Exhibit 10.6
INDEPENDENT CONTRACTOR SERVICES AGREEMENT
This Agreement is made and entered into as of July 1, 2003 ("Effective Date"),
by and between Immersion Corporation, a corporation having a principal place of
business at ▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ("Immersion"), and ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇, an
individual residing at ▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ("Van
Naarden").
1. Engagement of Services. Immersion hereby retains Van Naarden for the
sole and specific purpose of completion of the Statement of Work ("SOW")
attached hereto as Exhibit 1. During the term of this Agreement, Van Naarden
shall commit to working at least three (3) days per week, completing the tasks
set forth in the SOW and shall report to ▇▇▇▇▇▇ ▇▇▇▇▇▇, President and CEO of
Immersion.
2. Term and Termination.
2.1 Term. This Agreement shall commence as of the Effective Date and
continue for an initial six (6) month term. Thereafter, this Agreement shall
automatically be renewed for subsequent three (3) month terms unless either
party notifies the other in writing at least ten (10) days prior to the
expiration of the then-current term of its election to terminate this Agreement.
2.2 Termination by Immersion. Immersion may terminate this Agreement
without cause at any time, with termination effective fifteen (15) days after
Immersion's delivery to Van Naarden of written notice of termination. Immersion
also may terminate this Agreement (i) immediately upon Van Naarden's breach of
Paragraph 5 ("Intellectual Property Rights") or 6 ("No Conflict of Interest"),
or (ii) thirty (30) days after Immersion's delivery to Van Naarden of written
notice of Van Naarden's material breach of any other provision or obligation
owed by Van Naarden under this Agreement, which is not cured within such thirty
(30) day period
2.3 Termination by Van Naarden. Van Naarden may terminate this
Agreement without cause at any time, with termination effective fifteen (15)
days after Van Naarden's delivery to Immersion of written notice of termination.
Van Naarden also may terminate this Agreement for material breach by Immersion
if Immersion has not cured the breach within thirty (30) days of receiving
written notice from Van Naarden.
3. Compensation; Expenses.
3.1 Compensation. Immersion will pay Van Naarden a monthly fee of
$15,000.00 for Van Naarden's work hereunder. Upon termination of this Agreement
for any reason, Van Naarden will be paid fees for any work completed by that
date that has not yet been compensated, but shall be entitled to no other
compensation from Immersion.
3.2 Expenses. Van Naarden will be reimbursed for any reasonable,
out-of-pocket, travel-related expenses incurred in furtherance of Van Naarden's
performance hereunder. Van Naarden will be reimbursed only for expenses which
are incurred prior to termination of this Agreement for any reason and which
have been expressly authorized by Immersion in writing.
Van Naarden will be reimbursed for such fees and expenses no later than thirty
(30) days after Immersion's receipt of Van Naarden's invoice, provided that
reimbursement for expenses may be delayed until such time as Van Naarden has
furnished such documentation for authorized expenses as Immersion may reasonably
request.
4. Independent Contractor Relationship. Van Naarden's relationship with
Immersion is that of an independent contractor, and nothing in this Agreement is
intended to, or should be construed to, create a partnership, agency, joint
venture or employment relationship. Van Naarden will not be entitled to any of
the benefits, which Immersion may make available to its employees, including,
but not limited to, group health or life insurance, profit-sharing or retirement
benefits. Van Naarden is not authorized to make any representation, contract or
commitment on behalf of Immersion unless specifically requested or authorized in
writing to do so by an Immersion manager. Van Naarden is solely responsible for,
and will file, on a timely basis, all tax returns and payments required to be
filed with, or made to, any federal, state or local tax authority with respect
to the performance of services and receipt of fees under this Agreement. Van
Naarden is solely responsible for, and must maintain adequate records of
expenses incurred in the course of performing services under this Agreement. No
part of Van Naarden's compensation will be subject to withholding by Immersion
for the payment of any social security, federal, state or any other employee
payroll taxes. Immersion will regularly report amounts paid to Van Naarden by
filing Form 1099-MISC with the Internal Revenue Service as required by law.
