This CONSULTING AGREEMENT effective March 10, 2003
This CONSULTING AGREEMENT effective March 10, 2003
| BETWEEN: | RESPONSE BIOMEDICAL CORP.,
a company incorporated in the Province of British Columbia and having
an office at 0000 Xxxxxxxxxx Xxxxx, Xxxxxxx, Xxxxxxx Xxxxxxxx X0X 0X0 |
| (“Response”) | |
| AND: | XXXX XXXXXXX, of 00000 00xx Xxx XX, Xxxxxxxxx, Xxxxxxxxxx, 00000 |
| (the “Consultant”) |
WITNESSES THAT WHEREAS:
Response is involved in the research and commercialization of cost-effective and market-driven point-of-care testing systems;
The Consultant has certain skills and expertise which Response wishes to engage; and
The Consultant is an independent contractor, engaged pursuant to a contract for services, and not an employee of Response;
THEREFORE in consideration of the recitals, the following representations and covenants and the payment of one dollar made by each party to the other, the receipt and sufficiency of which is acknowledged by each party, the parties agree on the following terms:
| 1. | ENGAGEMENT AND DURATION |
| 1.1. | Response hereby engages the services of the Consultant as “Vice President, Manufacturing” and the Consultant hereby accepts such engagements and agrees to perform the services to the best of his ability and in accordance with the terms and conditions of this Agreement. |
| 1.2. | Response shall engage the Consultant commencing on March 10, 2003 and terminating on April 30, 2003 (the “Termination Date”). |
| 1.3. | The term of this Agreement may be extended with the written mutual agreement of the parties at any time. |
| 2. | DUTIES |
| 2.1. | The Consultant shall, pursuant to this Agreement, perform such duties as requested from time to time by the Executive Vice-President of Response. |
| 2.3. | The Consultant shall report directly to the Executive Vice-President of Response. Upon the agreement of the Consultant, he may also report to such other person(s) as the Executive Vice-President of Response shall direct from time to time. |
| 2.4. | The Consultant will, subject to the terms of this Agreement, comply promptly and faithfully with Response’s reasonable instructions, directions, requests, rules and regulations and commit sufficient time to reasonably ensure that the Company meets its corporate objectives. Notwithstanding the foregoing, the Consultant agrees to be on-site at the premises of Response at least two days per week. |
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| 3. | REMUNERATION AND BENEFITS |
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| 3.1 | FEES |
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| 3.1.1 | For services provided by
the Consultant from March 10, 2003 until the Termination Date, the Consultant
will be paid a monthly retainer for services in the amount of US$6,500.
The Consultant will present an invoice to Response on or about the end
of each calendar month until the expiration of this Agreement or its prior
termination, and Response will satisfy the account as presented by payment
to the Consultant within 7 days of the presentation of the account. |
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| 3.1.2 | In addition to the fees
above, the Consultant shall be entitled to participate in any bonus incentive
plan enacted by the Company. |
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| 3.2. | OPTIONS |
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| 3.2.1 | As further consideration
of the services provided by the Consultant, the Company shall grant the
Consultant a stock option in accordance with policies of the Canadian
Venture Stock Exchange and Response’s Stock Option Plan as follows: |
|
(a) |
an option granted May 1, 2003 to purchase
up to a total of 100,000 common shares of Response at a price of
$0.50 and set to expire on April 30, 2005 and vesting 25% upon grant,
and an additional 25% vesting in each of the three subsequent 6 month
periods. |
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| 3.3. | REIMBURSEMENT OF EXPENSES |
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| 3.3.1. | Within 30 days of the presentation
of receipts to Response by the Consultant, Response shall reimburse the
Consultant for all reasonable expenses incurred by the Consultant in the
performance of his duties pursuant to this Agreement. |
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| 4. | RESTRICTIVE COVENANTS |
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| 4.1. | NON-COMPETITION |
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| 4.1.1. | During the term of this
Agreement and for twelve months following the termination or expiration
of this Agreement, the Consultant shall not: |
|
(a) |
own or have any interest directly in; |
|
(b) |
act as an officer, director, agent Consultant
or consultant of; |
|
(c) |
assist in any way or in any capacity,
any person, firm, association, partnership, corporation or other entity
which is focused on the research and commercialization of quantitative
lateral flow point-of-care testing systems for human, veterinary, food
safety or environmental markets, or is otherwise engaged in a business
that is substantially similar to and/or competes with the business then
engaged in by Response (the “Competitive Entity”), in any province
of Canada or any state of the United States where Response engages in
such business. |
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| 4.1.2. | The restriction set out
in subparagraph 4.1.1(a) above shall not apply to the Consultant’s
ownership of less than ten percent (10%) of the securities of any Competitive
Entity. |
