EXHIBIT 10.1
CONSULTING AGREEMENT
This Consulting Agreement (the "Agreement") is entered as of this 1st day
of January, 2006 (the "Effective Date") by and between Remedent, Inc., a Nevada
corporation (the "Company"), and P. Xxxxxxx Xxxxxxxx to be referred to as the
"Consultant").
RECITALS
A. The Company desires to obtain the services of the Consultant by means
of services provided by the Consultant's employees, subcontractors and/or agents
assigned by the Consultant to provide services to Company hereunder
(collectively, "Agents"), on its own behalf and on behalf of all existing and
future Affiliated Companies (defined as any corporation or other business entity
or entities that directly or indirectly controls, is controlled by, or is under
common control with the Company), and the Consultant desires to provide
consulting services to the Company upon the following terms and conditions.
B. The Consultant acknowledges that the Company has spent significant
time, effort, and money to develop certain proprietary information, which the
Company considers vital to its business and goodwill.
C. The Consultant further acknowledges that proprietary information of
the Company will necessarily be communicated to or acquired by the Consultant
and its Agents, and each of them, in the course of providing consulting services
to the Company under this Agreement, and acknowledges that the Company desires
to obtain the services of the Consultant only if, in doing so, the Consultant
agrees to protect the confidentiality of such proprietary information, and cause
its Agents to do the same, on the terms and conditions set forth below.
AGREEMENT
NOW, THEREFORE, in consideration of the above Recitals, the mutual promises and
undertakings set forth in this Agreement, and other good and valuable
consideration, the parties agree as follows:
1. Consulting Period.
(a) The Company hereby retains the Consultant and the Consultant
agrees to render to the Company those services described in Section 2 below for
the period (the "Consulting Period") commencing on the Effective Date and ending
upon the earlier of (i) December 31, 2006, as, and to the extent, extended under
Section 1(b); or, (ii) the date on which the Consulting Period is earlier
terminated in accordance with Section 5. The Company shall pay the Consultant
the compensation to which it is entitled in accordance with Section 4 through
the end of the Consulting Period (and any extension thereof) after which the
Company's obligations hereunder shall end.
(b) Subject to the right of either party to terminate this Agreement
in accordance with Section 5, the Consulting Period will be automatically
renewed for consecutive one (1) year period (without any action by either party)
on the expiration date, unless one party gives the other written notice sixty
(60) days in advance of the beginning of the up coming renewal period that the
Consulting Period is to be terminated.
2. Duties, Responsibilities.
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(a) The Consultant hereby agrees to provide and perform for the
Company those services set forth on Exhibit A attached hereto, which may be
amended and/or added to from time to time as agreed between the parties. The
Consultant shall devote its best efforts to the performance of the services and
to such other services as may be agreed to by the parties.
(b) The Consultant shall assign any number of competent Agents as set
forth in Exhibit A possessing a sufficient working knowledge of the Company's
research, development and products to fulfill the Consultant's obligations
hereunder. The Consultant warrants that the services to be performed under this
Agreement will be performed in a professional and workmanlike manner. During the
first two weeks of service, any Agent of the Consultant who, in the sole opinion
of the Company, is unable to adequately perform any services hereunder shall be
replaced immediately by the Consultant. Following the first two weeks of
service, any Agent of the Consultant who, in the sole opinion of the Company, is
unable to adequately perform any services hereunder shall be replaced by the
Consultant within twenty-one (21) days after receipt of notice from the Company
of its desire to have such Agent replaced.
(c) The Consultant shall use its best efforts to comply with, and to
ensure that each of its Agents comply with, all applicable written policies and
practices of the Company of which the Consultant is made aware.
3. Independent Contractor.
(a) It is expressly agreed and understood that the Consultant is
performing services under this Agreement as an independent contractor of the
Company and that neither the Consultant nor any of its Agents is an employee or
agent of the Company. It is further expressly agreed and acknowledged that all
Agents assigned by the Consultant to provide services to Company under this
Agreement are the Consultant's employees, subcontractors or agents only and
shall not for any purpose be considered employees, subcontractors and/or agents
of the Company. No provision in this Agreement is intended to authorize the
Consultant or any of its Agents to act for the Company in any respect or to make
commitments on behalf of the Company. The Consultant will have sole control over
the detailed method of performance of its and its Agents' services hereunder,
the manner and method of performing same being under the sole control and
discretion of the Consultant, the Company's only interest being in the results
of such services.
