CONSULTING AGREEMENT
Effective January 24, 1998 ("Effective Date"), Laser Photonics, Inc.,
acting through its Acculase subsidiary, having an address at 0000 Xxxxxxxx
Xxxxx, Xxxxx X, Xxx Xxxxx, XX 00000, ("LASER PHOTONICS") and Rox Xxxxxxxx, M.D.
residing at Lexington, Massachusetts ("Consultant") agree to the following terms
and conditions under which Consultant has agreed to provide LASER PHOTONICS with
Consulting Service during the period ending __ years from the Effective Date of
this Agreement.
1. SCOPE OF WORK
The services performed by Consultant for LASER PHOTONICS pursuant to this
Agreement shall be deemed to be within the general field of excimer lasers
applications in dermatology ("Field of the Agreement"). Consulting Service
shall mean those services to be performed by Consultant for LASER PHOTONICS as
outlined in the attached Exhibit A.
2. COMPENSATION
a) LASER PHOTONICS shall pay Consultant for Consulting Service
actually requested by and provided to LASER PHOTONICS at the rate of One
Thousand Dollars ($1000.00) per day. Consultant has agreed to provide LASER
PHOTONICS with a minimum of eight days, preferably two days each calendar
quarter, of Consulting Service under this Agreement. Consultant also recognizes
that any obligation specifying a minimum number of hours to be made available by
Consultant shall not be interpreted as binding LASER PHOTONICS to use Consultant
for the specified number of hours. LASER PHOTONICS shall only be obligated to
pay Consultant for the actual number of hours requested by LASER PHOTONICS and
provided by Consultant.
b) In the event that LASER PHOTONICS requests Consultant to
provide Consulting Service at a location away from the metropolitan area of
Consultant's regular place of business, LASER PHOTONICS will reimburse
Consultant for reasonable travel and living expenses incurred by Consultant. It
is understood and agreed that LASER PHOTONICS will stipulate the places and
locations where Consultant will provide the Consulting Service. Payment for the
Consulting Service and any travel expenses will be made upon submission by
Consultant and approval by LASER PHOTONICS of an itemized account of the
Consulting Service provided, travel expenses incurred, and payments due.
3. MANNER OF PERFORMANCE
a) Consultant represents that Consultant has the requisite
expertise, ability and legal right to render the Consulting Service, and will
perform the Consulting Service in an efficient manner and in accordance with the
terms of this Agreement. Consultant will abide by all laws, rules and
regulations that apply to the performance of the Consulting Service and when on
LASER Photonic's premises, will comply with LASER Photonic's policies with
respect to conduct of visitors.
b) Consultant is an independent contractor, and shall not be
considered an employee of LASER PHOTONICS. LASER PHOTONICS will not be
responsible for Consultant's acts while performing the Consulting Services,
whether on LASER Photonic's premises or elsewhere, and Consultant will not have
authority to speak for, represent or obligate LASER PHOTONICS in any way.
4. CONFIDENTIALITY
a) During discussions leading up to this Agreement, and during
the course of the Consulting Service performed pursuant to this Agreement, it is
anticipated that Consultant will learn confidential and/or proprietary
information of LASER PHOTONICS. Consultant will keep confidential, and not use,
except in connection with the Consulting Service to be provided hereunder,
information which is provided to Consultant by LASER PHOTONICS and/or developed
by Consultant while performing Consulting Service, including without limitation,
information concerning LASER PHOTONICS products, manufacturing processes,
customers, product pricing, and technical know-how, unless and until LASER
PHOTONICS consents to disclosure, or unless such information otherwise was
previously known by Consultant, as documented by Consultant in writing, or
becomes generally available to the public through no fault of Consultant. The
obligations of non-use and confidentiality of such information shall survive the
termination of this Agreement.
b) Consultant further represents that any and all information
disclosed to LASER PHOTONICS, or used for the benefit of LASER PHOTONICS by
Consultant does not include any confidential, trade secret or proprietary
information of others.
