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EXHIBIT 10.41
IMPLANT SCIENCES CORPORATION
MEDICAL ADVISORY BOARD AGREEMENT
THIS MEDICAL ADVISORY BOARD AGREEMENT (the "Agreement") is made as of this
_________ day of _________, 1998 by and between Implant Sciences Corporation, a
Massachusetts corporation ("ISC"), and _________________ (the "MAB Member").
In consideration of the mutual promises of the parties hereunder, it is
agreed as follows:
(a) The MAB Member hereby agrees to serve as a member of the Medical
Advisory Board (the "MAB") of ISC for a period of 12 months commencing on the
date hereof.
(b) The services to be performed by the MAB Member (the "Services")
shall be as set forth on EXHIBIT A. The MAB Member agrees to make himself
available to render the Services, at such time or times and location or
locations as may be mutually agreed, from time to time as requested by ISC. The
MAB Member agrees to devote his best efforts to performing the Services. Subject
to (A) the prior review and approval of the MAB Member, which approval will not
be unreasonably withheld or delayed, and (B) if the proposed publicity
references _________________ (the "MAB Member's Employer") or any relationship
between the MAB Member and the MAB Member's Employer, the prior written consent
of the MAB Member's Employer, ISC shall have the right to publicize the MAB
Member's affiliation with ISC. Subject to the foregoing limitations, but without
limiting the generality of the foregoing, in the event that ISC files a
registration statement with the Securities and Exchange Commission, ISC may
identify the MAB Member as a member of the MAB and describe the activities of
the MAB in such registration statement.
(c) For the full, prompt and faithful performance of the Services, and
as reimbursement for any and all travel and other expenses that may be incurred
by the MAB Member in the performance of the Services, ISC shall pay the MAB
Member a fee as set forth in EXHIBIT B.
(d) This Agreement may be terminated by either party upon 30 days prior
written notice. Such termination shall not relieve the MAB Member or ISC of any
obligations hereunder which by their terms are intended to survive the
termination of the MAB Member's association with ISC, including but not limited
to the obligations of Sections 5, 7 and 8.
5. ISC shall indemnify the MAB Member against all liabilities and
expenses including amounts paid in satisfaction of judgements, in compromise or
as fines and penalties, and counsel fees, reasonably incurred by the MAB Member
in connection with the defense or disposition of any action, suit or other
proceeding, whether civil or criminal, in which the MAB Member may be involved
or with which the MAB Member may be threatened, while performing the Services or
thereafter, by reason of the MAB Member being or having been a member of the
MAB, except with respect to any matter as to which the MAB Member shall not have
acted in good faith in the reasonable belief that his action was in the best
interests of ISC. The foregoing
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obligation of indemnity will include, but not be limited to, any claims,
liabilities or expenses to which the MAB Member may become subject which arise
out of or relate to any untrue statement or alleged untrue statement of any
material fact contained in any registration statement filed by ISC with any
securities regulatory authority, any prospectus contained in any such
registration statement or any amendment or supplement to any of the foregoing,
or arise out of or relate to any omission or alleged omission to state in any of
the foregoing a material fact required to be stated therein or necessary to make
the statements contained therein, in light of the circumstances under which they
were made, not misleading.
6. So long as this Agreement continues in effect, the MAB Member shall
not, without the prior approval of ISC, alone or as a partner, officer,
director, consultant, employee, stockholder or otherwise, engage in any
employment, consulting or business activity, occupation or other activity that
is or is intended to be competitive with the business of ISC or with respect to
any products or services which are being considered, researched, developed,
marketed and/or sold by ISC; provided, however, that the holding by the MAB
Member of any investment in any security shall not be deemed to be a violation
of this Section 6 if such investment does not constitute over one percent (1%)
of the outstanding issue of such security. ISC hereby grants its approval to the
MAB Member to engage in any activities contemplated by his employment
relationship with the MAB Member's Employer, and ISC agrees that the MAB
Member's engaging in such activities will not constitute a breach or violation
of this Section 6. ISC acknowledges and agrees that its sole and exclusive
remedy in the event of any breach or violation by the MAB Member of the
limitations of this Section 6 will be to remove the MAB Member from the MAB and
terminate this Agreement. This remedy is intended for all purposes to be ISC's
sole and exclusive remedy in the event of such a breach or violation and ISC
hereby expressly waives and releases any and all other rights or remedies it may
have in connection with such a breach or violation, whether at law, in equity or
otherwise.
7. It is understood and agreed that neither this Agreement nor the
Services to be rendered hereunder shall for any purpose whatsoever or in any way
or manner create any employer-employee relationship between the MAB Member and
ISC and that the MAB Member shall not be entitled to any fringe benefits
generally provided to employees of ISC and ISC shall not be required to maintain
workers' compensation coverage for the MAB Member.
8. The MAB Member agrees that he will not at any time publish or
disclose to others or use for his own benefit or the benefit of others any
Confidential Information (as hereafter defined), except to such extent as may be
necessary in the ordinary course of performing in good faith his particular
duties as a member of the MAB and with the prior written consent of ISC. The
term "Confidential Information" shall mean research, development, engineering or
manufacturing data, plans, designs, formulae, processes, specifications,
techniques, trade secrets, financial information, customer or supplier lists or
other information that belongs to ISC or any of its clients, customers,
consultants, licensors, licensees, or affiliates and is identified or treated as
confidential by ISC or any of its clients, customers, consultants, licensors,
licensees, or affiliates; provided, however, that "Confidential Information"
shall not include any of such information that is already in the possession of
the MAB Member from a source not under an obligation or duty of non-disclosure
to ISC, any of such information that is hereafter obtained by the MAB Member
from a source other than ISC who is not under an obligation or duty of
non-
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disclosure to ISC, or any of such information that is in the public domain
or is otherwise generally known to ISC's competitors (in either case other than
because of a disclosure by the MAB Member in violation of this Section 8.)
