Exhibit 10.1
EMPLOYMENT SEPARATION AGREEMENT
This Separation Agreement (the “Agreement”) is made and entered into by Castle Biosciences, Inc. (“Castle”), and Federico A. Monzon (the “Employee”).
WHEREAS, Employee was employed by Castle beginning on or about November 1, 2015 in an at-will employment arrangement;
WHEREAS, Employee signed an Employee Proprietary Information Agreement with Castle on or about October 13, 2015 (the “Confidentiality Agreement”);
WHEREAS, ADP, (“ADP”) provided certain employee-management related services in connection with Employee’s employment by Castle and was also Employee’s co-employer; and
WHEREAS, Employee’s employment relationship will terminate on May 31, 2020 (the “Termination Date”).
NOW, THEREFORE, in consideration of the promises and mutual covenants herein and for other good and valuable consideration, the sufficiency of which is hereby acknowledged, it is agreed as follows:
1.Accrued Salary and PTO. Castle will pay to Employee for work performed through the Termination Date in the amount of $10,000.00. Castle will pay to Employee all accrued but unpaid PTO benefits accrued through the Termination Date in the amount of $30,327.29. Payment for work performed and PTO will be made by May 31, 2020, and subject to standard payroll withholdings and deductions. Employee will receive these payments regardless of whether or not Employee enters into this Agreement.
2.Health Coverage. If Employee is currently participating in any of ADP’s group health insurance plans (the “Plans”), Employee’s coverage under those Plans will continue through May 31, 2020, at which time coverage will end. To the extent provided by the federal COBRA law and, if applicable state insurance laws (collectively “COBRA”) and the terms of the Plans, Employee will be eligible to continue Employee’s group health insurance benefits after May 31, 2020 at Employee’s own expense. Employee will be provided with additional information regarding Employee’s rights and obligations under COBRA, as well as COBRA election forms.
3.Consideration. Although Castle has no obligation to do so, if Employee signs this Agreement, allows it become effective, and complies with the terms of this Agreement and Employee’s other continuing obligations owed to Castle (including but not limited to those continuing obligations in the Confidentiality Agreement) then Castle will provide Employee with the following as Employee’s sole severance benefit (the “Severance Benefit”):
a.Master Services Agreement. As part of this Agreement, Castle agrees to enter into a consulting relationship with Employee, through his consulting company, pursuant to the terms and conditions of the Master Services Agreement (“MSA”), a copy of which is attached hereto as Exhibit A) (the “Consulting Relationship”). As additional consideration for this Agreement and the Consulting Services, the Company will consider Employee’s uninterrupted change of status from an employee to a consultant (effective as of the Termination Date), and the Consulting Services during the Consulting Period (as defined in the MSA), to cause Employee to continue as a “Service Provider” for purposes of the Company’s 2008 Stock Plan (the “2008 Plan”), and to constitute “Continuous Service” for purposes of the Company’s 2018 Equity Incentive Plan (the “2018 Plan”) and its 2019 Equity Incentive Plan (the “2019 Plan”), and
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therefore Employee’s outstanding equity awards will continue to vest and remain exercisable in accordance with their terms during the Consulting Period. Vesting of such equity awards will cease at the termination of the Consulting Period and any rights to exercise or otherwise acquire any vested shares shall be governed and controlled by the Equity Plan and the applicable grant documents (the “Equity Documents”). All terms, conditions and limitations applicable to such equity awards will continue to be subject to the applicable Equity Documents. For the avoidance of doubt, if the parties do not enter into the Consulting Relationship, then Employee’s “Continuous Service” for purposes of such equity awards will terminate, and the vesting of such outstanding equity awards will cease, on the Termination Date.
4.No Further Compensation. Employee acknowledges that, except as expressly provided in this Agreement and the MSA, Employee has not earned and will not receive any additional money, compensation or benefits of any kind from Castle (including but not limited to base salary, future wages or salary, bonus, retention payments, incentive compensation, commissions, damages, vesting or equity). Employee acknowledges that the payments set forth in this Agreement are due solely from Castle and that ADP has no obligation to make any payments to Employee, even though the payments may be processed through ADP.
