Re: SpineMedica Physician Advisory Board Consulting Agreement
Exhibit 10.64
Date: , 200
| Re: | SpineMedica Physician Advisory Board Consulting Agreement |
Dear Dr. :
SpineMedica Corp., (“SpineMedica” or “the Company”) hereby confirms its mutual agreement with
you to serve as a consultant to the Company by serving as a member of the Company’s Physician
Advisory Board (“PAB”) upon the terms and conditions set forth in this letter agreement within the
field of spinal disc arthroplasty, spinal disc replacement, and other therapies related to
orthopedic and neurological surgery of the lumbar spine involving the proprietary Salubria®
material exclusively licensed to the Company in the all spinal applications, including the
development, production and sale of SaluDiscTM spinal disc prostheses (“Field”) and with
respect to the Company’s other research, development, and business activities. The Field of this
agreement may be broadened by mutual consent. The Company understands that you are currently an
employee and/or member, advisor, affiliate, consultant or are in some other way related to another
organization or organizations, as described on Appendix A (please fill out attached Appendix A).
This is a non-exclusive agreement for your service as a consultant to SpineMedica’s Physician
Advisory Board.
| 1. | Your consulting service shall include advising and informing the Company of
activities and developments within the Field and providing the Company with the benefit
of your knowledge, experience, skill and judgment in the Field and with respect to the
Company’s other research, development, and business activities. |
| 2. | Upon request by the Company from time to time, and at times mutually agreed
upon by you and the Company, you agree to participate in meetings with officials of the
Company and in meetings with all or some of the PAB members at the request of the
Company, in person and by telephonic conference calls, for the following compensation
as full consideration for all your consulting services and other obligations under this Consulting Agreement: |
Dr.
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| a) | $2,500 per day of meetings for in person
meetings involving out of town travel by you |
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| b) | $1,000 per meeting at your location |
| c) | $250 per conference call with Company
management and its designees and/or PAB members |
| d) | Options, which shall be fully vested upon grant, to
purchase 25,000 shares of common stock of the Company at an
exercise price equal to the current fair market value of the stock as
determined by the Company’s Board of Directors. Such options shall be
awarded and shall be subject to all the terms of the Company’s stock option
Plan and the individual Option Agreement between you and the Company.
Additional options, in the Company’s discretion, may also be granted to
you, from time to time. |
| 3. | The Company acknowledges that you are an employee and/or member, advisor,
affiliate, consultant or are in some other way related to another organization or
organizations, as described on Appendix A, and are subject to the policies of such
organization or organizations, including policies concerning consulting, conflicts of
interest, and intellectual property, and that your obligations under the policies the
policies of such organization or organizations take priority over any obligations you
may have to the Company by reason of this Consulting Agreement. |
| 4. | The period of this Consulting Agreement shall be one (1) year from the date of
full execution of this Agreement unless terminated by either party upon fifteen (15)
days’ advance written notice to the other party, in which event compensation for
services and travel expense incurred in accordance with this Agreement prior to such
termination will be paid by the Company. If not earlier terminated, this Agreement
will be renewed automatically one (1) year from the date hereof and from year to year
thereafter. |
| 5. | In addition to the compensation for your consulting services provided in
paragraph 2, the Company will reimburse you for necessary and reasonable out-of-pocket
travel and living expenses incurred by you at the Company’s request, within thirty (30)
days of submission of a statement to the Company documenting the expenses incurred,
provided that the Company’s prior approval shall be required with respect to such
individual expenses in excess of five hundred dollars [$500.00 USD]. |
| 6. | You represent and warrant to the Company that you do not have any agreement to
provide consulting services to any other party, firm or company in the Field or whose
business would be directly competitive with the
business of the Company and will not enter into any such agreement during the term
of this Agreement without the Company’s prior written consent. |
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| 7. | (a) You agree that all processes, formulas, data, programs, algorithms,
know-how, trade secrets, improvements, discoveries, developments, designs, inventions
(patentable or not), chemical compounds, mixtures, techniques, software, source code,
object code, marketing plans, strategies, forecasts, new products, financial
information, budgets, projections, licenses, prices, costs, customer and supplier
lists, inventions and discoveries that result from work performed by you for the
Company under this Agreement and all intellectual property rights related thereto,
whether or not patentable or registrable under copyright or similar statutes or subject
to analagous protection (all of the foregoing, collectively, “Field IP”), shall be the
sole and exclusive property of the Company or its nominees, you will notify the Company
thereof promptly and in writing, and you will and hereby do assign to the Company all
rights in and to such Field IP upon the creation of any such Field IP. The Company and
its nominees shall have the right to use and/or to apply for statutory or common law
protections for such Field IP in any and all countries. You further agree (i) to
assist the Company in every proper way to obtain and from time to time to enforce its
rights in such Field IP, at the Company’s expense, and (ii) to execute and deliver to
the Company or its nominee upon request all such documents as the Company or its
nominee may reasonably determine are necessary or appropriate. |
(b) Except as authorized by your employer as designated above or as otherwise
provided in this Agreement, the Company shall have NO rights by reason of this
Agreement in all processes, formulas, data, programs, algorithms, know-how, trade
secrets, improvements, discoveries, developments, designs, inventions (patentable or
not), chemical compounds, mixtures, techniques, software, source code, object code,
marketing plans, strategies, forecasts, new products, financial information,
budgets, projections, licenses, prices, costs, customer and supplier lists,
inventions and discoveries, improvement, or other intellectual property whatsoever,
whether or not publishable, patentable, or copyrightable, that either (i) is
developed as a direct result of a program of research financed, in whole or in part,
by funds under the control of your employer, or (ii) arises directly, in connection
with, or as an extension of research conducted by, in or under the laboratories of
your employer or through the use of its resources. Such intellectual property does
NOT constitute Field IP for the purposes of this agreement. It is understood and
agreed that your interest in such intellectual property shall be assigned by you to
your employer.
