EXHIBIT 10.28
SCIENTIFIC ADVISORY BOARD AGREEMENT
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THIS SCIENTIFIC ADVISORY BOARD AGREEMENT ("Agreement") is entered into as
of ___________, 199__ ("Effective Date"), by and between ___________________
("Advisor") and Collateral Therapeutics, Inc., a California corporation (the
"Company"). In consideration of the retention of Advisor as scientific advisor
to the Company, and of the compensation received by Advisor from the Company,
the Company and Advisor hereby agree as follows:
1. DESCRIPTION OF SERVICES.
(a) SCIENTIFIC ADVISORY BOARD. The Company hereby retains Advisor
and Advisor hereby agrees to serve as a member of the Company's Scientific
Advisory Board for the term of this Agreement. Advisor will advise the Company
as an independent contractor in the area of angiogenesis.
(b) EXCLUSIVITY. Advisor will work exclusively with the Company in
the area of angiogenesis. Advisor represents that all of his/her current
consulting or advisory obligations, and all restrictions or policies of his/her
employer limiting or restricting Advisor's advisory or consulting activities or
limiting rights to inventions resulting from such activities, are listed on
EXHIBIT A. Advisor agrees that he/she has not entered into, and will not enter
into, any written or oral agreement with any entity, company or person which is
or may be (or has the potential to be) a competitor of the Company relating to
his/her advisory services unless specifically noted on EXHIBIT A or unless the
Company is notified of such agreement in advance. Advisor understands that
while he/she is an advisor to the Company, he/she is not to breach any
obligation of confidentiality that he/she has to others.
2. TIME COMMITMENT.
The time commitment of Advisor will include a minimum of _______
formal, [full] day Scientific Advisory Board meetings per year, at the Company's
request, unless the Company and Advisor otherwise mutually agree to extend the
length or number of such meetings. Advisor also will from time to time provide
scientific counsel on a reasonable basis to personnel working on projects on
behalf of the Company; such counsel, which will consist primarily of advice on
interpreting scientific or clinical data and planning experiments or trials,
will be at Advisor's convenience and will be limited to matters that are
compatible with Advisor's faculty or other employment responsibilities and other
oral and written agreements disclosed to the Company to which Advisor is a
party.
3. COMPENSATION.
(a) CASH COMPENSATION. For all services rendered hereunder, Advisor
will be compensated as set forth on attached Exhibit B.
(b) OTHER COMPENSATION. The Company will recommend to its Board of
Directors that the Company grant Advisor such additional compensation as set
forth on attached EXHIBIT B.
(c) TRAVEL EXPENSES AND OTHER DIRECT EXPENSES. Advisor will be
reimbursed for reasonable travel expenses incurred in performing his/her
advisory obligations, as authorized by the Company's expense reimbursement
policy. However, if a Company meeting is scheduled in connection with a meeting
which Advisor would have attended anyway had there been no scheduled Company
meeting, only incremental travel expenses will be paid by the Company. The
Company will reimburse Advisor for all other reasonable direct expenses actually
incurred which are incidental to the services performed hereunder and which have
been approved in writing in advance by the Company. Advisor will provide the
Company with invoices detailing the expenses and reimbursements which Advisor
believes are due under this Agreement. Invoices should specify the period for
which reimbursement is claimed. Travel costs and other expenses claimed must be
itemized. All invoices must be substantiated by receipts for transportation and
lodging and all other items for expenses amounting to more than $25.00 where
receipts are normally issued. The Company agrees to pay approved invoices
within forty-five (45) days of receipt.
(d) SOLE COMPENSATION. The foregoing fees, other compensation and
reimbursement of expenses are Advisor's sole compensation for rendering services
to the Company.
4. INDEPENDENT CONTRACTOR. Advisor's relationship with the Company will
be that of an independent contractor and nothing in this Agreement will be
construed to create an employer-employee relationship between the Company and
Advisor. Advisor has no authority to act on behalf of or to enter into any
contract, incur any liability or make any representation on behalf of the
Company. The Company agrees that during the term of this Agreement, or any
extension or renewal thereof, Advisor may be employed by other persons, firms or
corporations; PROVIDED, HOWEVER, that the provisions of this Agreement will be
strictly observed by Advisor with respect to such other persons, firms or
corporations. Since Advisor will not be an employee of the Company, it is
understood that Advisor will not be entitled to any of the benefits under the
Company's retirement or group insurance plans or any other employee benefits.
Advisor is solely responsible for all taxes, withholdings and other similar U.
S. or international statutory obligations, including, without limitation,
Workers Compensation Insurance, Social Security, federal, state or any other
employee payroll taxes; and Advisor agrees to defend, indemnify and hold the
Company harmless from any and all claims made by any entity on account of an
alleged
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failure by Advisor to satisfy any such tax or withholding obligations. In the
performance of all services hereunder, Advisor will comply with all applicable
laws and regulations.
5. NO CONFLICT WITH EXISTING AGREEMENTS. The Company hereby acknowledges
that it does not desire to acquire from Advisor any secret or confidential
know-how or information which Advisor may have acquired from others.