5.Release of All Claims. In exchange for the consideration provided to Employee under this Agreement to which Employee would not otherwise be entitled, including but not limited to the Severance Benefit, Employee:
a.voluntarily, irrevocably and unconditionally releases and forever discharges, jointly, severally and individually each of Castle and ADP and their respective parent companies, subsidiaries, affiliated entities, current and former employees, officers, directors, insurers, agents, shareholders, as applicable (collectively referred to as the “Released Parties”) from any and all liabilities, claims, demands, causes of action, charges, suits, debts, complaints, money, benefits, grievances, obligations, costs, losses, damages, injuries, attorneys’ fees, contracts, promises, agreements, and other legal responsibilities whatsoever (collectively referred to as “Claims”) regardless of whether such Claims are unaccrued, unknown, unforeseen, and/or unanticipated, in law or equity, that Employee’s heirs, executors, administrators, successors or assigns ever had, now have or hereafter can against the Released Parties, including but not limited to, any and all matters arising out of Employee’s employment with, separation or termination from employment with Castle and ADP;
b.understands and agrees that this release of Claims includes, but is not limited to, any and all claims under any state, federal, and/or local statutory, constitutional, common law claim or tort cause of action, claims of wrongful termination, termination in violation of public policy, discrimination, harassment, constructive discharge, defamation, intentional or negligent infliction of emotional distress, retaliation, lost wages, breach of contract or implied contract, unjust enrichment, detrimental reliance, claims arising from or relating to Employee’s right to purchase, or actual purchase of, shares of stock of Castle, and/or claims for wages, bonuses, compensation, incentives, or benefits owed, as well as any alleged violation of Title VII of the Civil Rights Act of 1964, as amended; the Civil Rights Act of 1991; Sections 1981 through 1988 of Title 42 of the United States Code, as amended; the Employee Retirement Income Security Act of 1974, as amended; the Family and Medical Leave Act of 1993, as amended; the Immigration Reform and Control Act, as amended; the Pregnancy Discrimination Act, the Fair Labor Standards Act, as amended; the Equal Pay Act, as amended; the Age Discrimination in Employment Act, as amended; the Americans with Disabilities Act, as amended; the Occupational Safety and Health Act, as amended; the Sarbanes-Oxley Act of 2002, the Older Workers Benefit Protection Act, the Fair Credit Reporting Act, the National Labor Relations
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Act, as amended; the Equal Pay Act, as amended; the Age Discrimination in Employment Act, as amended; the Americans with Disabilities Act, as amended; the Occupational Safety and Health Act, as amended; the Sarbanes-Oxley Act of 2002, the Older Workers Benefit Protection Act, the Fair Credit Reporting Act, the National Labor Relations Act, the Texas Labor Code including the Texas Payday Act, the Texas Anti-Retaliation Act, Chapter 21 of the Texas Labor Code, the Texas Whistleblower Act, and/or any other alleged violation of any federal, state or local law, regulation, order or ordinance dealing with employment, discrimination, retaliation or harassment in employment or any claim under any statute or at common law, including claims based on contract (express or implied) or public policy or tort;
c.understands that this is a full and complete release of all claims, demands, and causes of action raised or that could have been raised by Employee against Castle, including all actions, claims, and grievances known or unknown; and
d.represents that Employee has no charges, complaints, lawsuits, proceedings, or claims of any kind pending against the Released Parties.
6.Exceptions to the Release; Protected Rights. Castle and Employee understand and agree that the above release does not waive claims: (a) for worker’s compensation or unemployment compensation, (b) for vested rights under ERISA-covered employee benefit plans (e.g., 401(k) retirement plan), and (c) any rights Employee may have to continue Employee’s health insurance benefits under certain provisions of COBRA. In addition, Employee understands that nothing in this Agreement limits Employee’s ability to file a charge or complaint with the Equal Employment Opportunity Commission, the Department of Labor, the National Labor Relations Board, the Occupational Safety and Health Administration, the Securities and Exchange Commission or any other federal, state or local governmental agency or commission (the “Government Agencies”). Employee further understands this Agreement does not limit Employee’s ability to 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 Employee’s right to receive an award for information provided to the Securities and Exchange Commission, Employee understands and agrees that, to the maximum extent permitted by law, Employee is otherwise waiving any and all rights Employee may have to individual relief based on any claims that Employee has released and any rights Employee has waived by signing this Agreement.
7.Return of Confidential Information and Other Property. Employee agrees and represents that, except for certain documents, equipment, and/or information as expressly authorized by the Company as reasonably necessary to perform the Consulting Services under the MSA, (a) Employee has returned all Castle property (including specifically the Castle-provided laptop and other assigned company property); (b) Employee has returned Castle all Confidential Information (as defined herein), property or assets, written, recorded or computer-readable information or materials (including copies thereof) (the “Confidential Materials”) regarding Castle (including, but not limited to, business practices, procedures, strategy, clients or personnel), equipment (including computer hardware or software and/or any memory storage devices), keys, credit cards and identification; (c) and warrants that Employee has not retained any copies of documents, records or materials of any kind, whether written or electronically created or stored, which contain, relate to or refer to any Confidential Materials; and (d) Employee has not disclosed and will not disclose any Confidential Information or Confidential Materials to any person or entity without the express written authorization of an authorized officer of Castle. For this Agreement, “Confidential Information” includes, but is not limited to, this Agreement or the contents of this Agreement, research materials, algorithms, customer lists, databases, computer programs, and software designs, models, marketing programs and plans, sales, financial, training and technical information and
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plans, business methods, business policies, procedures, techniques, research, projects, trade secrets, pricing policies, financial records, or other financial, commercial, business or technical information relating to Castle. All records, files, drawings, documents, models, disks, equipment and the like relating to the business of Castle that Employee prepared or used or came in contact with during Employee’s employment by Castle will be and remain the sole property of Castle.
8.Continuing Obligations. Employee acknowledges and agrees to abide by Employee’s continuing obligations to Castle under the Confidentiality Agreement, a copy of which is attached hereto as Exhibit B and incorporated herein by reference.
9.No Admission of Liability. This Agreement, the Severance Benefits under this Agreement, and compliance with this Agreement shall not be construed as an admission by Castle of any liability whatsoever, or as an admission of any violation of the rights of Employee or any person, or violation of any order, law, statute, duty, or contract whatsoever against Employee or any person. Castle specifically disclaims any liability to Employee or any other person for any alleged violation of the rights of Employee, or for any alleged violation of any order, law, statute, duty, or contract on the part of Castle, its current or former employees or agents or related companies or their employees or agents.
