ARADIGM CORPORATION CONSULTING AGREEMENT FOR INDEPENDENT CONTRACTORS
ARADIGM
CORPORATION
CONSULTING
AGREEMENT FOR INDEPENDENT CONTRACTORS
THIS
CONSULTING
AGREEMENT (the “Agreement”) is made and entered into by and between
ARADIGM CORPORATION, a California corporation (“Aradigm”), and
XXXXXX XXXXXXX an individual (“Consultant”), effective as of
July 2, 2007.
RECITALS
WHEREAS,
Consultant has unique skills and knowledge in Aradigm’s field of endeavor and
thus is well suited to advise Aradigm with respect to its financial functions;
and
WHEREAS,
Aradigm desires that Consultant advise and consult with Aradigm and be
responsible for all functions and duties of the treasurer, and exercise such
powers and perform such duties as are usually vested in the office of chief
financial officer of a corporation, and Consultant agrees to provide such
assistance to Aradigm through a consulting relationship with
Aradigm;
NOW
THEREFORE, in consideration of the mutual obligations specified in this
Agreement, the parties agree to the following:
1.1 Scope. Consultant
shall provide consulting services (“Services”) to Aradigm generally in the
specialized field of duties that are usually vested in the office of chief
financial officer of a corporation (the “Field”). Aradigm shall
determine the specific nature and amount of the Services to be performed within
the Field during the term of this Agreement and as set forth
herein.
The
scope
of the services will include:
(a) Strategic
Planning - actively participate in ongoing strategy dialogues and assist in
setting direction for the future of Aradigm. Participate in the evaluation
of
new strategic business opportunities.
(b) Working
Capital Management - provide guidance on opportunities in the
marketplace.
(c) Financial
Reporting - define scope for detailed performance reporting and
provide the guidance to the chief executive officer and Financial Controller,
including analysis of key performance metrics to highlight operating
issues/challenges.
(d) Operational
Accounting - oversee the Finance and Accounting staff with respect to month
end
close, general ledger accounting, inventory, accounts receivable, accounts
payable and fixed assets.
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(e) Budgeting
and Forecasting - oversee the annual budget process and set up baseline
expectations, variance analysis presentations and reviews.
(f) Treasury/Banking
- manage and act as the primary contact for the banking relationship, ensure
full compliance with the covenants of the loan agreement and dialogue with
broader investment community. Oversight of treasury/cash
management.
(g) Mergers
and Acquisitions - lead all financial reporting and due-diligence requirements
associated with the Aradigm’s strategic initiatives.
(h) Internal
Controls and Accounting Processes - responsible for evaluating existing
processes and related internal controls, make recommendations for improvement
and ensure against any internal control weaknesses.
(i) Audit
- act as primary interface with the Auditors and provide management/oversight
of
corporate audit activity, including maintaining active dialogue with auditors
to
ensure compliance with accounting standards.
(j) Tax
Compliance - oversee all financial/tax reporting to appropriate federal, state,
and local governments and ensure payment of all taxes on a timely
basis. Provide guidance on development of broader tax planning
and structuring strategies for the future.
(k) Exercise
such powers and perform such duties as are usually vested in the office of
chief
financial officer of a corporation, and exercise such other powers and perform
such other duties as may be prescribed by the Board of Directors or the chief
executive officer.
1.2 Performance
and Time Commitment. Consultant shall render the Services at
such times as may be mutually agreed upon by Consultant and
Aradigm. Consultant shall perform the services at Aradigm’s principal
place of business or at other places upon mutual agreement of the
parties. Consultant also agrees to perform a reasonable amount of
informal consultation with Aradigm over the telephone or otherwise.
1.3 Professional
Standards. The manner and means used by Consultant to
perform the Services desired by Aradigm are in the sole discretion and control
of Consultant. Consultant’s Services, and the results thereof, will
be performed with and be the product of the highest degree of professional
skill
and expertise.
