for the marketing of or having other legal or regulatory authority over a product of Company involved in the Services, including the U.S. Food and Drug Administration.
8.3 Consultant represents and warrants that neither Consultant nor any of Consultant’s Personnel used in connection with the Services is Debarred/Excluded (as defined below). In advance of any Consultant Personnel performing any Services under this Agreement, Consultant shall check the Debarment/Exclusion status of each such Consultant Personnel and confirm that such Consultant Personnel is not Debarred/Excluded and shall confirm such status at least annually thereafter. Upon discovering that Consultant or any Consultant Personnel is Debarred/Excluded, Consultant shall immediately notify Company and remove such Consultant Personnel from having any responsibilities relating to the Services. “Debarred/Excluded” means debarred or suspended under 21 U.S.C. §335(a) or (b), excluded from participation in a federal health care program (e.g., Medicare, Medicaid), debarred from federal contracting, or convicted of or pled nolo contendere to any felony or any federal or state legal violation (including misdemeanors) relating to health care products or services or fraud.
8.4 If, during the term of this Agreement, all or part of the above representations and warranties in this Section 8 cease to be accurate, Consultant shall immediately notify Company of such circumstance, and, at Company’s option, this Agreement shall terminate as of the first date of such noncompliance.
[Signature page follows]
In Witness Whereof, the parties have caused this Consulting Services Agreement to be executed by their duly authorized representative.
COMPANY:
Invivyd, inc.
By: David Hering
Name: /s/ David Hering
Title: CEO
CONSULTANT: RDBio Consulting LLC
By: /s/ Rebecca Dabora
Name: Rebecca Dabora
EXHIBIT A
STATEMENT OF WORK #1
This Statement of Work #1 (“SOW #1”), effective as of February 4, 2023 (the “Effective Date”), is made by and between INVIVYD, INC., a Delaware corporation and its successors or assignees (“Company”) and RDBio Consulting LLC (“Consultant”).
Consultant and Company are parties to that certain Consulting Services Agreement, effective as of February 4, 2023 (the “Agreement”). Consultant shall perform for Company the services specifically described herein (the “Services”). This SOW #1 is incorporated into the Agreement and expressly made a part thereof and, thus, subject to the terms and conditions of the Agreement.
SERVICES
Consulting services with respect to chemistry, manufacturing and controls and general issues related to Invivyd’s products, including participating in discussions with and about contract manufacturing organizations and regulatory agencies. Providing services as an officer of the Company is outside the scope of the services under this Agreement.
FEES
Cash Fee: Consultant’s hourly fee for the Services provided under this SOW #1 shall be $450 per hour, with the total daily fees to be paid to Consultant under this SOW #1 not to exceed $3,600.
Reimbursements: Consultant shall submit an invoice to Company related to the Services provided to Company and any appropriate, reimbursable expenses. Company will issue payment for the invoice within forty-five (45) days of receipt of an invoice. All invoices shall be submitted and paid in accordance with Section 2.3 of the Agreement.
[Signature page follows]
In Witness Whereof, the parties have caused this Statement of Work #1 to be executed by their duly authorized representative.
COMPANY:
invivyd, inc.
By: /s/ David Hering
Name: David Hering
Title: CEO
CONSULTANT:
RDBio Consulting LLC
By: /s/ Rebecca Dabora
Name: Rebecca Dabora
Exhibit B
Waiver and General Release of Claims
This General Release of Claims Agreement (this “Release Agreement”) is between INVIVYD, Inc. a Delaware corporation having a place of business at 1601 Trapelo Road, Suite 178, Waltham, MA 02451, and its successors or assignees (“Invivyd” or the “Company”) and Rebecca Dabora, having a place of business at [***] (“Consultant” or “You”).