(b) The Consultant understands and agrees that this Agreement sets
forth the entire compensation to be paid by the Company to the Consultant
resulting from the services to be performed by the Consultant and/or its Agents
on behalf of the Company, that Company's liability hereunder will be limited to
payment of the compensation provided in this Agreement, and that under no
circumstances will the Consultant or any of its Agents be eligible for any
benefits or rights under any employee benefit plan of the Company, including
without limitation any medical, unemployment or disability benefits, even if a
government agency or taxing authority recharacterizes the relationship between
the parties as an employment relationship.
(c) The Consultant agrees to make all appropriate deductions and to
pay all applicable employment-related taxes (including but not limited to
payroll and unemployment insurance) which may arise as a result of this
Agreement. The Company shall not withhold any payroll taxes on account of any
amounts paid to the Consultant under this Agreement.
(d) The Consultant warrants and represents that it is in full
compliance with all applicable laws, including but not limited to the federal,
state and local employment and labor laws applicable to its employment of the
Agents.
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(e) The Consultant agrees to defend, indemnify and hold Company and
Company's officers and directors, affiliates, subsidiaries, agents, and
employees harmless from any loss or damage arising out of a claim or action
against such parties for injuries or damage to person or property caused by the
negligent acts or omissions of the Consultant's personnel while in the course of
performing services for Company under this Agreement. Company agrees to defend,
indemnify and hold the Consultant and the Consultant's officers, directors,
affiliates, subsidiaries, agents and employees harmless from any loss or damage
arising out of a claim or action against such parties for injuries or damage to
person or property caused by the negligent acts or omissions of Company's
personnel while the Consultant's personnel are performing services for Company
under this Agreement. Notwithstanding the foregoing, this indemnity shall not
apply to the extent the portions of such claims, liability, loss, cost, damage
or expense is the result of negligence or willful misconduct of the indemnified
party, its officers and directors, affiliates, subsidiaries, agents, and
employees. Any responsibility to defend, indemnify or hold harmless under this
paragraph is specifically conditioned on receipt of written notice of a claim or
action by the indemnifying party within thirty (30) days following the
indemnified party's knowledge of the claim or action.
4. Compensation; Expenses.
(a) During the term of this Agreement, in consideration of the
services to be rendered hereunder by the Consultant, the Company shall pay
Consultant a monthly flat fee of $25,000, which amounts shall be due and payable
at the 1st of each month. The parties acknowledge and agree that the Consultant
will promptly pay all wages and compensation, including overtime, if applicable,
due to its Agents, and the Company will not be charged with any premiums over
and above the fees set forth in this Section 4(a).
(b) If, in the Company's sole opinion, the Consultant's Agents incur
reasonable out-of-pocket expenses in the performance of the Consultant's duties
hereunder and said Agents submit receipts and other appropriate documentation of
same to the Company, said expenses shall be reimbursed in accordance with the
schedule set forth on Exhibit B.
5. NA
6. Confidential Information and Inventions.
(a) The Consultant agrees to execute the form of Confidential
Information and Ownership Agreement for Independent Contractors attached hereto
as Exhibit C.
(b) The Consultant shall cause each of its Agents performing any
services for the Company in connection with this Agreement to agree to execute
the form of Confidential Information and Ownership Agreement for Independent
Contractors attached hereto as Exhibit C. The Consultant shall deliver signed
originals of each such agreement to the Company prior to any Agent's
commencement of the provision of services for the Company.
7 Non-Solicitation. During the term of this Agreement, and for a period
of one (1) year thereafter, the Consultant will not, without the Company's
express written consent, either on its own behalf or on behalf of another: (i)
contact or solicit employees of the Company for the purpose of hiring them; (ii)
hire Company employees; or (iii) solicit the business of any client, customer or
licensee of the Company. The Consultant acknowledges that the provisions of this
Section 7 are reasonable and necessary measures designed to protect the
proprietary information of the Company.
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8. Prior Agreements; Release and Waiver.
