EXHIBIT 10.24
CONCEPTUS, INC.
MASTER CONSULTING AGREEMENT
This Agreement is entered into by and between Conceptus, Inc., a
Delaware corporation, ("Conceptus"), and Xxxxxxxx Comite, MD (hereinafter
"Consultant"), this 10th day of September 1997. It is agreed that the
Consultant is performing these services as an employee of and on behalf of
Medicine & Health, LLC.
In consideration of the mutual promises contained herein, the parties
hereto agree as follows:
SECTION 1: CONSULTING
1.1 SERVICES. Consultant shall render consulting services in the area
of establishment and direction of Scientific Advisory Board, participation on
S/TOP Advisory Board and general consulting on Women's Health issues
hereinafter its "Duties"). Consultant shall consult with the Board of
Directors, officers, and department heads of Conceptus, and such other
personnel as designated by the President of Conceptus, in regard to her
Duties.
1.2 SERVICES FOR OTHERS. Consultant shall be free to represent or
perform services for other persons during the term of this Agreement,
provided that performance of such services does not interfere with
Consultant's Duties under this Agreement. However, Consultant agrees that
Consultant does not presently perform, and does not intend to perform, during
the term of this Agreement, consulting or other services for third parties
whose businesses or proposed businesses in any way involve the design or use
of products that are or would be competitive with the products or proposed
products of Conceptus (except for companies previously disclosed by
Consultant to Conceptus in writing). Should Consultant propose to perform
consulting or other services for any such third party, Consultant agrees to
notify Conceptus in writing in advance (specifying the name of the
organization for whom Consultant proposes to perform such services) and to
provide information to Conceptus sufficient to allow it to determine if the
performance of such services would conflict with areas of interest to
Conceptus, or any further services that Conceptus might request of Consultant
under this Agreement.
1.3 PAYMENT. Conceptus agrees to pay Consultant for its services to be
rendered under this Agreement in accordance with the payment terms set forth
in each Project Designation. Conceptus shall reimburse Consultant for her
reasonable expenses incurred in the performance of her Duties, including, but
not limited to, reasonable expenses for travel and similar items. Conceptus
will reimburse Consultant for such reasonable, authorized expenses incurred
by Consultant upon the presentation by Consultant, from time to time, of a
detailed and itemized account of such expenses substantiated by receipts.
1.4 TERM. This Agreement shall have an initial term of twelve (12)
months, commencing on September 10, 1997 and terminating at the close of
business on September 9, 1998. This Agreement shall be automatically renewed
for additional twelve (12) month terms, on the same terms and conditions as
set forth in this Agreement, unless either party gives written notice to the
other party not less than sixty (60) days prior to the end of the then
current term of such party's intention not to renew this Agreement. In
addition, at any time during the term of this Agreement, either party may
terminate this Agreement by giving written notice to the other party not less
than sixty (60) days prior to the date of termination; provided, however,
that if this Agreement is terminated by Conceptus during any twelve (12)
month term, Conceptus shall, within thirty (30) days after the date of
termination, pay to Consultant all amounts that would have been due to
Consultant as set forth on the Project Designation during the remainder of
such term of this Agreement.
1.5 INDEPENDENT CONTRACTOR. Consultant's services are to be performed
as an independent contractor with the customary and usual independence
associated therewith and Consultant shall not be deemed to be an employee of
Conceptus or to have the authority to enter into any contract on behalf of
Conceptus or to otherwise bind Conceptus to any agreement unless expressly
authorized in writing to do so. Consultant shall be responsible for payment
of all income, social security and other taxes incurred by Consultant.
Consultant agrees to indemnify and hold harmless Conceptus to the extent of
any obligations imposed by law on Conceptus to pay any withholding taxes,
social security, unemployment or disability insurance, or similar items in
connection with any payment made to Consultant by Conceptus for Consultant's
services provided hereunder.
1.6 NO ASSIGNMENT. Because of the nature of the services to be
rendered by Consultant, this Agreement may not be assigned by Consultant
without the prior written consent of Conceptus.
