Exhibit 10.54
PROFESSIONAL SERVICES AGREEMENT
THIS Agreement ("Agreement") is made this 30th DAY OF MARCH, 2006 by
and between ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ("▇▇▇▇▇▇▇"), an individual and Microlslet, Inc.,
("Client"), for professional services ("Services") to be provided by ▇▇▇▇▇▇▇ as
more fully set forth in the annexed Statement(s) of Services. All rights and
obligations of the parties set forth in this Agreement shall begin upon the date
(the "Effective Date") immediately following the date of termination of that
certain Professional Services Agreement dated January 18, 2006 by and between
Resources Connection, LLC and the Client.
1. INDEPENDENT CONTRACTOR STATUS
1.1 The parties expressly agree that ▇▇▇▇▇▇▇ is an independent
contractor and nothing in this Agreement shall be deemed to create a
partnership, joint venture or employment relationship between the parties.
▇▇▇▇▇▇▇ will not be entitled to any of the benefits that the Client may make
available to its employees, including, but not limited to, group health or life
insurance, profit-sharing or retirement benefits. ▇▇▇▇▇▇▇ is solely responsible
for, and must maintain adequate records of, expenses incurred in the course of
performing services under this Agreement. No part of ▇▇▇▇▇▇▇'▇ compensation will
be subject to withholding by the Client for the payment of any social security,
federal, state or any other employee payroll taxes. The Client will regularly
report amounts paid to ▇▇▇▇▇▇▇ as required by law.
2. PERFORMANCE OF SERVICES
2.1 All Services to be provided by ▇▇▇▇▇▇▇ under the terms of this
Agreement shall be set forth in a written statement signed by ▇▇▇▇▇▇▇ and an
authorized representative of Client summarizing the scope of the engagement and
any special services provisions (a "Statement of Services"). The initial
Statement of Services is attached as EXHIBIT A hereto and incorporated herein by
reference. Any additional Services requested subsequent to the Effective Date of
this Agreement or individual amendments to the provisions herein, will be set
forth in additional Statements of Services, which shall be effective only after
being agreed to and acknowledged, in writing, by both parties, and, upon
effectiveness, shall be attached hereto and incorporated herein by reference.
2.2 Client agrees to provide, at its own cost and expense, reasonable
working space and materials which may be necessary in connection with the
performance by ▇▇▇▇▇▇▇ of the Services required pursuant to this Agreement.
2.3 ▇▇▇▇▇▇▇ hereby agrees to assign to the Client all right, title and
interest in and to any tangible deliverables created by ▇▇▇▇▇▇▇, or to which
▇▇▇▇▇▇▇ contributes, including all copyrights, trademarks and other intellectual
property rights contained therein.
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3. REPRESENTATIONS AND WARRANTIES
3.1 ▇▇▇▇▇▇▇ represents and warrants to Client as follows:
(a) ▇▇▇▇▇▇▇ has full right and power to enter into this
Agreement.
(b) ▇▇▇▇▇▇▇ will perform the Services in good faith in a
diligent and workmanlike manner in accordance with accepted professional
practices.
(c) ▇▇▇▇▇▇▇ shall comply with all applicable federal, state,
and local laws, rules, regulations, codes, ordinances and orders.
(d) ▇▇▇▇▇▇▇ agrees to abide by all applicable rules, policies
and procedures of Client.
(e) ▇▇▇▇▇▇▇ makes no additional warranties, whether express,
implied, statutory or otherwise, including, without limitation, warranties of
merchantability, fitness for a particular purpose, quality, suitability or
otherwise with respect to any Services performed by him in connection with this
Agreement.
3.2 Client represents and warrants to ▇▇▇▇▇▇▇ that during the term of
this Agreement, Client shall maintain a Directors and Officers Insurance Policy
("D&O Policy"), with not less than a $10,000,000 coverage limit and terms and
conditions substantially similar to Client's D&O Policy in place as of the
Effective Date, and shall cause ▇▇▇▇▇▇▇ to be covered thereunder as a
specifically named insured party.