(a) The parties acknowledge that the parties have previously entered
into (a) a Development Agreement dated Xxxxx 00, 0000, (x) Amendment to
Development Agreement dated as of August 4, 2004, and (c) compensation agreement
dated March 15, 2005 pursuant to which the Consultant agreed to provide the
Company with certain services relating to the development of dental devices for
whitening teeth and mouth illumination, and the Company agreed to compensate the
Consultant for such services (the "Prior Agreements"). The parties acknowledge
that it is the intent of the parties to
(b) Pursuant to the Prior Agreements, the Consultant has assigned and
hereby agrees to assign to the Company any and all of the Consultant's entire
right, title, and interest (throughout the United States and in all foreign
countries), free and clear of all liens and encumbrances, in any and
intellectual property, including but not limited to, any and all trademarks,
copyrightable materials, inventions, technology, computer programs, original
works of authorship, designs, formulas, and discoveries, created by the
Consultant (or its Agents) for the benefit of the Company pursuant to the Prior
Agreements which includes the following products Blue LED/Intra-Oral for Teeth
Pain Management System, IWhite, MetaTray, UV Tray, Sonic Tray, and Sonic Brush,
which shall be the sole property of the Company, whether or not patentable. In
the event any such intellectual property shall be deemed by Company to be
patentable or otherwise registrable ("Invention Idea"), the Consultant shall
assist the Company (at its expense) in obtaining letters patent or other
applicable registrations thereon and shall execute all documents and do all
other things (including testifying at the Company's expense) necessary or proper
to obtain letters patent or other applicable registrations thereon and to vest
the Company, or a company specified by the Company, with full title thereto.
Should the Company be unable to secure the Consultant's signature on any
document necessary to apply for, prosecute, obtain, or enforce any patent,
copyright, or other right or protection relating to any Invention Idea, whether
due to my mental or physical incapacity or any other cause, I hereby irrevocably
designate and appoint Company and each of its duly authorized officers and
agents as my agent and attorney in fact, to act for and in my behalf and stead
and to execute and file any such document, and to do all other lawfully
permitted acts to further the prosecution, issuance, and enforcement of patents,
copyrights, or other rights or protections with the same force and effect as if
executed and delivered by me.
(c) Except for the Company's rights and interests to the intellectual
property rights granted by the Consultant pursuant to the Prior Agreements, the
parties hereby agree that the Prior Agreements including, but not limited to,
all rights to past, current and future royalties payments and fees under the
Prior Agreements, are superceded and replaced in its entirety by this Agreement
in exchange for (i) the issuance of two hundred thousand (200,000) shares of the
Company's restricted common stock to Xxxxxxxx pursuant to the terms and
conditions of a Stock Purchase Agreement to be agreed to by the parties, and
(ii) the issuance to Xxxxxxxx the options to purchase 150,000 shares of the
Company's common stock ("Options") pursuant to the terms and conditions of the
Stock Option Agreement to be agreed to by the parties. These Options shall have
a term of not less than five (5) years and have an exercise price equal to the
closing price of the Company's common stock as traded on the OTC Bulletin Board
on the date this Agreement ($2.60) is signed by both parties and shall be fully
vested. The Company agrees that it will use its best efforts to register the
Options and the restricted common stock of the Company issued in connection with
this Section 8(c) pursuant to a registration statement on Form S-8 under the
Securities Act of 1933, as amended. The Company will cause the start of the
registration process immediately upon signing of this agreement. If for any
reason the shares cannot be registered within a period of one year from signing
this agreement - Xxxxxxx X. Xxxxxxxx has the right to exercise his option to
force the company to buy his unregistered shares at the average 30 day closing
price at the stock that is trading on the OTC bulletin or any exchange the
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company may have changed to. The Consultant shall be responsible for all
applicable taxes and other obligations, if any, in connection with the issuance
of the restricted common stock of the Company and the grant and exercise of the
Options.
(d) The parties acknowledge and agree that except for the Options and
the restricted common stock of the Company to be issued to Xxxxxxxx pursuant to
Section 8(c) above, the Consultant will not be entitled to receive any
royalties, fees, earn-out, or any other forms commission or compensation from
the Company in connection with the Prior Agreements.
(e) Xx. X. Xxxxxxxx each specifically releases, waives, and forever
discharges the Company, its successors in interest, its past, present and future
assigns, officers, directors, subsidiaries, affiliates, and agents, from any and
all past claims, demands, actions, liabilities and causes of actions, of every
kind and character, whether asserted or unasserted, whether known or unknown,
suspected or unsuspected, in law or in equity, for or by reason of any matter,
cause or thing whatsoever, arising out of or are in any way connected with: (a)
the Prior Agreements, (b) any claims rights, interests, or demands related to
past, current or future commissions, fees or royalties related to the Prior
Agreements, or (c) expense reimbursements or any form of compensation related to
the Prior Agreements, excepting only the obligations created by the covenants
made in this Section 8.