Accordingly, Advisor represents and warrants that Advisor is free to divulge to
the Company, without any obligation to, or violation of any right of others, any
and all information, practice or techniques which Advisor will describe,
demonstrate, divulge or in any other manner make known to the Company during
Advisor's performance of services hereunder.
6. ADVISOR INVENTIONS. Advisor will promptly disclose and assign to the
Company, or any persons designated by it, all improvements, inventions,
formulae, processes, techniques, know-how and data, whether or not patentable,
made or conceived or reduced to practice or learned by Advisor, either alone or
jointly with others, during the period of his/her retention as an Advisor which
(a) arise from services provided by Advisor under this Agreement and related to
or useful in the business of the Company, or (b) result from tasks assigned
Advisor by the Company, or (c) funded by the Company, or (d) result from use of
premises owned, leased or contracted for by the Company (all said improvements,
inventions, formulae, processes, techniques, know-how and data shall be
collectively hereinafter called "Inventions"). Such disclosure shall continue
for one year after termination of this Agreement with respect to anything that
would be an Invention if made, conceived, reduced to practice or learned during
the term hereof.
Advisor further agrees as to all Inventions to assist the Company at
any time, and not just during the term of this Agreement, in any and all
countries, which assistance shall include the execution of documents and any
assignments to the Company or persons designated by it. In the event that the
Company is unable for any reason whatsoever to secure Advisor's signature to any
lawful and necessary document required to apply for or execute any patent
application with respect to an invention(s) (including reissues, renewals,
extensions, continuations, divisions or continuations in part thereof), Advisor
hereby irrevocably designates and appoints the Company and its duly authorized
officers and agents, as Advisor's agents and attorneys-in-fact to act for and in
Advisor's behalf and instead of Advisor, to execute and file any such
application and to do all other lawful acts to further the prosecution and
issuance of patents thereon with the same legal force and effect as if executed
by Advisor.
7. NON-DISCLOSURE AND NON-USE. The parties hereto acknowledge that the
Company possesses and will possess information that has been created, discovered
or developed by, or has otherwise become known to, the Company (including
without limitation, information created, discovered, developed or made known by
or to Advisor arising specifically out of his/her retention as an Advisor by the
Company), and/or in which property rights have been assigned or otherwise
conveyed or disclosed to the Company, which information has commercial value in
the
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business in which the Company is engaged or intends to engage. All of the
aforementioned information is hereinafter called "Proprietary Information." By
way of illustration, but not limitation, Proprietary Information includes trade
secrets, research results, processes, formulae, data and know-how, improvements,
inventions, techniques, marketing plans, strategies, forecasts and customer
lists. Proprietary Information also includes any information which the Company
has received from a third party which the Company is obligated to treat as
confidential or proprietary.
All Proprietary Information shall 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. Advisor hereby assigns to the
Company any rights Advisor may have or acquire in all Proprietary Information.
At all times during his/her retention as an Advisor by the Company and at all
times after termination of such retention as an Advisor, Advisor will keep in
confidence and trust all Proprietary Information and will not disclose, sell,
use, lecture upon or publish any Proprietary Information without the written
consent of the Company, except as may be necessary in the ordinary course of
performing his/her duties as an Advisor of the Company.
8. COMPANY MATERIALS. All documents, data, records, apparatus,
equipment, chemicals, molecules, organisms and other physical property, whether
or not pertaining to Proprietary Information, furnished to Advisor by the
Company or a third party or produced by Advisor or others in connection with
Advisor's retention as an Advisor shall be 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, Advisor shall return and
deliver all such property upon termination of his/her retention as an Advisor by
Advisor or by the Company for any reason and Advisor will not take with him/her
any such property or any reproduction of such property upon such termination.
9. COMPANY PROPERTY. All Proprietary Information and all title, patents,
patent rights, copyrights, mask work rights, trade secret rights, and other
intellectual property and rights anywhere in the world (collectively "Rights")
in connection therewith will be the sole property of the Company. Advisor
hereby assigns to the Company any Rights Advisor may have or acquire in such
Proprietary Information. At all times, both during the term of this Agreement
and after its termination, Advisor will keep in confidence and trust and will
not use or disclose any Proprietary Information without the prior written
consent of an officer of the Company appropriate in the ordinary course of
performing the services under this Agreement.
10. TERM AND TERMINATION. The initial term of this Agreement will be for
a one (1) year period following the Effective Date; and thereafter will renew
automatically for additional one (1)-year periods unless terminated by either
party at least 90 days prior to an anniversary date. At the Company's option,
this Agreement will also terminate upon notice to Advisor in the event of
Advisor's inability for any reason to perform Advisor's services. Upon
termination of this Agreement, the Company's obligation to pay any compensation,
except for services or expenses already accrued or incurred under Section 2,
will immediately cease and terminate.
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Termination of this Agreement for any reason will not affect Advisor's
obligations under Sections 4, 6, 7, 8, 9 and 10.
11. RESPONSIBILITY OF ADVISOR. The Company agrees not to hold Advisor
responsible for any inaccuracies, errors or omissions in the information or
advice given as a member of the Company's Scientific Advisory Board, or for loss
or damage resulting for the use of such information or advice given.