SECTION 2: CONFIDENTIALITY
In consideration of its access to the premises of Conceptus and/or its
access to certain Confidential Information of Conceptus, in connection with
its business relationship with Conceptus, Consultant hereby represents and
agrees as follows:
2.1. CONFIDENTIAL INFORMATION. For purposes of this Agreement, the term
"Confidential Information" means:
(a) Any information which Conceptus possesses that has been
created, discovered or developed by or for Conceptus or which has otherwise
been made known to Conceptus, and which has or could have commercial value or
utility in the business in which Conceptus is engaged; or
(b) Any information that is related to the business of Conceptus
and is generally not known by non-Conceptus personnel.
By way of illustration, but not limitation, Confidential Information includes
trade secrets and any information concerning products, processes, formulas,
designs, inventions (whether or not patentable or registrable under copyright
or similar laws and whether or not reduced to practice), discoveries,
concepts, ideas, improvements, techniques, methods, research, development and
test results, specifications, data, know-how, software, formats, marketing
plans and analyses, business plans and analyses, strategies, forecasts,
customer and supplier identities, characteristics and agreements.
2.2 EXCLUSIONS. Notwithstanding the foregoing, the term Confidential
Information shall not include:
(a) Any information which becomes generally available to the
public other than as a result of a breach of the confidentiality portions of
this Consulting Agreement or any other agreement requiring confidentiality
between Conceptus and Consultant;
(b) Information received from a third party in rightful possession
of such information who is not restricted from disclosing such information; and
(c) Information known by Consultant prior to its receipt of such
information from Conceptus which prior knowledge can be documented.
2.3 DOCUMENTS. Conceptus and Consultant agree and acknowledge that
Consultant shall perform many of her Duties outside the premises of
Conceptus. Accordingly, Consultant may possess outside the premises of
Conceptus notes, formulas, programs, data, records, machines or other
documents or items which contain or constitute Confidential Information and
Consultant shall have the right to make reproductions or copies of the same,
but only to the extent necessary to perform the Duties. Consultant shall
promptly return any such documents or items, along with any reproductions or
copies, to Conceptus upon Conceptus's demand or upon termination of this
Agreement.
2.4 NO DISCLOSURE. Consultant agrees that Consultant will hold in
trust and confidence all Confidential Information and will not disclose to
others, directly or indirectly, any Confidential Information or anything
relating to such information without the prior written consent of Conceptus,
except as may be necessary in the course of its business relationship with
Conceptus. Consultant further agrees that Consultant will not use any
Confidential Information without the prior written consent of Conceptus,
except as may be necessary in the course of its business relationship with
Conceptus, and that the provisions of this Section 2.4 shall survive
termination of this Agreement.
2.5 PATENTS; COPYRIGHTS. Consultant acknowledges and agrees that all
Confidential Information existing or developed by or for Conceptus shall be
the sole property of Conceptus, and Conceptus shall be the sole owner of all
patent, copyright and other rights and protections in connection therewith.
Consultant hereby assigns to Conceptus all right, title and interest that
Consultant may have to or acquire in all such Confidential Information. Upon
learning of any Confidential Information not already disclosed to Conceptus
during the term of this Agreement,
Consultant agrees that Consultant will promptly disclose its knowledge of
such Confidential Information to Conceptus.
2.6 OWNERSHIP. Consultant agrees that all Confidential Information
that is related to or which results from work performed by Consultant for
Conceptus ("Inventions") shall be the sole and exclusive property of
Conceptus or its nominees. Conceptus and its nominees shall have the right
to use and/or to apply for patents, copyrights or other statutory or common
law protections for such Inventions in any and all countries. Consultant
further agrees (i) to assist Conceptus in every proper way to obtain and from
time to time to enforce such patents, copyrights and other rights and
protections relating to Inventions, and (ii) to execute and deliver to
Conceptus or its nominee upon request all such documents as Conceptus or its
nominee may determine are necessary or appropriate (including assignments of
inventions). (Such documents may be necessary to: (a) vest in Conceptus or
its nominee clear and marketable title in and to Inventions, (b) apply for,
prosecute and obtain patents, copyrights and other rights and protections
relating to Inventions, or (c) enforce patents, copyrights and other rights
and protections relating to Inventions.) Consultant's obligations pursuant to
this Section shall continue beyond the termination of its consulting
relationship with Conceptus, but Conceptus agrees to compensate Consultant
after the termination of the consulting relationship at a reasonable rate for
time actually spent or expenses incurred by Consultant at Conceptus's request.
2.7 LIMITS OF APPLICATION. Consultant has been informed and
understands that the provisions of Section 2.5 above do not apply to any
Invention that qualifies in all respects under Section 2870 of the California
Labor Code, which provides:
"(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 that either:
(i) 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.
