This
Agreement, made February 27, 2009 and effective as of
January 1, 2009 (the “ Effective Date ”) by
and between Cardiogenesis Corporation, a California corporation,
with its principal place of business at 11 Musick, Irvine,
California 92618 (the “Company”), and
Dr. Marvin Slepian, (“ Consultant ”)
located at 2540 North Yellow Flower Trail, Tucson, AZ
85715.
Consultant
desires to perform, and the Company desires to have Consultant
perform, consulting services as an independent contractor to the
Company.
NOW,
THEREFORE, the parties agree as follows:
(a)
Request . From time to time during the Period of Consultancy
(as defined below), the Company may request Consultant to provide
certain services to the Company; provided, however, that the
Company has no obligation to request Consultant to perform any
services, and if such a request is made by the Company, Consultant
has no obligation to agree to perform such services. The
Company’s request will be made by use of the form attached
hereto as Exhibit A (the “ Project
Description ”) and will specify the services to be
performed and the specific results to be achieved (the “
Services ”), each of which Project Descriptions when
completed and signed by the Company and Consultant will become
automatically incorporated herein.
(b)
Performance . Upon agreement between Consultant and the
Company to the specific Services, compensation and completion date
terms by preparation and execution of a Project Description
relating thereto, Consultant will perform the specific Services
provided therein. Consultant agrees to use best efforts to perform
the Services during the Period of Consultancy.
(c)
Period of Consultancy . The “Period of
Consultancy” will commence on the Effective Date and will
terminate on December 31, 2009.
(d)
Payment . As sole compensation for the performance of the
Services, the Company will pay Consultant as per the plan outlined
in Exhibit A, plus all reasonable out -of -pocket expenses,
including travel. Any expenses incurred by Consultant in performing
the Services must be approved in advance and adhere to
Company’s travel policy. Consultant will receive no royalty
or other remuneration on the production or distribution of any
products developed by the Company or by Consultant in connection
with or based upon the Services (“ Products
”).
2.
Relationship of Parties .
(a)
Independent Contractor . Consultant is an independent
contractor and is not an agent or employee of, and has no authority
to bind, the Company by contract or otherwise. Consultant will
perform the Services under the general direction of the Company,
but Consultant will determine, in Consultant’s sole
discretion, the manner and means by which the Services are
accomplished, subject to the requirement that Consultant will at
all times comply with applicable law. The Company has no right or
authority to control the manner or means by which the Services are
accomplished.
(b)
Employment Taxes and Benefits . Consultant will report as
self-employment income all compensation received by Consultant
pursuant to this Agreement. Consultant will indemnify the Company
and hold it harmless from and against all claims, damages, losses
and expenses, including reasonable fees and expenses of attorneys
and other professionals, relating to any obligation imposed by law
on the Company to pay any withholding taxes, social security,
unemployment or disability insurance, or similar items in
connection with compensation received by Consultant pursuant to
this Agreement. Consultant will not be entitled to receive any
vacation or illness payments, or to participate in any plans,
arrangements, or distributions by the Company pertaining to any
bonus, stock option, profit sharing, insurance or similar benefits
for the Company’s employees.
3.
Property of The Company .
(a)
Definitions . For the purposes of this Agreement:
(i) “
Designs and Materials ” means all designs,
discoveries, inventions, products, computer programs, procedures,
improvements, developments, drawings, notes, documents, information
and materials made, conceived or developed by Consultant alone or
with others which result from or relate to the Services.
(ii) “
Moral Rights ” means any right to claim authorship of
a work, any right to object to any distortion or other modification
of a work, and any similar right, existing under the law of any
country in the world, or under any treaty.
(b)
Assignment of Ownership . Consultant hereby irrevocably
transfers and assigns any and all of Consultant’s right,
title, and interest in and to Designs and Materials, including but
not limited to all patent rights, copyrights, trademarks and trade
secrets, to the Company. Designs and Materials will be the sole
property of the Company and the Company will have the sole right to
determine the treatment of any Designs and Materials, including the
right to keep them as trade secrets, to file and execute patent
applications on them, to use and disclose them without prior patent
application, to file registrations for copyright or trademark on
them in its own name, or to follow any other procedure that the
Company deems appropriate. Consultant will:
(i) disclose
promptly in writing to the Company all Designs and
Materials
-2-
(ii) cooperate
with and assist the Company to apply for, and to execute any
applications and/or assignments reasonably necessary to obtain, any
patent, copyright, trademark or other statutory protection for
Designs and Materials in the Company’s name as the Company
deems appropriate, provided that the Company will reimburse
Consultant any reasonable costs incurred by Consultant, and
Consultant’s normal billing rate for reasonable time
incurred, in connection therewith; and
(iii) otherwise
treat all Designs and Materials as “Confidential
Information,” as defined below. The obligations of Consultant
to so disclose, assist, and execute will survive until the earlier
of five years following any expiration or termination of this
Agreement, or Consultant’s death or disability.
(c)
Moral Rights Waiver . Consultant hereby irrevocably
transfers and assigns to the Company any and all Moral Rights that
Consultant may have in any Services, Designs and Materials or
Products. Consultant also hereby forever waives and agrees never to
assert against the Company, its successors or licensees any and all
Moral Rights Consultant may have in any Services, Designs and
Materials or Products, even after expiration or termination of the
Period of Consultancy.
4.
Confidential Information . Consultant acknowledges that
Consultant will acquire information and materials from the Company
and knowledge about the business, products, programming techniques,
experimental work, customers, clients and suppliers of the Company
and that all such knowledge, information and materials acquired,
the existence, terms and conditions of this Agreement, and the
Designs and Materials, are and will be the trade secrets and
confidential and proprietary information of the Company
(collectively “ Confidential Information ”).
Confidential Information will not include, however, any information
which is or becomes part of the public domain through no fault of
Consultant or that the Company regularly gives to third parties
without restriction on use or disclosure. Consultant agrees to hold
all such Confidential Information in strict confidence, not to
disclose it to others or use it in any way, commercially or
otherwise, except in performing the Services, and not to allow any
unauthorized person access to it, either before or after expiration
or termination of this Agreement. Consultant further agrees to take
all action reasonably necessary and satisfactory to protect the
confidentiality of the Confidential Information in
Consultant’s possession, including, without limitation,
implementing and enforcing operating procedures to minimize the
possibility of unauthorized use or copying of the Confidential
Information.
(a)
By Consultant . To the extent determined by a tribunal of
competent jurisdiction (arbitral or judicial), not subject to
further a
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