SCIENTIFIC ADVISORY BOARD CONSULTING AGREEMENT
CONSULTING
AGREEMENT
This Scientific Advisory Board
Consulting Agreement (the “Agreement”)
is made as of this ______ day of March, 2009, between Shrink Technologies, Inc.,
a California corporation (the "Company"),
and Xx. Xxxxxxxx Xxxxx (the "Consultant")
and shall be effective upon execution by the Company and the Consultant (the
"Effective
Date"). The Company and the Consultant are collectively referred to
herein as the “Parties.”
The Consultant is the principal
inventor of the technology which the Company has licensing rights to and has
been involved in scientific research in fields of particular interest to the
Company. The Company wishes to retain the Consultant in a consulting
capacity and as a member of one or more panels of the Company's Scientific
Advisory Board (the “SAB”)
and the Consultant desires to perform such consulting services. Accordingly, the
Parties agree as follows:
1. Services. The
Consultant will advise the Company's management, employees and agents, at
reasonable times, in matters related to the relevant field of interest (“Field of
Interest”), as requested by the Company and set forth in Exhibit A
attached hereto.Consultant will provide consulting services, which shall amount
to not more than twenty (20) days per annum, as reasonably requested by the
Company and as the Consultant’s schedule permits. Consultation may be sought by
the Company over the telephone, in person, at the Company's offices or another
reasonable location or through written correspondence, and will involve
reviewing activities and developments in the Field of
Interest. Additionally, Consultant may be requested to attend, to the
extent Consultant’s schedule permits, one or more in person meetings with other
members of a Panel or the SAB, upon reasonable notice being given to the
Consultant, in keeping with the terms of this Agreement.
2. Term and
Termination. The term of this Agreement will begin on the
Effective Date of this Agreement and will end on the four year anniversary
(based on a 360 day year containing four (4) ninety (90) day quarterly periods)
of this Agreement or upon earlier termination as provided below (the "Term");
provided that the Term may be renewed, by mutual assent by the Parties, for
successive one-year periods. This Agreement may be terminated at any time upon
sixty (60) days written notice by either party. The Consultant
agrees, following the termination of this Agreement or upon earlier request by
the Company, to promptly return all drawings, tracings, and all visual or
written materials in the Consultant’s possession that were supplied by the
Company in conjunction with the Consultant’s consulting services under this
Agreement, or generated by the Consultant in the performance of consulting
services under this Agreement.
3. Compensation. Immediately following an
acquisition transaction with AudioStocks, Inc. (“AUIO”), a Delaware corporation
(NASDAQ: AUIO), exclusive of the Signature Bonus (the “Signature
Bonus” described below) the right, title and interest in the Compensation
discussed in this Section 3 shall be earned, vest and be due and payable, during
the Term, in equal quarterly amounts, on the first day of the quarterly period
immediately subsequent to a quarterly period in which this Agreement was
effective. The Consultant shall be compensated for services rendered
as set follows:
3.1 200,000
common shares of AUIO as a Signature
Bonus, earned on the 180th day of
the Term.
3.2 Beginning
on the first day of every quarterly period which this Agreement is effective
(“Option
Exercise Start”) and ending twenty-four months thereafter (“Option
Exercise End”), for any such respective quarterly period, Consultant
shall have the right to purchase up to 25,000 restricted common shares (“Quarterly
Allotment”) of the Company’s stock at the closing market price for the
Company’s common shares on the first day such an option may be exercised (the
“Exercise
Price”). Consultant understands that any restricted shares,
and any securities issued in respect thereof, shall bear the following
legend:
“THE
SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AND HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A
VIEW TO, OR IN CONNECTION WITH, THE SALE OR DISTRIBUTION THEREOF. THESE
SECURITIES MAY NOT BE OFFERED, SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF UNLESS
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND ANY APPLICABLE
STATE SECURITIES LAWS OR AN EXEMPTION FROM SUCH REGISTRATION IS
AVAILABLE.
3.3 The
Company shall reimburse the Consultant for all pre-approved and reasonable
expenses incurred in the performance of this Agreement.
4. Certain Other
Contracts. The Consultant will not disclose to the Company any
information that the Consultant is obligated to keep secret pursuant to an
existing confidentiality agreement with a third party, and nothing in this
Agreement will impose any obligation on the Consultant to the
contrary. The consulting work performed hereunder will not be
conducted on time that is required to be devoted to any other third party. The
Consultant shall not use the funding, resources and facilities of the any other
third party to perform consulting work hereunder and shall not perform the
consulting work hereunder in any manner that would give any third party rights
to the product of such work. The Consultant has disclosed and, during
the Term, will disclose to the President of the Company any conflicts between
this Agreement and any other relevant agreements binding the
Consultant. Consultant shall notify the Company of all other
consulting agreements which Consultant has entered into, or any consulting
services which Consultant may provide, to any third party.
