CONSULTING AND INDEPENDENT CONTRACTOR SERVICES AGREEMENT
Exhibit
10.38
This Agreement (“Agreement”)
is between Symyx Technologies, Inc., a Delaware corporation and its successors
or assignees (“Symyx”)
and the undersigned ▇▇▇▇▇
▇▇▇▇ (“Consultant”).
1. Engagement
of Services; Symyx Person Responsible. Symyx may issue Work
Order(s) from time to time in the form attached hereto as Exhibit A
(“Work
Order(s)”). Consultant will, to the best of its ability,
render the services set forth in Work Order(s) its accepts (the “Services”)
by the stated completion dates. Consultant will exercise the highest
degree of professionalism and utilize its expertise and creative talents in
completing the Services. The Symyx employee responsible for
Symyx’s relationship with Consultant is: ▇▇▇▇▇▇
▇▇▇▇▇▇.
2. Compensation.
Each Work Order will specify the applicable fee arrangement. Within
forty-five (45) days of receipt of a proper invoice, Symyx will pay undisputed
amounts for Services rendered and accepted. Except as otherwise set
forth in a Work Order, Consultant is responsible for its own costs and
expenses. If Symyx agrees to reimburse expenses, they must be
pre-approved and consistent with Symyx’s travel and other
policies. Consultant must provide all supporting documentation, and
may not in any event exceed the total amounts specified on a Work Order without
prior written authorization.
3. Independent
Contractor. Consultant is an independent contractor; nothing in this
Agreement is intended or will be construed as creating an agency, partnership,
joint venture or employment relationship. Consultant has sole
discretion and control over the manner and means by which it completes the
Services. Except as specified in a Work Order, Consultant will
provide its own equipment and materials, at its own
expense. Consultant will complete the Services at a location,
place and time that Consultant deems appropriate. Consultant may not make any
representation or commitment on Symyx’s behalf. Consultant is not entitled to
benefits Symyx provides to its employees. Consultant is responsible
for all tax returns and payments required by any authority relating to
Consultant’s performance of Services. Symyx will not withhold or make
contributions for social security, unemployment or disability insurance.
Consultant will indemnify and hold Symyx harmless against such taxes or
contributions, including penalties and interest.
4. Reports and
Records. Consultant will regularly advise Symyx on its
progress in performing Services, and to the extent Symyx requests, will do so via
written reports. Consultant will meet with Symyx personnel as
requested to review the progress of the Services. Consultant will maintain
reasonably detailed records related to its performance of the Services,
including the expenditure of time per person, materials and other
costs. Symyx has the right during the Term and for three (3) years
thereafter to examine Consultant’s books and records relating to this
Agreement.
5. Confidentiality. If
the parties have previously entered into a non-disclosure agreement encompassing
the disclosure of Symyx’s confidential and proprietary information to
Consultant, then the terms in that agreement will apply to disclosures hereunder
and be deemed a part hereof (regardless of whether that agreement terminates
prior to the end of the Term), and the following provisions will not apply.
Otherwise, the following provisions apply.
5.1 “Confidential
Information” means Symyx’s non-public information disclosed (directly or
indirectly) to Consultant, or to which Consultant may gain access, in any form.
Confidential Information includes, for example, know-how and trade secrets;
patents, patent applications, innovations and inventions (whether patentable or
not); works of authorship, including software programs and related materials;
technical information, such as algorithms, methods, designs, formulae,
processes, research and development, specifications and configuration
information; financial and pricing information; information about suppliers,
customers, prospects, investors, employees and business relationships;
forecasts, strategies, and other information related to Symyx’s current, future,
and proposed products, services, and business; and information Symyx provides
regarding or belonging to third parties. Information need not be labeled or
marked “confidential” or “proprietary” to be deemed Confidential
Information. As between the parties, all Confidential Information is
Symyx’s property.
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5.2 Third-Party Information.
Consultant recognizes that Confidential Information includes confidential
or proprietary information Symyx has received from third parties, subject to a
duty to maintain its confidentiality and to use it for certain limited
purposes. Consultant agrees it owes Symyx and such third parties a
duty to hold all such third-party information in the strictest confidence and
not to disclose it to any party or to use it except as necessary to perform
Services, consistent with the Symyx's agreement with the owner.