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| 4.1.3. | The Consultant acknowledges
that the restrictions contained in this Section 4.0 are reasonable; however,
in the event that any court should determine that any of the restrictive
covenants contained in subparagraph 4.1.1 or 4.1.2 of this Agreement,
or any part thereof, are unenforceable because of the duration of such
provision or the area covered thereby, such court shall have the power
to reduce the duration or area of such provision and, in its reduced form,
such provision shall then be enforceable and shall be enforced. |
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| 4.2. | CONFIDENTIALITY |
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| 4.2.1. | The term “Confidential
Information” means any and all information concerning any aspect
of Response not generally known to persons other than those associated
with Response including, but not limited to, clinical data, concepts,
processes and techniques, trade secrets, business strategies and financial
information. Response may disclose, in writing or orally, to the Consultant
certain Confidential Information. These disclosures will be directed primarily
to the subject of research and commercialization of quantitative lateral
flow point-of-care testing systems for human, veterinary, food safety
and environmental markets, but may also include proprietary and Confidential
Information relating generally to development of RAMP. |
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| 4.2.2 | The Consultant acknowledges
and agrees that the Confidential Information is disclosed to the Consultant
in the strictest confidence and any Confidential Information disclosed
to the Consultant in any form whatsoever is and shall be considered confidential
and proprietary information of Response. |
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| 4.2.3. | Except as authorized by
Response, the Consultant will not: |
|
(a) |
duplicate, transfer or disclose nor
allow any other person to duplicate, transfer or disclose any of the Confidential
Information; |
|
(b) |
use the Confidential Information without
the prior written consent of Response; or |
|
(c) |
incorporate, in the whole or in part,
within any domestic or foreign patent application any proprietary or Confidential
Information disclosed by Response. |
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| 4.2.4. | The Consultant will safeguard
all Confidential Information at all times so that it is not exposed to
or used by unauthorized person(s), and will exercise at least the same
degree of care used to protect the Consultant’s own Confidential
Information. |
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| 4.2.5. | Any and all notes, diagrams,
reports, notebook pages, memoranda, and like materials and chemical, and
biological materials received from Response and any copies or excerpts
thereof containing proprietary or Confidential Information will remain
the property of Response and will, upon the request of Response, be promptly
returned to Response. |
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| 4.2.6. | The restrictive obligations
set forth above shall not apply to the disclosure or use of any information
which: |
|
(a) |
is or later becomes publicly known under
circumstances involving no breach of this Agreement by the Consultant; |
|
(b) |
is already known to the Consultant at
the time of receipt of the Confidential Information; or |
|
(c) |
is lawfully made available to the Consultant
by a third party. |
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| 4.2.7. | No patent rights or licenses
are granted by this Agreement. The disclosure of Confidential Information
under this Agreement shall not result in any obligation for either party
to grant any rights in its patent rights or Confidential Information,
and no other obligations of any kind are assumed by or implied against
either party, except for as stated in this Agreement. |
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| 4.2.8. | The provisions of Section
4.2 shall survive the termination of this Agreement. |
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| 4.3. | DELIVERY OF RECORDS |
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| 4.3.1. | Upon the termination of
the Consultant’s engagement with the Company, the Consultant will
deliver to the Company all books, records, lists, brochures and other
property belonging to the Company or developed in connection with the
business of the Company. |
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| 5. | OWNERSHIP OF WORK
PRODUCT |
|
| 5.1. | Any and all know-how, ideas,
discoveries, inventions, improvements, formula, methods, processes, systems,
plans and any other knowledge or information of a technical or scientific
nature or of a business nature pertinent to Response’s scientific
or business interests whether protectable as industrial or intellectual
property right or not, which the Consultant may conceive develop or acquire
whether solely or jointly with any other party in furtherance of the engagement
with Response will be the sole and exclusive property of Response; however,
Response agrees to name the Consultant as the inventor on any patent applications
made as a result of work performed by him under this Agreement, provided
that all such patent applications are assigned to Response. |
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| 6. | TERMINATION |
|
| 6.1. | Response may terminate the Consultant’s engagement under this Agreement: | |
(a) |
at any time if there is a material breach