c) Consultant will not disclose to others, without LASER PHOTONICS's
consent, the fact that it is providing Consulting Service for LASER PHOTONICS,
Upon termination of this Agreement, Consultant will return to LASER PHOTONICS
all copies of drawings, specifications, manuals and other printed or reproduced
material (including information stored on machine readable media) provided to
Consultant by LASER PHOTONICS or developed by Consultant during the performance
of Consulting Services under this Agreement.
d) Laser Photonics agrees that Consultant shall have the right to
publish the results of any research performed under this agreement in a mutually
agreed upon scientific journal subject to the following conditions:
(i) Consultant agrees to and shall submit to Laser
Photonics any and all drafts of such publications, including without limitation
or restriction, any abstract, manuscript or press releases at least three months
prior to the submission of such publication to any third party.
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(ii) Laser Photonics shall have the right to exclude from
such publication information which Laser Photonics deems to be confidential
Laser Photonics information, provided that Laser Photonics advises Consultant of
the reasons as to why Laser Photonics deems such information confidential.
(iii) Laser Photonics shall also advise and notify Consultant
within thirty (30) clays of receipt of such publication as to whether such
publication discloses inventions or discoveries for which Laser Photonics
desires to seek patent or copyright protection pursuant to Articles 8 and 9 of
this Agreement.
(iv) Consultant agrees upon LASER PHOTONICS's notice
pursuant to Article 4 c), to delay the submission of such publication, including
the submission of any abstract for such publication for a period of up to three
(3) months to permit Laser Photonics to prepare and file patent or copyright
applications concerning such inventions or discoveries. If additional time is
required to properly file a patent or copyright application, Consultant agrees,
upon Laser Photonics's request to extend this time for an additional three (3)
months.
5 CONFLICTS OF INTEREST
a) Consultant represents that it has advised LASER PHOTONICS in
writing prior to the date of signing this Agreement of any relationship with
third parties, including competitors of LASER PHOTONICS, which would present a
conflict of interest with the Consulting Service, or which would prevent
Consultant from carrying out the terms of this Agreement. Consultant agrees to
advise LASER PHOTONICS of any such relationships that arise during the term of
this Agreement.
b) LASER PHOTONICS will have the option to terminate this
Agreement without further liability to Consultant, upon xxxxxxx of the
occurrence of any of the described events except to pay for any Consulting
Service actually rendered. Consultant shall have no recourse against LASER
PHOTONICS for termination under this Article.
6. RELATIONSHIP WITH OTHERS
a) During the term of this Agreement, and for one year after its
termination date, Consultant agrees not to perform any service within the Field
of the Agreement or which may utilize any of the information obtained from LASER
PHOTONICS or any information developed during the course of performing the
Consulting Service for LASER PHOTONICS, for any other entity, and in particular
any other entity engaged in the development, manufacture, distribution or sales
of medical care products or services.
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7. INDEMNIFICATION
a) Consultant agrees to indemnify and hold LASER PHOTONICS
harmless for any injury occurring to the property or person of Consultant as a
result of Consultant's performance of Consulting Services under this Agreement,
provided that said injury has not occurred because of the gross negligence of
LASER PHOTONICS.
8. OWNERSHIP OF DEVELOPMENT
a) Consultant agrees and does hereby assign to LASER PHOTONICS,
any and all of Consultant's interest in any inventions or discoveries, which
includes all written materials and other works which may be subject to
copyright, and all patentable and unpatentable inventions, discoveries, and
ideas (including but not limited to any computer software) which are reduced to
practice, conceived or written by Consultant during the term of this Agreement
and for 90 days after it expires, and which are based upon any information
received from LASER PHOTONICS, and/or developed as a result of performing the
Consulting Service for LASER PHOTONICS (hereinafter "Development"). Consultant
agrees to hold all such Developments confidential in accordance with Article 4
of this Agreement.
