INDEPENDENT CONSULTANT AGREEMENT
Exhibit 10.18
This Independent Consultant Agreement (the “Agreement”) is made and entered
into on July 20, 2006 by and between Asthmatx, Inc., a California corporation (“the Company”) and
Xxxxxxx X. Xxxxxx, MD (“Consultant”) effective December 26, 2003 (the “Effective Date”). Whereas
the Company and Consultant desire to create an “independent contractor” relationship in
connection with certain consulting services to be provided by Consultant to the Company, as
described below, the parties agree to the following terms of this engagement.
1. Position
Consultant, as an independent contractor, agrees to provide the services to the
Company as set forth in Exhibit A (“Services”).
2. Term
2.1 Completion of Services. This Agreement will become effective on the Effective
Date and shall continue in effect until April 1, 2008, unless terminated earlier as set forth
in Section 2.2.
2.2 Termination.
This Agreement may be terminated by the Company or the Consultant with or without cause
effective at least ten (10) days after the date notice of termination is delivered, as set forth
in Section 14, to Consultant or the Company, respectively. In the event of termination the
Company will pay Consultant the reasonable value of services rendered up to the date of notice of
termination, not to exceed the compensation set forth on Exhibit B.
3. Compensation
For the services provided by the Consultant hereunder, Company shall pay compensation
to Consultant in the amount and at the times set forth in Exhibit B.
4. Reimbursement
Consultant shall be reimbursed for Consultant’s out-of-pocket expenses, if any, in
connection with the performance of Consultant’s responsibilities under Paragraph 5 only to the
extent previously authorized in writing by an officer of the Company and reasonably incurred in
the performance of Consultant’s duties under this Agreement.
5. Responsibilities
(a) Consultant shall use his reasonable best efforts to perform and promptly
complete the Services set forth in Exhibit A.
1.
(b) Consultant will determine the method, details and means of performing the services
described above, but shall not employ any agents or employees in these matters without the prior
written consent of the Company.
(c) Consultant agrees to accept exclusive liability for the payment of payroll taxes,
self-employment taxes, and social security and other contributions that are based on the
compensation to be paid to Consultant under this Agreement and on the wages or other compensation
paid to any agents or employees of Consultant that the Company has authorized Consultant to
engage. Consultant agrees to indemnify and defend the Company against all such taxes or
contributions.
6. Ownership of Services and Royalties
6.1 Inventions and Original Works Assigned to the Company. Consultant will promptly
make full disclosure to the Company, will hold in trust for the sole right and benefit of the
Company, and will assign, and does hereby assign, to the Company all Consultant’s right, title,
and interest in and to any and all inventions, original works of authorship, developments,
designs, improvements, or trade secrets, related to or useful in the treatment of the airways of
the lungs for asthma (collectively “Inventions”) which Consultant may solely or jointly conceive
or make or reduce to practice, at any time during the term of Consultant’s consulting agreement
with the Company, together with all patent and other rights Consultant has or may acquire in all
countries.
Notwithstanding the foregoing, if Consultant conceives, makes or reduces to practice an Invention
that has uses both in the treatment of the airways of the lungs for asthma (“Asthma Uses”) and
other than for the treatment of the airways of the lungs for asthma (“Non-Asthma Uses”), then,
upon Consultant’s written request, the Company will grant Consultant, or Consultants
designee, a royalty-free, worldwide license to make, use and sell the Invention for Non-Asthma
Uses (to the extent of the Company’s rights). Such license shall be exclusive if no other Company
employee or consultant was a co-inventor, and otherwise shall be non-exclusive. If no other
Company employee or consultant was a co-inventor of the Invention and at or around the time of
the making of the Invention it is believed that the primary use of the Invention is for
Non-Asthma Uses, then Consultant may retain ownership of the Invention provided that he grants
the Company an exclusive, worldwide, royalty-free license to make, use and sell the Invention for
Asthma Uses, and provided that the Consultant diligently prosecutes patent coverage for the
Invention.
6.2 Obtaining Letters Patent and Copyright Registration. Consultant agrees to assist the
Company in every lawful way to obtain, prepare and prosecute applications for, to perfect the
Company’s title to, and to protect and enforce the Company’s rights in the United States or
foreign countries, letters patent, and copyright registrations and other intellectual property
covering Inventions assigned hereunder to the Company. Such obligations shall continue beyond the
termination of Consultant’s engagement, but the Company shall compensate Consultant at a
reasonable rate (not less than $250 per hour) for time actually spent by Consultant at the
Company’s request on such assistance after such termination. If the Company is unable for any
reason to secure Consultant’s signature to apply for or to pursue any application for any
2.
