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Exhibit 10.12
CONSULTING AGREEMENT
THIS AGREEMENT is made and entered into as of the __ day of ______,
____, by and between ORTHOPAEDIC BIOSYSTEMS LTD., INC. ("OBL"), an
Arizona corporation having its principal office at 15990 N.
Greenway-Hayden Loop, Suite 100, Scottsdale, Arizona 85260, and _____
_______, of _____________, the ("Consultant").
RECITALS
A. OBL is engaged in the business of inventing, developing and
selling orthopaedic, podiatric and other medical products and
devices which it sells to physicians, hospitals, clinics and
other health care providers.
B. OBL desires to retain Consultant as a professional advisor
upon the terms and conditions hereinafter set forth, and
Consultant has agreed to serve as a professional advisor upon
such terms and conditions.
STATEMENT OF AGREEMENT
NOW, THEREFORE, in consideration of the above recitals and the mutual
covenants and agreements hereinafter set forth, the parties hereto agree as
follows:
1. Services to be Provided by Consultant. Consultant agrees for a
period of three (3) years to serve as a professional advisor to OBL and, as
such, to perform the following services:
(a) Consult with OBL on the design and
development of new products and
instrumentation materials, promotional
materials and the improvement of existing
products and instrumentation.
(b) Perform and publish clinical studies and
tests of OBL products.
(c) Make surgical evaluations of new and
existing products.
(d) Lecture and conduct two (2)
workshops on OBL products each
year.
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Consultant agrees to commit twenty (20) hours per year to consultation with OBL
and, in addition, will meet with OBL representatives from time to time on an
as-needed basis. Further, Consultant agrees to allow OBL representatives to
observe surgeries he performs in which OBL products are being used.
2. Consideration to be issued to Consultant. As full and
exclusive consideration for the services to be provided by
Consultant described in Paragraph 1 above, and for the
confidentiality agreement set forth in Paragraph 4 below, OBL
hereby grants to Consultant the option to purchase ______
shares of OBL Common Stock currently valued at the price of
_____ per share, all in accordance with the option letter
attached hereto as Exhibit A.
3. Right of First Refusal. Consultant, during the term of the
Agreement, hereby grants OBL the right of first negotiation
and right of first refusal for OBL to manufacture and sell any
soft tissue reattachment products or devices invented or
developed by consideration, in cash or stock, paid by OBL to
Consultant for the rights to any such product or device will
be negotiated on a per-product basis and in each instance
shall be in addition to the stock option granted to Consultant
under Paragraph 2 above.
4. Confidentiality and Non-Disclosure Agreement. Consultant
acknowledges that the business of OBL includes specifically
and primarily the development of new orthopaedic and podiatric
devices for use in medical and surgical treatment. At meetings
of the Consultant and OBL, there may be disclosed to the
Consultant proprietary, secret or confidential information
relating to products, techniques or devices that are being
developed or contemplated for development by OBL. Consultant
further acknowledges that it is the intent of OBL to preserve
the secrecy and confidentiality of such confidential
information and from time to time to seek patents for the
products developed by OBL. Consequently, Consultant agrees
that he will not, during or after secret or confidential
information, knowledge or data relating to the business
affairs or contemplated or developed products of OBL acquired
by, disclosed to or
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otherwise learned by Consultant and will use such information,
knowledge or data only for the benefit of OBL, its successors
and assigns and not for his own benefit or the benefit of
others.
Upon termination of his service as a professional advisor to OBL, for whatever
reason whatsoever, all documents, records, notebooks and other papers and
computer software, if any, containing secret, proprietary or confidential
information of OBL and information relating to new products developed or
contemplated by OBL, including all copies thereof then in Consultant's
possession or control, whether prepared by him or others, will be promptly
delivered to OBL by Consultant, and no copies shall be retained by Consultant.
It is understood that the following information shall not be regarded
as "confidential": Information already known to Consultant when disclosed to
him, including technical information, processes, techniques or methods already
practiced by Consultant or described in published literature or otherwise in the
public domain.