b) Consultant shall disclose promptly to LASER PHOTONICS each
such inventions or discoveries and, upon LASER PHOTONICS's request and at LASER
PHOTONICS's expense Consultant will assist LASER PHOTONICS, or anyone it
designates, in filing and prosecuting patent or copyright applications in any
country in the world, Each copyrightable work, to the extent permitted by law,
will be considered a work made for hire and the authorship and copyright of the
work shall be in LASER PHOTONICS's name. Consultant will execute all papers and
do all things which may be necessary or advisable, in the opinion of LASER
PHOTONICS, to prepare, file and prosecute such applications, and to evidence the
assignment in LASER PHOTONICS, or its designee, of all right, title and interest
in and to such Development.
c) LASER PHOTONICS agrees to compensate Consultant for any time
Consultant actually spends in response to a specific request for assistance by
LASER PHOTONICS under this Article. If for any reason Consultant's interest in
such Development is subordinate to another party, or if Consultant's interest in
such Development has been released to another party pursuant to a contract or
governmental regulation, Consultant agrees to notify LASER PHOTONICS and take
whatever steps LASER PHOTONICS deems necessary to convert or transfer such third
party's interest in such Development to Consultant for subsequent transfer to
LASER PHOTONICS under the terms of this Agreement. Furthermore, if for any
reason LASER PHOTONICS is unable to obtain Consultant's execution of any paper
necessary to prepare, file and/or prosecute such applications, Consultant hereby
conveys to LASER PHOTONICS its power of attorney only for the purpose of
executing any such papers necessary to prepare, file and/or prosecute such
applications.
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9. DISCLOSURES TO LASER PHOTONICS
a) If during the term of this Agreement, Consultant discloses any
copyrightable works, inventions, discoveries, or ideas to LASER PHOTONICS which
were conceived or written prior to this Agreement, or which are not based upon
any Information received from LASER PHOTONICS, and/or developed as a result of
performing the Consulting Services under this Agreement, LASER PHOTONICS will
have no liability to Consultant because of its use of such works, inventions,
discoveries or ideas, except liability for infringement of any valid copyright
or patent now or hereafter issued thereof.
10. TERM
a) The term of this Agreement is as specified on the first page
of this Agreement. The parties agree that this Agreement may be extended by
mutual written agreement. LASER PHOTONICS shall have the right to terminate
this Agreement upon sixty (60) days written notice to Consultant agrees that he
shall have no recourse against LASER PHOTONICS, beyond that provided for under
Article 2, for LASER PHOTONICS's earlier termination. LASER PHOTONICS's only
obligation upon such termination is to compensate Consultant for any time
actually spent by Consultant in providing Consulting Services under this
Agreement and for properly reimbursable travel expenses.
11. GENERAL
a) No assignment by Consultant of this Agreement, or any sums due
under it, will be binding on LASER PHOTONICS without LASER PHOTONICS's prior
written consent. This Agreement supersedes all prior agreements and
understandings between the parties respecting the subject matter of this
Agreement. This Agreement may not be changed or terminated orally by or on
behalf of either party. In the event either party breaches this Agreement the
other party will have the right to terminate the Agreement. In the event of the
actual or threatened breach of any of the terms of paragraphs 4, 6, and 8, LASER
PHOTONICS will have the right to specific performance and injunctive relief.
The rights granted by this paragraph are in addition to all other remedies and
rights available at law or in equity. This Agreement shall be construed
according to the laws of California for contracts made within that state.
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12. SEVERABILITY
a) If any of the provisions of this Agreement are void or
unenforceable, the remaining provisions shall nevertheless be effective, the
intent being to effectuate this Agreement to the fullest extent possible.
CONSULTANT LASER PHOTONICS
/s/ Rox Xxxxxxxx By: /s/ Xxxxxxx X. Xxxxxxx
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Rox Xxxxxxxx, M.D. Title: President
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