5.3 Duties. At all times, and
notwithstanding the termination of this Agreement, Consultant will use
Confidential Information only as necessary to provide Services and will use the
Confidential Information only for Symyx’s benefit. Consultant will
hold Confidential Information in strict confidence, and will use the same care
and precautions to avoid publication, dissemination, or other disclosure of
Confidential Information as it uses with its own most confidential information
(and in no case less than reasonable care). Consultant will not
disclose Confidential Information to any third party, and will limit
dissemination of Confidential Information within Consultant (if Consultant is
not a natural person) to Consultant’s employees who (a) have a need to know such
information to perform the Services; and (b) are bound by written obligations of
confidentiality for Symyx’s benefit that are at least as restrictive as this
Agreement. Except as specifically agreed in a Work Order, Consultant will not
reverse engineer, disassemble or decompile any software, prototypes, materials
or other tangible objects, or reproduce Confidential Information except as
necessary to provide the Services.
5.4 Exceptions. Consultant’s
obligations in this Section 5 will not apply to an item of the Confidential
Information when Consultant can document that such item (a) is or becomes
generally available to the public through no fault of Consultant; (b) was
publicly known prior to disclosure, or was already in Consultant’s possession,
as shown by its pre-existing records, without violating, and free of, any
obligation of confidence; (c) was rightfully disclosed to Consultant by a third
party without violating any obligation of confidence; or (d) was independently
developed by Consultant without any reference to or use of Symyx Confidential
Information.
5.5 Outside Information.
Consultant will not disclose to Symyx, bring onto
Symyx’s
premises, or induce Symyx to use, any
confidential or proprietary information that belongs to anyone other than Symyx or
Consultant.
6. Ownership.
6.1 Definitions.
(a) “Work
Product” means deliverables, know-how, trade secrets, ideas, designs,
trademarks, formulae, algorithms, processes, improvements, discoveries,
manufacturing techniques, artwork, software, software source documents, other
works of authorship, miscellaneous work product (such as memoranda, notes, and
letters) and other works, whether or not patentable, copyrightable or subject to
other forms of protection (“Inventions”)
that are solely or jointly conceived, developed, written, created, made, learned
or first reduced to practice in the course of any work performed by Consultant
under any Work Order, together with all IP Rights therein.
(b) “Background
Technology” means Inventions owned by Consultant, and that either (i)
existed prior to the execution of this Agreement; or (ii) are developed outside
the scope of any Services independently from and without the use of Confidential
Information.
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6.2 Ownership;
Disclosure. Consultant agrees that all Work Product is Symyx’s
sole and exclusive property. If Consultant is not a natural person, then
Consultant represents and warrants that before assigning any personnel to
perform any Services, such individual will have executed an instrument that
validly assigns all Work Product to Symyx (to the extent permitted under
applicable law). Consultant will promptly disclose all Work Product to
Symyx.
6.3 Assignment of Work
Product. Consultant hereby irrevocably assigns to Symyx all of
the right, title and interest worldwide in and to Work Product (including all
intellectual property rights embodied therein and related thereto (“IP
Rights”)), in perpetuity (or for the longest period of time otherwise
permitted by law). Consultant retains no rights to use Work Product
and will not challenge Symyx’s ownership in Work Product. Consultant agrees to
make and maintain written records of all Work Product and IP Rights, and will
promptly submit such records, and supplemental oral or written disclosures, to
designated representatives of Symyx. On request, Consultant will execute,
acknowledge and deliver assignments of IP Rights to Symyx or its
designee.
6.4 Waiver and License. If
Consultant retains any rights in Work Product that cannot be assigned
to Symyx, Consultant unconditionally and irrevocably waives enforcement of such
rights, and all claims and causes of action of any kind against Symyx with
respect thereto. If Consultant has any right to Work Product that cannot be
assigned to Symyx or waived by Consultant, then Consultant hereby
unconditionally and irrevocably grants to Symyx during the term of such rights,
an exclusive, irrevocable, worldwide, perpetual (or the longest period of time
permitted by law, if less), royalty-free and fully paid license, with
rights to sublicense through multiple tiers of sublicensees, to fully use and
exploit all such rights in any manner whatsoever, by all means now known or
hereafter developed. Consultant hereby waives and quitclaims to Symyx any and
all claims, of any nature whatsoever, that Consultant now or may hereafter have
for infringement of any rights in Work Product or Background Technology in Work
Product.