4. MUTUAL INDEMNIFICATION AND LIMITATION OF LIABILITY
4.1 Neither ▇▇▇▇▇▇▇ nor Client shall be liable for consequential,
special, indirect, incidental, punitive, or exemplary loss, damage, cost or
expense (including, without limitation, lost profits and opportunity costs). The
maximum total liability of ▇▇▇▇▇▇▇ to Client for any actions, losses, damages,
claims, liabilities, costs or expenses in any way arising out of or relating to
this Agreement, shall not exceed the fees paid by Client to ▇▇▇▇▇▇▇ hereunder
for the portion of Services or work product giving rise to such liability. Each
party agrees to indemnify and hold harmless the other and its personnel, agents,
officers and directors and its parent and any affiliate or subsidiary and any
employee or affiliate of the other from and against any and all actions, losses,
damages, claims, liabilities, taxes, tax liabilities, assessments, penalties,
costs or expenses (including, without limitation, reasonable legal fees)
(collectively, "Losses") in any way arising out of or relating to this Agreement
brought by a third party (including, without limitation, any governmental
entity), provided, however, that any amounts paid to a party that sought
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indemnification for Losses pursuant to the foregoing clause shall be paid back
to the party that provided such indemnification to the extent such Losses are
finally determined to have resulted from the intentional misconduct or gross
negligence of the party that sought indemnification. The provisions of this
paragraph shall apply regardless of the form of action, loss, damage, claim,
liability, cost, or expense, whether in agreement, statute, tort (including,
without limitation, negligence), or otherwise. The provisions of this paragraph
shall survive the completion or termination of this Agreement.
5. CONFIDENTIALITY
5.1 ▇▇▇▇▇▇▇ (a) will preserve the confidential nature of "Confidential
Information" (as defined below) received from Client in accordance with Client's
established policies and practices, (b) will not disclose such Confidential
Information to any third parties, (c) will use such Confidential Information
solely for the purpose of performing the Services and (d) will execute the
Client's Confidentiality and Intellectual Property Agreement (the
"Confidentiality and Intellectual Property Agreement") which shall in no way
limit the obligations of ▇▇▇▇▇▇▇ set forth herein.
5.2 "Confidential Information" shall mean information or documents,
including without limitation, business, technical or financial information,
product development plans, client lists, models, forecasts and strategies,
formulas, processes, trade secrets, know-how, inventions (whether or not
patentable), the existence of any business discussions, negotiations or
agreements between the parties; and any information regarding the skills and
compensation of employees, contractors or other agents of the Clients or its
subsidiaries or affiliates, employees and customers provided, however, that the
term Confidential Information shall not be deemed to include information which
(i) is or becomes publicly available by means other than a breach hereof
(including, without limitation, any information filed with any governmental
agency and available to the public); (ii) is known to, or rightfully in the
possession of, the recipient at the time of disclosure without breach or
violation of any confidentiality agreement; (iii) thereafter becomes known to or
comes into the possession of the recipient from a third party that the recipient
reasonably believes is not under any obligation of confidentiality to the
disclosing party and is lawfully in the possession of such information; (iv) is
developed by the recipient independently of any disclosures previously made by
the disclosing party to the recipient; or (v) is required to be disclosed by
order, or the process, of a court of competent jurisdiction, administrative
agency or governmental body, or by subpoena, summons or other legal process, or
by law, rule or regulation, provided that prior to such disclosure by the
recipient the disclosing party is given reasonable advance notice of such order
or legal process and an opportunity to object to such disclosure.
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6. PAYMENT FOR SERVICES
6.1 Fees for the Services provided under this Agreement are based on
the billing rates set forth in the applicable Statement of Services. Client will
reimburse ▇▇▇▇▇▇▇ for actual expenses incurred by him in connection with the
performance of Services. Fees and applicable expenses will be billed weekly,
payable, without deduction or setoff, upon receipt of invoices for such fees and
expenses. Invoices for services rendered during any calendar year will be
submitted to Client no later than thirty (30) days after the end of such
calendar year.
(a) ▇▇▇▇▇▇▇ reserves the right to collect interest or other
penalty from Client for promptly submitted invoices upon which payment is not
received within thirty (30) days of Client's receipt of such invoice.