10.Non-Disparagement. Except as may be required by law or legal process, Employee agrees that Employee shall not:
a.engage in any act or make any communication (written or verbal by mechanical or electronic means) that is intended, or may reasonably be expected, to harm Castle’s reputation, business prospects, or business operations, otherwise interfere or harm the reputation of Castle’s referral physicians, customers, employees, officers or directors;
b.communicate with any person (written or verbal by mechanical or electronic means including specifically any current or former Castle employee, patient or physician) concerning specifically the terms of this Agreement, the actions or omissions of any Castle employee, officer or director; provided however that Employee may communicate with any person concerning any personal or business issue unrelated to Castle;
c.and provided further that Castle will instruct its officers and directors not to engage in any act or make any communication (written or verbal by mechanical or electronic means) that is intended, or may reasonably be expected, to harm Employee’s reputation.
11.Employment Inquiries. Should Castle receive any inquiry concerning the employment by Castle of Employee, then Castle will provide solely a standard, neutral response to employment inquiries providing only confirmation of prior employment, with dates of employment, last position held and base salary, if requested.
12.Representations. Employee hereby represents that Employee has been paid all compensation owed and for all time worked, Employee has received all the leave and leave benefits and protections for which Employee is eligible pursuant to applicable laws or Castle’s or ADP’s policies, and Employee has not suffered any on-the-job injury or illness for which Employee has not already filed a workers’ compensation claim.
13.Miscellaneous.
a.Entire Agreement and Modification. This Agreement (together with the Confidentiality Agreement) sets forth the entire agreement between the parties with respect to the termination
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of Employee’s employment and fully supersedes any and all prior plans, policies, agreements, contracts, arrangements or understandings between the parties, oral or written, or which have covered Employee during her period of employment with Castle. The parties further agree that this Agreement (together with the Confidentiality Agreement) may not be modified, altered or changed except by a written agreement signed by the parties. This Agreement (together with the Confidentiality Agreement) shall be binding upon and inure to the benefit of the parties, their respective heirs, successors, affiliates, corporate parents, subsidiaries, agents, representatives, assigns, executors, administrators, insurers, consultants, contractors, and employees.
b.Severability. Should any provision of this Agreement be held to be illegal, void, voidable, unlawful or, for any reason, unenforceable by a court of competent jurisdiction, such provision shall be of no force and effect. However, the illegality or unenforceability of any such provision shall have no effect upon, and shall not impair the enforceability of, any other provision of this Agreement and the remaining portion(s) of this Agreement shall remain in full force and effect and, to that end, the provisions of this Agreement are declared to be severable.
c.Governing Law. Each of the parties to this Agreement (a) consents to the exclusive jurisdiction and venue of the Courts of the State of Texas in any and all actions between or among any of the parties and (b) consents to service of process by first-class certified mail, return receipt requested, postage prepaid. This Agreement and any issues arising from it or regarding its provisions shall be governed and construed under the procedural and substantive laws of the State of Texas without reference to the choice of law rules of the State of Texas. Whenever possible, each provision of this Agreement shall be interpreted in such a manner as to be effective and valid under applicable laws.
d.Execution in Counterparts. This Agreement may be executed in counterparts, and when each party has signed and delivered at least one such counterpart, each counterpart shall be deemed an original, and, when taken together with other signed counterpart, shall constitute one Agreement, which shall be binding upon both parties. The exchange of signed copies of this Agreement by facsimile or via electronic (PDF file) format by email will constitute effective execution and delivery of this Agreement and may be used in the lieu of the original Agreement for all purposes.
e.Binding Effect. This Agreement shall be binding upon and inure to the benefit of the parties, their respective heirs, successors, affiliates, corporate parents, subsidiaries, agents, representatives, assigns, executors, administrators, insurers, consultants, contractors, and employees.
14.Review. Employee acknowledges that Employee is knowingly and voluntarily waiving and releasing rights Employee may have, including those under the Age Discrimination in Employment Act (ADEA) and the Older Workers Benefit Protection Act (OWBPA). Employee further acknowledges and understands that Employee has been advised by written means that:
a.Employee should, and has been provided an opportunity to, consult an attorney before signing this Agreement;
b.Employee has twenty-one (21) days to consider whether Employee wishes to sign this Agreement (and provide the release contained herein); and
c.By signing this Agreement, Employee does not waive rights or claims that may arise after the later of the Effective Date or the date that this Agreement is revoked.
15.Revocation; Effective Date. Employee further acknowledges and understands that:
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a.Even after Employee signs this Agreement, Employee has seven (7) days to revoke this Agreement;
b.If Employee decides to revoke this Agreement then Employee should immediately notify Castle in writing (by delivery of such written revocation to Castle, ATTN: Human Resources Department) of Employee’s decision to revoke this Agreement; and
c.This Agreement will not be effective until the date upon which the revocation period has expired, which will be the eighth day after the date that this Agreement is signed by Employee provided that Employee does not revoke it (the “Effective Date”).
16.Knowing and Voluntary. Employee acknowledges that the consideration recited in this Agreement is adequate to make it final and binding, and is in addition to payments or benefits to which Employee would otherwise be entitled. Castle and Employee agree that the covenants and/or provisions of this Agreement may not be modified by any subsequent agreement unless the modifying agreement is in writing and is signed by both parties. EMPLOYEE FURTHER STATES THAT EMPLOYEE HAS CAREFULLY READ THE FOREGOING AGREEMENT, THAT EMPLOYEE KNOWS AND UNDERSTANDS THE CONTENTS THEREOF, THAT EMPLOYEE EXECUTES THE SAME AS EMPLOYEE’S OWN FREE ACT AND DEED, AND THAT EMPLOYEE EXECUTES THIS SEPARATION KNOWINGLY AND VOLUNTARILY.