1.4 Independent
Contractor Status. It is understood and agreed that
Consultant is an independent contractor, is not an agent or employee of Aradigm,
and is not authorized to act on behalf of Aradigm. Consultant agrees
not to hold himself out as, or give any person any reason to believe that he
is,
an employee, agent, joint venturer or partner of Aradigm, except as Consultant
may be required by law to act as an agent of Aradigm in relation to Services
as
specified in Section 1.1, above. Consultant will not be eligible for
any employee benefits, including, but not limited to, profit-sharing or
retirement benefits, nor will Aradigm make deductions from any amounts payable
to Consultant for taxes or insurance. Consultant will, however, be
eligible for group health insurance. Consultant will be solely
responsible for all tax payments and tax returns required to be filed with
or
made to any federal, state or local tax authority with respect to Consultants
performance of Services and receipt of fees under this
Agreement. Aradigm will regularly report amounts paid to Consultant
by filing Form-1099 MISC with the Internal Revenue Service as required by
law. Because Consultant is an independent contractor, Aradigm will
not withhold or make payments for Social Security; make unemployment insurance
or disability insurance contributions; or obtain workers compensation insurance
on Consultant’s behalf. Consultant agrees to accept exclusive
liability for complying with all applicable state and federal laws governing
self-employed individuals, including obligations such as payment of taxes,
social security, disability and other contributions based on fees paid to
Consultant under this Agreement. Consultant hereby agrees to
indemnify and defend Aradigm against any and all such taxes or contributions,
including penalties and interest. Consultant retains the right to
provide services for others during the term of this Agreement and is not
required to devote his services exclusively for Aradigm.
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2. COMPENSATION. As
compensation for Consultant’s services and the discharge of all Consultant’s
obligations hereunder, Aradigm shall pay Consultant a consulting fee of $22,500
per month for Services requested by Aradigm, payable on the 25th of the
month after
Consultant’s services are discharged. In addition, Aradigm will
provide Consultant health care insurance that includes medical, dental, and
vision coverage for the term of this Agreement. Total compensation for services
and group health insurance not to exceed $300,000 without further
approval.
3. EXPENSES. Aradigm
shall reimburse Consultant for expenses actually incurred by Consultant in
performing the Services so long as such expenses are reasonable and necessary
as
determined by Aradigm. Consultant shall maintain adequate books and
records relating to any expenses to be reimbursed and shall submit requests
for
reimbursement in a timely manner and form acceptable to Aradigm.
4. NO
SOLICITATION. During the term of this
Agreement and for three (3) years after its termination, Consultant will not
personally or through others recruit, solicit or induce any employee of Aradigm
to terminate his or her employment with Aradigm.
5. MAINTAINING
CONFIDENTIAL INFORMATION.
5.1 Company
Information. During the term of this Agreement and in the
course of Consultant’s performance hereunder, Consultant may receive or
otherwise be exposed to confidential and/or proprietary information relating
to
Aradigm’s technology know-how, trade secrets, data, inventions, developments,
plans business practices, and strategies. Such confidential and/or
proprietary information of Aradigm (collectively referred to as “Information”)
may include but not be limited to: (i) confidential and/or proprietary
information supplied to Consultant with the legend “Aradigm Confidential” or
equivalent; (ii) Aradigm’s marketing and customer support strategies, financial
information (including sales, costs, profits and pricing methods), internal
organization, employee information, and customer lists; (iii) Aradigm’s
technology, including, but not limited to, discoveries, inventions, research
and
development efforts, data, software, trade secrets, processes, samples, AERx®
drug delivery technology, AERx StripTM dosage
forms and
other related technology, formulas, methods, product and know-how and show-how;
(iv) all derivatives, improvements, additions, modifications, and enhancements
to any of the above, including any such information or material created or
developed by Consultant under this Agreement; or (v) information of third
parties as to which Aradigm has an obligation of confidentiality.