6.5 Background Technology. Consultant hereby
grants to Symyx an exclusive, irrevocable, worldwide, perpetual (or if less, the
longest period of time permitted by law), assignable, royalty-free and fully
paid license, with rights to sublicense through multiple tiers of sublicensees,
to fully use and exploit any Background Technology used in or incorporated into
Work Product in connection with the use and exploitation of Work Product by
Symyx, its customers, affiliates, successors and assigns, in any manner
whatsoever, by all means now known or hereafter developed.
6.6 Assistance. Consultant
will cooperate with Symyx or its designee(s), both during and after the Term, to
procure and maintain Symyx’s rights in Work Product, and to execute and deliver,
when requested, documents Symyx deems necessary or advisable to carry out the
purposes of this Agreement. In particular, Consultant will assist
Symyx in obtaining, perfecting, maintaining and enforcing Symyx’s rights in Work
Product in any jurisdiction, including executing, acknowledging and delivering
such documents and performing such other acts as Symyx may reasonably
request. Consultant agrees, at Symyx’s request and expense, to
consent to and join in any action to enforce rights in Work Product. Consultant
hereby irrevocably designates and appoints Symyx and its duly authorized
officers and agents as its agent and attorney in fact (with full power of
substitution), which appointment is coupled with an interest, to act for and in
its behalf, if Symyx cannot secure Consultant’s signature or assistance after
reasonable effort, to execute, acknowledge and file any documents and to do all
other lawfully permitted acts to further the purposes of this Section 6 with the
same legal force and effect as if executed by Consultant.
6.7 California Labor Code Section
2870. This Section does not require the assignment of any
materials in contravention of Section 2870 of the California Labor
Code.
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7. Representations
and Warranties. Consultant represents and warrants that (a)
all Work Product will be Consultant’s original work, or, to the extent it is not
an original work of Consultant, any third parties with an interest therein will
have executed assignment of rights reasonably acceptable to Symyx; (b) neither
the Work Product nor any element thereof, nor the use or exploitation thereof by
Symyx, will infringe or misappropriate the intellectual property rights of any
third party; (c) neither the Work Product nor any element thereof will be
subject to any restrictions, mortgages, liens, pledges, security interests,
encumbrances or encroachments; (d) any deliverables will comply and conform to
the applicable specifications therefor; and (e) any computer code provided by
Consultant will not contain copy protection mechanisms, or viruses or other
harmful code. Consultant also represents and warrants that (a) it will perform
all Services in a professional and workmanlike manner using the best practices
of the industry; (b) it will not grant any rights whatsoever in the Work Product
to any third party; (c) it has full right and power to enter into this Agreement
perform Services without the consent of any third party; (d) Consultant has no
contract or duty inconsistent with this Agreement, unless a copy of such
contract or a description of such duty is attached to this Agreement as Exhibit B;
(e) Consultant will take all necessary precautions to prevent injury to any
persons and damage to property during the Term; and (f) Consultant will comply
with all applicable laws, regulations and orders of any governmental authority
of competent jurisdiction in performing Services and its other obligations under
this Agreement, including, for example, export control. Consultant agrees during
the Term not to accept work or enter into a contract or accept an obligation,
inconsistent or incompatible with Consultant’s obligations under this Agreement.
Consultant will, in all things and in good faith, protect Symyx’s
goodwill.
8. Indemnity. Consultant
will indemnify and hold harmless Symyx, its officers, directors, employees,
sublicensees, customers and agents from any and all claims, losses, liabilities,
damages, expenses and costs (including attorneys’ fees and court costs) that
result from a breach or alleged breach of any representation or warranty of
Consultant (a “Claim”) set forth in Section 7, or from a breach of
Consultant’s obligations in Sections 5.2, 5.3 or 5.5, provided that Symyx gives
Consultant written notice of any such Claim. From the date of written
notice from Symyx to Consultant of any such Claim, Symyx will have the right to
withhold from any payments due Consultant under this Agreement the amount of any
costs or expenses incurred by Symyx.
9. Term
and Termination.
9.1 Term. This
Agreement begins on the Effective Date and will continue until terminated (the
“Term”).
9.2 Termination. Symyx
may terminate this Agreement or any Work Order
for any reason or no reason upon seven (7) days notice to
Consultant. Symyx may also terminate this Agreement immediately in
its sole discretion upon Consultant’s breach of any provision of this
Agreement. Consultant may terminate this
Agreement if there is no outstanding and uncompleted Work Order upon
fifteen (15) days’ notice to Symyx.