(f) It is understood and agreed that the release set forth in Section
8(e) is intended to cover and does cover all claims or possible claims of every
nature and kind whatsoever, whether known or unknown, suspected or unsuspected,
or hereafter discovered or ascertained, and all right under Section 1542 of the
Civil Code of California ("Section 1542") are hereby expressly waived. Xx. X.
Xxxxxxxx acknowledges that he is familiar with Section 1542, which reads as
follows:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR
DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF
EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY
AFFECTED HIS SETTLEMENT WITH THE DEBTOR.
Xx. X. Xxxxxxxx expressly, knowingly, and intentionally waive and relinquish any
and all rights that they have under Section 1542, as well as under any other
similar state or federal statute or common law principle.
(e) Before signing this Agreement, the parties have had the
opportunity to either (a) consult with and obtained advice from their respective
independent legal counsel concerning the legal nature and operations of this
Agreement, including its impact on their respective rights, privileges and
obligations, or (b) freely and voluntarily decided not to have the benefit of
such consultation and advice with legal counsel.
9. Assignment; Successors and Assigns. This Agreement shall be binding
upon and inure to the benefit of the parties, their successors and permitted
assigns. The Consultant shall not transfer, sublicense or otherwise assign this
Agreement or any of its rights or obligations hereunder without the Company's
prior written consent, which consent may be unreasonably withheld.
10. Notices. All notices, requests, demands or other communications
required or permitted to be given or made under this Agreement shall be in
writing and shall be delivered by hand or by commercial overnight delivery
service which provides for evidence of receipt, or mailed by certified mail,
return receipt requested, postage prepaid, and addressed to the Company at:
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Remedent, Inc.
Xxxxxx xx Xxxxxxxx 00
Xxxxxx, Xxxxxxx, 0000
Attn: President
Telephone: x(00) 0000 0000
Facsimile: x(00) 0000 0000
or to the Consultant at:
Xx. X. Xxxxxxxx 0000 Xxxxxxx Xxxxxx Xxxx
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000 Attn:
Xxxxxxx Xxxxxxxx Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If delivered personally or by commercial overnight delivery service, the
date on which the notice, request, instruction or document is delivered shall be
the date on which delivery is deemed to be made, and if delivered by mail, the
date on which such notice, request, instruction or document is received shall be
the date on which delivery is deemed to be made. Any party may change its
address for the purpose of this Agreement by notice in writing to the other
parties as provided herein.
11. Entire Agreement. The terms of this Agreement and the Exhibits hereto
are intended by the parties to be the final expression of their agreement with
respect to the subject matter hereof and may not be contradicted by evidence of
any prior or contemporaneous agreement including the Prior Agreements. The
parties further intend that this Agreement shall constitute the complete and
exclusive statement of its terms and that no extrinsic evidence whatsoever may
be introduced in any judicial, administrative, or other legal proceeding
involving this Agreement. All exhibits attached hereto are by this reference
made a part of this Agreement and are incorporated herein.
12. Authority. Each individual signing this Agreement warrants and
represents that he has the full authority and is duly authorized and empowered
to execute this Agreement on behalf of the party for which he signs.
13. Amendments; Waivers. This Agreement may not be modified, amended, or
terminated except by an instrument in writing, signed by a duly authorized
representative of the Company and the Consultant. By an instrument in writing
similarly executed, either party may waive compliance by the other party with
any provision of this Agreement that such other party was or is obligated to
comply with or perform, provided, however 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 the exercise of any other right, remedy, or power provided
herein or by law or in equity.
14. Severability; Enforcement. If any provision of this Agreement, or the
application thereof to any person, place, or circumstance, shall be held by a
court of competent jurisdiction to be invalid, unenforceable, or void, the
remainder of this Agreement and such provisions as applied to other persons,
places, and circumstances shall remain in full force and effect.
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15. Governing Law; Counterparts. Subject to Section 14, the validity,
interpretation, enforceability, and performance of this Agreement shall be
governed by and construed in accordance with the law of the State of California.
This Agreement may be executed in two (2) counterparts, each of which when so
executed shall be deemed to be an original and both of which when taken together
shall constitute one and the same Agreement.