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Consultant
acknowledges the confidential and secret character of the Information and agrees
that the Information is the sole, exclusive and extremely valuable property
of
Aradigm. Accordingly, Consultant agrees not to reproduce any of the
Information without the applicable prior written consent of Aradigm, not to
use
the Information except in the performance of this Agreement, and not to disclose
all or any part of the Information in any form to any third party, either during
or after the term of this Agreement. Consultant agrees to protect all
Information of Aradigm with the same degree of care that it protects its own
Information (which, in any event, shall be not less than a reasonable degree
of
care under the circumstances). Upon notice of termination of this
Agreement for any reason, including expiration of term, or upon Aradigm’s
request, Consultant agrees to cease using and to immediately return to Aradigm
all whole and partial copies and derivatives of the Information, whether in
Consultant’s possession or under Consultant’s direct or indirect
control.
5.2 Other
Employer Information. Consultant agrees that he will not,
during his engagement with Aradigm, improperly use or disclose any proprietary
information or trade secrets of his former or concurrent clients, employers
or
companies, and that he will not bring onto the premises of Aradigm any
unpublished documents or any property belonging to his former or concurrent
clients, employers or companies unless consented to in writing by said employers
or companies. .
5.3 Third
Party Information. Consultant recognizes that Aradigm has
received and in the future will receive from third parties their confidential
or
proprietary information subject to a duty on Aradigm’s part to maintain the
confidentiality of such information and, in some cases, to use it only for
certain limited purposes. Consultant agrees that he owes Aradigm and
such third parties, both during the term of his engagement and thereafter,
a
duty to hold all such confidential or proprietary information in the
strictest confidence and not to disclose it to any person, firm or corporation
(except in a manner that is consistent with Aradigm’s agreement with the third
party) or use it for the benefit of anyone other than Aradigm or such third
party (consistent with Aradigm’s agreement with the third party).
6. INVENTIONS.
6.1 Disclosure
of Work Product. As used in this Agreement, the term "Work
Product" means any invention, whether or not patentable, and all related
know-how, designs, mask works, trademarks, formulae, processes, manufacturing
techniques, trade secrets, ideas, artwork, software or other copyrightable
or
patentable works. Consultant agrees to disclose promptly in writing
to Aradigm, or any person designated by Aradigm, all Work Product that is solely
or jointly conceived, made, reduced to practice, or learned by Consultant in
the
course of any work performed for Aradigm ("Aradigm Work
Product"). Consultant represents that any Work Product relating to
Aradigm's business or any project that Consultant has made, conceived or reduced
to practice at the time of signing this Agreement ("Prior Work Product") has
been disclosed in writing to Aradigm and attached to this Agreement as Exhibit
A. If disclosure of any such Prior Work Product would cause
Consultant to violate any prior confidentiality agreement, Consultant
understands that it is not to list such Prior Work Product in Exhibit A but
it
will disclose a cursory name for each such invention, a listing of the
party(ies) to whom it belongs, and the fact that full disclosure as to such
Prior Work Product has not been made for that reason. A space is
provided in Exhibit A for such purpose.
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6.2 Ownership
of Work Product. Consultant shall specifically describe and
identify in Exhibit A all technology which (a) Consultant intends to use in
performing under this Agreement, (b) is either owned solely by Consultant or
licensed to Consultant with a right to sublicense and (c) is in existence in
the
form of a writing or working prototype prior to the Effective Date ("Background
Technology"). Consultant agrees that any and all Inventions
conceived, written, created or first reduced to practice in the performance
of
work under this Agreement shall be the sole and exclusive property of
Aradigm.
6.3 Assignment
of Aradigm Work Product. Except for Consultant's rights in
the Background Technology, Consultant irrevocably assigns to Aradigm or its
designee, all right, title and interest worldwide in and to the Aradigm Work
Product and all applicable intellectual property rights related to the Aradigm
Work Product, including without limitation, copyrights, trademarks, trade
secrets, patents, moral rights, contract and licensing rights, whether or not
patentable or registerable under copyright or similar laws, (the
"Proprietary Rights"). Except as set forth below, Consultant retains
no rights to use the Aradigm Work Product and agrees not to challenge the
validity of Aradigm's ownership in the Aradigm Work
Product. Consultant hereby grants to Aradigm a non-exclusive,
royalty-free, irrevocable and world-wide right, with rights to sublicense
through multiple tiers of sublicensees, to reproduce, make derivative works
of,
publicly perform, and publicly display in any form or medium, whether now known
or later developed, distribute, make, use and sell Background Technology and
any
Prior Work Product incorporated or used in the Aradigm Work Product for the
purpose of developing and marketing Aradigm products. Consultant
further acknowledges that all original works of authorship which are made by
Consultant (solely or jointly with others) within the scope of and during the
period of this agreement and which are protectable by copyright are “works made
for hire” as that term is defined in the United States Copyright Act (17 U.S.C.,
Section 101).