(ii) 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."
2.8 PURSUIT OF INVENTIONS
(a) The Consultant shall promptly disclose to Conceptus in writing
all Inventions, patentable or unpatentable, that the Consultant conceives
and/or reduces to practice, either solely or jointly with Conceptus, during
the term of this Agreement.
(b) Within one hundred twenty (120) days after the Consultant
discloses and Invention to Conceptus, Conceptus shall notify Consultant
whether Conceptus will attempt to develop the Invention into a commercial
product. If Conceptus notifies Consultant that it will not attempt to
develop the Invention into a commercial product, then Conceptus shall
promptly assign to Consultant all the right, title, and interest therein held
by Conceptus pursuant to Section 2.5 hereof. If Conceptus notifies
Consultant that it will attempt to develop the Invention into a commercial
product, then Conceptus shall:
(i) Make reasonable efforts consistent with Conceptus's
business plans and resources to develop the Invention into a commercial
product, provided, however, that Conceptus shall be free to terminate such
efforts at any time in which case Conceptus shall, if Consultant so desires,
assign to Consultant all right, title and interest therein held by Conceptus;
(ii) If the Invention is deemed patentable under U.S. law by
Conceptus's patent attorneys, promptly file for and diligently seek U.S.
patent coverage for the Invention, provided, however that Conceptus shall be
free at any time to cease such efforts, in which case Conceptus shall, if
consultant so desires, assign any patent/patent applications on the Invention
to Consultant; and
(iii) Pay Consultant royalties on the Invention as follows:
(A) If the Invention is patented in the United States
and Consultant is the sole inventor thereof, four percent (4%) of Conceptus's
net sales price for product covered by the patent, for the duration of the
patent (as used herein "net sales price" shall mean the gross invoice price
for the product less the sum of the following deductions, where applicable:
case, trade, or quantity discounts; sales, use, tariff, import/export duties
or other excise taxes imposed upon sales; transportation charges and
allowance or credits to customers or distributions for rejections or
returns); or
(B) If the Invention is not patented in the U.S. and
consultant is the sole inventor thereof, three percent (3%) of Conceptus's
net sales price for the product covered by the Invention for a period of five
(5) years from the first commercial sale of such product; or
(C) If the Invention is patented in the U.S. and
Consultant is a joint inventor thereof with Conceptus, two percent (2%) of
Conceptus's net sales price for the product covered by the patent for the
duration of the patent; or
(D) If the Invention is not patented in the U.S. and
Consultant is a joint inventor thereof with Conceptus, two percent (2%) of
Conceptus's net sales price for the product covered by the Invention for a
period of five (5) years from the first commercial sale of the product.
Royalties shall be paid on a calendar year basis for sales of the invention
made in the preceding year.
2.9 NO CONFLICTING AGREEMENTS. Consultant represents that Consultant
has not brought, and will not bring, to Conceptus, and will not use in the
performance of its responsibilities for Conceptus, any materials or documents
of a former employer that are not generally available to the public, unless
Consultant has obtained the express written consent of such former employer
for Consultant's possession and use of such materials or documents for the
specific purposes that Consultant proposes to make of such materials or
documents under this Agreement. Moreover, Consultant represents that its
performance of this Agreement and the performance of its Duties as a
consultant of Conceptus does not and will not breach any agreement or
relationship of trust and confidence Consultant may have with any third
party, whether oral, written or implied. Consultant agrees that Consultant
has not entered into and will not enter into any agreement in conflict with
this Agreement.
2.10 PUBLICATION. Consultant shall not submit for publication or
publish any scientific writing, oral presentation, poster session or any
similar disclosure of results or conclusions resulting from the services
performed under this Agreement without the prior express written consent of
Conceptus.
2.11 REMEDIES. Consultant understands that, in the event Consultant
fails to comply with this Article 2 of this Agreement, Conceptus may suffer
irreparable harm that may not be adequately compensated by monetary damages.
Accordingly, Consultant agrees that, in the event of its breach or threatened
breach of any term of this Article 2, Conceptus shall be entitled to
injunctive or other preliminary or equitable relief in addition to such other
remedies as may be available to Conceptus for such breach or threatened
breach, including damages.