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THE UNDERSIGNED HAVE READ THIS AGREEMENT AND FULLY UNDERSTAND THAT IT IS A LEGALLY BINDING DOCUMENT, WHICH CONTAINS A RELEASE OF ALL KNOWN AND UNKNOWN CLAIMS, AND VOLUNTARILY AGREE TO THE TERMS OF THIS AGREEMENT.
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EMPLOYEE:
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FEDERICO A. MONZON, M.D.
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By:
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/s/ Federico A. Monzon
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Printed Name:
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Federico A. Monzon
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Date:
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5/29/2020
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EMPLOYER:
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CASTLE BIOSCIENCES, INC.
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By:
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/s/ Derek Maetzold
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Printed Name:
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Derek Maetzold
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Title:
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President and CEO
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Date:
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5/29/2020
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Exhibit A – Master Services Agreement
Exhibit B – Confidentiality Agreement
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Exhibit A
MASTER SERVICES AGREEMENT
Exhibit B
CONFIDENTIALITY AGREEMENT
Exhibit 10.2
MASTER SERVICES AGREEMENT
This Master Services Agreement ("Agreement") is made and entered into as of 5/29/2020 by and between Castle Biosciences, Inc., a Delaware corporation located at 820 S Friendswood Dr., Suite 201 , Friendswood, TX 77546 (herein referred to as "Castle"), and Genomic Path LLC, ________________________ (herein referred to as "Consultant").
RECITALS
WHEREAS, Federico A. Monzon, M.D. (herein referred to as the “Employee”), the owner of Genomic Path LLC, and Castle have entered into an Employment Separation Agreement dated May 29, 2020 (herein referred to as the “Separation Agreement”), pursuant to which Employee’s employment with Castle will end effective May 31, 2020;
WHEREAS, Consultant provides services as a clinical consultant/medical director; and,
WHEREAS, Castle wishes to utilize the expertise of Consultant to perform certain services for Castle, and Consultant desires, pursuant to the terms and conditions set forth herein and defined in Exhibit A, to provide such services. Services may be performed remotely as allowed by regulations and statutes.
NOW, THEREFORE, in consideration of the mutual promises made herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Consultant and Castle hereby agree as follows.
AGREEMENT
1.Services. Consultant will perform certain services for Castle from time to time as described in Exhibit A attached hereto (the “Services”). Castle may, from time to time, engage Consultant in specific projects for which an amended Scope of Work and associated payment terms are required. Such projects will be subject to the terms of this agreement except as further defined in a specific Scope of Work to be appended hereto as Exhibit B, Exhibit C, and so forth.
2.Compensation & Payment.
a.Rate: During the Consulting Period, Consultant will be compensated at the rate specified in Exhibit A.
b.Payment timing: Consultant will invoice Castle for Services as outlined in Exhibit A monthly. Castle agrees to pay all invoices within thirty (30) days after the receipt of invoice for the Services. Castle’s obligation to pay for Services rendered prior to termination of the Agreement shall survive termination of this Agreement.
c.Stock options: Employee’s employment will terminate in accordance with the Separation Agreement and as of the last date of employment will have stock options that have not yet vested. While this Agreement is in effect (a) unvested options will continue to vest per terms of the option grant and (b) the options will remain exercisable pursuant to the terms of the 2008, 2018 and 2019 Stock Option Plans (as defined below).
For clarity, this Agreement does not modify any of the terms or conditions of any stock option agreement previously awarded to Employee when in the employ of Castle. Accordingly, for the options previously granted to Employee under the Castle Biosciences, Inc. 2008 Stock Plan (the “2008 Plan”), the Castle Biosciences, Inc. 2018 Equity Incentive Plan (the “2018 Plan”) and the Castle Biosciences, Inc. 2019 Equity Incentive Plan (the “2019 Plan”) and in accordance with the terms of such plans and the related award agreements, the options, to the extent not already vested and notwithstanding any other terms or conditions to the contrary included in such award agreements or plans, shall continue to vest in accordance with their original vesting schedules unless Employee ceases to be a Service Provider (as defined in and with respect to options granted under the 2008 Plan) or otherwise has a termination of Continuous Service (as defined
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in and with respect to options granted under the 2018 Plan and the 2019 Plan). For the avoidance of doubt, Castle and Consultant agree that immediately upon commencement of the Services and during the Consulting Period (as defined below), Employee is deemed to continue, uninterrupted, to be a Service Provider (as that term is used in the 2008 Plan) and is deemed to continue, uninterrupted, to provide Continuous Service (as that term is used in the 2018 Plan and the 2019 Plan). Castle and Consultant also agree that the immediate transition from the role of employee to consultant contemplated as part of the Separation Agreement and this Agreement does not represent a termination of relationship as a Service Provider (with respect to the 2008 Plan) and does not represent a termination of Continuous Service (with respect the 2018 Plan and the 2019 Plan) given the immediate commencement of the Consulting Services upon termination of employment.
Unless terminated earlier in accordance with this Agreement or renewed in accordance with this Agreement, the Services shall terminate automatically on May 31, 2021. If, prior to the scheduled termination date or other termination of the Services, the Agreement is terminated by either party for any reason, the Services shall automatically terminate on the applicable date of the event. Upon termination of the Services, Employee shall cease to be a Service Provider under the 2008 Plan and Employee’s Continuous Service shall terminate under the 2018 Plan and 2019 Plan and, accordingly, all unvested options as of that date will be forfeited, in accordance with the terms and conditions applicable to such options.