6.4 Waiver
of Assignment of Other Rights. If Consultant has any rights
to the Aradigm Work Product that cannot be assigned to Aradigm, Consultant
unconditionally and irrevocably waives the enforcement of such rights, and
all
claims and causes of action of any kind against Aradigm with respect to such
rights, and agrees, at Aradigm's request and expense, to consent to and join
in
any action to enforce such rights. If Consultant has any right to the
Aradigm Work Product that cannot be assigned to Aradigm or waived by Consultant,
Consultant unconditionally and irrevocably grants to Aradigm during the term
of
such rights, an exclusive, irrevocable, perpetual, worldwide, fully paid and
royalty-free license, with rights to sublicense through multiple levels of
sublicensees, to reproduce, create derivative works of, distribute, publicly
perform and publicly display by all means now known or later developed, such
rights.
6.5 Assistance. Consultant
agrees to cooperate with Aradigm or its designee(s), both during and after
the
term of this Agreement, in the procurement and maintenance of Aradigm's rights
in Aradigm Work Product and to execute, when requested, any other documents
deemed necessary by Aradigm to carry out the purpose of this
Agreement. Consultant agrees to execute upon Aradigm's request a
signed transfer of copyright to Aradigm in the form attached to this Agreement
as Exhibit B for all Aradigm Work Product subject to copyright protection,
including, without limitation, computer programs, notes, sketches, drawings
and
reports.
6.6 Enforcement
of Proprietary Rights. Consultant will assist Aradigm in
every proper way to obtain, and from time to time enforce, United States and
foreign Proprietary Rights relating to Aradigm Work Product in any and all
countries. To that end Consultant will execute, verify and deliver
such documents and perform such other acts (including appearances as a witness)
as Aradigm may reasonably request for use in applying for, obtaining,
perfecting, evidencing, sustaining and enforcing such Proprietary Rights and
the
assignment thereof. In addition, Consultant will execute, verify and
deliver assignments of such Proprietary Rights to Aradigm or its
designee. Consultant's obligation to assist Aradigm with respect to
Proprietary Rights relating to such Aradigm Work Product in any and all
countries shall continue beyond the termination of this Agreement, but Aradigm
shall compensate Consultant at a reasonable rate after such termination for
the
time actually spent by Consultant at Aradigm's request on such
assistance.
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6.7 Execution
of Documents. In the event Aradigm is unable for any reason,
after reasonable effort, to secure Consultant's signature on any document needed
in connection with the actions specified in the preceding sections 6.5 and
6.6,
Consultant hereby irrevocably designates and appoints Aradigm and its duly
authorized officers and agents as its agent and attorney in fact, which
appointment is coupled with an interest, to act for and in its behalf to
execute, verify and file any such documents and to do all other lawfully
permitted acts to further the purposes of the preceding paragraph with the
same
legal force and effect as if executed by Consultant. Consultant
hereby waives and quitclaims to Aradigm any and all claims, of any nature
whatsoever, which Consultant now or may hereafter have for infringement of
any
Proprietary Rights assigned hereunder to Aradigm.
6.8 Exception
to Assignments. Consultant understands that the provisions
of this Agreement requiring assignment of inventions and works of authorship
to
the Aradigm do not apply to any invention which qualifies fully under the
provisions of the California Labor Code Section 2870 (attached hereto as Exhibit
C). Consultant will advise the Aradigm promptly in writing of any
inventions or works of authorship which Consultant believes meet the criteria
in
California Labor Code Section 2670 and not otherwise disclosed in Exhibit
B.