9.3 Effect. Immediately
upon any termination, Consultant will cease performing all Services (unless the
termination notice directs otherwise). Symyx will pay Consultant for
completed and accepted Services performed prior to the date of notice of
termination within forty-five (45) days. Symyx will not incur
obligations for any work performed after the date of notice of termination, or
for any anticipated profit on unperformed work. If Symyx terminates
this Agreement or any Work Order for Consultant’s default, Symyx may take over
and arrange for completion of the Services and proceed with all available
remedies. Sections 3-6 and 8 through 10 will survive termination of
this Agreement.
9.4 Non-interference. During
the Term and for two (2) years thereafter, Consultant will not solicit or
induce any Symyx employee or contractor to terminate or breach any employment or
contractual relationship with Symyx.
9.5 Return of
Property. Upon termination of the Agreement, or earlier if
Symyx requests, Consultant will deliver to Symyx all notes, memoranda,
specifications, drawing, devices and documents, (and all copies and extracts),
and any other material containing or disclosing any Work Product or Confidential
Information. Consultant agrees that Symyx may inspect Symyx property
(including storage media) at any time, without prior notice.
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10. General
Provisions.
10.1 Law. The laws of
the State of California will govern this Agreement, without giving effect to
conflict of laws principles that would apply the law of another
jurisdiction. Consultant expressly consents to the personal
jurisdiction and venue in, and service of process by, courts with jurisdiction
over Santa ▇▇▇▇▇ County, California for any claim or dispute arising from or
relating to this Agreement. A breach of this
Agreement may result in irreparable and continuing damage for which there may be
no adequate remedy at law, and the parties may seek injunctive relief as well as
other relief as appropriate. Except as limited herein, all remedies are
cumulative. The prevailing party in any dispute arising out of or relating to
this Agreement will be entitled to recover its reasonable costs, expenses and
attorneys’ fees, in addition to any other relief it may be awarded.
10.2 Liability. Symyx’s
liability arising out of or relating to this Agreement or any Work Order will be
limited to the fees payable to Consultant in accordance with Section 2 and the
applicable Work Order. In no event will Symyx be liable for any
consequential, incidental, indirect or special damages, under any legal theory,
even if Symyx has been advised of the possibility of such damages, and
notwithstanding the failure of essential purpose of any limited
remedy.
10.3 Publicity. Consultant
may not disclose the existence or terms of this Agreement to any third
party.
10.4 Insurance. Consultant will
maintain appropriate insurance coverages, at its sole cost and
expense. Consultant will deliver to Symyx a Certificate of
Insurance upon request.
10.5 Subcontracts/Assignment.
Consultant may not subcontract or otherwise delegate its obligations without
Symyx's consent. Consultant may not assign this Agreement without Symyx’s
consent. Any such attempts will be void.
10.6 Notices. All
notices must be in writing and sent to the addressee at the address or facsimile
number set forth below (or as may be provided subsequently in accordance with
this provision). Notice will be deemed received and effective: (i)
upon delivery if delivered personally; (ii) five days following deposit into the
United States mail (certified mail, return receipt requested); (iii) upon
receipt of notice of successful electronic delivery, if sent via facsimile; or
(iv) one day after deposit with a nationally recognized overnight
courier.
10.7 Modification;
Waiver; Severability. Only a
mutually executed written instrument may modify, amend or supplement this
Agreement. All
waivers must be in writing, and signed by the Party against which it is sought
to be enforced. No failure or delay in enforcing any right will be deemed a
waiver. If a court of competent jurisdiction declares or
adjudges a provision to be illegal, unenforceable or void, this Agreement will
continue in force to the fullest extent permitted by law without the
provision.
10.8 Entire
Agreement. This Agreement is the final, complete and exclusive
agreement of the parties with respect to the subject matter hereof and
supersedes and merges the parties’ prior understandings and discussions. These
terms will govern all Work Orders. If there is a conflict between
this Agreement and a Work Order, the Work Order will control with respect
to the Services set forth therein.
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In Witness
Whereof, each party has caused this Agreement to be executed by its duly
authorized representative. This Agreement may be executed in
counterparts.
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CONSULTANT–
▇▇▇▇▇ ▇▇▇▇
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SYMYX
TECHNOLOGIES, INC.