United States or foreign letters patent, or copyright registrations covering Inventions assigned
to the Company, then Consultant hereby irrevocably designates and appoints the Company and its
duly authorized officers and agents as Consultant’s agent and attorney-in-fact, to act for and in
Consultant’s behalf and stead to execute and file any such application and to do all other
lawfully permitted acts to further the prosecution and issuance of letters patent, copyright or
mask work registrations with the same legal force and effect as if executed by Consultant.
7. Independent Contractor Status
Consultant acknowledges that the Services rendered under this Agreement are for a specified
fee for certain intended results, and that Consultant is under the control of the Company only as
to the result of the Services and not as to the means by which this result is accomplished. As
such, Consultant acknowledges that Consultant is an independent contractor and accepts the legal
consequences of this status, including without limitation that (1) the Company has no obligation
to Consultant to maintain liability insurance to cover the risk, if any, that Consultant creates
in performing Services under this Agreement, (2) Consultant is excluded from the benefits of any
applicable state worker’s compensation insurance and acknowledges that Consultant must maintain
his own desired levels of medical, disability, life and other insurance or benefits, whether or
not he is injured while performing Services for the Company, (3) Consultant is excluded from
receiving state unemployment and disability insurance benefits, (4) the Company will not deduct
from Consultant’s compensation any amounts for federal or state income tax withholding, “FICA”
contributions, contributions to state disability funds or similar withholding, and (5) Consultant
is excluded from coverage of state and federal labor laws that may regulate the payment of
overtime wages or other matters affecting employees.
8. Cooperation After Termination
Following any notice of termination of this Agreement given pursuant to Paragraph 2.2
above or upon expiration of the term of this Agreement, Consultant shall fully cooperate with the
Company in all matters relating to the winding up of Consultant’s pending work on behalf of the
Company and the orderly transfer of any work or documents to the Company. The Company shall
compensate Consultant at a reasonable rate (not less than $250 per hour) for time spent by
Consultant after termination or expiration of the Agreement.
Consultant agrees that, at the time of terminating Consultant’s engagement with the Company
and at any other time the Company requests, Consultant will deliver to the Company (and will not
keep in Consultant’s possession or deliver to anyone else) any and all devices, materials,
records, data, notes, reports, proposals, lists, correspondence, specifications, drawings,
blueprints, sketches, equipment, other documents or property, or reproductions of any
aforementioned items belonging to the Company, its successors, or assigns. If the aforementioned
items are intermingled with Consultants own original documentation, and cannot be reasonably
separated, then the Consultant will provide copies of these materials to the Company. Consultant
will not, during or after Consultant’s engagement with the Company, deliver or transfer to any
person, or use, without authorization by the Company any property owned by the Company.
3.
9. Assignment
The rights and obligations of Consultant are personal in nature and may not be assigned
without the Company’s prior written consent. The rights and obligations of the Company under this
Agreement shall inure to the benefit of and shall be binding upon the successors and assignees of
the Company.
10. Confidential Information
10.1 Company Information. Consultant agrees at all times during the term of Consultant’s
engagement and thereafter to hold in strictest confidence, and not to use or disclose to any
person, firm or corporation without written authorization of the Company any trade secrets,
confidential knowledge, data or other proprietary information relating to products, processes,
inventions, developments, improvements, know-how, designs, formulas, developmental or experimental
work, computer programs, data bases, other original works of authorship, customer lists, business
plans, financial information or other subject matter pertaining to or of possible use in any
present or prospective business of the Company or any of the Company’s other clients, consultants,
or licensees, or which Consultant learned or developed during the term of and in connection with
Consultant’s engagement, except such use and disclosure as is necessary in carrying out
Consultant’s work for the Company and authorized in writing by the Company.
10.2 Former and Current Employer Information. Consultant agrees that Consultant will not,
during Consultant’s engagement with the Company, improperly use or disclose any proprietary
information or trade secrets of Consultant’s former employers, clients or companies, if any, and
that Consultant will not bring onto the premises of the Company or use in the performance of
Consultant’s duties for the Company any unpublished documents or any property belonging to
Consultant’s former or current employers or companies, if any, unless consented to in writing by
those employers or companies.