6.9 Obligation
to Keep Aradigm Informed. During the term of this Agreement,
and for one (1) year after its termination for any reason, Consultant will
promptly disclose to Aradigm fully and in writing all patent applications filed
by him or on his behalf.
7. TERMINATION. Either
Aradigm or the Consultant may terminate this Agreement at any time by giving
the
other party ten (10) days’ written notice. In the event of such
termination, Consultant shall cease work immediately after giving or receiving
such notice or termination, unless otherwise agreed to by the parties. Unless
earlier terminated as provided herein, this Agreement shall expire on June
30,
2008.
7.1 Return
of Aradigm Property. Upon termination of this Agreement or
earlier as requested by Aradigm, Consultant shall deliver to Aradigm any and
all
drawings, notes, memoranda, specifications, devices, formulas, Information,
Aradigm Work Product, together with al copies thereof, and any other material
containing or disclosing any Aradigm Work Product, Information or third party
information.
7.2 Notification
to
New Employer. Consultant hereby grants Aradigm the right to notify
Consultant’s future employers or clients of Consultant’s rights and obligations
under this Agreement; Aradigm, however, shall not have the right to disclose
any
compensation or benefits received by Consultant pursuant to this
Agreement.
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8. ARBITRATION
AND EQUITABLE RELIEF.
8.1
Arbitration. Aradigm and Consultant hereby acknowledge and
agree to resolve any and all differences and/or legal disputes between Aradigm
and Consultant through the process of final and binding
arbitration. Consultant acknowledges that any reference in Section 8
to Aradigm will include affiliated entities, fiduciaries, administrators,
affiliates, and all successors and assigns of any of them.
8.2 Claims
Covered by this Agreement. Aradigm and Consultant mutually
consent to the resolution by arbitration of all claims or controversies
(collectively, “claims”), whether or not arising out of Consultant’s retention
as an independent contractor (or the termination of that retention), that
Aradigm may have against Consultant or Consultant may have against Aradigm
or
against its officers, directors, employees, attorneys, partners or agents in
their capacity as such or otherwise. The claims covered by this
Agreement include, but are not limited to, claims for compensation due; claims
for breach of any contract or covenant (express or implied); applicable tort,
statutory or common law claims; claims for benefits (unless arising under a
plan
that specifies that its claims procedure shall culminate in an arbitration
procedure different from this one); and claims for violation of any federal,
state, or other governmental law, statute, regulation, or ordinance (hereafter
“Covered Claims”) applicable to independent contractors.
8.3 Claims
Not Covered by the Agreement. Consultant understands that
nothing in this Agreement prevents Consultant from filing, cooperating with
or
participating in any proceeding before the Securities and Exchange Commission,
the Department of Labor, California Division of Labor Standards Enforcement,
Equal Employment Opportunity Commission or the California Department of Fair
Employment and Housing, except that Consultant acknowledges and agrees that
Consultant shall not recover any monetary benefits in connection with such
claim
or as a result of any proceeding before such state or federal agency as any
and
all claims for benefits must be arbitrated under this Agreement.
8.4 Required
Notice of All Covered Claims and Statute of
Limitations The parties agree that the aggrieved party
must give written notice of any Covered Claim to the other party within the
applicable statute of limitations for the claims in question. The
written notice shall identify and describe the nature of all claims asserted
and
the facts upon which such claims are based. The notice shall be sent
to the other party by certified or registered mail, return receipt
requested. Written notice of all claims involving or relating to
Aradigm, or its officers, directors, employees, attorneys, partner or agents,
shall be sent to Xxxxxxx Xxxxxx, General Counsel, or his
successor. Consultant will be given written notice at the residence
address provided below.
8.5 Representation. Any
party may be represented by an attorney or other representative selected by
the
party.
8.6 Discovery. Each
party will be
entitled to discovery permitted under the then current Employment Arbitration
Rules & Procedures promulgated by JAMS (“JAMS Rules”), which meet or exceed
the right to discovery required by the California Arbitration
Act. The JAMS Rules may be found on the Internet at
xxx.xxxxxxx.xxx.