• has violated its personnel policies, handbooks, contracts of employment, or covenants of good faith and fair dealing;
• has discriminated against you on the basis of age, race, color, sex (including sexual harassment), national origin, ancestry, disability, religion, sexual orientation, marital status, parental status, source of income, entitlement to benefits, any union activities or other protected category in violation of any local, state or federal law, constitution, ordinance, or regulation, including but not limited to: Title VII of the Civil Rights Act of 1964, the Civil Rights Act of 1866 (42 U.S.C. 1981), the Civil Rights Act of 1991, the Genetic Information Nondiscrimination Act, Executive Order 11246, which prohibit discrimination based on race, color, national origin, religion, or sex; the Americans with Disabilities Act and Sections 503 and 504 of the Rehabilitation Act of 1973, which prohibit discrimination against the disabled, the Age Discrimination in Employment Act (ADEA), which prohibits discrimination based on age, the Older Workers Benefit Protection Act, the National Labor Relations Act, the Lily Ledbetter Fair Pay Act, the anti-retaliation provisions of the Sarbanes-Oxley Act, or any other federal or state law regarding whistleblower retaliation; the Massachusetts Fair Employment Practices Act (M.G.L. c. 151B), the Massachusetts Equal Rights Act, the Massachusetts Equal Pay Act, the Massachusetts Privacy Statute, the Massachusetts Sick Leave Law, the Massachusetts Civil Rights Act, the Pennsylvania Fair Employment Practices Act, all as amended, and any and all other federal, state or local laws, rules, regulations, constitutions, ordinances or public policies, whether known or unknown, prohibiting employment discrimination;
• has violated any employment statutes, such as the WARN Act, which requires that advance notice be given of certain workforce reductions; the Employee Retirement Income Security Act of 1974 (ERISA) which, among other things, protects employee benefits; the Fair Labor Standards Act of 1938, which regulates wage and hour matters; the National Labor Relations Act, which protects forms of concerted activity; the Family and Medical Leave Act of 1993, which requires employers to provide leaves of absence under certain circumstances; the Fair Credit Reporting Act, the Employee Polygraph Protection Act, the Massachusetts Payment of Wages Act (M.G.L. c. 149 sections 148 and 150), the Massachusetts Overtime regulations (M.G.L. c. 151 sections 1A and 1B), the Massachusetts Meal Break regulations (M.G.L. c. 149 sections 100 and 101), the Pennsylvania Parental and Family Leave Act, all as amended, and any and all other federal, state or local laws, rules, regulations, constitutions, ordinances or public policies, whether known or unknown relating to employment laws, such as veterans’ reemployment rights laws;
• has violated any other laws, such as federal, state, or local laws providing workers’ compensation benefits, restricting an employer’s right to terminate employees, or otherwise regulating employment; any federal, state or local law enforcing express or implied employment contracts or requiring an employer to deal with employees fairly or in good faith; any other federal, state or local laws providing recourse for alleged wrongful discharge, retaliatory discharge, negligent hiring, retention, or supervision, physical or personal injury, emotional distress, assault, battery, false imprisonment, fraud, negligent misrepresentation, defamation, intentional or negligent infliction of emotional distress and/or mental anguish, intentional interference with contract, negligence, detrimental reliance, loss of consortium to you or any member of your family, whistleblowing, and similar or related claims.
Notwithstanding the foregoing, other than events expressly contemplated by this Release Agreement You do not waive or release rights or Claims that may arise from events that occur after the date this waiver is executed or your right to enforce this Release Agreement or the Consulting Agreement. Also excluded from this Release Agreement are (i) any Claims which cannot be waived by law, including, without
limitation, any rights you may have under applicable workers’ compensation laws and your right, if applicable, to file or participate in an investigative proceeding of any federal, state or local governmental agency, (ii) any lawsuit brought to challenge the validity of this Release under ADEA, (iii) payments or benefits under the Consulting Agreement, including continued vesting and exercisability of equity awards, which were provided in exchange for this Release, (iv) any claims for indemnification arising under any applicable indemnification obligation of the Company or its affiliates, (v) vested benefits under any employee benefit plan and (vi) any rights to payments pursuant to any vested option, restricted stock unit or other vested equity compensation award. Nothing in this Agreement shall prevent you from filing, cooperating with, or participating in any proceeding or investigation before the Equal Employment Opportunity Commission, United States Department of Labor, the National Labor Relations Board, the Occupational Safety and Health Administration, the Securities and Exchange Commission or any other federal government agency, or similar state or local agency (“Government Agencies”), or exercising any rights pursuant to Section 7 of the National Labor Relations Act. You further understand this Release Agreement does not limit your ability to voluntarily communicate with any Government Agencies or otherwise participate in any investigation or proceeding that may be conducted by any Government Agency, including providing documents or other information, without notice to the Company. While this Agreement does not limit your right to receive an award for information provided to the Securities and Exchange Commission, you understand and agree that, you are otherwise waiving, to the fullest extent permitted by law, any and all rights you may have to individual relief based on any Claims that you have released and any rights you have waived by signing this Release Agreement. If any Claim is not subject to release, to the extent permitted by law, you waive any right or ability to be a class or collective action representative or to otherwise participate in any putative or certified class, collective or multi-party action or proceeding based on such a Claim in which any of the Company Parties is a party. This Release Agreement does not abrogate your existing rights under any Company benefit plan or any plan or agreement related to equity ownership in the Company; however, it does waive, release and forever discharge Claims existing as of the date you execute this Release Agreement pursuant to any such plan or agreement.
EXECUTE ON FEBRUARY 3, 2023
BY SIGNING BELOW, YOU REPRESENT AND WARRANT THAT YOU HAVE FULL LEGAL CAPACITY TO ENTER INTO THIS RELEASE AGREEMENT, YOU HAVE CAREFULLY READ AND UNDERSTAND THIS RELEASE AGREEMENT IN ITS ENTIRETY, HAVE HAD A FULL OPPORTUNITY TO REVIEW THIS RELEASE AGREEMENT WITH AN ATTORNEY OF YOUR CHOOSING, AND HAVE EXECUTED THIS RELEASE AGREEMENT VOLUNTARILY, WITHOUT DURESS, COERCION OR UNDUE INFLUENCE.
AGREED TO AND ACCEPTED:
/s/ Rebecca Dabora_________________________
Name: Rebecca Dabora
Date: 2/3/2023