Specifically, ▇▇▇▇▇▇▇ shall be entitled to a late charge of the lesser of (i) 1
1/2 % per month or (ii) the highest rate allowable by law, in each case
compounded monthly to the extent allowable by law.
(b) ▇▇▇▇▇▇▇ further reserves the right to cease performing
Services hereunder if any invoice is not promptly paid when due.
7. ASSIGNMENT AND DELEGATION
7.1 ▇▇▇▇▇▇▇ may not subcontract or otherwise delegate his obligations
under this Agreement without the Client's prior written consent. Subject to the
foregoing, this Agreement will be for the benefit of the Client's successors and
assigns, and will be binding on ▇▇▇▇▇▇▇'▇ assignees.
8. NON-EXCLUSIVE RIGHTS
8.1 Nothing in this Agreement shall preclude or limit either party from
independently acquiring or developing competitive products or services for
itself or its clients or customers, or from providing competitive products or
services to its clients or customers, so long as such party does not breach the
obligations it has assumed under this Agreement, including the confidentiality
obligations, or otherwise violate the rights of the other party.
9. TERMINATION OF THE AGREEMENT
9.1 This Agreement may be terminated by either party upon thirty (30)
days' prior written notice to the other party; provided, however, Section 3
(Representations and Warranties), Section 4 (Mutual Indemnification and
Limitation of Liability), Section 5 (Confidentiality) and this Section 9 through
the last section of this Agreement shall survive indefinitely the termination of
this Agreement.
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10. ACCEPTANCE
10.1 By accepting the Services of ▇▇▇▇▇▇▇, hereunder, Client is deemed
to have consented to the material terms set forth herein.
11. MODIFICATIONS
11.1 The terms of this Agreement may be modified only by a writing
signed by both parties.
12. NOTICE
12.1 All notices, requests, instructions or other documents to be given
under this Agreement shall be in writing and shall be deemed given, (i) five
business days following sending by registered or certified mail, return receipt
requested, postage prepaid, (ii) when sent if sent by facsimile; PROVIDED,
HOWEVER, that the facsimile is promptly confirmed by telephone confirmation
thereof, (iii) when delivered, if delivered personally to the intended
recipient, and (iv) one business day following sending by overnight delivery via
a national courier service whereby successful delivery is confirmed by such
courier service, and in each case, to the respective parties.
13. WAIVER
13.1 No waiver of or failure to enforce any term of this Agreement or
Statement of Services shall affect or limit a party's right thereafter to
enforce and compel strict compliance with every term thereof.
14. HEADINGS
14.1 The headings in this Agreement are for the purposes of convenience
and ready reference only and shall not be deemed to expand or limit the
particular sections to which they pertain.
15. SEVERABILITY
15.1 In the event any part of this Agreement shall be judged invalid or
unenforceable, such invalidity or unenforceability shall not affect the
remaining provisions of this Agreement.
16. NO OBLIGATION TO THIRD PARTIES
16.1 Except as otherwise expressly provided herein, the execution and
delivery of this Agreement shall not be deemed to confer any rights upon, nor
obligate any of the parties hereto, to any person or entity other than the
parties hereto their respective permitted successors and assigns.
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17. ENTIRE AGREEMENT
17.1 This Agreement, the exhibits attached hereto and the
Confidentiality and Intellectual Property Agreement represent the entire
understanding between the parties. In the event of any conflict between the
terms of this Agreement and any Statement of Services, the terms of the
governing Statement of Services shall control.
18. GOVERNING LAW
18.1 The validity, construction, enforcement, and interpretation of
this Agreement shall be governed by the substantive laws of the State of
California without giving effect to its conflicts of laws principles.
19. DISPUTE RESOLUTION
19.1 Except as the parties may otherwise agree in writing, all claims,
demands, causes of action or controversies - past, present or future - that
▇▇▇▇▇▇▇ may have against the Client, its officers, directors, employees,
independent contractors or agents - past, present or future - or that the Client
may have against ▇▇▇▇▇▇▇, shall be resolved by final and binding arbitration
pursuant to the provisions of EXHIBIT B hereto. BY SIGNING THIS AGREEMENT, EACH
PARTY AGREES THAT IT IS GIVING UP ITS RIGHT TO FILE A LAWSUIT IN A COURT OF LAW
AND TO HAVE ITS CASE HEARD BY A JUDGE AND/OR JURY.
