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Exhibit
10.3
AMENDED AND RESTATED
INDEPENDENT CONTRACTOR AGREEMENT
FOR CONSULTING
SERVICES
This Independent
Contractor Agreement for Consulting Services (the
“Agreement”), dated November 6, 2006 is entered
into by and between NANOGEN, INC., a Delaware corporation (the
“Company”) with its principal place of business at
10398 Pacific Center Court, San Diego, CA 92121 and HEINER
DREISMANN (“Consultant”).
In consideration of having
been retained as a consultant to the Company, and the compensation
Consultant will receive from the Company from time to time,
Consultant hereby agrees as follows:
1. The amount of time
Consultant will spend as a Consultant to the Company, the nature of
the services provided, Consultant’s compensation and
Consultant’s social security number are set forth in Exhibit
“A”. In rendering such services to the Company,
Consultant will act as an independent contractor and not as an
employee of the Company and will be free to devote to a third
person that portion of Consultant’s time, energy and skill
that Consultant has not agreed to devote to the Company; provided,
however, that Consultant will not during the term hereof provide to
any person or entity any services related to the subject matter or
nature of the services to be provided hereunder without the prior
written consent of the Company. The Company or Consultant may
terminate this Agreement at any time upon thirty
(30) days’ written notice to the other party, with or
without cause.
2. Consultant understands
that nothing in this Agreement is intended to, or should be
construed to, create a partnership, agency, joint venture or
employment relationship between the Company and Consultant.
Consultant also understands that Consultant will not be entitled to
any of the benefits which the Company may make available to its
employees, including, but not limited to, group health or life
insurance, profit sharing or retirement benefits. Consultant also
understands that Consultant is not authorized to make any
representation, contract or commitment on behalf of the Company
unless specifically requested or authorized in writing to do so by
the Company. Consultant will file, on a timely basis, all tax
returns and payments required to be filed with, or made to, any
federal, state or local tax authority with respect to the
performance of services and receipt of fees under this Agreement.
Consultant is solely responsible for, and must maintain adequate
records of, expenses incurred in the course of performing services
under this Agreement. No part of Consultant’s compensation
will be subject to withholding by the Company for the payment of
any social security, federal, state or any other employee payroll
taxes. The Company will regularly report amounts paid to Consultant
by filing Form 1099-MISC with the Internal Revenue Services as
required by law.
3. Consultant understands
the Company possesses and will continue to possess valuable
information that has been created, discovered or developed, or has
otherwise become known to the Company, including without
limitation, information created, discovered or developed or made
known by Consultant (and within the scope of this Agreement) or to
Consultant during the period of or arising out of Consultants
retention as a consultant by the Company, and/or in which property
rights have been assigned or otherwise conveyed to the Company,
which information has commercial value in the business in which the
Company is engaged. All of this information is referred to as
“Proprietary Information.” By way of illustration, but
not limitation, Proprietary Information includes trade secrets,
processes, formulae, scientific data and results, data and
know-how, improvements, inventions, techniques, marketing plans,
strategies and forecasts. Proprietary Information also includes
information of third parties received by the Company under
obligation of confidentiality.
4. All Proprietary
Information will be the sole property of the Company and its
assigns, and the Company and its assigns shall be the sole owner of
all patents and other rights in connection therewith. Consultant
hereby assigns to the Company any rights Consultant may have or
acquire in all Proprietary Information. At all times while retained
as a Consultant by the Company and at all times after termination
of such retention as a Consultant, Consultant will keep in
confidence and trust all Proprietary Information or anything
relating to it and Consultant will not divulge any Proprietary
Information to any third party or use Proprietary Information in
any manner without the written consent of the
Company.
5. Consultant agrees that
during the period that Consultant is retained as a consultant to
the Company, Consultant will not, without the Company’s
express prior written consent, engage in an employment or activity
(whether as a consultant, adviser or otherwise) in any business
competitive with the Company.
6. All documents, data,
records, apparatus, equipment and other physical property, whether
or not pertaining to Proprietary Information, furnished to
Consultant by the Company or produced by Consultant or others in
connection with Consultant’s retention as a consultant will
and remain the sole property of the Company and shall be returned
promptly to the Company as and when requested by the Company.
Should the Company not so request, Consultant will in any event
return and deliver all such property upon termination of
Consultant’s retention as a consultant by Consultant or by
the Company for any reason and Consultant will not remove from the
Company or retain any such property or any reproduction of such
property upon such termination.
7. Consultant agrees that
for a period of two (2) years following termination of the
consulting relationship with the Company, Consultant will not
solicit or in any manner encourage employees of the Company to
leave its employ.
8. Consultant will
promptly disclose to the Company, or any persons designated by the
Company, all improvements, inventions, formulae, processes,
techniques, know-how and data, whether or not patentable, made or
conceived or reduced to practice or learned by Consultant, either
alone or jointly with others, during the period of retention as a
consultant which (a) result from tasks assigned Consultant by
the Company, or (b) are funded by the Company, or
(c) result from use of premises owned, leased or contracted
for or by the Company (all said improvements, inventions, formulae,
processes, techniques, know-how and data shall be co
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