10.3 Third Party Information. Consultant recognizes that the Company may have received and
in the future may receive from third parties their confidential or proprietary information subject
to certain duties on the Company’s part to maintain the confidentiality of such information and to
use it only for certain limited purposes. Consultant agrees that Consultant owes the Company and
such third parties, during the term of Consultant’s engagement and thereafter, whatever duty
exists between the Company and such third parties to hold all such confidential or proprietary
information in the strictest confidence and not to disclose it to any person, firm, or corporation
(except as necessary in carrying out Consultant’s work for the Company consistent with the
Company’s agreement with such third party) or to use it for the benefit of anyone other than for
the Company or such third party (consistent with the Company’s agreement with such third party)
without the express written authorization of the Company.
4.
11. Conflicting Employment
The company understands that the Consultant is a physician, an entrepreneur, investor
and advisor to medical and technology companies. Consultant agrees that, during the term of
Consultant’s engagement with the Company, Consultant will not engage in any other bronchoscopic
treatments of asthma-related consulting or other business activity, whether paid or unpaid, with
any other individual or entity except as it may involve medical treatment of patients in his role
as a physician.
12. Governing Law
This Agreement shall be governed by and interpreted in accordance with the laws of the
State of California applicable to contracts between residents of and to be performed entirely
within that state.
13. Entire Agreement
This Agreement constitutes the entire agreement between the parties respecting the
Services expected to be rendered by Consultant to the Company, and there are no representations,
warranties or commitments which may be relied upon by either party except as specifically set
forth in this Agreement. This Agreement supersedes all prior or contemporaneous agreements,
commitments, representations, writings, and discussions between the Company and Consultant,
whether oral or written (including that certain Independent Consultant Agreement dated May 27,
2003 between the Consultant and Broncus Technologies, Inc., which was assigned to the Company on
December 26, 2003 by Broncus Technologies, Inc., and which the parties agree is terminated). This
Agreement may be amended only by an instrument in writing executed by the parties hereto.
Consultant expressly acknowledges that Consultant has read the terms of this Agreement, has had
the opportunity to discuss those terms with his own legal counsel, and understands that this is a
legally binding contract.
14. Notices
Any notice, request, demand or other communication hereunder shall be in writing and
shall be deemed to be duly given when personally delivered to an officer of the Company or to
Consultant, as the case may be, or by prepaid registered or certified United States Mail
addressed, if to the Company, at 0000 Xxxxx Xxxx Xxx, Xxxxxxxx Xxxx, XX 00000 or if to
Consultant, at 0000 Xx Xxxxxx Xxxx, Xxxxx 000, Xxxxx Xxxx, XX 00000, or to such other address as
either party may specify by notice to the other as provided in this Paragraph.
15. Savings Clause
Should any valid federal or state law or final determination of any administrative
agency or court of competent jurisdiction invalidate or otherwise affect any provision of this
Agreement, the provision or provisions so affected shall be conformed automatically and to the
extent possible to the law or determination in question, and in all events the remaining
provisions of this Agreement shall continue in full force and effect.
5.
16. Counterparts
This Agreement and the other agreements referred to above may be executed in counterparts, each of which shall be deemed to be an original.
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6.
In Witness Whereof, the parties hereto have caused this Agreement to be duly executed
as of the first date written above.
| Asthmatx, Inc. | ||||||
| By | /s/ Xxxxxxx X. Xxxxxx | |||||
| Name: XXXXXXX X. XXXXXX | ||||||
| Title CEO | ||||||
| Consultant | ||||||
| /s/ Xxxxxxx X. Xxxxxx, M.D. | ||||||
| Xxxxxxx X. Xxxxxx, M.D. | ||||||
7.
Exhibit A
Services
Services may include, but are not limited to:
| • | Training and education | |
| • | Facilitating access of Asthmatx employees and contractors to the clinical setting |
|
| • | Exploration to address research, development, regulatory and marketing questions | |
| • | Introductions to, and liaison with, other thought leaders | |
| • | Creative problem solving and invention | |
| • | Development and execution of animal and clinical studies | |
| • | Representing Asthmatx to investors, regulatory agencies, and others | |
| • | Miscellaneous presentations to clinical, scientific, and other audiences |
Exhibit B
Consultant Compensation
Consultant will receive a non-qualified option to purchase 220,000 Asthmatx, Inc. common
shares at a price per share of $0.20. This option will commence vesting on April 1, 2004, and vest
evenly across 48 months (details of this option and its vesting will be outlined in an Option
Agreement to be executed by the Consultant and the Company) as long as this Agreement is not sooner
terminated.