3.Term and Termination.
a.This Agreement shall remain in effect, unless earlier terminated in accordance with the provisions of this Agreement, for an initial period of one (1) year until May 31, 2021 (“Consulting Period”). Thereafter, it may be renewed for consecutive one (1) year periods by mutual written agreement, and any such renewal periods shall become part of the Consulting Period.
b.Notwithstanding the foregoing, this Agreement may be terminated:
i.by Consultant for any reason by providing thirty (30) days’ prior written notice to Castle;
ii.automatically upon the occurrence of any event bankruptcy, insolvency or liquidation of any party;
iii.immediately by Castle, for any reason with or without prior written notice; or
iv.immediately by Castle with or without prior written notice in the event that Consultant (a) ceases to provide, or is unwilling or unable to provide at least 40 hours of Services to Castle on a monthly basis; (b) fails to cure any substantial failure to diligently perform the Services within thirty (30) days of Castle’s written notice specifying such failure and indicating its intention to terminate this Agreement; or (c) Employee begins a full-time employment position at diagnostics company or institution and works in a medical director or chief medical officer role that has duties similar to (1) those performed during Employee’s employment with Castle or (2) the Services.
4.Confidentiality / Disclosure / Intellectual Property – Trade Secret Improvements/ Insider Trading.
a.Consultant will treat as confidential Castle’s Confidential Information (defined below), and will take precautions equivalent to those it uses to protect its own most highly confidential information (which must be at least reasonable precautions) to ensure the continued confidentiality of such information and to prevent its unauthorized access and disclosure. Consultant agrees to return to Castle upon the expiration or termination of this Agreement or earlier request all Confidential Information acquired from Castle, except as to such information as it may be required to retain under applicable law. During the term of this Agreement and thereafter, Consultant shall not, without Castle’s prior written consent, use or disclose any Confidential Information for a purpose other than as expressly contemplated by this Agreement to carry out its obligations hereunder. Prior to disclosure of Confidential Information to any employee, consultant, advisor or any other person, Consultant shall ensure that such person is bound in writing to observe confidentiality, non-disclosure and non-use restrictions substantially equivalent with the restrictions contained in this Agreement. If Castle or Consultant are required by law to disclose all or any part of the
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Confidential Material, each party agrees to (i) immediately notify the other of the existence, terms and circumstances surrounding such a request, (ii) consult with the other on the advisability of taking legally available steps to resist or narrow such request, and (iii) exercise its commercially reasonable best efforts to obtain an order or other reliable assurance that confidential treatment will be accorded to such portion of the Confidential Material required to be disclosed.
b.“Confidential Information” means all trade secrets and other non-public proprietary information of Castle of any kind whatsoever (including without limitation, know-how, data, compilations, formulae, product specifications, financial models, patent disclosures, procedures, processes, projections, forecasts, protocols, results of experimentation and testing, specifications, strategies and techniques), and all tangible and intangible embodiments thereof of any kind whatsoever (including without limitation, apparatus, compositions, documents, drawings, machinery, formulae, prototypes, patent applications, records and reports) , which is disclosed by Castle to Consultant in writing, orally or by observation. Notwithstanding the foregoing, except as to trade secrets, Confidential Information shall not include information which Consultant can establish (i) to have been publicly known prior to disclosure of such information by Castle to Consultant, (ii) to have become publicly known, without fault on the part of Consultant, subsequent to disclosure of such information by Castle to Consultant, (iii) to have been received by Consultant at any time from a source, other than Castle, rightfully having possession of and the right to disclose such information, or (iv) to have been otherwise known by Consultant as evidenced by its own written records prior to disclosure of such information by Castle to Consultant.
c.Each party shall comply with all applicable laws, rules and regulations in performing its obligations hereunder, including, without limitation, applicable state and federal physician self-referral and anti-kickback laws and regulations, as well as the Health Insurance Portability and Accountability Act of 1996, as amended (“HIPAA”), and the rules promulgated thereunder (including the Standards for Privacy of Individually Identifiable Health Information). The parties agree to enter into a customary HIPAA Business Associate Agreement upon entering into this Agreement.
d.Intellectual Property / Trade Secret Improvements. Consultant agrees that if in the course of performing the Services hereunder, Consultant incorporates into any Service any invention, improvement, development, concept, discovery or other proprietary information owned by Consultant or in which Consultant has an interest, (i) Consultant shall inform Castle, in writing before incorporating such invention, improvement, development, concept, discovery or other proprietary information into any Service; and (ii) Castle is hereby granted and shall have a nonexclusive, royalty-free, perpetual, irrevocable, worldwide license to use, perform, display, make, reproduce, make derivative works, import, sell, offer for sale, license, distribute, and otherwise dispose of such invention, improvement, development, concept, discovery or other proprietary information as part of or in connection with such Work Product, with the right to license such rights to others. Consultant shall not incorporate any invention, improvement, development, concept, discovery or other proprietary information owned by any third party into any Service without Castle’s prior written permission.
e.Insider Trading. Consultant acknowledges receipt of a copy of Castle’s insider trading policy and agrees to comply with such policy as may be in effect from time to time.