5. Direction of Projects and
Inventions to the Company. Subject to the Consultant's obligations under
any confidentiality or other written obligations to third parties (including
academic institutions which Consultant is employed by), during the Term of this
Agreement, the Consultant will use his best efforts to disclose to the President
of the Company, on a confidential basis, technology and product opportunities
which come to the attention of the Consultant in the Field of Interest, and any
invention, improvement, discovery, process, formula or method or other
intellectual property relating to or useful in, the Field of Interest
(collectively "New
Discoveries"), whether or not patentable or copyrightable, and whether or
not discovered or developed by Consultant.
6. Inventions Discovered by the
Consultant While Performing Services Hereunder. The Consultant will
promptly and fully disclose to the President of the Company any invention,
improvement, discovery, process, formula, technique, method, trade secret, or
other intellectual property, whether or not patentable, whether or not
copyrightable (collectively, "Invention")
made, conceived, developed, or first reduced to practice by the Consultant,
either alone or jointly with others, while performing services hereunder. The
Consultant hereby assigns to the Company all of his right, title and interest in
and to any such Inventions. The Consultant will execute any documents necessary
to perfect the assignment of such Inventions to the Company and to enable the
Company to apply for, obtain, and enforce patents or copyrights in any and all
countries on such Inventions. The Consultant hereby irrevocably designates the
Secretary of the Company as his agent and attorney-in-fact to execute and file
any such document and to do all lawful acts necessary to apply for and obtain
patents and copyrights, and to enforce the Company's rights under this
paragraph. This Section 6 will survive the termination of this
Agreement.
7. Confidentiality.
7.1 The
Consultant acknowledges that, during the course of performing his services
hereunder, the Company will be disclosing information to the Consultant, and the
Consultant will be developing information related to the Field of Interest,
Inventions, projects, products, potential customers, personnel, business plans,
and finances, as well as other commercially valuable information (collectively
"Confidential
Information"). The Consultant acknowledges that the Company's business is
extremely competitive, dependent in part upon the maintenance of secrecy, and
that any disclosure of the Confidential Information would result in serious harm
to the Company. The Consultant agrees that the Confidential
Information will be used by the Consultant only in connection with consulting
activities hereunder, and will not be used in any way that is detrimental to the
Company. The Consultant agrees not to disclose, directly or
indirectly, the Confidential Information to any third person or entity, other
than representatives or agents of the Company. The Consultant will treat all
such information as confidential and proprietary property of the
Company. The term "Confidential
Information" does not include information that (i) is or becomes
generally available to the public other than by disclosure in violation of this
Agreement, (ii) was within the relevant party's possession prior to being
furnished to such party, (iii) becomes available to the relevant party on a
non-confidential basis, or (iv) was independently developed by the relevant
party without reference to the information provided by the
Company. The Consultant may disclose any Confidential Information
that is required to be disclosed by law, government regulation or court order.
If disclosure is required, the Consultant will give the Company advance notice
so that the Company may seek a protective order or take other action reasonable
in light of the circumstances. Upon termination of this Agreement,
the Consultant will promptly return to the Company all materials containing
Confidential Information as well as data, records, reports and other property,
furnished by the Company to the Consultant or produced by the Consultant in
connection with services rendered hereunder, together with all copies of any of
the foregoing. Notwithstanding such return, the Consultant shall continue to be
bound by the terms of the confidentiality provisions contained in this Section 7
for a period of two years after the termination of this Agreement.
7.2 If
the Consultant has a conflict of interest, or potential conflict of interest,
with respect to any matter presented at a meeting of the SAB, he shall excuse
himself from the discussion of such matter and at the time of the execution of
this Agreement, Consultant shall disclose and describe all potential conflicts
of interest that may arise from the execution of this Agreement with respect to
prior engagements Consultant is a party to.
7.3 The
attached Exhibit B Non-Disclosure Agreement shall be incorporated herein as if
it were a term of the same Agreement.
8. Freedom to
Publish.
8.1 The
Company acknowledges the Consultant's obligation to disseminate new knowledge
and research findings. Notwithstanding the confidentiality provisions, or any
other provision, of this Agreement, the Consultant may publish and make oral
presentations of the results of the Consultant's work performed pursuant to this
Agreement under the terms set forth in this Section 8.
8.2 The
Consultant acknowledges that publication or oral disclosure of any Invention or
other work prior to filing for patent or copyright protection could result in
the complete loss of any commercial value of the Consultant's research to the
Company, and/or the Consultant, as the case may be. The Consultant will provide
the Company with sufficient disclosure regarding Inventions owned by the Company
under Section 6 at least 90 days prior to publication to allow the Company to
evaluate such disclosure; Consultant will work with the Company to file patent
or copyright applications prior to disclosure or publication, or to modify such
publication if such disclosure regarding Inventions owned by the Company under
Section 6 would materially affect the business of the Company.
9. Use of Name. It is
understood that the name of the Consultant will appear in disclosure documents
required by securities laws, and in other regulatory, administrative filings and
public relations materials in the ordinary course of the Company's business. The
above-described uses will be deemed to be acceptable uses.
