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ARADIGM CORPORATION
CONSULTING AGREEMENT FOR INDEPENDENT
CONTRACTORS
This Consulting Agreement (the "Agreement")
is made and entered into by and between Aradigm Corporation,
a California corporation ("Aradigm"), and Dr. Babatunde A.
Otulana M.D. , an individual ("Consultant"), effective as of
January 1, 2009 .
Recitals
Whereas , Consultant has unique skills and
knowledge in Aradigm’s field of endeavor and thus is well
suited to advise Aradigm with respect to its research and
development; and
Whereas , Aradigm desires that Consultant
advise and consult with Aradigm in the research, development and
analysis of technology relating to Aradigm’s research and
product development efforts, and Consultant agrees to provide such
assistance to Aradigm through a consulting relationship with
Aradigm;
Now Therefore , in consideration of the
mutual obligations specified in this Agreement, the parties agree
to the following:
1. Consulting Services Engagement.
Aradigm hereby retains Consultant, and Consultant hereby accepts
such retention, to perform consulting services for Aradigm as set
forth herein.
1.1 Scope. Consultant shall provide
consulting services ("Services") to Aradigm. The specific nature
and amount of the Services to be performed within the Field shall
be determined by Aradigm during the term of this Agreement.
Consultant shall provide a minimum of eight (8) hours of
Services to Aradigm ("Minimum Monthly Services") per calendar
month. If any period during the term of this Agreement is less than
a full calendar month, then for such period the Minimum Monthly
Services shall be reduced on a pro rata basis based on a ratio that
the actual number of days in the period bears to the number of days
in such calendar month. Consultant may from time to time during the
term of this Agreement serve on Aradigm’s scientific advisory
board. Any services provided to Aradigm as a member of
Aradigm’s scientific advisory board shall be rendered
pursuant to a separate agreement and Consultant shall not be
entitled to compensation under this Agreement with respect to any
such services rendered with respect to Aradigm’s scientific
advisory board and such services shall not be taken into account in
determining whether Consultant has provided the Minimum Monthly
Services.
1.2 Performance and Time Commitment.
Consultant shall render the Services at such times as may be
mutually agreed upon by Consultant and Aradigm. Consultant shall
perform the services at Aradigm’s principal place of business
or at other places upon mutual agreement of the parties. Consultant
also agrees to perform a reasonable amount of informal consultation
with Aradigm over the telephone or otherwise.
1.3 Professional Standards . The manner and
means used by Consultant to perform the Services desired by Aradigm
are in the sole discretion and control of Consultant.
Consultant’s Services, and the results thereof, will be
performed with and be the product of the highest degree of
professional skill and expertise.
1.4 Independent Contractor Status . It is
understood and agreed that Consultant is an independent contractor,
is not an agent or employee of Aradigm, and is not authorized to
act on behalf of Aradigm. Consultant agrees not to hold himself out
as, or give any person any reason to believe that he is, an
employee, agent, joint venturer or partner of Aradigm. Consultant
will not be eligible for any employee benefits, including, but not
limited to group insurance, profit-sharing or retirement benefits,
nor will Aradigm make deductions from any amounts payable to
Consultant for taxes or insurance. Consultant will be solely
responsible for all tax payments and tax returns required to be
filed with or made to any federal, state or local tax authority
with respect to Consultants performance of Services and receipt of
fees under this Agreement. Aradigm will regularly report amounts
paid to Consultant by filing Form-1099 MISC with the Internal
Revenue Service as required by law. Because Consultant is an
independent contractor, Aradigm will not withhold or make payments
for Social Security; make unemployment insurance or disability
insurance contributions; or obtain workers compensation insurance
on Consultant’s behalf. Consultant agrees to accept exclusive
liability for complying with all applicable state and federal laws
governing self-employed individuals, including obligations such as
payment of taxes, social security, disability and other
contributions based on fees paid to Consultant under this
Agreement. Consultant hereby agrees to indemnify and defend Aradigm
against any and all such taxes or contributions, including
penalties and interest. Consultant retains the right to provide
services for others during the term of this Agreement and is not
required to devote his services exclusively for Aradigm.
2. Compensation . As compensation for
Consultant rendering the Minimum Monthly Services and the discharge
of Consultant’s obligations hereunder, Aradigm shall pay
Consultant a consulting fee of $3,000 per calendar month payable
pursuant to an invoice for the Services. If any period during the
term of this Agreement is less than a full calendar month, then for
such period the consulting fee for the Minimum Monthly Services
shall be reduced on a pro rata basis based on a ratio that the
actual number of days in the period bears to the number of days in
such calendar month. As compensation for Services in excess of the
Minimum Monthly Services, Aradigm shall pay Consultant a consulting
fee of $375/hr actually spent performing Services requested by
Aradigm, payable pursuant to an invoice for the Services.
3. Expenses. Aradigm shall reimburse
Consultant for expenses actually incurred by Consultant in
performing the Services so long as such expenses are reasonable and
necessary as determined by Aradigm. Consultant shall maintain
adequate books and records relating to any expenses to be
reimbursed and shall submit requests for reimbursement in a timely
manner and form acceptable to Aradigm.
