INDEPENDENT CONTRACTOR SERVICES AGREEMENT
THIS AGREEMENT ("Agreement") is entered into by and between
HyperBaric Systems ("Company"), a California corporation, and Xxxxxxxx Xxxxx,
M.D. (the "Contractor").
1. Engagement of Services. Contractor agrees to perform
services for Company as follows:
Evaluate HBS organ preservation solution(s) as per protocol provided.
Evaluation shall involve transplantation of up to sixty dog's kidneys, storage
of kidney's in HBS solution(s), taking and recording of measurements according
to protocols and proceedures provided by HBS, and transmitting such results to
HBS as requested.
Company selected Contractor to perform these services based upon Company
receiving Contractor's personal service and therefore Contractor may not
subcontract or otherwise delegate its obligations under this Agreement without
Company's prior written consent.
2. Compensation.
2.1 Fees and Approved Expenses. Company will pay
Contractor a fee of $1,000 for services rendered by Contractor pursuant to
this Agreement. Contractor will be reimbursed for expenses or services
incurred up to a total of no more than $5,000 in connection with the
performance of services under this Agreement. Such expenses and outside
services must be agreed to by HBS management. Additionally, Contractor will
be granted an option to purchase 2,500 shares of Company stock at a purchase
price of $1.50 per share, which shall vest immediately upon the completion of
all of the terms of this Agreement. The stock option shall be pursuant to the
Company's Non-Qualified Stock Option Plan, Agreement and Grant, and must be
approved by the Company's Board of Directors to become effective.
2.2 Timing. Company will pay Contractor for services
and will reimburse Contractor for previously approved expenses within fifteen
(15) days of the date of Contractor's invoice.
3. Independent Contractor Relationship. Contractor and Company
understand, acknowledge and agree that Contractor's relationship with Company
will be that of an independent contractor and nothing in this Agreement is
intended to or should be construed to create a partnership, joint venture,
or employment relationship.
4. Trade Secrets - Intellectual Property Rights.
4.1 Disclosure of Inventions.
(a) Contractor agrees to disclose promptly in
writing to Company, or any person designated by Company, every invention,
including but not limited to computer programs, processes, know-how and other
copyrightable material, which is conceived, made or reduced to practice by
Contractor within the scope of the work under this Agreement.
(b) Contractor represents that his performance
of all of the terms of this Agreement does not and will not breach any
agreement to keep in confidence proprietary information, knowledge or data of
a third party and Contractor will not disclose to Company, or induce Company
to use, any confidential or proprietary information belonging to third parties
unless such use or disclosure is authorized in writing by such owners.
(c) Contractor represents that any inventions or
copyrighted works relating to Company's actual or anticipated business or
research and development which Contractor has made, conceived, or reduced
to practice at the time of signing this Agreement, have been disclosed in
writing to Company and attached to this Agreement as Exhibit A.
4.2 Confidential Information. Contractor agrees during
the term of this Agreement and thereafter to take all steps reasonably
necessary to hold in trust and confidence information which he knows or has
reason to know is considered confidential by Company ("Confidential
Information"). Contractor agrees to use the Confidential Information solely
to perform the project hereunder. Confidential Information includes, but is
not limited to, technical and business information relating to Company's
inventions or products, research and development, manufacturing and
engineering processes, and future business plans. Contractor's obligations
with respect to the Confidential Information also extend to any third party's
proprietary or confidential information disclosed to Contractor in the course
of providing services to Company. This obligation shall not extend to any
information which becomes generally known to the public without breach of
this Agreement. This obligation shall survive the termination of this
Agreement.
4.3 No Conflict of Interest. Contractor agrees during
the term of this Agreement not to accept work or enter into a contract or
accept an obligation, inconsistent or incompatible with Contractor's
obligations or the scope of services rendered for Company under this
Agreement.
4.4 Assignment of Inventions.
(a) Inventions resulting from Contractor's work
for Company under this Agreement are the exclusive property of Company.
"Inventions" includes any and all inventions, improvements, discoveries, and
technical developments that Contractor, solely or jointly with others,
conceives, makes, or reduces to practice within the scope of the work under
this Agreement. Contractor assigns to Company his or her entire right, title
and interest in the Inventions worldwide and the associated intellectual
property rights.
(b) Contractor agrees to assist Company in any
reasonable manner to obtain and enforce for Company's benefit patents,
copyrights, and other property rights covering the Inventions in any and all
countries, and Contractor agrees to execute, when requested, patent, copyright
or similar applications and assignments to Company and any other lawful
documents deemed necessary by Company to carry out the purpose of this
Agreement. Contractor further agrees that the obligations and undertaking
stated in this Section 4.4(b) will continue beyond the termination of
Contractor's service to Company. If called upon to render assistance under
this Section 4.4(b), Contractor will be entitled to a fair and reasonable fee
in addition to reimbursement of authorized expenses incurred at the prior
written request of Company.