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By:
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/s/ ▇▇▇▇▇ ▇. ▇▇▇▇
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By:
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/s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name:
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▇▇▇▇▇ ▇. ▇▇▇▇
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Name:
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▇▇▇ ▇. ▇▇▇▇▇▇▇
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Title:
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Title:
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EVP & CFO
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Date:
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2/8/2008
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Date:
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2/6/2008
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Address:
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Address:
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▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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C/O
Symyx Technologies
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▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Attn: General
Counsel
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▇▇▇▇▇▇▇▇▇,
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Exhibit
A
Work
Order #1
This Work
Order #1 (“Work
Order”) is entered into by and between Symyx Technologies, Inc.
(“Symyx”)
and ▇▇▇▇▇ ▇▇▇▇ (“Consultant”)
as of __2/6/08__and is
incorporated into the Consulting and Independent Contractor Services Agreement
between the parties, effective as of __1/30/08__ If any item
in this Work Order is inconsistent with that Agreement, the terms of this Work
Order will govern, but only with respect to the services set forth
herein. Capitalized terms used but not defined, herein, are defined
in the Agreement.
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I.
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detailed
description of services (and
milestones)
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The
consultant shall support Symyx business development activities in the refining,
petrochemcials, polymer, energy and electronic materials sector, primarily by:
(a) suggesting and evaluating potential strategic partnerships, (b) assisting in
the creation and review of Symyx business plans and those of potential partners,
and (c) recommending commercial structures to maximize the value of the Symyx
intellectual property portfolio, including but not limited to venture capital
and joint development or joint venture structures, and parties that might be
interested in such proposals.
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II.
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Project
Schedule
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Period of
consultation: One year, effective from the last date of signature under this
Agreement.
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III.
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FINANCIAL
TERMS
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Daily
rate: $2000/day (Maximum no. of days: Ten)
Travel
and Expenses to be paid by SYMYX: not to exceed $1500
Maximum
cost of Consultant: $21,500
By
signatures below, the duly authorized representatives of the parties hereto have
agreed to this Work Order.
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CONSULTANT–
▇▇▇▇▇ ▇▇▇▇
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SYMYX
TECHNOLOGIES, INC.
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By:
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/s/ ▇▇▇▇▇ ▇. ▇▇▇▇
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By:
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/s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name:
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▇▇▇▇▇ ▇. ▇▇▇▇
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Name:
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▇▇▇ ▇. ▇▇▇▇▇▇▇
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Title:
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Title:
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EVP & CFO
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Date:
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2/6/08
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Date:
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2/6/08
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Address:
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Address:
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▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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C/O
Symyx Technologies, Inc.
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▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Attn: General
Counsel
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▇▇▇▇▇▇▇▇▇,
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EXHIBIT
A
Work
Order #2
This Work
Order #2 ("Work Order") is entered into by and between Symyx Technologies, Inc.
("Symyx') and ▇▇▇▇▇ ▇▇▇▇ ("Consultant") as of June 16, 2008 and is incorporated
into the Consulting and Independent Contractor Services Agreement between the
parties, effective as of February 8, 2008. If any item in this Work Order is
inconsistent with that Agreement, the terms of this Work Order will govern, but
only with respect to the services set forth herein. Capitalized terms used but
not defined, herein, are defined in the Agreement.
I.
DETAILED DESCRIPTION OF SERVICES (AND MILESTONES)
The
consultant shall provide leadership to Symyx Biorenewables, Inc.
II.
PROJECT SCHEDULE
Consultant
shall work on a half-time basis. Period of consultation shall be from June 23,
2008
until the earlier of: (a) Symyx informing Consultant that his services are no
longer needed, or (b) the cost cap described below has been met.
III. FINANCIAL
TERMS
Monthly
rate: $16,667/month in fees. Consultant to be paid twice a month.
Travel
and expenses to be paid by Symyx.
Maximum
cost of Consultant under this Work Order #2 shall not exceed
$70,000.
Invoices
shall be sent by Consultant to ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇.
By
signatures below, the duly authorized representatives of the parties hereto have
agreed to this Work Order.
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CONSULTANT
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SYMYX
TECHNOLOGIES, Inc.
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By:
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/s/ ▇▇▇▇▇ ▇. ▇▇▇▇
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By:
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/s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name:
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▇▇▇▇▇ ▇. ▇▇▇▇ |
Name:
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▇▇▇
▇. ▇▇▇▇▇▇▇
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Title:
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Title:
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EVP
& CFO
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Date:
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6/24/08
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Date:
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6-23-08
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Address:C/O.
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Symyx
Technologies, Inc
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Address:
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▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
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Attn: General Counsel
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