16. Forum Selection. The parties hereby consent to the exclusive
jurisdiction of the state and federal courts sitting in California in the venue
of Los Angeles County in any action on a claim arising out of, under or in
connection with this Agreement or the transactions contemplated by this
Agreement. The parties further agree that personal jurisdiction over them may be
effected by notice as provided in Section 10, and that when so made shall be as
if served upon them personally within the State of California.
17. Limitation on Liability. EXCEPT FOR THE PROVISIONS SET FORTH IN
SECTION 3(e) AND EXHIBIT C, IN NO EVENT SHALL (a) CONSULTANT'S LIABILITY ARISING
OUT OF THIS AGREEMENT OR THE TERMINATION OF THIS AGREEMENT EXCEED THE AMOUNT
EQUAL TO THE AMOUNTS PAID BY THE COMPANY TO THE CONSULTANT AND THE BALANCE OWING
BY THE COMPANY UNDER THIS AGREEMENT; AND (b) COMPANY'S LIABILITY ARISING OUT OF
THIS AGREEMENT OR THE TERMINATION OF THIS AGREEMENT EXCEED THE AMOUNT EQUAL TO
THE AMOUNTS PAID BY THE COMPANY TO THE CONSULTANT AND THE BALANCE OWING UNDER
THIS AGREEMENT. IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY FOR ANY
INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED AND ON
ANY THEORY OF LIABILITY, ARISING OUT OF THIS AGREEMENT, INCLUDING BUT NOT
LIMITED TO LOSS OF ANTICIPATED PROFITS, EVEN IF SUCH PARTY HAS BEEN ADVISED OF
THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING
ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
18. Survival. The obligations of the Consultant and its Agents under each
Confidential Information and Ownership Agreement for Independent Contractors
executed in connection with this Agreement shall survive any termination of this
Agreement
[INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
by their duly authorized agents as of the day and year first above written.
COMPANY:
Remedent, Inc.,
a Nevada corporation
/s/ Guy De Vreese
-------------------------------------
By: Guy De Vreese
Title: Chairman
/s/ P. Xxxxxxx Xxxxxxxx
-------------------------------------
P. Xxxxxxx Xxxxxxxx, Sole Member
and Manager
XXXXXXXX:
/s/ P. Xxxxxxx Xxxxxxxx
-------------------------------------
P. Xxxxxxx Xxxxxxxx
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EXHIBIT A
Services to be Provided
1. Agents. The Consultant agrees to provide the Company consulting and
development services to assist the Company in its core product development
efforts. As part of this Agreement, the Consultant will assign the following
Agents to service the Agreement:
1. P. Xxxxxxx Xxxxxxxx
2. Services. The Agents shall provide the following services and/or roles:
R/D Design services, Product Development Services, Consulting services at it
relates to the Dental and Oral Care markets
EXHIBIT B
Expense Policy
Xx. Xxxxxxxx will provide copies of all expenses. Any material expenditures
will be submitted for approval to the Company.
EXHIBIT C
Remedent, Inc.
Confidential Information and Ownership Agreement
REMEDENT, INC.
Confidential Information and Ownership Agreement (Independent Contractor)
I acknowledge that: (i) I am engaged to provide services to the Remedent,
Inc., a Nevada corporation (the "Company"), pursuant to the terms and conditions
of the Consulting Agreement dated January 1, 2006 ("Consulting Agreement")
between the Company P. Xxxxxxx Xxxxxxxx, and (ii) pursuant to the Consulting
Agreement, I have been asked to enter into this Agreement in order to protect
the Company's proprietary information and ownership rights.
Now, therefore, pursuant to the Consulting Agreement, and in consideration
of my engagement, or continued engagement, as an independent contractor of the
Company and the payment of $100.00, receipt of which is hereby acknowledged, I
agree as follows:
1. Definitions. As used in this Agreement, the following definitions will
apply:
(a) "Confidential Information" means any Company proprietary information,
technical data, trade secrets or know-how, including, but not limited to,
research, product plans, products, services, suppliers, customer lists and
customers (including, but not limited to, customers of the Company on whom I
called or with whom I became acquainted during my engagement with the Company),
prices and costs, markets, software, developments, inventions, laboratory
notebooks, processes, formulas, technology, designs, drawings, engineering,
hardware configuration information, marketing, licenses, finances, budgets or
other business information disclosed to me by the Company either directly or
indirectly in writing, orally or by drawings or observation of parts or
equipment or created by me during the period of my engagement with the Company,
whether or not during working hours. I understand that "Confidential
Information" includes, but is not limited to, information pertaining to any
aspects of the Company's business which is either information not known by
actual or potential competitors of the Company or is proprietary information of
the Company or its customers or suppliers, whether of a technical nature or
otherwise. I further understand that Confidential Information does not include
any of the foregoing items which has become publicly and widely known and made
generally available through no wrongful act of mine or of others who were under
confidentiality obligations as to the item or items involved.
