Exhibit 10.22
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Initials: Contractor
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/s/ J.R.A.
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Accuray
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/s/ D.M.
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INDEPENDENT CONTRACTOR
AGREEMENT
This Independent Contractor
Agreement (“Agreement”) is made effective as of
April 1, 2009 by and between Accuray Incorporated, a
Delaware corporation (the “Company”), and John Adler,
M.D. (“Contractor” and, together with the Company, the
“Parties”). The Company desires to retain
Contractor as an independent contractor to perform certain services
for the Company and Contractor is willing to perform such services,
on terms set forth more fully below. In consideration of the
mutual promises contained herein, the Parties agree as
follows:
1.
Services .
During the term of this agreement,
Contractor will provide services (the “ Services
”) to the Company as described on Exhibit A
attached to this Agreement. Contractor shall use his best
efforts to perform the Services to the satisfaction of the Company
and by the completion dates specified by the Company.
Contractor shall not perform any Services for the Company other
than as specifically authorized in Exhibit A
.
2.
Independent Contractor
Status .
It is the Parties’ intent that
Contractor at all times, and with respect to all Services covered
by this Agreement function as and remain an independent contractor,
and not an employee or officer of the Company, and neither Party
shall represent to third parties that Contractor is an employee or
officer of the Company.
(a)
Contractor shall be responsible for
the payment of all taxes on amounts received from the Company for
the Services. The Company will regularly report amounts paid
to Contractor by filing Form 1099-MISC with the Internal
Revenue service, as required by law. No part of Contractor’s
fees will be subject to withholding by the Company for payment of
any social security, federal, state or other employee payroll
taxes. Contractor agrees to indemnify and hold the Company harmless
from any liability for, or assessment of, any such taxes imposed on
the Company by relevant taxing authorities.
(b)
Contractor shall
retain the right to perform services for others during the term of
this Agreement.
(c)
Contractor will
determine the method, details, and means of performing the
Services. The Company shall have no right to, and shall not
control, the manner or determine the method of accomplishment of
the Services, though it may define the Services to be
performed. Such Services may be amended, from time-to-time,
by the Parties by written agreement, signed by the Contractor and
the Company.
(d)
Contractor may, at
Contractor’s own expense, employ such assistants as the
Contractor may deem necessary to perform the Services. The
Company shall not control, direct or supervise the work of
Contractor’s assistants or employees in the performance of
Services. The Contractor assumes full and sole responsibility
for the quality of Services provided by the Contractor’s
assistants or employees, for the payment of all compensation and
expenses of these assistants and employees, for state and federal
income taxes and other applicable payroll taxes and withholding
that may be required with respect to such assistants or
employees, and for the provision of all benefits and
insurance, including without limitation, Worker’s
Compensation Insurance, to such assistants or employees.
Contractor shall furnish the Company with proof
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INDEPENDENT CONTRACTOR AGREEMENT
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ACCURAY CONFIDENTIAL
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John Adler, M.D.- 02.25.09
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1
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Initials: Contractor
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/s/ J.R.A.
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Accuray
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/s/ D.M.
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of Worker’s Compensation Insurance
coverage for all persons who provide Services pursuant to this
Agreement.
(e)
Contractor shall be responsible for
all expenses incurred in the execution of Contractor’s
responsibilities pursuant to this Agreement, including, without
limitation, all travel (including airfare and lodging),
entertainment and dining expenses. No fines, taxes, bonds or
fees imposed against Contractor, or costs of Contractor doing
business, shall be reimbursable by the Company.
(f)
Contractor shall not be eligible to
participate in any fringe benefit program or any benefit plan of
the Company.
(g)
Contractor will have no authority to
enter into contracts that bind the Company or to create obligations
on the part of the Company without the prior written authorization
of the Company.
(h)
Contractor shall receive no office
or administrative support from Company.
(i)
Contractor will, in the performance
of his duties hereunder, comply with all policies and procedures of
the Company that are applicable to independent contractors and
consultants, including but not limited to the Company’s Code
of Conduct and Ethics and the Company’s Code of Conduct for
Interaction with Healthcare Professionals.
3.
Fees .
As consideration for the Services to
be provided by Contractor, the Company will compensate Contractor
as described in Exhibit B to this Agreement.
Company will pay Contractor Contractor’s annual compensation
in quarterly installments of $42,025, such quarterly installments
to be paid in advance of each quarter beginning on the date on
which this Agreement is signed by both Parties and thereafter on
the first business day of each quarter. Compensation for
Contractor’s Services shall be conditioned on the actual
performance by Contractor of Services and the Company’s
receipt and approval of accurate and detailed quarterly invoices,
including records of time spent and Services performed, from
Contractor in the form attached hereto as Exhibit D.
Contractor shall submit such quarterly invoices for all Services
performed by Contractor during the applicable quarter two
(2) weeks prior to the end of such quarter (for example, for
the first quarterly period of this Agreement, April 1, 2009 to
June 30, 2009, Contractor’s first quarterly invoice will
be due to Company no later than June 15, 2009). If for
any quarter, Contractor has not provided the level of Services
required to earn the full quarterly installment for such quarter,
then the quarterly installment for Contractor for the following
quarter will be reduced in an amount equal to the amount that
Contractor was overcompensated for the preceding quarter. If
at the end of the term of this Agreement, Contractor has never
performed certain services, and Contractor’s failure to
perform such services has not been offset against any subsequent
quarter’s installment, then Contractor will reimburse Company
the corresponding amount for the services not performed within
thirty (30) calendar days. The Parties acknowledge that
payment for the Services provided hereunder is consistent with the
fair market value of such Services and is not conditioned in any
way on the volume or value of any business (i) between the
Company and any other party, or (ii) resulting, directly or
indirectly, from any of Contractor’s activities
hereunder.