20. COUNTERPARTS
20.1 This Agreement may be executed in two or more original or
facsimile counterparts, each of which shall be deemed an original but all of
which together shall constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto do hereby execute this Agreement
as of the date first above written.
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ MicroIslet, Inc.
By:___________________________ By:___________________________
Name:_________________________
Title:__________________________
Date:_________________________ Date:__________________________
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EXHIBIT A
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STATEMENT OF SERVICES
The provisions of this Exhibit A are incorporated into and made a part of the
Professional Services Agreement dated March 30, 2006 by and between MicroIslet,
Inc. ("Client") and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ("▇▇▇▇▇▇▇").
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CLIENT COMPANY NAME Microlslet, Inc.
AND ADDRESS ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
(FOR BILLING PURPOSES) ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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DATE OF ORIGINAL AGREEMENT March 30, 2006
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CLIENT CONTACT ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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BILLING CONTACT Dr. ▇▇▇▇▇ ▇▇▇▇▇
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DESCRIPTION OF ENGAGEMENT Interim Chief Financial Officer
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SCOPE OF SERVICES
▇▇▇▇▇▇▇ will perform all services reasonably requested by the
Chief Executive Officer of the Client and consistent with the
title of Interim Chief Financial Officer. Such services will not
include the provision of audit or attestation services as
described in the pronouncements on professional standards issued
by the AICPA and, accordingly, ▇▇▇▇▇▇▇ will not provide any
assurance concerning the reliability of any assertion that is the
responsibility of another party.
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ENGAGEMENT LENGTH Approximately 3 months, or as needed.
Client agrees to provide ▇▇▇▇▇▇▇ with 30 days notice of the
termination of this Statement of Services. In lieu of such
notice, Client agrees to pay ▇▇▇▇▇▇▇ an amount equal to the
average weekly invoice for the prior 3 weeks.
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START DATE March 19, 2006
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BILLING RATE $135.00 per hour
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EXHIBIT B
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The provisions of this Exhibit B are incorporated into and made a part
of the Professional Services Agreement dated March 30, 2006 (the "Agreement") by
and between MicroIslet, Inc. ("Client") and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ("▇▇▇▇▇▇▇").
Capitalized terms used and not defined herein have the same meaning as set forth
in the Agreement.
(a) WAIVER OF RIGHT TO TRIAL. The Client and ▇▇▇▇▇▇▇
(the "PARTIES") understand that they are waiving any right they may have to file
a lawsuit or other civil action or proceeding against each other, and are
voluntarily waiving any right they may have to resolve disputes between the
parties through trial by judge or jury. Any and all claims or disputes arising
out of or relating to the consulting relationship and/or the termination of the
consulting relationship between the parties that are not resolved by their
mutual agreement shall be resolved exclusively by confidential, final and
binding arbitration. The parties have the right to be represented by counsel in
any arbitration proceeding commenced pursuant to the Agreement.
(b) CLAIMS SUBJECT TO ARBITRATION. Except as the
parties may otherwise agree in writing, all claims, demands, causes of action or
controversies - past, present or future - that ▇▇▇▇▇▇▇ may have against the
Client, its officers, directors, employees, independent contractors or agents -
past, present or future - or that the Client may have against ▇▇▇▇▇▇▇
(collectively the "CLAIMS") shall be resolved by final and binding arbitration.
(c) THE ARBITRATION PROCESS. Either ▇▇▇▇▇▇▇ or the
Client may commence the arbitration process by filing a written demand for
arbitration with the American Arbitration Association ("AAA"), and sending a
copy to the other party by proper notice pursuant to the Agreement. Demands for
arbitration must be made within the applicable statute of limitations.