12. REMEDIES. Advisor acknowledges and agrees that a breach of this
Agreement will result in immediate, irreparable and continuing damage to the
Company for which there will be no adequate remedy at law; and agrees that in
the event of any such breach or violation or any threatened or intended breach
or violation of this Agreement, the Company and its successors and assigns will
be entitled to temporary, preliminary and permanent injunctive relief and/or
restraining orders enjoining and restraining such breach or violation or such
threatened or intended breach or violation and/or other equitable relief
(without needing to post any bond or other security) in addition to such other
and further relief as may be proper.
13. AMENDMENTS AND WAIVERS. This Agreement may be modified, amended or
supplemented only by a written instrument duly executed by Advisor and the
President of the Company. No term or condition or the breach thereof will be
deemed waived, unless it is waived in writing and signed by the party against
whom the waiver is claimed. Any waiver or breach of any term or condition will
not be deemed to be a waiver of any preceding or succeeding breach of the same
or any other term or condition. The failure of any party to insist upon strict
performance of any term or condition hereunder will not constitute a waiver of
such party's right to demand strict compliance therewith in the future.
14. NOTICES. All payments, notices, requests, demands and other
communications required or permitted hereunder will be in writing and will be
delivered personally (which will include delivery by courier or overnight
delivery service) or sent by first class mail, postage prepaid, or sent by
telecopier or other similar facsimile transmission to the parties at their
respective address set forth below or at such other address as will be given in
writing by a party to the other parties. Items delivered personally or by
telecopier or facsimile will be deemed delivered on the date of actual delivery;
items sent by first class mail will be deemed delivered three (3) days after
mailing.
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If to the Company: Collateral Therapeutics, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: President
If to Advisor, the address set forth below his/her signature.
15. GOVERNING LAW; JURISDICTION AND VENUE. This Agreement will be
governed by and construed in accordance with the laws of the State of
California, without regard to principles of conflicts of law. The parties agree
that any dispute regarding the interpretation or validity of this Agreement will
be subject to the exclusive jurisdiction of the state and federal courts in and
for the County of San Diego, California, and each party hereby agrees to submit
to the personal and exclusive jurisdiction and venue of such courts.
16. ASSIGNMENT. This Agreement will be binding upon Advisor, and inure to
the benefit of, the parties hereto and their respective heirs, successors,
assigns, and personal representatives; provided, however, that it will not be
assignable by Advisor.
17. COUNTERPARTS. This Agreement may be executed in multiple copies, each
of which will be deemed an original and all of which will constitute a single
agreement binding on all parties.
18. ENTIRE AGREEMENT. This Agreement (together with documents and
agreements entered into herewith) constitutes the entire agreement between the
parties hereto with respect to the subject matter hereof and supersedes all
prior and contemporaneous agreements and understandings. Each party to this
Agreement acknowledges that no representations, inducements, promises or
agreements have been made by any party, or any one acting on behalf of any
party, that are not embodied in this Agreement with respect to the subject
matter hereof.
19. REPRESENTATION. By executing this Agreement, Advisor acknowledges
that he/she understands and agrees that he/she has been encouraged, and had the
opportunity to, consult with his/her own personal attorney in connection with
this Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
ADVISOR THE COMPANY
----------------------------- COLLATERAL THERAPEUTICS,
(Signature) INC., a California corporation
----------------------------- By:
(Printed Name) -----------------------------
(Signature)
--------------------------------
(Printed Name and Title)
Address:
_________________________________ Dated: ___________________, 199_
_________________________________
Dated: ________________, 199_
[SIGNATURE PAGE TO SCIENTIFIC ADVISORY BOARD AGREEMENT
EXHIBIT A
A. LIST OF OTHER CONSULTING OR ADVISORY POSITIONS HELD
1. _____________________________
2. _____________________________
3. _____________________________
4. _____________________________
5. _____________________________
B. RESTRICTIONS OR POLICIES ON ADVISOR'S ADVISORY OR CONSULTING ACTIVITIES OR
LIMITING RIGHTS RESULTING FROM SUCH ACTIVITIES
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
_________________________________________________________________________.
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EXHIBIT B
CASH CONSIDERATION: $____________ per [meeting], payable
________________.
STOCK CONSIDERATION: At the next Board meeting of the Company
following Advisor's execution of this
Agreement, management will recommend
that Advisor be granted non-qualified
options to purchase _____ shares of the
Company's Common Stock at an exercise
price of $________ per share. The
options will be vested [monthly] over a
period of _____ years and will be
subject to the terms of a separate
formal Stock Option Agreement between
Advisor and the Company.
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SCHEDULE OF SCIENTIFIC ADVISORY BOARD AGREEMENTS
▇▇▇▇▇▇ ▇▇▇▇▇, Ph.D., dated December 2, 1996
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ M.D., dated April 23, 1997
▇▇▇▇▇ ▇▇▇▇▇▇, Ph.D, dated April 29, 1997
▇▇▇▇ ▇. ▇▇▇▇▇, Ph.D., dated May 1, 1997
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