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EXHIBIT 10.25
CONSULTANT AGREEMENT
THIS AGREEMENT is made effective on November 20, 1999 between HYPERBARIC
SYSTEMS, whose address is 0000 Xxxxxx Xxxxxx, Xxxx Xxxx, XX 00000, incorporated
under the laws of the State of California, hereinafter called "COMPANY", and Xx.
Xxxxx XxXxxxxx, whose address is 0000 Xxxxxxxxx Xxxxx Xxxxx, Xxxxxx, XX 00000
hereinafter called "CONSULTANT".
WITNESSETH:
1. PURPOSE OF AGREEMENT. HYPERBARIC SYSTEMS is a duly established
California corporation engaged in the business of designing, manufacturing and
marketing products for the medical, food and semiconductor industries, and
CONSULTANT represents that he has expertise in the area of medicine and business
contacts. This agreement between COMPANY and CONSULTANT is entered into for the
purpose of defining the relationship, responsibilities, and agreement between
COMPANY and CONSULTANT.
2. CONSULTANT: COMPANY hereby appoints Xx. Xxxxx XxXxxxxx to
provide medical market due diligence and business consulting services to
COMPANY.
3. CONSULTANT DUTIES AND RESPONSIBILITIES: CONSULTANT shall be
engaged as a Consultant with the following tasks:
a. Assist in providing due diligence and market
information in possible uses of the Technology within the
pediatric medical market.
b. Assist in providing technical contacts that may serve
on the Advisory Board.
c. Assist in providing business and investor contacts that
may make investments in COMPANY.
4. CONSULTANT'S PERFORMANCE. CONSULTANT agrees to devote a
reasonable amount of time to meet the objectives outlined in Paragraph 3. The
Company acknowledges that Consultant is not an employee of the Company.
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5. TERM. The term of this Agreement shall be effective for a
period of 9 months from the date of this Agreement unless terminated earlier by
fulfillment of the services to be provided.
6. WARRANTS. Subject to the provisions and upon the terms and
conditions set forth herein and in that certain Warrant to Purchase Shares of
Common Stock attached as Attachment 1, COMPANY shall grant to Consultant a
warrant to purchase up to an aggregate of Eight Hundred Thousand (800,000)
shares of Common Stock of COMPANY at the exercise price of $1.50 per share.
7. TERMINATION UPON BREACH. This Agreement shall be terminated
upon material breach of any of the provisions herein, or breach of the material
provisions of any and all supplemental agreements which the CONSULTANT and
COMPANY may mutually execute.
8. CONFIDENTIALITY AGREEMENT. CONSULTANT agrees that all
information made available to CONSULTANT regarding the products, clients and
software systems of COMPANY are confidential and require a high degree of
confidentiality so as not to violate the rights of others and to prevent the use
thereof for purposes detrimental to the interests of COMPANY and its clients.
Such information in any form shall be hereinafter referred to as "INFORMATION."
For purposes of this Agreement:
a. CONFIDENTIAL INFORMATION means INFORMATION disclosed to
or acquired by CONSULTANT while employed by COMPANY, and includes but is not
limited to, INVENTIONS, Patent Applications, TRADE SECRETS, any other
information of value relating to the business and/or field of interest of
COMPANY including information with respect to which COMPANY is under an
obligation of confidentiality with any third party. CONFIDENTIAL INFORMATION
does not include information that is generally known in the relevant trade or
industry or any information known to and freely usable by CONSULTANT before
CONSULTANT"S association with COMPANY, provided, however, information for
purposes of this Agreement shall be considered CONFIDENTIAL INFORMATION if not
known by the trade generally, even though such information has been disclosed to
one or more third parties pursuant to distribution agreements, joint research
agreements, or other agreements entered into by COMPANY;
b. TRADE SECRET(S) means all information, know-how,
concepts, data, knowledge, ideas and materials however embodied, relating to the
business of COMPANY'S customers which have
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not been released publicly by an authorized representative of COMPANY or have
not otherwise lawfully entered the public domain. TRADE SECRETS shall include
but are not limited to information, know-how, concepts, data, knowledge,
computer programs, ideas and materials relating to COMPANY'S existing and future
products, processes, research and development, technology, production costs,
contract forms, drawings, designs, plans, proposals, marketing and sales plans
and strategies, cost or pricing information, financial information, promotional
methods, volume of sales, names or classes of customers and vendors, management
procedures, organization charts, and CONSULTANT directories.
9. PROPRIETARY INFORMATION OF OTHERS. CONSULTANT shall not use or
disclose to COMPANY, or induce COMPANY to use, any information, know-how,
concepts, data, knowledge, computer programs, ideas or materials, however
embodied, with respect to which CONSULTANT is under an obligation of
confidentiality to any third party imposed, by law or agreement prior to the
date hereof. COMPANY represents and covenants that it will not require
CONSULTANT to violate any obligation to, or confidence with, another.