5.Restrictive Covenants.
a.Solicitation of Employees. Consultant agrees that for a period of three (3) years immediately following the termination of this Agreement for any reason, whether with or without cause, at the option either of Castle or Consultant, with or without notice, Consultant will not, either directly or indirectly, solicit, induce, recruit or encourage any of Castle’s employees to leave their employment, or hire or take away such employees, or attempt to solicit, induce, recruit, encourage, hire or take away employees of Castle, either for Consultant or for any other person or entity.
b.No Interference. Consultant agrees that during the course of this Agreement and for a period of three (3) years immediately following the termination of this Agreement for any reason, whether with or without
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cause, at the option either of Castle or Consultant, with or without notice, Consultant will not, either directly or indirectly, interfere with Castle’s customer relationships.
c.No Conflict of Interest. During the term of this Agreement, Consultant will not accept work, enter into a contract, or accept an obligation from any third party, inconsistent or incompatible with Consultant’s obligations under this Agreement, or the scope of Services. Consultant warrants that there is no other contract or duty on its part inconsistent with this Agreement. Consultant agrees to indemnify Castle from any and all loss or liability incurred by reason of the alleged breach by Consultant of any services agreement with any third party.
d.Covenant Not to Compete: Consultant agrees that during the course of this Agreement and for a period of one (1) year immediately following the termination of this Agreement for any reason, whether with or without cause, at the option either of Castle or Consultant, with or without notice, Consultant and Employee will not, either directly or indirectly, (i) serve as an advisor, agent, consultant, director, employee, officer, partner, proprietor or otherwise of, (ii) have any ownership interest in (except for passive ownership of one percent (1%) or less of any entity whose securities have been registered under the Securities Act of 1933, as amended, or Section 12 of the Securities Exchange Act of 1934, as amended) or (iii) participate in the organization, financing, operation, management or control of, any business in competition with Castle’s business as conducted by Castle at any time during the course of Employee’s employment and/or Consultant’s consulting relationship with Castle. The foregoing covenant shall cover Consultant’s activities in every part of the Territory, as defined herein, to the extent permitted by applicable law. “Territory” shall mean: (i) all counties in the State of Texas, (ii) all other states of the United States of America and (iii) all other countries of the world; provided that, with respect to clauses (ii) and (iii), Castle maintains non-trivial operations, facilities, or customers in such geographic area prior to the date of this Agreement.
Consultant acknowledges and agrees that Consultant’s fulfillment of the obligations contained in this Agreement, including, but not limited to, Consultant’s obligation neither to use, except for the benefit of Castle, or to disclose Castle’s Confidential Information and Consultant’s obligations in this Section are necessary to protect Castle’s Confidential Information and to preserve Castle’s value and goodwill. Consultant further acknowledge the time, geographic and scope limitations of Consultant’s obligations under this Section are reasonable, especially in light of Castle’s desire to protect its Confidential Information, and that Consultant will not be precluded from gainful employment if Consultant is obligated not to compete with Castle during the period and within the Territory as described above.
The covenants contained in this Section shall be construed as a series of separate covenants, one for each city, county and state of any geographic area in the Territory. Except for geographic coverage, each such separate covenant shall be deemed identical in terms to the covenant contained in this Section. If, in any judicial or arbitration proceeding, a court or arbitrator refuses to enforce the covenants in this Section (or any part thereof), then such unenforceable covenant (or such part) shall be eliminated from this Agreement to the extent necessary to permit the remaining separate covenants (or portions thereof) to be enforced. In the event the provisions of this Section are deemed to exceed the time, geographic or scope limitations permitted by applicable law, then such provisions shall be reformed by the court or arbitrator to cover the maximum time, geographic or scope limitations, as the case may be, then permitted by such law.
6.Independent Contractor Relationship. Consultant’s relationship with Castle is that of an independent contractor, and nothing in this Agreement is intended to, or should be construed to, create a partnership, agency, joint venture or employment relationship between Castle and any of Consultant’s employees or agents. Consultant is not authorized to make any representation, contract or commitment on behalf of Castle. Consultant (if Consultant is an individual) and Consultant’s employees will not be entitled to any of the benefits that Castle may make available to its employees, including, but not limited to, group health or life insurance, profit-sharing or retirement benefits. Because Consultant is an independent contractor, Castle will not withhold or make payments for social security, make unemployment insurance or disability insurance contributions, or obtain workers’ compensation insurance on behalf of Consultant. Consultant is solely responsible for, and will file, on a timely basis, all tax returns and payments required to be filed with, or made to, any federal, state or local tax authority with respect to the performance of Services and receipt of fees under this Agreement. Consultant is solely responsible for, and must maintain adequate
Service Agreement – Federico A. Monzon, M.D.
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records of, expenses incurred in the course of performing Services under this Agreement. No part of Consultant’s compensation will be subject to withholding by Castle for the payment of any social security, federal, state or any other employee payroll taxes. Castle will regularly report amounts paid to Consultant by filing Form 1099-MISC with the Internal Revenue Service as required by law. If, notwithstanding the foregoing, Consultant is reclassified as an employee of Castle, or any affiliate of Castle, by the U.S. Internal Revenue Service, the U.S. Department of Labor, or any other federal or state or foreign agency as the result of any administrative or judicial proceeding, Consultant agrees that Consultant will not, as the result of such reclassification, be entitled to or eligible for, on either a prospective or retrospective basis, any employee benefits under any plans or programs established or maintained by Castle.
7.Exclusivity. Nothing in this Agreement shall be deemed to grant Consultant any form of exclusivity, and Castle will be entitled to act independently, or to retain the services of others, for the purpose of performing the Services. Throughout the Consulting Period, Consultant retains the right to engage in employment, consulting, or other work relationships in addition to the Services for the Company, so long as such activities do not present a conflict of interest with Castle’s business, or interfere with Consultant’s continuing obligations owed to Castle. In the event that it unclear to Consultant whether a particular activity would breach this commitment, Consultant agrees to contact Castle to seek clarification prior to engaging such activity.
