EXHIBIT 10.19
PROFESSIONAL SERVICES AGREEMENT
(CLINICAL ADVISORY BOARD AND CONSULTING)
THIS PROFESSIONAL SERVICES AGREEMENT ("Agreement") is entered into as of
___________, 199__ ("Effective Date"), by and between ___________________
("Advisor") and Vista Medical Technologies, Inc., a California corporation ("the
"Company"). In consideration of the retention of Advisor as a clinical and
scientific advisor and consultant to the Company, and of the compensation
received by Advisor from the Company, the Company and Advisor hereby agree as
follows:
1. DESCRIPTION OF SERVICES.
(a) CLINICAL ADVISORY BOARD AND CONSULTING. The Company hereby
retains Advisor and Advisor hereby agrees to serve as a member of the Company's
Clinical Advisory Board and as a consultant for the term of this Agreement.
Advisor will advise the Company as an independent contractor in the medical
applications of visualization technologies in cardiothoracic endosurgery. The
services to be rendered as a consultant are set forth on SCHEDULE 1 to this
Agreement.
(b) EXCLUSIVITY. Advisor will work exclusively with the Company in
the area of visualization technologies for cardiothoracic surgery. Advisor
represents that all of his/her current consulting or advisory obligations are
listed on EXHIBIT A, and agrees that he/she will not enter into any written or
oral agreement with any entity, company or person which is or may be (or the
potential to be) a competitor of the Company relating to his/her consulting or
advisory services unless the Company is notified of such agreement in advance.
Advisor understands that while he/she is an advisor to the Company he/she is not
to breach any obligation of confidentiality that he/she has to others.
2. TIME COMMITMENT.
(a) CLINICAL ADVISORY BOARD. The time commitment of Advisor will
include a minimum of two (2) formal, full-day Clinical Advisory Board meetings
per year, at the Company's request, unless the Company and Advisor otherwise
mutually agree to extend the length or number of such meetings. Advisor also
will from time to time provide scientific counsel on a reasonable basis to
personnel working on projects on behalf of the Company; such counsel, which will
consist primarily of advice on interpreting scientific or clinical data and
planning experiments or trials, will be at Advisor's convenience and will be
limited to matters that are compatible with Advisor's faculty or other
employment responsibilities and other oral and written agreements to which
Advisor is a party.
(b) CONSULTING. The time commitment as a consultant will be set
forth on SCHEDULE 1.
3. COMPENSATION.
(a) CASH COMPENSATION. For all services rendered hereunder, Advisor
will be compensated at the rate of U.S. $_______.00 per ________________,
payable as follows: .
(b) OTHER COMPENSATION. At the Board of Directors' meeting
immediately following the execution of this Agreement, Advisor will be granted
such additional compensation as set forth on attached EXHIBIT B.
(c) TRAVEL EXPENSES AND OTHER DIRECT EXPENSES. Advisor will be
reimbursed for reasonable travel expenses incurred in performing his/her
advisory obligations, as authorized by the Company's expense reimbursement
policy. The Company will reimburse Advisor for all other reasonable direct
expenses actually incurred which are incidental to the services performed
hereunder and which have been approved in writing in advance by the Company.
Advisor will provide the Company with invoices detailing the expenses and
reimbursements which Advisor believes are due under this Agreement. Invoices
should specify the period for which reimbursement is claimed. Travel costs and
other expenses claimed must be itemized. All invoices must be substantiated by
receipts for transportation and lodging and all other items for expenses
amounting to more than $25.00 where receipts are normally issued. The Company
agrees to pay approved invoices within forty-five (45) days of receipt.
(d) SOLE COMPENSATION. The foregoing fees, other compensation and
reimbursement of expenses are Advisor's sole compensation for rendering services
to the Company.
4. INDEPENDENT CONTRACTOR. Advisor's relationship with the Company will
be that of an independent contractor and nothing in this Agreement will be
construed to create an employer-employee relationship between the Company and
Advisor. Advisor has no authority to act on behalf of or to enter into any
contract, incur any liability or make any representation on behalf of the
Company. The Company agrees that during the term of this Agreement, or any
extension or renewal thereof, Advisor may be employed by other persons, firms or
corporations; PROVIDED, HOWEVER, that the provisions of this Agreement will be
strictly observed by Advisor with respect to such other persons, firms, or
corporations. Since Advisor will not be an employee of the Company, it is
understood that Advisor will not be entitled to any of the benefits under the
Company's retirement or group insurance plans or any other employee benefits.
Advisor is solely responsible for all taxes, withholdings and other similar U.