10. SECRECY AGREEMENT. CONSULTANT acknowledges that he
understands the requirement for CONFIDENTIAL INFORMATION to be kept secret and
used only as authorized herein. CONSULTANT shall at all times during the period
of his association with COMPANY under this agreement and thereafter keep in
confidence and trust all CONFIDENTIAL INFORMATION. CONSULTANT shall use
CONFIDENTIAL INFORMATION only in the course of performing duties as Consultant
and Advisory Board Member for the Company and other duties as assigned by the
Company President, and not for unrelated personal gain. CONSULTANT shall not,
directly or indirectly, disclose any CONFIDENTIAL INFORMATION to any person,
organization or entity, except in the course of performing duties as a
CONSULTANT of COMPANY and only in the manner prescribed by COMPANY. CONSULTANT
shall abide by those COMPANY policies and regulations established from time to
time for the protection of CONFIDENTIAL INFORMATION. During CONSULTANT'S
association with COMPANY under this Agreement, and after termination thereof,
CONSULTANT shall not directly, or indirectly, either as an CONSULTANT, COMPANY,
agent, principal, partner, stockholder, corporate officer, director, or in any
other individual or representative capacity, engage or participate in any
activity of any nature whatsoever, the performance of which would have a
reasonable likelihood
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of placing CONSULTANT in conflict with the obligations of confidence and trust
regarding CONFIDENTIAL INFORMATION imposed herein.
11. RETURN OF DOCUMENTS AND MATERIALS. CONSULTANT agrees that all
documents, reports, drawings, materials, designs, plans, computer programs,
proposals, marketing and sales plans, reproductions, and other documents or
things made by CONSULTANT or that come into CONSULTANT'S possession in the
course of employment with COMPANY are the property of COMPANY and will not be
used by CONSULTANT for any purpose other than the business of COMPANY.
CONSULTANT will not deliver, reproduce or in any way allow such documents or
things to be delivered or be used by any third parties without specific
direction or consent of COMPANY. Upon termination of this Agreement, CONSULTANT
will promptly deliver to COMPANY the above documents and materials together with
any copies thereof.
12. NO DISCLOSURE. CONSULTANT agrees not to divulge, disclose,
convey or make known to others or any other entity, any such information without
the express written consent of the President of HyperBaric Systems first
obtained. CONSULTANT further agrees to take all necessary steps to safeguard
such information to prevent the unauthorized disclosure thereof.
13. INJUNCTION. Recognizing that irreparable damage will result
to the business of COMPANY in the event of the breach of any of these covenants
and assurances by CONSULTANT, the parties hereto agree that if CONSULTANT shall
violate the terms of this Agreement, COMPANY shall be entitled to an injunction
to be issued by any court of competent jurisdiction enjoining and restraining
CONSULTANT and each and every person, firm, association, partnership, company,
or corporation concerned therewith, from the continuance of such violation of
the terms of this Agreement, and in addition thereto, CONSULTANT shall pay to
COMPANY all damages, including reasonable attorneys' fees sustained by COMPANY
by reason of the violation of this Agreement. However, in no event shall the
total damages exceed the amount paid to CONSULTANT.
14. SEVERABILITY. If one or more provisions of this Agreement are
held to be unenforceable under applicable law, such provision, or such portion
of such provisions as may be necessary, shall be excluded from this Agreement
and the balance of the Agreement shall be interpreted as if such provision were
so excluded and shall be thereafter enforceable, in accordance with its terms.
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15. SURVIVAL OF WARRANTIES. The representations, warranties, and
covenants of the Consultant and Company contained in or made pursuant to this
Agreement shall survive the execution and delivery of this Agreement.
16. NO ASSIGNMENT. Neither the CONSULTANT nor COMPANY may
transfer or assign this Agreement, or any right or obligation hereunder, without
the prior written consent of the other party. No right or obligation under this
Agreement may be waived, modified, or in any respect altered except by written
agreement of the parties executed in writing by both parties.
17. SUCCESSORS AND ASSIGNS. This agreement shall be binding on
the heirs, executors, successors and assigns of the parties.
18. ATTORNEYS FEES. If any action is brought to enforce any
obligation created under this Agreement, the Court shall award to the prevailing
party, such reasonable fees, costs, and expenses as may have been incurred by
such party in enforcing its rights under this Agreement, including without
limitation, the fees, costs, and expenses of its attorney for services both
before or after litigation is instituted.
19. ENTIRE AGREEMENT. This Agreement may not be changed except in
writing signed by the President of the Company and the CONSULTANT. The validity,
performance, construction, and effect of this Agreement shall be governed by the
laws of the State of California
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the day and year first above written.
"COMPANY" "CONSULTANT"
HYPERBARIC SYSTEMS XX. XXXXX XXXXXXXX
0000 Xxxxxx Xxxxxx 0000 Xxxxxxxxx Xx. Xxxxx
Xxxx Xxxx, Xxxxxxxxxx 00000 Xxxxxx, Xxxxxxxx 00000
By:
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XXXXX XXXXXX, PRESIDENT XX. XXXXX XXXXXXXX, CONSULTANT