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8.7 Designation
of Witnesses. At least 30 days before the arbitration, the
parties must exchange lists of witnesses, including any expert(s), and copies
of
all exhibits intended to be used at the arbitration. Each party shall
have the right to subpoena witnesses and documents for the
arbitration.
8.8 Arbitration
Procedures
(a) Location. Aradigm
and Consultant agree that, except as provided in this Agreement, any arbitration
shall be in accordance with the current JAMS Rules before a retired judge at
JAMS (the “Arbitrator”). Aradigm and the Consultant agree that the
arbitration shall be held at a JAMS office in Hayward, California, unless an
otherwise mutually agreeable location is chosen.
(b) Selection
of Arbitrator. The Arbitrator shall be selected as
follows. JAMS shall give each party a list of eleven arbitrators
drawn from its panel of labor-management dispute arbitrators. If the
parties cannot agree on an arbitrator from that list of eleven, then the parties
shall strike alternately from the list until only one name
remains. The last remaining name shall be the
Arbitrator. The first party to strike shall be determined by
lot. Notwithstanding the preceding, nothing prevents Aradigm and the
Consultant from voluntarily agreeing to an Arbitrator without this
process.
(c) Authority
of Arbitrator. The Arbitrator shall apply the substantive
law (and the law of remedies, if applicable) of the state of California, or
federal law, or both, as applicable to the claim(s) asserted. The
Arbitrator, and not any federal, state, or local court or agency, shall have
the
exclusive authority to resolve any dispute relating to the interpretation,
applicability, enforceability, or formation of this Agreement, including, but
not limited to, any claim that all or any part of this Agreement is void or
voidable. In reaching their award, the arbitrators shall follow and
be bound by California law to the same extent and as if they were judges in
a
California court of law, including the ability to receive and rule upon
demurrers, motions to dismiss and/or motions for summary judgment or
adjudication.
(d) Written
Opinion. The Arbitrator shall issue a written statement of
decision, which shall be final and binding upon the parties.
(e) Miscellaneous
Procedures. The Arbitrator shall have jurisdiction to hear
and rule on pre-hearing disputes and is authorized to hold pre-hearing
conferences by telephone or in person as the Arbitrator deems
necessary. The Arbitrator shall have the authority to entertain a
motion to dismiss and/or a motion for summary judgment by any party and shall
apply the standards governing such motions under the California Code of Civil
Procedure. Either party, at its expense, may arrange for and pay the cost of
a
court reporter to provide a stenographic record of the
proceedings. Either party, upon request at the close of hearing,
shall be given leave to file a post-hearing brief. The time for
filing such a brief shall be set by the Arbitrator. Either party may bring
an
action in any court of competent jurisdiction to compel arbitration under this
Agreement and to enforce an arbitration award. Except as otherwise
provided in this Agreement, both Aradigm and Consultant agree that neither
of
them shall initiate nor prosecute any lawsuit of any nature, in any way related
to any Covered Claim.
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(f) Finality
of Order. The decision of the Arbitrator, after the matter
is submitted, shall be final and binding upon both the Aradigm and
Consultant.
(g) Confidentiality. The
arbitration shall be conducted in private and, to the extent permitted by
applicable law, the evidence presented and the results of the arbitration shall
be confidential. Nothing herein shall preclude or limit the right of
either party to make a report to an appropriate government agency or
commission.
(h) Arbitration
Fees and Costs. Aradigm shall pay the fees and costs of the
Arbitrator. Each party shall pay for its own costs and attorneys’
fees, if any. However, if any party prevails on a statutory claim
that affords the prevailing party attorneys’ fees and/or costs, the Arbitrator
may award reasonable fees and/or costs to the prevailing party.
ARADIGM
AND CONSULTANT FURTHER UNDERSTAND THAT, BY THIS AGREEMENT, ARADIGM AND
CONSULTANT ARE WAIVING THEIR RIGHT TO HAVE CLAIMS AGAINST THE OTHER ADJUDICATED
BY A COURT OR JURY.