S. or international statutory obligations, including, without limitation,
Workers Compensation Insurance, Social
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Security, federal, state or any other employee payroll taxes; and Advisor agrees
to defend, indemnify and hold the Company harmless from any and all claims made
by any entity on account of an alleged failure by Advisor to satisfy any such
tax or withholding obligations. In the performance of all services hereunder,
Advisor will comply with all applicable laws and regulations.
5. NO CONFLICT WITH EXISTING AGREEMENTS. The Company hereby acknowledges
that it does not desire to acquire from Advisor any secret or confidential know-
how or information which Advisor may have acquired from others. Accordingly,
Advisor represents and warrants that Advisor is free to divulge to the Company,
without any obligation to, or violation of any right of others, any and all
information, practice or techniques which Advisor will describe, demonstrate,
divulge or in any other manner make known to the Company during Advisor's
performance of services hereunder.
6. ADVISOR INVENTIONS. Advisor will promptly and fully disclose and
assign to the Company all Inventions made by Advisor (either alone or jointly
with others) resulting from or arising out of services hereunder. All such
Inventions will be the sole property of the Company. Advisor represents and
warrants that Advisor has no obligations to any third party which prohibit or
restrict the right to assign to the Company exclusive right, title and interest
in and to any and all Inventions made by Advisor resulting from or arising out
of services hereunder. Advisor agrees to assist the Company at Company's
expense, and to execute any further documents that are necessary or appropriate,
to obtain, maintain, or enforce patents on any Inventions described above in the
United States and elsewhere. As used in this Agreement, the term "Inventions"
means any and all inventions, discoveries, designs, formulas, technology,
improvements, trade secrets, results of experiments or clinical trials,
processes, techniques and know-how, whether or not patentable, and whether or
not related to the Company's business, which RESULT FROM OR ARISE OUT OF
SERVICES RENDERED TO THE COMPANY AND are invented, conceived, discovered,
developed or reduced to practice by Advisor, either alone or jointly with
others.
7. NON-DISCLOSURE AND NON-USE. The parties hereto acknowledge that
during the course of services to the Company pursuant to this Agreement it will
become necessary or desirable for the Company to disclose to Advisor a
substantial amount of the Company Proprietary Information. "Proprietary
Information" is information that was or will be developed, created, or
discovered by or on behalf of the Company, or which becomes or will become known
by, or was or is conveyed to the Company which has commercial value in the
Company's business. "Proprietary Information" includes, but is not limited to,
information about operations and maintenance, results of experiments or clinical
trials, trade secrets, computer programs, design, technology, ideas, know-how,
processes, formulas, compositions, data, techniques, improvements, inventions
(whether patentable or not), works of authorship, business and product
development plans, customers and other information concerning the Company's
actual or anticipated business, research or development, or which is received in
confidence by or for the
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Company from any other person. "Proprietary Information" does not include
information that Advisor demonstrates to the Company's satisfaction, by written
evidence, is in the public domain by reason of prior publication not directly or
indirectly resulting from any act or omission of Advisor. Advisor fully
understands that the maintenance of such Proprietary Information in strict
confidence and the confinement of its use to the Company is of vital importance
to the Company. Advisor agrees that the Proprietary Information divulged to
Advisor by the Company or which Advisor acquires in connection with or as a
result of services hereunder will be regarded by Advisor as confidential.
Advisor will not use, nor will Advisor disclose, any Proprietary Information to
any person either during or after the period of this Agreement, except to those
employees of Advisor or the Company as may be necessary in the regular course of
Advisor's duties hereunder, or except as otherwise authorized in writing by the
President of the Company.
8. COMPANY MATERIALS. Advisor recognizes that all the Company Materials
made or received by Advisor during the period of this Agreement are and will be
the exclusive property of the Company, and Advisor will keep the same at all
times in Advisor's custody and subject to Advisor's control, and will surrender
the same to the Company immediately upon request of the Company. "Company
Materials" are documents or other media or tangible items that contain or embody
Proprietary Information or any other information concerning the business,
operations, or plans of the Company, whether such documents have been prepared
by Advisor or by others. "Company Materials" include, but are not limited to,
blueprints, drawings, photographs, charts, graphs, notebooks, customer lists,
computer disks, tapes or printouts, sound recordings and other printed,
typewritten, or handwritten documents, as well as samples, prototypes, models,
products and the like.
9. COMPANY PROPERTY. All Proprietary Information and all title, patents,
patent rights, copyrights, mask work rights, trade secret rights, and other
intellectual property and rights anywhere in the world (collectively "Rights")
in connection therewith will be the sole property of the Company. Advisor
hereby assigns to the Company any Rights Advisor may have or acquire in such
Proprietary Information. At all times, both during the term of this Agreement
and after its termination, Advisor will keep in confidence and trust and will
not use or disclose any Proprietary Information without the prior written
consent of an officer of the Company appropriate in the ordinary course of
performing the services under this Agreement.