10. No Conflict: Valid and
Binding. The Consultant represents that neither the execution of this
Agreement nor the performance of the Consultant's obligations under this
Agreement will result in a violation or breach of any other agreement by which
the Consultant is bound. The Company represents that this Agreement has been
duly authorized and executed and is a valid and legally binding obligation of
the Company, subject to no conflicting agreements.
11. Notices. Any notice
provided under this Agreement shall be in writing and shall be deemed to have
been effectively given (i) upon receipt when delivered personally, (ii) one day
after sending when sent by private express mail service (such as Federal
Express), or (iii) 5 days after sending when sent by regular mail to the
following address:
|
In the case of the Company:
|
In the case of the
Consultant:
|
|
Shrink
Technologies, Inc.
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Attention:
Xxxxxxxx Xxxxx
|
|
0000
Xxxxx xxx Xxxxx, Xxxxx 000
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xxxxxxxxxxx@xxxxx.xxx
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Xxxxxxxx,
Xxxxxxxxxx 00000
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or to
other such address as may have been designated by the Company or the Consultant
by notice to the other given as provided herein.
12. Independent Contractor:
Withholding. The Consultant will at all time be an independent
contractor, and as such will not have authority to bind the Company. The Parties
acknowledge that this Agreement is not a contract within the meaning of Section
2750 of the California Labor Code, and the Consultant is not an employee of the
Company for any purpose under the California Labor Code. Consultant
will not act as an agent nor shall he be deemed to be an employee of the Company
for the purposes of any employee benefit program, unemployment benefits, or
otherwise. The Consultant recognizes that no amount will be withheld from his
compensation for payment of any federal, state, or local taxes and that the
Consultant has sole responsibility to pay such taxes, if any, and file such
returns as shall be required by applicable laws and regulations. Consultant
shall not enter into any agreements or incur any obligations on behalf of the
Company.
13. Assignment. Due to
the personal nature of the services to be rendered by the Consultant, the
Consultant may not assign this Agreement. The Company may assign all rights and
liabilities under this Agreement to a subsidiary or an affiliate or to a
successor to all or a substantial part of its business and assets without the
consent of the Consultant. Subject to the foregoing, this Agreement will inure
to the benefit of and be binding upon each of the heirs, assigns and successors
of the respective parties.
14. Severability. If any
provision of this Agreement shall be declared invalid, illegal or unenforceable,
such provision shall be severed and the remaining provisions shall continue in
full force and effect.
15. Remedies. The
Consultant acknowledges that the Company would have no adequate remedy at law to
enforce Sections 4, 5, 6 and 7 hereof. In the event of a violation by the
Consultant of such Sections, the Company shall have the right to obtain
injunctive or other similar relief, as well as any other relevant damages,
without the requirement of posting bond or other similar measures.
16. Governing Law; Entire
Agreement; Amendment. This Agreement shall be governed by the laws of the
State of California applicable to agreements made and to be performed within
such State, represents the entire understanding of the parties, supersedes all
prior agreements between the parties, and may only be amended in
writing.
IN
WITNESS WHEREOF, the parties have executed this Agreement as of the date first
written above.
Shrink
Technologies,
Inc. Consultant
____________________________ _____________________________
By: Xxxx
X.
Xxxx By:
Xxxxxxxx Xxxxx
Its:
President
an individual
EXHIBIT
A
Fields of
Interest
The
Consultant has reviewed information provided by the Company and other
information which may be publicly available on the world-wide-web, and is
familiar with the specific research efforts and business projects that the
Company is engaged in and is actively pursuing.
The
Company wishes to pursue a greater understanding of the durability and nature of
the polystyrene substrate it uses in various applications which have been
discussed with Consultant. The Company also wishes to pursue new
methods to create nanostructures on the polystyrene substrates it presently
uses, and to find other materials which may enable similar efficiencies and
values to products and products classes as the Company believes it may
commercially offer through the use of polystyrene.
Broadly,
the Company desires for Consultant to advance the Company’s technologies and
products, those which exist and those which may reasonably exist, for all
uses.
Description of
Services
Assist
management of the Company by:
1. Determining
the general scientific direction of the company;
2. Recruiting
of Scientific Advisory Board Members and Consultants to the
Company;
3. Recruiting
full-time management and scientific personnel to the Company;
4. Reviewing
the feasibility of the scientific goals of the Company and developing strategies
for achievingthem;
5. Identifying
and developing relationships with potential strategic partners;
6. Identifying,
reviewing and advising the Company, in a form (oral, writing or other) that is
generallyacceptable by scientists advising businesspersons in order to be
reasonably commercially useful, as to themost recent scientific advances in the
Field of Interest, as well as other scientific developments and intellectual
property in the Field of Interest; and
7. Providing
advice, support, theories, techniques and improvements in the Company's
scientific research andproduct development activities.
Prior Engagements and
Potential Conflicts of Interest
Name of
Company Area
of Consultation