Any arbitration between the parties shall be conducted
pursuant to applicable AAA procedures, except as otherwise agreed in writing by
the parties. The arbitration shall be conducted in the County of San Diego,
California, unless the parties mutually agree to conduct the arbitration
elsewhere. The arbitration shall be conducted by a neutral Arbitrator (the
"ARBITRATOR") selected by mutual agreement of the parties, or if no mutual
agreement can be reached, selected from a list of arbitrators provided by AAA,
as specified in the AAA's procedures. The parties will cooperate in scheduling
the arbitration proceedings. Absent a subsequent contrary written agreement
between the parties, the arbitration hearing shall be scheduled for a date that
is within 180 days after the commencement of the arbitration. As for discovery,
the parties will comply with California Code of Civil Procedure ss. 1283.05 or
any other discovery required by California law. Should a non-party witness
refuse to comply with a subpoena issued by the Arbitrator and the Arbitrator is
unable to enforce compliance with the subpoena, the parties agree to submit the
subpoena to a court of competent jurisdiction for enforcement of the subpoena.
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The Arbitrator shall apply the applicable substantive law, and
the applicable law of remedies, for the State of California, or federal law, or
both. The Arbitrator is without jurisdiction to apply any different substantive
law or law of remedies. The Arbitrator is authorized to award any remedies
allowed by applicable law. The Arbitrator cannot modify any of the provisions of
the Agreement. The Arbitrator shall issue a written and signed statement of the
basis of its decision, including findings of fact and conclusions of law. The
statement and award, if any, shall be based on the terms of the Agreement, the
findings of fact and the statutory and decisional case law applicable to this
dispute. Proceedings to confirm, correct or vacate an award or decision rendered
by the Arbitrator will be controlled by and conducted in conformity with
applicable state law, including California Code of Civil Procedure ss. 1285.8,
et seq. The arbitration shall be final and binding upon the parties, except as
provided in this Exhibit B. Neither the parties nor the Arbitrator may disclose
the existence, content, or results of any arbitration without the prior written
consent of both parties.
(d) ARBITRATION FEES, COSTS AND AWARDS. If ▇▇▇▇▇▇▇
initiates arbitration against the Client, ▇▇▇▇▇▇▇ must pay a filing fee to AAA
equal to the current filing fee in the appropriate court had his claim been
brought there, and the Client shall bear the remaining costs of the arbitration
forum, including Arbitrator fees. If the Client initiates arbitration against
▇▇▇▇▇▇▇, the Client shall bear the entire cost of the arbitration forum,
including Arbitrator fees. (Such costs do not include costs of attorneys,
discovery, expert witnesses, or other costs which ▇▇▇▇▇▇▇ would have been
required to bear had the matter been filed in a court.) The Arbitrator may award
attorneys' fees and costs to the prevailing party as authorized by law. If there
is any dispute as to whether the Client or ▇▇▇▇▇▇▇ is the prevailing party, the
Arbitrator will decide that issue. Any postponement or cancellation fee imposed
by the arbitration service will be paid by the party requesting the postponement
or cancellation, unless the Arbitrator determines that such fee would cause
undue hardship on the party. At the conclusion of the arbitration, each party
agrees to promptly pay any arbitration award imposed against that party.
(e) FAILURE TO USE ARBITRATION PROCESS. Should either
party pursue any dispute subject to this Exhibit B by any method other than set
forth herein, the responding party shall be entitled to recover from the
initiating party all damages, costs, expenses and attorneys' fees incurred as a
result of appearing in, dismissing, staying or litigating such action.
(f) COMPLETE AGREEMENT. This Exhibit B is the
complete agreement of the parties on the subject of arbitration of claims or
disputes. This Exhibit B supersedes any prior or contemporaneous oral or written
understanding on the subject. No party is relying on any representations, oral
or written, on the subject of the effect, enforceability or meaning of this
Exhibit B, except as specifically set forth in this Exhibit B.
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BY SIGNING THIS AGREEMENT, EACH PARTY AGREES THAT IT
IS GIVING UP ITS RIGHT TO FILE A LAWSUIT IN A COURT OF LAW AND TO HAVE ITS CASE
HEARD BY A JUDGE AND/OR JURY.
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