EXHIBIT 10.27
CONCEPTUS, INC.
MASTER CONSULTING AGREEMENT
This Agreement is entered into by and between Conceptus, Inc., a Delaware
corporation, ("Conceptus"), and Xxxxxx Xxxxxxxx (hereinafter "Consultant"), this
15th day of October, 1997.
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
corporate development/strategic acquisitions, including working with the CEO and
Board to develop a strategy to acquire complimentary companies, products and
technologies and strategy implementation to include identifying/ obtaining
sources of financing and structuring the transaction. (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 and CEO of Conceptus, in regard to its Duties.
1.2 PROJECT DESIGNATION. Consultant shall work on a per project basis.
Upon identification of a project to be performed by Consultant during the term
of this Agreement, Conceptus shall prepare a Project Designation in the form
attached hereto and marked Exhibit A (the "Project Designation") which shall
detail the scope, duration and payment terms for the project in question. Upon
obtaining Consultant's consent to work on the project, the Project Designation
shall be signed by the parties and attached hereto. Consultant's relationship
with respect to such project shall thereafter be governed by this Agreement as
supplemented and/or amended by the terms and conditions set forth in the Project
Designation.
1.3 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.
1.4 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 not be responsible for payment of
Consultant's expenses in the performance of its Duties, including, but not
limited to, expenses for travel and similar items, unless such expense, which
shall be reasonable in amount, is expressly authorized in writing by an Officer
or the Controller of Conceptus, prior to the incurring of such expenses, or is
permitted under the terms of a Project Designation. 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.
1.5 TERM. This Agreement shall be for a period of twenty-four (24)
months, commencing on October 15, 1997 and terminating on October 14, 1999;
however, this Agreement may be terminated at any time by either party by sixty
(60) days written notice to the other party.
1.6 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.
1.7 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. This Agreement may be assigned in whole or
in part by Conceptus without restriction.
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. Consultant agrees that, without the express written
consent of Conceptus, Consultant will not remove from Conceptus's premises, any
notes, formulas, programs, data, records, machines or any other documents or
items which in any manner contain or constitute Confidential Information, nor
will Consultant make reproductions or copies of same. In the event Consultant
receives any such documents or items by personal delivery from any duly
designated or authorized personnel of Conceptus, Consultant shall be deemed to
have received such express written consent of Conceptus. In the event that
Consultant receives any such documents or items, other than through personal
delivery as described in the preceding sentence, Consultant agrees to inform
Conceptus promptly of its possession of such documents or items. 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 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.
2.9 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.
2.10 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 all 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 NOTICE. Any notice required or permitted to be given by Conceptus
under this Agreement shall be in writing and shall be deemed received and
sufficient when delivered personally or sent by telecopy or seventy-two (72)
hours after being deposited in the U.S. mail or with a courier service. Any
notice required or permitted to be given by Consultant under this Agreement
shall be in writing and shall be deemed received and sufficient when received by
Conceptus. The parties hereto agree that all such notices shall be delivered to
the addresses specified below.
3.4 ENTIRE AGREEMENT; AMENDMENT; WAIVER. This Agreement 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 and Chief Executive Officer
----------------------------------------
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/ Xxxxxx X. Xxxxxxxx
------------------------------------------
Name: Xxxxxx X. Xxxxxxxx
----------------------------------------
Address: 0000 Xxxx Xxxx Xxxx, Xxxxx 000
Xxxxx Xxxx, XX 00000
Telephone: (000) 000-0000
EXHIBIT A
PROJECT DESIGNATION
1. DESCRIPTION OF PROJECT:
Consultant shall render consulting services in the area of corporate
development/strategic acquisitions, including working with the CEO and
Board to develop a strategy to acquire complimentary companies, products
and technologies and strategy implementation to include identifying/
obtaining sources of financing and structuring the transaction. Consultant
shall consult with the Board of Directors, officers, and department heads
of Conceptus, and such other personnel as designated by the President and
CEO of Conceptus, in regard to its Duties.
2. TIME DEVOTED TO PROJECT: One day per week (52 days per year)
3. COMPENSATION: $100,000.00 per year, and
90,000 shares of stock, vested 1/24 monthly over two years.
(a) PAYMENT SCHEDULE: $ 8,333.33 monthly
(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
pre-approved out-of-area travel and long-distance telephone calls,
including car and cellular telephone calls.
(c) INVOICE SUBMISSION AND PAYMENT: Invoices shall be submitted to
Conceptus monthly. Invoices shall be paid by Conceptus within thirty
(30) days of invoice date. Conceptus will not be liable for
reimbursable expenses incurred but not billed within three months
after the date of such expenses.
5. DURATION OF PROJECT: Two Years
Signatures:
CONCEPTUS, INC. (HIRING AUTHORITY)
By: /s/ Xxxxxxx Xxxxxxxx
------------------------------------------
Name: Xxxxxxx Xxxxxxxx
----------------------------------------
Title: President and Chief Executive Officer
-----------------------------------------
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/ Xxxxxx X. Xxxxxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxxxxx
----------------------------------------
Address: 0000 Xxxx Xxxx Xxxx, Xxxxx 000
Xxxxx Xxxx, XX 00000
Telephone: (000) 000-0000