or default of any term of this Agreement by the Consultant if such material
breach or default has not been remedied to the satisfaction of Response
within 1 working day after written notice of the material breach or default
has been delivered by Response to the Consultant; and |
|
(b) |
at any time by providing 30 days notice
in writing. |
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| 6.2. | The Consultant may terminate
its obligations under this Agreement: |
|
(a) |
at any time by providing 30 days notice
in writing; and |
|
(b) |
upon a material breach or default of
any term of this Agreement by Response if such material breach or default
has not been remedied to the satisfaction of the Consultant within fifteen
(15) working days after written notice of the material breach or default
has been delivered by the Consultant to Response. |
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| 6.3. | The rights of Response
and the Consultant under this section 6.0 are in addition to and not in
derogation of any other remedies which may be available to the Company
or the Consultant at law or in equity. |
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| 6.4 | In the event of any dispute
arising with respect to any matter relating to this Agreement, the matter
in dispute shall be referred to a single arbitrator under the Commercial
Arbitration Act then in effect in British Columbia |
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| 7. | WAIVER |
|
| 7.1. | No consent or waiver, express
or implied, by any party to this Agreement of any breach or default by
the other party in the performance of its obligations under this Agreement
or of any of the terms, covenants or conditions of this Agreement shall
be deemed or construed to be a consent or waiver of any subsequent or |
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continuing breach or default in such party’s
performance or in the terms, covenants and conditions of this Agreement.
The failure of any party to this Agreement to assert any claim in a timely
fashion for any of its rights or remedies under this Agreement shall not
be construed as a waiver of any such claim and shall not serve to modify,
alter or restrict any such party’s right to assert such claim at
any time thereafter. |
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| 8. | NOTICES |
| 8.1. | Any notice relating to this Agreement or required
or permitted to be given in accordance with this Agreement shall be in
writing and shall be personally delivered or mailed by registered mail,
postage prepaid to the address of the parties set out on the first page
of this Agreement, any notice shall be deemed to have been received if
delivered, when delivered, and if mailed, on the fifth day (excluding
Saturdays, Sundays and holidays) after the mailing thereof. If normal
mail service is interrupted by strike, slowdown, force majeure or other
cause, a notice sent by registered mail will not be deemed to be received
until actually received and the party sending the notice shall utilize
any other services which have not been so interrupted or shall deliver
such notice in order to ensure prompt receipt thereof. |
| 8.2. | Each party to this Agreement may change its address
for the purpose of this section by giving written notice of such change
in the manner provided for in section 8.1. |
| 9. | APPLICABLE LAW |
| 9.1. | This Agreement shall be governed by and construed
in accordance with the laws of the province of British Columbia and the
federal laws of Canada applicable therein, which shall be deemed to be
the proper law hereof. The parties hereto hereby submit to the jurisdiction
of the courts of British Columbia. |
| 10. | SEVERABILITY |
| 10.1. | If any provision of this Agreement for any reason
is declared invalid, such declaration shall not affect the validity of
any remaining portion of the Agreement, which remaining portion shall
remain in full force and effect as if this Agreement had been executed
with the invalid portion thereof eliminated and is hereby declared the
intention of the parties that they would have executed the remaining portions
of this Agreement without including any such part, parts portion which
may, for any reason, be hereafter declared invalid. |
| 11. | ENTIRE AGREEMENT |
| 11.1. | Other than the stock option agreement referred to
in Section 3.2.1, this Agreement constitutes the entire agreement between
the parties hereto. There are no representations or warranties, express
or implied, statutory or otherwise other than set forth in this Agreement
and there are no agreements collateral hereto other than as are expressly
set forth or referred to herein. The Agreement cannot be amended or supplemented
except by a written agreement executed by both parties hereto. |
| 12. | NON-ASSIGNABILITY |
| 12.1. | This Agreement shall not be assigned by either party
to this Agreement without the prior written consent of the other party
to this Agreement. |
| 13. | BURDEN AND BENEFIT |
| 13.1. | This Agreement shall enure to the benefit of and
be binding upon the parties hereto and their respective heirs, executors,
administrators, successors and permitted assigns. |
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| 14. | TIME |
| 14.1. | Time is of the essence of this Agreement. |
IN WITNESS WHEREOF the Subscriber has duly executed this subscription as of the date set out on the first page of this Agreement.
| RESPONSE BIOMEDICAL CORP. | XXXX XXXXXXX | |
| "Xxxxxxx Xxxxxx" | "Xxxx Xxxxxxx" | |
| Authorized Signatory |
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