4. No Solicitation. During the term of
this Agreement and for three (3) years after its termination,
Consultant will not personally or through others, directly or
indirectly, recruit, solicit, induce or encourage any employee of
Aradigm to terminate his or her employment with Aradigm.
5. Maintaining Confidential Information
.
5.1 Company Information . During the term of
this Agreement and in the course of Consultant’s performance
hereunder, Consultant may receive or otherwise be exposed to
confidential and/or proprietary information relating to
Aradigm’s technology know-how, trade secrets, data,
inventions, developments, plans business practices, and strategies.
Such confidential and/or proprietary information of Aradigm
(collectively referred to as "Information") may include but not be
limited to: (i) confidential and/or proprietary information
supplied to Consultant with the legend "Aradigm Confidential" or
equivalent; (ii) Aradigm’s marketing and customer
support strategies, financial information (including sales, costs,
profits and pricing methods), internal organization, employee
information, and customer lists; (iii) Aradigm’s
technology, including, but not limited to, discoveries, inventions,
research and development efforts, data, software, trade secrets,
processes, samples, AERx® drug delivery technology, AERx
Strip® dosage forms and other related technology, formulas,
methods, product and know-how and show-how; (iv) all
derivatives, improvements, additions, modifications, and
enhancements to any of the above, including any such information or
material created or developed by Consultant under this Agreement;
or (v) information of third parties as to which Aradigm has an
obligation of confidentiality.
Consultant acknowledges the confidential and secret
character of the Information and agrees that the Information is the
sole, exclusive and extremely valuable property of Aradigm.
Accordingly, Consultant agrees not to reproduce any of the
Information without the applicable prior written consent of
Aradigm, not to use the Information except in the performance of
this Agreement, and not to disclose all or any part of the
Information in any form to any third party, either during or after
the term of this Agreement. Consultant agrees to protect all
Information of Aradigm with the same degree of care that it
protects its own Information (which, in any event, shall be not
less than a reasonable degree of care under the circumstances).
Upon notice of termination of this Agreement for any reason,
including expiration of term, or upon Aradigm’s request,
Consultant agrees to cease using and to immediately return to
Aradigm all whole and partial copies and derivatives of the
Information, whether in Consultant’s possession or under
Consultant’s direct or indirect control.
5.2 Other Employer Information . Consultant
agrees that he will not, during his engagement with Aradigm,
improperly use or disclose any proprietary information or trade
secrets of his former or concurrent clients, employers or
companies, and that he will not bring onto the premises of Aradigm
any unpublished documents or any property belonging to his former
or concurrent clients, employers or companies unless consented to
in writing by said employers or companies. .
5.3 Third Party Information . Consultant
recognizes that Aradigm has received and in the future will receive
from third parties their confidential or proprietary information
subject to a duty on Aradigm’s part to maintain the
confidentiality of such information and, in some cases, to use it
only for certain limited purposes. Consultant agrees that he owes
Aradigm and such third parties, both during the term of his
engagement and thereafter, a duty to hold all such confidential or
proprietary information in the strictest confidence and not to
disclose it to any person, firm or corporation (except in a manner
that is consistent with Aradigm’s agreement with the third
party) or use it for the benefit of anyone other than Aradigm or
such third party (consistent with Aradigm’s agreement with
the third party).
6. Inventions.
6.1 Disclosure of Work Product. As used in
this Agreement, the term "Work Product" means any invention,
whether or not patentable, and all related know-how, designs, mask
works, trademarks, formulae, processes, manufacturing techniques,
trade secrets, ideas, artwork, software or other copyrightable or
patentable works. Consultant agrees to disclose promptly in writing
to Aradigm, or any person designated by Aradigm, all Work Product
which is solely or jointly conceived, made, reduced to practice, or
learned by Consultant in the course of any work performed for
Aradigm ("Aradigm Work Product"). Consultant represents that any
Work Product relating to Aradigm’s business or any project
which Consultant has made, conceived or reduced to practice at the
time of signing this Agreement ("Prior Work Product") has been
disclosed in writing to Aradigm and attached to this Agreement as
Exhibit B. If disclosure of any such Prior Work Product would
cause Consultant to violate any prior confidentiality agreement,
Consultant understands that it is not to list such Prior Work
Product in Exhibit B but it will disclose a cursory name for
each such invention, a listing of the party(ies) to whom it
belongs, and the fact that full disclosure as to such Prior Work
Product has not been made for that reason. A space is provided in
Exhibit B for such purpose.
6.2 Ownership of Work Product. Consultant
shall specifically describe and identify in Exhibit B all
technology which (a) Consultant intends to use in performing
under this Agreement, (b) is either owned solely by Consultant
or licensed to Consultant with a right to sublicense and
(c) is in existence in the form of a writing or working
prototype prior to the Effective Date ("Background Technology").
Consultant agrees that any and all Inventions conceived, written,
created or first reduced to practice in the performance of work
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