8.Indemnification. Each party shall indemnify and save harmless the other for, from and against all actions, liabilities, losses, damages, claims and demands whatsoever, including costs, expenses and attorneys’ fees resulting from or claimed to have resulted from any intentional or negligent acts or omissions of the other party or its employees or agents engaged in the work under this Agreement at the time of the event or occurrence upon which such actions, claims or demands are based. Castle further indemnifies Consultant against any and all claims of malpractice related to services performed under this Agreement.
9.Entire Agreement. This Agreement sets forth the entire understanding and agreement of the parties with respect to the subject matter hereof and supersedes all prior and/or contemporaneous understandings, negotiations, representations and writings relating thereto. No provision of this Agreement may be amended or modified, orally or otherwise, except by a writing signed by the party against which the modification or amendment is sought to be enforced.
10.Disclaimer of Other Relationships. This Agreement shall not create a relationship of employment, agency, partnership, or joint venture, or a license between the parties. Moreover, this Agreement shall not obligate either party to enter into any business relationship with the other party or to purchase or sell any products or services from the other party. Consultant shall not be, and shall not represent itself as being, authorized to bind Castle, as agent or otherwise.
11.Equitable Remedies. Both parties recognize and agree that Castle may suffer irreparable damage as a result Consultant’s breach of Sections 4 and 5. Consultant agrees that if Castle is injured by a breach or a threatened breach of Sections 4 and 5, Castle shall have the ability to seek the remedy of a restraining order or other appropriate equitable relief to enforce this Agreement in addition to all other remedies provided by law without the need to post a bond or prove irreparable harm.
12.Agreement to Arbitrate All Disputes. To ensure the timely and economical resolution of disputes that may arise between Consultant and Castle, both Consultant and Castle mutually agree that pursuant to the Federal Arbitration Act, 9 U.S.C. §1-16, and to the fullest extent permitted by applicable law, Consultant and Castle will submit solely to final, binding and confidential arbitration any and all disputes, claims, or causes of action arising from or relating to: (i) the negotiation, execution, interpretation, performance, breach or enforcement of this Agreement; or (ii) Consultant’s relationship with Castle (including but not limited to all statutory claims); or (iii) the termination of Consultant’s relationship with Castle (including but not limited to all statutory claims). BY AGREEING TO THIS ARBITRATION PROCEDURE, BOTH CONSULTANT AND CASTLE WAIVE THE RIGHT TO RESOLVE ANY SUCH DISPUTES THROUGH A TRIAL BY JURY OR JUDGE OR THROUGH AN ADMINISTRATIVE PROCEEDING. The arbitrator shall have the sole and exclusive authority to determine whether a dispute, claim or cause of action is subject to arbitration under this Section and to determine any procedural questions which grow out of such disputes, claims or causes of action and bear on their final disposition. All claims, disputes, or causes of action under this Section, whether by Consultant or Castle, must be brought solely in an individual capacity, and
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shall not be brought as a plaintiff (or claimant) or class member in any purported class or representative proceeding, nor joined or consolidated with the claims of any other person or entity. The arbitrator may not consolidate the claims of more than one person or entity, and may not preside over any form of representative or class proceeding. To the extent that the preceding sentences in this paragraph are found to violate applicable law or are otherwise found unenforceable, any claim(s) alleged or brought on behalf of a class shall proceed in a court of law rather than by arbitration. Any arbitration proceeding under this Section shall be presided over by a single arbitrator and conducted by JAMS, Inc. (“JAMS”) or its successor, under the then applicable JAMS Comprehensive Arbitration Rules & Procedures available upon request and also currently available at https://www.jamsadr.com/rules-comprehensive-arbitration/). Consultant and Castle both have the right to be represented by legal counsel at any arbitration proceeding, at each party’s own expense. The location of the arbitration proceeding shall take place Harris County, Texas. The arbitrator shall: (i) have the authority to compel adequate discovery for the resolution of the dispute; (ii) issue a written arbitration decision, to include the arbitrator’s essential findings and conclusions and a statement of the award; and (iii) be authorized to award any or all remedies that Consultant or Castle would be entitled to seek in a court of law. Castle shall pay all JAMS arbitration fees in excess of the amount of court fees that would be required of Consultant if the dispute were decided in a court of law. This Section shall not apply to any action or claim that cannot be subject to mandatory arbitration as a matter of law, to the extent such claims are not permitted by applicable law to be submitted to mandatory arbitration and such applicable law is not preempted by the Federal Arbitration Act or otherwise invalid (collectively, the “Excluded Claims”). In the event Consultant intends to bring multiple claims, including one of the Excluded Claims listed above, the Excluded Claims may be filed with a court, while any other claims will remain subject to mandatory arbitration. Nothing in this Section is intended to prevent either Consultant or Castle from obtaining injunctive relief in court to prevent irreparable harm pending the conclusion of any such arbitration. Any final award in any arbitration proceeding hereunder may be entered as a judgment in the federal and state courts of any competent jurisdiction and enforced accordingly.
13.Attorneys’ Fees. In the event any legal action or agreed upon arbitration or mediation is instituted with respect to this Agreement or any obligation arising hereunder, the prevailing party shall be entitled to recover its reasonable attorneys’ fees and costs, and fees and costs of accountants and expert witnesses as determined by the court, arbitrator or mediator. Except as otherwise specifically provided herein, Castle and Consultant shall each pay their own fees and expenses incident to the negotiation, preparation, execution and performance of this Agreement, including without limitation, all fees and expenses of their own counsel, accountants and other advisers.