8.9 Equitable
Remedies. Consultant agrees that both Aradigm and Consultant
have the right to obtain provisional remedies, including injunctive relief,
in
accordance with California Code of Civil Procedure section
1281.8. Consultant further agrees that it would be impossible or
inadequate to measure and calculate Aradigm's damages from any breach of the
covenants set forth in sections 4, 5, 6, and 7.1 herein. Accordingly,
Consultant agrees that if Consultant breaches any of such sections, Aradigm
will
have available, in addition to any other right or remedy available, the right
to
obtain an injunction from the arbitrator (as provided by California Code of
Civil Procedure section 1281.8) restraining such breach or threatened breach
and
to specific performance of any such provision of this
Agreement. Consultant further agrees that no bond or other security
shall be required in obtaining such equitable relief and Consultant hereby
consents to the issuance of such injunction and to the ordering of specific
performance.
8.10 Consideration. Consultant
understands that each party's promise to resolve claims by arbitration in
accordance with the provisions of this Agreement, rather than through the
courts, is consideration for the other party's like
promise. Consultant further understands that Consultant is offered
this Agreement in consideration of Consultant’s promise to arbitrate
claims.
9. COMPLIANCE
WITH APPLICABLE LAWS. Consultant warrants that all material
supplied and work performed under this Agreement complies with or will comply
with all applicable United States and foreign laws and regulations.
10. ASSIGNMENT;
BENEFIT. This Agreement is for the personal services of
Consultant and may not be assigned by him, nor shall it be assignable by
operation of law, without the prior written consent of
Aradigm. Aradigm may assign this Agreement at any
time. The parties’ rights and obligations under this Agreement will
bind and inure to the benefit of their respective successors, heirs, executors,
and administrators and permitted assigns.
11. INDEMNIFICATION. Aradigm
agrees to indemnify and hold harmless Consultant against any liability, damages,
loss or expense (including reasonable attorney fees and expenses of litigation)
arising out of the actions of Aradigm, its employees or any third party acting
on behalf or under authorization from Aradigm in the performance of this
Agreement or as a result of any products developed or made as a result of
information or received from Consultant, except for the
negligent or intentionally wrongful acts of Consultant.
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12. WARRANTIES. Consultant
agrees that it shall perform the services in a professional and workmanlike
manner in accordance with industry standards. In addition, Consultant
hereby represents and warrants that the Work Product shall not infringe any
copyright, patent, trademark or other proprietary right of any third party;
provided, however, that Consultant shall not be responsible for infringing
Work
Product to the extent that the infringement was caused by Aradigm.
13. LEGAL
AND EQUITABLE REMEDIES. Consultant hereby
acknowledges and agrees that in the event of any breach of this Agreement by
Consultant, including, without limitation, the actual or threatened disclosure
of Information or Service Product without the prior express written consent
of
Aradigm, Aradigm will suffer an irreparable injury, such that no remedy at
law
will afford it adequate protection against, or appropriate compensation for,
such injury. Accordingly, Consultant hereby agrees that Aradigm shall be
entitled to specific performance of Consultant’s obligations under this
Agreement, as well as such further relief as may be granted by a court of
competent jurisdiction.
14. LIMITATION
ON LIABILITY. Except for breaches of obligations pertaining
to confidentiality, under no circumstances and under no theory of liability
shall either party or any officer, employee, owner, director, shareholder,
successor agent or assign be liable to the other for any indirect, special,
incidental, consequential or punitive damages of any nature whatsoever arising
in connection with the provision of Work Product or Services under this
Agreement.
15. GOVERNING
LAW; SEVERABILITY. This Agreement shall be
governed by and construed according to the laws of the State of California
without regard to its conflict of laws rules. If any provision of
this Agreement is found by a court of competent jurisdiction to be
unenforceable, that provision shall be severed and the remainder of this
Agreement shall continue in full force and effect.