10. TERM AND TERMINATION. The initial term of this Agreement will be for
a one (1) year period following the Effective Date; and thereafter will renew
automatically for additional one (1)-year periods unless terminated by either
party at least 90 days prior to an anniversary date. At the Company's option,
this Agreement will also terminate upon notice to Advisor in the event of
Advisor's inability for any reason to perform Advisor's services. Upon
termination of this Agreement, the Company's obligation to pay any compensation,
except for services or expenses already accrued or incurred under Section 2,
will immediately cease and terminate. Termination of this
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Agreement for any reason will not affect Advisor's obligations under Sections 4,
6, 7, 8, 9 and 10.
11. REMEDIES. Advisor acknowledges and agrees that a breach of this
Agreement will result in immediate, irreparable and continuing damage to the
Company for which there will be no adequate remedy at law; and agrees that in
the event of any such breach or violation or any threatened or intended breach
or violation of this Agreement, the Company and its successors and assigns will
be entitled to temporary, preliminary and permanent injunctive relief and/or
restraining orders enjoining and restraining such breach or violation or such
threatened or intended breach or violation and/or other equitable relief
(without needing to post any bond or other security) in addition to such other
and further relief as may be proper.
12. AMENDMENTS AND WAIVERS. This Agreement may be modified, amended or
supplemented only by a written instrument duly executed by Advisor and the
President of the Company. No term or condition or the breach thereof will be
deemed waived, unless it is waived in writing and signed by the party against
whom the waiver is claimed. Any waiver or breach of any term or condition will
not be deemed to be a waiver of any preceding or succeeding breach of the same
or any other term or condition. The failure of any party to insist upon strict
performance of any term or condition hereunder will not constitute a waiver of
such party's right to demand strict compliance therewith in the future.
13. NOTICES. All payments, notices, requests, demands and other
communications required or permitted hereunder will be in writing and will be
delivered personally (which will include delivery by courier or overnight
delivery service) or sent by first class mail, postage prepaid, or sent by
telecopier or other similar facsimile transmission to the parties at their
respective address set forth below or at such other address as will be given in
writing by a party to the other parties. Items delivered personally or by
telecopier or facsimile will be deemed delivered on the date of actual delivery;
items sent by first class mail will be deemed delivered three (3) days after
mailing.
If to the Company: Vista Medical Technologies, Inc.
0000 Xxxxx Xxxxxx Xxxx
Xxxxxxxx, Xxxxxxxxxx 00000
Attn: President
If to Advisor, the address set forth below his/her signature.
14. GOVERNING LAW; JURISDICTION AND VENUE. This Agreement will be
governed by and construed in accordance with the laws of the State of
California, without regard to principles of conflicts of law. The parties agree
that any dispute regarding the interpretation or validity of this Agreement will
be subject to the exclusive jurisdiction of the state and federal courts in and
for the County of San Diego, California, and each
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party hereby agrees to submit to the personal and exclusive jurisdiction and
venue of such courts.
15. ASSIGNMENT. This Agreement will be binding upon Advisor, and inure to
the benefit of, the parties hereto and their respective heirs, successors,
assigns, and personal representatives; provided, however, that it will not be
assignable by Advisor.
16. COUNTERPARTS. This Agreement may be executed in multiple copies, each
of which will be deemed an original and all of which will constitute a single
agreement binding on all parties.
17. ENTIRE AGREEMENT. This Agreement (together with documents and
agreements entered into herewith) constitutes the entire agreement between the
parties hereto with respect to the subject matter hereof and supersedes all
prior and contemporaneous agreements and understandings. Each party to this
Agreement acknowledges that no representations, inducements, promises or
agreements have been made by any party, or any one acting on behalf of any
party, that are not embodied in this Agreement with respect to the subject
matter hereof.
18. REPRESENTATION. By executing this Agreement, Advisor acknowledges
that he/she understands and agrees that he/she has been encouraged, and had the
opportunity to, consult with his/her own personal attorney in connection with
this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
ADVISOR THE COMPANY
----------------------------------- VISTA MEDICAL TECHNOLOGIES,
(Signature) INC., a California corporation
----------------------------------- By:
(Printed Name) --------------------------------
(Signature)
-----------------------------------
(Printed Name and Title)
Address:
Dated: , 199
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-----------------------------------
Dated: , 199
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EXHIBIT A
A. LIST OF OTHER CONSULTING OR ADVISORY POSITIONS HELD
1.
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2.
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3.
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4.
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5.
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A-1
EXHIBIT B
B-1
SCHEDULE 1
DESCRIPTION OF CONSULTING SERVICES:
TIME COMMITMENT:
Schedule 1