2
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Initials: Contractor
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/s/ J.R.A.
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Accuray
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/s/ D.M.
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4.
Confidentiality
.
(a)
Confidential
Information . “Confidential
Information” means Company proprietary information, technical
data, trade secrets or know-how, including, but not limited to,
research, product plans, product specifications, services,
customers, customer lists, pipeline documents, marketing plans and
strategies, software, developments, inventions, processes,
formulas, technology, designs, drawings, engineering, hardware
configuration information, circuit board designs, logic designs for
filters and/or circuit boards, Company financials or other business
information disclosed by the Company either directly or indirectly
in writing, orally, or by drawings or inspection of parts or
equipment. Confidential Information also includes any other
information designated by the Company as such upon its disclosure
to the Contractor.
(b)
Disclosure
.
Contractor will not, during or subsequent to the term of this
Agreement, use the Company’s Confidential Information for any
purpose whatsoever other than the performance of the Services on
behalf of the Company. Contractor will not disclose the
Company’s Confidential Information to any third party, and
understands that said Confidential Information shall remain the
sole property of the Company. Contractor further agrees to
take all reasonable precautions to prevent any unauthorized
disclosure of such Confidential Information including, but not
limited to, having each employee of Contractor, if any, with access
to any Confidential Information, execute a nondisclosure agreement
containing provisions in the Company’s favor substantially
similar to Sections 4, 5 and 6 of this Agreement.
Confidential Information does not include information which, upon
disclosure to Contractor is part of the public domain; can be
established by written evidence to have been in the possession of
Contractor at the time of disclosure; is received by Contractor
from a third party without restriction and without breach of this
Agreement; or has become publicly known and made generally
available through no wrongful act of Contractor. If
Contractor is required to disclose Confidential Information by
lawfully issued subpoena or by an authorized order of a government
agency, Contractor will immediately so inform the Company, and will
use best efforts to minimize the disclosure of such Confidential
Information and will consult with and assist the Company in seeking
a protective order prior to such disclosure.
(c)
Indemnity . Contractor agrees
that Contractor will not, during the term of this Agreement,
improperly use or disclose to the Company or any of its employees
any proprietary information or trade secrets of any former or
current employer or other person or entity with which Contractor
has an agreement, or to which Contractor has a duty, to keep in
confidence information acquired by Contractor, and that Contractor
will not bring onto the premises of the Company any unpublished
document, proprietary information, or trade secret belonging to
such employer, person or entity unless consented to in writing by
such employer, person or entity. Contractor will indemnify
the Company and hold it harmless from and against all claims,
liabilities, damages and expenses, including reasonable
attorneys’ fees and costs of suit, arising out of or in
connection with any violation or claimed violation of a third
party’s rights resulting in whole or in part from the
Services provided by Contractor under this Agreement.
(d)
Third Parties
.
Contractor recognizes that the Company has received and in the
future will receive from third parties their confidential or
proprietary information or trade secrets subject to a duty on the
Company’s part to maintain the confidentiality of such
information and to use it only for certain limited purposes.
Contractor agrees that Contractor owes the Company and such third
parties, during the term of this Agreement and thereafter, a duty
to hold all such confidential or proprietary information or trade
secrets in the strictest confidence and not to disclose it to any
person, firm or corporation or to use it except as necessary in
carrying out the Services for the Company consistent with the
Company’s agreement with such third party.
3
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Initials: Contractor
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/s/ J.R.A.
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Accuray
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/s/ D.M.
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(e)
Return of Confidential
Information . Upon the termination
of this Agreement, or upon the Company’s earlier request,
Contractor will deliver to the Company all of the Company’s
property and all Confidential Information in tangible form that
Contractor may have in Contractor’s possession or
control.
5.
Ownership
.
(a)
Inventions
.
Contractor agrees that all copyrightable material, notes, records,
drawings, designs, inventions, improvements, developments,
discoveries and trade secrets (collectively,
“Inventions”) conceived, made or discovered by
Contractor, solely or in collaboration with others, during the
period of this Agreement which relate in any manner to the business
of the Company that Contractor may be directed to undertake,
investigate or experiment with, or which Contractor may become
associated with as a result of work, investigation or
experimentation in the line of business of Company in performing
the Services hereunder (which Company and Contractor agree are
related to Sales and Marketing), are the sole property of the
Company. Contractor further agrees to assign (or cause to be
assigned) and does hereby assign fully to the Company all such
Inventions and any copyrights, patents, mask work rights or other
intellectual property rights relating thereto.
(b)
Assistance
.
Contractor agrees to assist Company, or its designee, at the
Company’s expense, in every proper way to secure the
Company’s rights in the Inventions and any copyrights,
patents, mask work rights or other intellectual property rights
relating thereto in any and all countries, including the disclosure
to the Company of all pertinent information and data with respect
thereto, the execution of all applications, specifications, oaths,
assignments and all other instruments which the Company shall
deem
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