9. The MAB Member shall promptly disclose to ISC and the MAB Member
hereby assigns and agrees to assign to ISC his full right, title and interest to
all Inventions (as hereafter defined). The MAB Member agrees to execute any and
all applications for domestic and foreign patents, copyrights or other
proprietary rights and to do such other acts (including, among others, the
execution and delivery of instruments of further assurance or confirmation)
requested by ISC to assign the Inventions to ISC and to permit ISC to file,
obtain and enforce any patents, copyrights or other proprietary rights in the
Inventions. The term "Inventions" shall mean inventions, discoveries,
developments, methods and processes (whether or not patentable or copyrightable
or constituting trade secrets) conceived, made or discovered by the MAB Member
(whether alone or with others) as a direct result of confidential information
received from ISC. ISC acknowledges and agrees that the MAB Member's rights in
certain inventions, developments and discoveries in fields related to ISC's
business may be subject to the prior rights of the MAB Member's Employer
(through its employment policies applicable to the MAB Member) and that any such
rights that are so subject to the prior rights of the MAB Member's Employer may
not be assigned by the MAB Member to ISC without the prior written consent of
the MAB Member's Employer; and any intellectual property rights, if any,
conveyed by the MAB Member to ISC shall relate exclusively to consulting
projects specifically and wholly funded by ISC pursuant to the Agreement and
which do not utilize any confidential or proprietary information of the MAB
Member's Employer.
10. The Services to be rendered by the MAB Member are personal in
nature. The MAB Member may not assign or transfer this Agreement or any of his
rights or obligations hereunder.
11. If either party breaches in any material respect any of its
material obligations under this Agreement, in addition to any other remedy, the
non-breaching party may terminate this Agreement.
12. Subject to the MAB Member's obtaining the prior written consent of
the MAB Member's Employer to this Agreement, the MAB Member represents and
warrants to ISC that he is permitted to enter into this Agreement and perform
the obligations contemplated hereby and that this Agreement and the terms and
obligations hereof are not inconsistent with any other obligation he may have.
13. Unless terminated by either party within sixty days of the first
anniversary of the date hereof and every anniversary thereafter, this agreement
shall automatically extend for an additional twelve months.
14. This Agreement shall be binding upon and inure to the benefit of
the parties and their respective legal representatives, successors and permitted
assigns. The MAB Member agrees that ISC may assign this Agreement to any person
or entity controlled by, in control of, or under common control with, ISC.
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1(e) This Agreement constitutes the entire agreement between the
parties as to the subject matter hereof. No provision of this Agreement shall be
waived, altered or canceled except in writing signed by the party against whom
such waiver, alteration or cancellation is asserted. Any such waiver shall be
limited to the particular instance and the particular time when and for which it
is given.
1(f) This Agreement shall be governed by, and construed and enforced in
accordance with, the substantive laws of The Commonwealth of Massachusetts,
without regard to its principles of conflicts of laws.
1(g) The invalidity or unenforceability of any provision hereof as to
an obligation of a party shall in no way affect the validity or enforceability
of any other provision of this Agreement, provided that if such invalidity or
unenforceability materially adversely affects the benefits the other party
reasonably expected to receive hereunder, that party shall have the right to
terminate this Agreement. Moreover, if one or more of the provisions contained
in this Agreement shall for any reason be held to be excessively broad as to
scope, activity or subject so as to be unenforceable at law, such provision or
provisions shall be construed by limiting or reducing it or them, so as to be
enforceable to the extent compatible with the applicable law as it shall then
appear.
1(h) Any use of the masculine gender herein shall apply equally to the
feminine.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as a sealed instrument as of this ___________ day of __________, 1998.
IMPLANT SCIENCES CORPORATION MAB MEMBER
By: By:
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X. X. Xxxxxx, Ph.D.
President --------------------------------
000 Xxxxxxx Xxxx, #0 --------------------------------
Xxxxxxxxx, XX 00000
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EXHIBIT A
SERVICES
The MAB of ISC is intended to act as a distinguished panel of medical
professionals, organized to provided outstanding expertise and leadership in
respect of present and future product development of ISC. The role of the MAB is
to:
1. Monitor the "scientific world" of universities and medical institutes.
2. Comment upon, identify and prepare specific recommendations of
technical directions for ISC's products.
There are currently no plans for formal meetings of the MAB. Meetings
will be held mainly by telephone or in private meetings between each MAB Member
and the ISC management, which would occur perhaps once a year in the MAB
Member's office.
The MAB Member has the following responsibilities:
* Act as key technical expert on a specific subject of ISC's business to
be agreed upon by ISC and the MAB Member;
* Attend and participate in telephone discussions with company
management.
* Generally assist the MAB in fulfilling its role as outlined above.
The estimated time commitment from the MAB Member required for the performance
of the Services is approximately 12 hours per year.
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EXHIBIT B
COMPENSATION
In consideration of the full, prompt and faithful performance of the
Services, the MAB Member shall be reimbursed for any and all reasonable expenses
(provided that travel and other expenses shall be pre-approved in excess of $200
in any single case or in excess of $2,500 in the aggregate in any year) that may
be incurred by the MAB Member in the performance of the Services, and for each
year served, ISC shall pay the MAB Member a fee at the annual rate of $1,000,
payable upon the commencement date of each year, plus a four (4) year option to
purchase up to 1,000 shares of the company's post IPO common stock, terms
governed by the 1998 Incentive and Nonqualified Stock Option Plan. During the
first year, the purchase price shall be no less than the initial public offering
price of the company stock. Thereafter, the purchase price of future stock
option awards shall be at fair market value.
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