SECTION 3: MISCELLANEOUS
3.1 ACTIONS; EXPENSES. In the event of any action at law or in equity
to enforce the provisions of this Agreement, the unsuccessful party shall pay
to the other reasonable costs and expenses so incurred, including attorneys'
fees.
3.2 GOVERNING LAW. This Agreement shall be construed in accordance
with and governed by the laws of the State of California.
3.3 ENTIRE AGREEMENT; AMENDMENT; WAIVER. This Agreement ( including
the Project Designation attached as Exhibit A hereto) expresses the entire
understanding with respect to the subject matter hereof and supersedes and
terminates any prior oral or written agreements with respect to the subject
matter hereof. Any term of this Agreement may be amended and observance of
any term of this Agreement may be waived only with the written consent of the
parties hereto. Waiver of any term or condition of this Agreement by any
party shall not be construed as a waiver of any subsequent breach or failure
of the same term or condition or a waiver of any other term or condition of
this Agreement. The failure of any party at any time to require performance
by any other party of any provision of this Agreement shall not affect the
right of any such party to require future performance of such provision or
any other provision of Agreement.
Consultant and Conceptus hereby accept and agree to the above terms and
acknowledge receipt of a copy of this Agreement.
CONCEPTUS, INC. (HIRING AUTHORITY)
By: /s/ Xxxxxxx Xxxxxxxx
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Name: Xxxxxxx Xxxxxxxx
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Title: President & CEO
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Address: 0000 Xxxxxx Xxxxxx
Xxx Xxxxxx, XX 00000
Telephone: (000) 000-0000
CONCEPTUS, INC. (CHIEF FINANCIAL OFFICER)
By: /s/ Xxxxxxx Xxxxx
------------------------------------------
Name: Xxxxxxx Xxxxx
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Title: Chief Financial Officer
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Address: 0000 Xxxxxx Xxxxxx
Xxx Xxxxxx, XX 00000
Telephone: (000) 000-0000
"CONSULTANT"
By: /s/ Xx. Xxxxxxxx Comite
------------------------------------------
Name: Xx. Xxxxxxxx Comite
----------------------------------------
Address: Women's Health at Yale
00 Xxxxxx Xxxxxx, Xxxxx 0X
Xxx Xxxxx, XX 00000
Telephone: (000) 000-0000
EXHIBIT A
PROJECT DESIGNATION
1. DESCRIPTION OF PROJECT: Establishment and direction of Scientific
Advisory Board
Participation on S/Top Advisory Board
Consulting on Women's Health Issues
2. TIME DEVOTED TO PROJECT: Two (2) days per month
Up to twenty-four (24) additional days per year
to include trips to Conceptus and travel on
behalf of Conceptus.
3. COMPENSATION: An annual stipend of $72,000
(a) PAYMENT SCHEDULE: To be paid on monthly basis, $6,000 per month to
Medicine and Health Today, L.L.C.
(b) EXPENSES AUTHORIZED FOR REIMBURSEMENT BY CONCEPTUS: Out-of-pocket
expenses, including local travel and local telephone calls, shall be
reimbursed by Conceptus. Conceptus shall reimburse Consultant for any
out-of-area travel and long-distance telephone calls, including car and
cellular telephone calls.
4. DURATION OF PROJECT: One year
Signatures:
CONCEPTUS, INC. (HIRING AUTHORITY)
By: /s/ Xxxxxxx Xxxxxxxx
--------------------------------------
Name: Xxxxxxx Xxxxxxxx
------------------------------------
Title: President & CEO
-----------------------------------
Address: 0000 Xxxxxx Xxxxxx
Xxx Xxxxxx, XX 00000
Telephone: (000) 000-0000
CONCEPTUS, INC. (CHIEF FINANCIAL OFFICER)
By: /s/ Xxxxxxx Xxxxx
--------------------------------------
Name: Xxxxxxx Xxxxx
------------------------------------
Title: Chief Financial Officer
-----------------------------------
Address: 0000 Xxxxxx Xxxxxx
Xxx Xxxxxx, XX 00000
Telephone: (000) 000-0000
"CONSULTANT"
By: /s/ Xx. Xxxxxxxx Comite
--------------------------------------
Name: Xx. Xxxxxxxx Comite
------------------------------------
Address: Women's Health at Yale
00 Xxxxxx Xxxxxx, Xxxxx 0X
Xxx Xxxxx, XX 00000
Telephone: (000) 000-0000