(c) In the event that Company is unable for any
reason whatsoever to secure Contractor's signature to any lawful and
necessary document required to apply for or execute any patent, copyright or
other applications with respect to any Inventions (including improvements,
renewals, extensions, continuations, divisions or continuations in part
thereof), Contractor hereby irrevocably designates and appoints Company and
its duly authorized officers and agents as his agents and attorneys-in-fact
to act for and in his behalf and instead of Contractor, to execute and file
any such application and to do all other lawfully permitted acts to further
the prosecution and issuance of patents, copyrights or other rights thereon
with the same legal force and effect as if executed by Contractor.
4.5 Return of Company's Property. Contractor
acknowledges that Company's sole and exclusive property includes all documents,
such as drawings, manuals, notebooks, reports, sketches, records, computer
programs, employee lists, customer lists and the like in his custody or
possession, whether delivered to Contractor by Company or made by Contractor
in the performance of services under this Agreement, relating to the business
activities of Company or its customers or suppliers and containing any
information or data whatsoever, whether or not Confidential Information.
Contractor agrees to deliver promptly all of Company's property and all copies
of Company's property in Contractor's possession to Company at any time upon
Company's request.
5. Termination - Noninterference with Business.
5.1 Termination by Company. Company may terminate this
Agreement for material breach at any time upon fifteen (15) days prior written
notice to Contractor. Company also may terminate this Agreement immediately
in its sole discretion upon Contractor's material breach of Article 4 and/or
Section 5.3 of this Agreement and/or upon any acts of gross misconduct by
Contractor directly affecting this Agreement or the independent contractor
relationship.
5.2 Termination by Contractor. Contractor may terminate
this Agreement for material breach at any time upon fifteen (15) days prior
written notice to Company.
5.3 Noninterference with Business. During and for a
period of two (2) years immediately following termination of this Agreement
by either party, Contractor agrees not to solicit or induce any employee or
independent contractor to terminate or breach an employment, contractual or
other relationship with Company.
6. General Provisions.
6.1 Governing Law. This Agreement will be governed by
and construed in accordance with the laws of the United States and the State
of California as applied to agreements entered into and to be performed
entirely within California between California residents.
6.2 Entire Agreement. This Agreement, including all
Exhibits to this Agreement, constitutes the entire agreement between the
parties relating to this subject matter and supersedes all prior or
simultaneous representations, discussions, negotiations, and
agreements, whether written or oral.
6.3 Waiver. No term or provision hereof will be
considered waived by either party, and no breach excused by either party,
unless such waiver or consent is in writing signed on behalf of the party
against whom the waiver is asserted. No consent by either party to, or
waiver of, a breach by either party, whether express or implied, will
constitute a consent to, waiver of, or excuse of any other, different, or
subsequent breach by either party.
6.4 Successors and Assigns. Contractor may not assign
its rights or obligations arising under this Agreement without Company's
prior written consent. Company may assign its rights and obligations under
this Agreement. This Agreement will be for the benefit of Company's
successors and assigns, and will be binding on Contractor's heirs, legal
representatives and permitted assignees.
6.5 Legal Fees. If any dispute arises between the
parties with respect to the matters covered by this Agreement which leads
to a proceeding to resolve such dispute, the prevailing party in such
proceeding shall be entitled to receive its reasonable attorneys' fees,
expert witness fees and out-of-pocket costs incurred in connection with
such proceeding, in addition to any other relief to which it may be entitled.
6.6 Notices. All notices, requests and other
communications required to be given under this Agreement must be in writing,
and must be mailed by registered or certified mail, postage prepaid and
return receipt requested, or delivered by hand to the party to whom such
notice is required or permitted to be given. Any such notice will be
considered to have been given when received, or if mailed, five (5) business
days after it was mailed, as evidenced by the postmark. The mailing address
for notice to either party will be the address shown on the signature page
of this Agreement. Either party may change its mailing address by notice as
provided by this Section 6.6.
6.7 Survival. The following provisions shall survive
termination of this Agreement: Article 4 and Section 5.3.
6.8 Term. This Agreement is effective as of April 6,
2000, and will terminate on August 6, 2000, unless terminated earlier in
accordance with Section 5 above.
"Company" "Contractor"
HyperBaric Systems Xxxxxxxx Xxxxx, M.D.
By: By:
Name: Xxxx Xxxxxx, M.D., Ph.d. Name: Xxxxxxxx Xxxxx, M.D.
Title: Chief Medical Officer Title:
Address: 0000 Xxxxxx Xxxxxx Xxxxxxx:
Xxxx Xxxx, XX 00000 __________________
EXHIBIT A
PRIOR INVENTIONS DISCLOSURE