(b) "Develop" means to conceive, create, develop, assemble, reduce to
practice, or, in the case of works of authorship, to fix in a tangible medium of
expression.
(c) "Development" includes, but is not limited to, all inventions,
discoveries, improvements, processes, developments, designs, know-how, data,
computer programs, algorithms, formulae and works of authorship, whether or not
patentable or registerable under patent, copyright or similar statutes,
conceived or Developed in connection with the Company's business, as it relates
to the dental markets to include the Oral Care market in General.
(d) "Intellectual Property" means and includes, with respect to any
Development all relevant patents, patent applications, copyrights, trade secrets
and other rights and protections arising under patent, copyright or similar
statutes.
2. Confidential Information of the Company. Except as required by my
engagement with the Company, or as the Company may consent to in writing, at no
time will I use for the benefit of any person or entity other than the Company,
or disclose or reveal to any other person or entity, either during or subsequent
to the term of my engagement with the Company, any Confidential Information
belonging to the Company or its contractors, suppliers, joint venturers,
licensors, licensees, or distributors. This means, among other things (and by
way of example only), that without the Company's written consent I cannot use
any such Confidential Information in making personal investment decisions. Upon
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termination of my engagement with the Company for any reason, I will deliver to
the Company all originals and all copies of any and all physical, written,
graphical and/or machine readable materials and media (including, for example,
notes, notebooks, memoranda, diskettes and photographic slides, prints and
negatives) that are in my possession or under my control and contain, represent,
disclose or embody Confidential Information of the Company or its contractors,
suppliers, joint venturers, licensors, licensees, or distributors. Both during
and after my engagement with the Company, all such materials and media will
belong to the Company.
3. Ownership of Developments.
(a) All Developments that I conceive or Develop (either alone or jointly
with others) at any time during my engagement with the Company, including all
Intellectual Property rights and protections in connection therewith, shall be
the sole property of the Company and/or its nominees or assigns. I hereby assign
to the Company any and all right, title and interest I have, may have or may
acquire in all Developments.
(b) I will communicate to the Company as promptly as practicable all
Developments that I conceive or Develop (either alone or jointly with others) at
any time during my engagement with the Company and for the period ending one (1)
year after such engagement terminates for any reason, for the purpose of
determining the extent of the Company's rights in such Developments. For
Developments that are conceived or Developed during the term (and within the
scope of my service to the Company) of my engagement with the Company, the
communication will be as complete as practicable. For Developments that are
neither conceived nor Developed during the term, and within the scope of my
engagement with the Company, the communication may be limited to a general
description sufficient to disclose clearly the relationship between those
Developments and the scope of the work I did for or on behalf of the Company,
and I will not be obligated to disclose confidential information belonging to me
or any third party except to the extent required to make that clear disclosure.
(c) I will assist the Company and/or its nominees or assigns (without
charge but at no expense to me) in every lawful way to obtain, maintain and
enforce any and all Intellectual Property rights and protections relating to all
Developments, including by executing all relevant documents. I understand that
these obligations will continue beyond the termination of my engagement with the
Company. I hereby irrevocably designate and appoint the Company and its duly
authorized officers and agents as my agent and attorney-in-fact to execute and
file any and all applications and other necessary documents and to do all other
lawfully permitted acts to further the prosecution, issuance, or enforcement of
patents, copyrights, trade secrets and similar protections related to such
Developments with the same legal force and effect as if I had executed them
myself.
