Quote from Martin Schweiger on April 16, 2019, 6:40 am

a) While the right answers to questions 2 and 3 are obviously "false", question 1 is trickier.

A director is not necessarily an employee of a company. He is also an organ of the company, and he can have rights and provide contributions that belong to him and not automatically to the company.

b) Question 4 is also tricky. An option to negotiate a license usually overrides the principle of "freedom of contract", so it can become legally binding and may introduce legal exposures.

Example USA: SIGA and PharmAthene fully negotiated a two page license agreement term sheet. The term sheet included a footer that stated “Non Binding Terms.” The parties then proceeded to enter into a merger agreement instead of the license agreement. The merger agreement provided that, upon termination of the merger for any reason, the parties would negotiate in good faith a definitive license agreement in accordance with the term sheet. The case went completely sour.

On appeal, the Court ruled that an agreement to negotiate in good faith in accordance with a term sheet can be a legally-enforceable obligation, and the breaching party will be subject to expectation damages (not just reliance damages) if the evidence indicates that an agreement would have been reached in the absence of the breaching party’s bad faith. Expectation damages provide the non-breaching party with the full “benefit of its bargain.” In other words, the breaching party is liable to pay the non-breaching party everything it would have received had the agreement been entered into and fully-performed as promised. Nonetheless, to be eligible to receive expectation damages, the non-breaching must prove its damages with concrete evidence establishing to a reasonable certainty the nature and extent of the probable loss it has sustained or will in the future sustain. This is so because the law does not permit a recovery of damages that are merely speculative as demonstrated by conjecture, indeterminate estimates or mere assumptions.

https://www.delawarelitigation.com/files/2013/05/PharmAthene-Siga-opinion.pdf