OBL acknowledges that from time to time Consultant may, during the
course of his service as a professional advisor, disclose to OBL confidential or
proprietary information owned by or under the control of Consultant. In such
event, prior to the disclosure of any such confidential information, Consultant
shall identify such information as proprietary, secret or confidential, and in
such event, OBL agrees that it will not disclose any such secret, confidential
or proprietary information, knowledge or data to any third party and will not
use such information, knowledge or data in the development of OBL's products
without the prior consent of Consultant. Notwithstanding the foregoing, no
information identified as confidential by Consultant shall be deemed
confidential it at the time of disclosure by Consultant such information was
already known by OBL from other sources, described in published literature or
otherwise in the public domain.
5. Professional Ethics and Disclosures. OBL and Consultant agree
to make full and complete disclosures of their relationship
and to comply in all respects thereto with all applicable laws
and the ethical and moral canon, standards and rules of
conduct of the medical-profession generally and in particular
all surgical, podiatric or other applicable organizations or
societies.
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6. Remedies. Consultant and OBL each acknowledge that compliance
with this Agreement and, in particular, with the provisions of
Paragraph 4 above, is necessary to protect the proprietary
interests of the parties and that a breach thereof will be no
adequate remedy at law. In the event of any breach of the
covenants contained in this Agreement, the non-breaching
party, in addition to any damages that may be awarded, shall
be entitled to injunctive and such other relief as may by
awarded by a court having competent jurisdiction over the
parties. In addition, if Consultant shall in any way breach
the covenants and agreements of Paragraph 4 hereof, as an
additional remedy to OBL for such breach, Consultant shall
forfeit his option to purchase OBL stock, and OBL shall have
the right, but not the obligation, to redeem from Consultant
all shares of OBL stock purchased by Consultant through prior
exercise of his stock option, at consultant's acquisition
cost.
7. Non-competition. Consultant acknowledges the importance of OBL
maintaining strict confidentiality of its proprietary and
confidential information, and all plans for product
development. Consequently, during the three (3) year term of
this Agreement, Consultant agrees that he will not in any
capacity, directly or indirectly, consult, work on or
otherwise participate in any projects for any third party that
relate to the development, modification, evolution, formation
or enhancement of any product currently sold or marketed by
OBL.
8. Indemnity. OBL agrees to indemnify and hold harmless
Consultant from any loss, cost or damage, including reasonable
attorneys' fees, arising out of any action taken or advice
given in good faith by Consultant while performing services
for OBL as required herein.
9. Independent Contractor. Consultant acknowledges that he is
acting as an independent contractor to OBL and that he has no
authority express or implied to act for or on behalf of OBL in
dealing with any third party.
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10. Work for Hire. Consultant agrees that all work performed by
Consultant for OBL, including but not limited to the
development or enhancement of processions, products, concepts
or devices relating to orthopaedic or podiatric products,
invented, developed, enhanced or produced by OBL shall be
considered works made for hire, the ownership and all rights
to which shall remain perpetually in OBL.
11. Successors and Assigns. This Agreement shall be binding upon
the parties hereto and their respective successor and assigns.
12. Entire Agreement/Amendment. This Agreement represents the
entire contract between the parties with respect to the
subject matter hereof. This Agreement may not be amended or
modified except by an instrument in writing signed by the
party to be charged.
13. No Waiver. No default by Consultant hereunder shall be waived
by OBL except in writing and no waiver of any other default or
of another occurrence of the same default at a future time.
14. Severability. Should any term, provision or clause hereof be
held to be invalid or unenforceable, such invalidity or
unenforceability shall not affect any other of the provisions
or clauses hereof or thereof which can be given effect without
such invalid or unenforceable provision, all of which shall
remain in full force and effect.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
ORTHOPAEDIC BIOSYSTEMS LTD., INC.
By:
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D. Ronald Yagoda, Chairman
By:
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Consultant
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ADDENDUM TO EXHIBIT 10.12
The following persons have signed an agreement substantially in the form of
Exhibit 10.12:
Champ L. Baker
Donald E. Baxter
Brian J. Cole
James C. Esch
Larry Field
Gary M. Gartsman
Warren D. King
Leslie S. Matthews
Mark Myerson
Patrick A. Ruwe
James P. Tasto
Arthur Ting