(d) Paragraph 3(a) generally will not apply to any Intellectual Property
that I conceived or Developed prior to my engagement with the Company and that
underlies, pertains to, is embodied or becomes embodied in any Development
("Background Intellectual Property"), except that with respect to any
Development that incorporates both elements that are Background Intellectual
Property and elements that are conceived or Developed during the term of my
engagement with the Company, Paragraph 3(a) will apply (to the extent otherwise
applicable) to those elements that are conceived or Developed during such
engagement. I hereby grant to the Company an irrevocable, perpetual,
non-exclusive, worldwide, royalty-free license (with the right to sublicense) in
the Background Intellectual Property to the extent reasonably necessary to
permit the Company and its customers, clients and licensees to use, practice,
reproduce, manufacture, modify, publicly perform, display and exhibit, market,
distribute and otherwise exploit all Developments. I have listed below the only
Background Intellectual Property that is or might be incorporated into
Developments (failure to list indicates there are none):
Magnetic Whitening Technology
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(if additional space is required, use the back of this Agreement)
4. No Breach of Other Rights or Obligations. My performance of the terms of
this Agreement and my engagement with the Company does not and will not breach
any agreement to keep in confidence proprietary information acquired by me in
confidence prior to the term of such engagement with the Company. I have not
entered into, and I agree I will not enter into, any agreement in conflict with
this Agreement. I have the right, power and authority to grant the licenses with
respect to the Background Intellectual Property set forth in Paragraph 3 above.
I have not brought, and I agree I will not knowingly bring, with me to the
Company for use in my engagement with the Company any materials or documents of
a former employer or any other person or entity for whom I have provided or am
providing consulting and related services (paid or unpaid) that are not
generally available to the public unless I have obtained express written
authorization from the former employer or other person or entity for whom I have
provided or am providing such services for their possession and use. If there
are any exceptions to the foregoing representations, I have attached hereto a
copy of each agreement or other written documentation, if any, which presently
affects my compliance with the terms of this Agreement. I will indemnify and
hold harmless the Company, its affiliates and licensees, and their officers,
directors, employees and agents, for any breach of the provisions of this
Paragraph 4.
5. No Solicitation. During the term of my engagement with the Company, and for
a period of one (1) years following its termination for any reason, I will not,
without the Company's express written consent, either on my own behalf or on
behalf of another: (i) contact or solicit employees of the Company for the
purpose of hiring them; (ii) hire Company employees; or (iii) solicit the
business of any client, customer or licensee of the Company. I acknowledge that
the provisions of this Paragraph 5 are reasonable and necessary measures
designed to protect the Confidential Information of the Company.
6. General.
(a) This Agreement constitutes the entire agreement between me and the
Company with respect to the subject matter hereof, superseding any prior
agreement or representation, oral or written. My obligations under this
Agreement may not be modified, released or terminated, in whole or in part,
except in a writing signed by me and an officer of the Company or his or her
designee. Any waiver by the Company of a breach of any provision of this
Agreement will not operate or be construed as a waiver of any subsequent breach
thereof.
(b) Each provision of this Agreement will be treated as a separate and
independent clause, and the unenforceability of any one clause in no way will
impair the enforceability of any of the other clauses herein. If one or more of
the provisions of this Agreement is held to be excessively broad, such provision
or provisions will be construed by the appropriate judicial body by limiting or
reducing it or them, so as to be legally enforceable.
(c) My obligations under this Agreement will survive the term of my
engagement with the Company for any reason for the period(s) of time specified
in the applicable provision of this Agreement, or if no time period is
specified, for a period of twenty-five (25) years from the date of such term.
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(d) This Agreement will inure to the benefit of and be binding upon the
heirs, personal representatives, administrators, successors and assigns of the
parties hereto. The Company may assign any of its rights under this Agreement.
(e) I acknowledge that my services are, and that the Confidential
Information is, special, unique and unusual. I recognize that if I breach this
Agreement, money damages would not reasonably or adequately compensate the
Company for its loss. Accordingly, if I breach this Agreement, I recognize and
consent to the Company's right to seek injunctive relief to force me to abide by
the terms of this Agreement. The Company also will have the right to recover
damages or pursue any other remedy permitted by law.
(f) This Agreement will be governed by and interpreted in accordance with
the laws of the State of California, as applied to agreements made and wholly
performed within California.
This Agreement will be deemed effective as of the start of my engagement
with the Company.
CAUTION: This Agreement creates important obligations of trust and affects your
rights to inventions you may make during your engagement with the Company.
Contractor: Company:
REMEDENT, INC.
/s/ Guy De Vreese
/s/ P. Xxxxxxx Xxxxxxxx Guy De Vreese
------------------------- -------------------------------------
Signature Name:
P. Xxxxxxx Xxxxxxxx Chairman
------------------------- -------------------------------------
Printed or Typed Name Title:
2/10/06 2/10/06
------------------------- -------------------------------------
Date Date
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