16. COMPLETE
UNDERSTANDING; MODIFICATION. This Agreement, together with
its Exhibits, constitutes the final, exclusive and complete understanding and
agreement of Aradigm and Consultant with respect to the subject matter
hereof. Any waiver, modification or amendment of any provision of
this Agreement shall be effective only if in writing and signed by an Aradigm
officer.
17. SURVIVAL.
The following provisions shall survive the expiration or termination
of
this Agreement: Sections 1.4, 4, 5, 6, 7.1, 7.2, 8., , 9, 13, 14, 15, 16, 17
and
18.
18. NOTICES. Any
notices required or permitted hereunder shall be given to the appropriate party
at the address specified below or at such other address as the party shall
specify in writing. Such notice shall be deemed given upon personal
delivery to the appropriate address or sent by certified or registered mail,
three days after the date of mailing.
10
|
|
If
to Aradigm:
|
If
to the Consultant:
|
|
|
Xxxx
Xxxxx
|
Xxxxxx
Xxxxxxx
|
|
|
Aradigm
Corporation
|
000
Xxxxxxxx #000
|
|
|
0000
Xxxxx Xxxx Xxx
|
Xxxxxxx,
Xxxxxxxxxx
|
|
|
(000)
000-0000
|
|
|
Fax:
(000) 000-0000
|
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first set forth above.
|
ARADIGM
CORPORATION
|
CONSULTANT
|
|||
|
By:
|
/s/
Xxxx Xxxxx
|
By:
|
/s/
Xxxxxx Xxxxxxx
|
|
|
Name:
|
Xxxx
Xxxxx
|
|||
|
Its
(Title):
|
President
and CEO
|
Chief
Executive Officer
11
EXHIBIT
A
Other
Employment/Consulting Relationships
[
_____________________ ]
12
EXHIBIT
B
PRIOR
WORK PRODUCT DISCLOSURE
I. EXCEPT
AS LISTED IN SECTION 2 BELOW, THE FOLLOWING IS A COMPLETE LIST OF ALL PRIOR
WORK
PRODUCT THAT HAVE BEEN MADE OR CONCEIVED OR FIRST REDUCED TO PRACTICE BY
CONSULTANT ALONE OR JOINTLY WITH OTHERS PRIOR TO MY ENGAGEMENT BY
ARADIGM:
|
|
¨
|
No
inventions or improvements.
|
|
|
¨
|
See
below:
|
|
|
¨
|
Additional
sheets attached.
|
II. DUE
TO A PRIOR CONFIDENTIALITY AGREEMENT, CONSULTANT CANNOT COMPLETE THE DISCLOSURE
UNDER SECTION 1 ABOVE WITH RESPECT TO INVENTIONS OR IMPROVEMENTS GENERALLY
LISTED BELOW, THE PROPRIETARY RIGHTS AND DUTY OF CONFIDENTIALITY WITH RESPECT
TO
WHICH CONTRACTOR OWES TO THE FOLLOWING PARTY(IES):
|
Invention
or Improvement
|
Party(ies)
|
Relationship
|
||||
|
1.
|
||||||
|
2.
|
||||||
|
3.
|
|
|
¨
|
Additional
sheets attached.
|
BACKGROUND
TECHNOLOGY DISCLOSURE
The
following is a list of all
Background Technology that Consultant intends to use in performing under this
Agreement:
13
EXHIBIT C
CALIFORNIA
LABOR CODE SECTION 2870
EMPLOYMENT
AGREEMENTS;
ASSIGNMENT
OF RIGHTS
"(a) Any
provision in an
employment agreement which provides that an employee shall assign, or offer
to
assign, any of his or her rights in an invention to his or her employer shall
not apply to an invention that the employee developed entirely on his or her
own
time without using the employer's equipment, supplies, facilities, or trade
secret information except for those inventions that either:
(1) Relate
at the time of conception or reduction to practice of the invention to the
employer's business, or actual or demonstrably anticipated research or
development of the employer.
(2) Result
from any work performed by the employee for the employer.
(b) To
the extent a
provision in an employment agreement purports to require an employee to assign
an invention otherwise excluded from being required to be assigned under
subdivision (a), the provision is against the public policy of this state
and is unenforceable."
14