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Dr.
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| 8. | You agree that if, in the course of your services hereunder, you receive
proprietary information of the Company relating to its business operations, research
and development, equipment, or products, and such information is
marked or otherwise designated confidential, you will retain all such information in
confidence and will not use it, or disclose it, or cause its use or disclosure
except in the necessary course of the performance of your services under this
Agreement or with the written consent of the Company. Nothing contained in this
Agreement, however, shall prevent the disclosure by you of any information after it
is available to the general public, or of any information which was already
available to you at the time such information was acquired by you from the Company
or any disclosure of any information furnished to you without obligation of
confidentiality by a third party who is not then in default of any obligation to the
Company regarding the confidentiality of such information, or of any information
ordered to be disclosed by a court or governmental body, provided that you (i)
provide written advance notice to the Company of such disclosure, (ii) assist the
Company, as reasonably requested thereby and at the expense of the Company, in
obtaining confidential treatment of such information, and (iii) take reasonable
steps to minimize the extent of such disclosure. This Section 8 shall be effective
during the term of this Consulting Agreement and for a period of five (5) years
after termination or expiration hereof for any reason. |
| 9. | It is acknowledged and agreed that you may not disclose or publish data,
results, procedures, or other information relating to the consulting undertaken
pursuant to this Agreement, without the Company’s advance written approval. |
| 10. | The Company agrees to defend and indemnify you for the cost of defense and for
damages awarded, if any, as a result of any third party claims, liabilities, suits or
judgments arising out of this Consulting Agreement, so long as such claims,
liabilities, suits, or judgments are not attributable to grossly negligent or
intentionally wrongful acts or omissions by you or a material breach by you of this
Agreement. You shall promptly notify the Company of any such claim and shall cooperate
with the Company in the defense of such claim; you shall not agree to any settlement
with regards to such claim without prior written approval of the Company, and the
Company shall not have any indemnification obligation hereunder with respect to any
such settlement reached without its prior written consent. |
| 11. | The Company and you agree that, in the event of a breach by you of this
Agreement, the Company shall, in addition to any other rights and remedies available to
the Company, be entitled to enforcement by specific performance of your obligations
hereunder. If any provision of this Agreement shall be declared invalid or
unenforceable, such provision shall be enforced to the fullest extent allowed by law,
and all remaining provisions hereof shall continue in full force and effect. This
Agreement shall be governed for all purposes by the laws of the State of Georgia, and
shall be subject to the exclusive jurisdiction of the State and Federal courts located
in the Xxxx County, Georgia. |
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Dr.
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| 12. | Your relationship with the Company shall be that of an independent contractor,
and you will not be an employee of the Company for any purpose whatsoever. You do not
and shall not have any right or authority to assume or to create any obligation or
responsibility, express or implied, on behalf of or in the name of the Company or to
bind the Company in any manner. |
| 13. | The Company may not use your name in any commercial advertisement or similar
material that is used to promote or sell products, unless the Company obtains in
advance the written consent of you to such use, provided that, for purposes of
clarification but not limitation, the Company shall be entitled to name you as a
consultant and describe your role in consulting for the Company in discussions,
materials, and submissions (i) regarding the seeking and/or maintaining of regulatory
approvals or (ii) for presentations to, or discussions and negotiations with, or in
materials provided to, potential investors, lenders, financial advisors or strategic
partners, or as may otherwise be required by law or regulation. |
| 14. | Any notice or communications under this Agreement shall be in writing,
addressed as follows, and may be delivered by delivered by hand, by certified mail,
return receipt requested, or by nationally recognized overnight courier, and shall be
effective upon receipt: |
To Consultant:
To SpineMedica:
SpineMedica Corp.
000 Xxxx Xx
Xxxxx 0
Xxxxxxx, XX 00000
Attn: Xxxx X. Xxxxxx, Xx. Chief Financial Officer
000 Xxxx Xx
Xxxxx 0
Xxxxxxx, XX 00000
Attn: Xxxx X. Xxxxxx, Xx. Chief Financial Officer
| 15. | This Agreement may not be assigned by either party without the prior written
consent of the other, provided, however, that the Company may assign this Agreement to
any successor to the Company’s business by merger, purchase of assets, or otherwise.
This Agreement shall be binding upon the assigns, executors, administrators and other legal representatives of the parties hereto, and
shall inure to the benefit of the Company, its successors and assigns. |
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Dr.
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| 16. | Only the provisions of paragraph 7, 8, and 9 of this Consulting Agreement shall
survive termination or expiration hereof. |
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of the
_____
day of
, 200_.
| CONSULTANT | ||||
Witness |
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| SpineMedica Corp. | ||||
| By: | ||||
| Name: | ||||
| Title: | ||||
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