14.Due Authority. Each party hereto represents and warrants that it has all necessary authority, power and right necessary to enter into and bind it, its principals and employees to the terms of this Agreement.
15.No Waiver. No waiver of compliance by one party with any term or condition of this Agreement that such other party was or is obligated to comply with is effective unless in writing; provided that such waiver shall not operate as a waiver of, or estoppel with respect to, any other or subsequent failure. No failure to exercise and no delay in exercising any right, remedy or power hereunder shall operate as a waiver thereof; nor shall any single or partial exercise of any right, remedy or power hereunder preclude any other or further exercise thereof or exercise of any other right, remedy or power provided herein or by law or in equity.
16.Governing Law. The validity, performance, construction, interpretation, and effect of this Agreement shall be governed by and construed in accordance with the internal laws of the State of Texas (excluding its laws relating to conflicts of laws).
17.Construction. Each party hereto has had an opportunity to review and revise this Agreement, so the rule of construction to the effect that any ambiguities are to be resolved against the drafting party shall not be employed in the interpretation or construction of this Agreement.
18.Severability. If any provision of this Agreement, or the application thereof to any circumstance, person or place, shall be held by a court or other tribunal of competent jurisdiction to be invalid, unenforceable or void, the remainder of this Agreement and such provisions as applied to other circumstances, persons or places shall remain in full force and effect.
19.Counterparts & Facsimile Signatures. This Agreement may be executed in counterparts, in which event all executed copies taken together or a copy with all of the signature pages attached thereto, shall constitute one and the
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same instrument, and shall become effective when one or more counterparts have been signed by each party and delivered to the other party. The facsimile or electronic transmission of signatures to this Agreement shall be valid, legal and binding on all parties hereto.
20.No Assignment. Consultant agrees that it will not assign, delegate or otherwise transfer, in whole or in part, directly or indirectly whether voluntarily, involuntarily, or by operation of law, any rights or obligations under this Agreement. Any purported assignment, transfer or delegation in violation of this Section shall be null and void. Subject to the foregoing limits on assignment, this Agreement shall be binding upon and inure to the benefit of the parties and their respective heirs, executors, administrators and permitted successors and assigns. This Agreement does not create and shall not be construed as creating any rights enforceable by any person not a party to this Agreement.
21.Notices. All notices and other communications required or permitted under this Agreement shall be in writing and shall be delivered in person (in which case notice is deemed given when received the addressee) or sent by overnight air courier service (in which case notice shall be deemed given when received by addressee or on the second (2nd) day after the date of delivery to the courier, whichever is earlier), or by registered or certified mail, return receipt requested, postage prepaid and properly addressed (in which case notice shall be deemed given when received by the addressee or on the fifth (5th) day after the date of mailing, whichever is earlier), to the addresses set forth below, or such other address as a party may hereafter provide notice of to the other:
If to Consultant:
Genomic Path LLC
c/o Federico Monzon, M.D.
______________________
______________________
______________________
______________________
If to Castle:
Castle Biosciences, Inc
Derek Maetzold
President
______________________
______________________
______________________
______________________
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written.
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CASTLE BIOSCIENCES, INC.
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CONSULTANT
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/s/ Derek Maetzold
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/s/ Federico A. Monzon
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Derek Maetzold, CEO
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Federico A. Monzon, M.D.
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Fbo Genomic Path LLC
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5/29/2020
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5/29/2020
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Date
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Service Agreement – Federico A. Monzon, M.D.
Date: 5/29/2020
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Exhibit A
Hourly Rate: $350.00
A.Scope of Work
All assigned projects to be agreed to, in advance, by Bernhard Spiess or Derek Maetzold
It is anticipated that agreed to projects will include:
1.Provide project specific reimbursement support.
2.Provide guideline and manuscript support.
3.Message, copy and input on medical and commercial materials, including slide decks, web copy, etc as requested for all products.
4.Laboratory support.
5.Competitive intelligence and strategic planning.
Castle will endeavor to provide Consultant at least 10 business days’ notice of adjustment for Services. Consultant will inform Castle (to the best of his ability) of upcoming periods of unavailability.
The Consultant agrees that the Services will be performed only by Federico A. Monzon, M.D.
B.Payment Terms:
Castle shall pay undisputed invoices within thirty (30) days of receipt of invoice, provided that Castle shall notify Consultant of any disputed invoices within thirty (30) days of receiving such invoice and shall pay any undisputed amounts. Provided that Castle pays undisputed amounts, Consultant shall continue to conduct Services during which time the parties shall use commercially reasonable efforts to resolve the disputed amounts. Castle’s obligation to pay for Services rendered prior to termination of the Agreement shall survive termination of this Agreement.
Any work required to be performed on site at Castle shall be billed at a minimum of 1.0 hours, with ¼ hour increments thereafter. Offsite work shall be billed in ¼ hour increments.
C.Other Terms:
For all Services, Consultant shall:
1.Only use ________________ for electronic communication inside and outside of Castle
2.Refer as Consultant Medical Director inside an outside of Castle
For personal computer use, Castle is providing an Apple Macbook Pro laptop to be used solely for Services during the Term of this Agreement. Equipment is to be returned within forty-eight (48) hours upon Termination of this Agreement.
Service Agreement – Federico A. Monzon, M.D.
Date: 5/29/2020
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