5. Intellectual Property Rights.
5.1 Disclosure and Assignment of Innovations.
(a) Innovations; Immersion Innovations. "Innovations" includes
processes, machines, compositions of matter, improvements, inventions (whether
or not protectable under patent laws), works of authorship, information fixed in
any tangible medium of expression (whether or not protectable under copyright
laws), moral rights, mask works, trademarks, trade names, trade dress, trade
secrets, know-how, ideas (whether or not protectable under trade secret laws),
and all other subject matter protectable under patent, copyright, moral right,
mask work, trademark, trade secret or other laws, and includes without
limitation all new or useful art, combinations, discoveries, formulae,
manufacturing techniques, technical developments, discoveries, artwork,
software, and designs. "Immersion Innovations" are Innovations that Van Naarden,
solely or jointly with others, conceives, reduces to practice, creates, derives,
develops or makes within the scope of Van Naarden's work for Immersion under
this Agreement.
(b) Disclosure and Ownership of Immersion Innovations. Van
Naarden agrees to make and maintain adequate and current records of all
Immersion Innovations, which records shall be and remain the property of
Immersion. Van Naarden agrees to promptly disclose to Immersion every Immersion
Innovation. Van Naarden hereby does and will assign to Immersion or Immersion's
designee Van Naarden's entire worldwide right, title and interest in and to all
Immersion Innovations and all associated records and intellectual property
rights.
(c) Assistance. Van Naarden agrees to execute upon Immersion's
request a signed transfer of Immersion Innovations to Immersion as reasonably
requested by Immersion, including but not limited to computer programs, notes,
sketches, drawings and reports. Van Naarden agrees to assist Immersion in any
reasonable manner to obtain, perfect and enforce, for Immersion's benefit,
Immersion's rights, title and interest in any and all countries, in and to all
patents, copyrights, moral rights, mask works, trade secrets, and other property
rights in each of the Immersion Innovations. Van Naarden agrees to execute, when
requested, for each of the Immersion Innovations (including derivative works,
improvements, renewals, extensions, continuations, divisionals, continuations in
part, or continuing patent applications thereof), (i) patent, copyright, mask
work or similar applications related to such Immersion Innovation, (ii)
documentation (including without limitation assignments) to permit Immersion to
obtain, perfect and enforce Immersion's right, title and interest in and to such
Immersion Innovation, and (iii) any other lawful documents deemed necessary by
Immersion to carry out the purpose of this Agreement. If called upon to render
assistance under this paragraph, Van Naarden will be entitled to a fair and
reasonable fee in addition to reimbursement of authorized expenses incurred at
the prior written request of Immersion. In the event that Immersion is unable
for any reason to secure Van Naarden's signature to any document Van Naarden is
required to execute under this Paragraph 4.1(c) ("Assistance"), Van Naarden
hereby irrevocably designates and appoints Immersion and Immersion's duly
authorized officers and agents as Van Naarden's agents and attorneys-in-fact to
act for and in Van Naarden's behalf and instead of Van Naarden, to execute such
document with the same legal force and effect as if executed by Van Naarden.
(d) Out-of-Scope Innovations. If Van Naarden incorporates into
any Immersion Innovations any Innovations relating in any way to Immersion's
business or demonstrably anticipated research or development or business which
were conceived, reduced to practice or created by Van Naarden either outside of
the scope of Van Naarden's work for Immersion under this Agreement or prior to
the Effective Date (collectively, the "Out-of-Scope Innovations"), Van Naarden
hereby grants to Immersion or Immersion's designees a royalty-free, irrevocable,
worldwide, fully paid-up license (with rights to sublicense through multiple
tiers of sublicensees) to practice all applicable patent, copyright, moral
right, mask work, trade secret and other intellectual property rights relating
to any Out-of-Scope Innovations which Van Naarden incorporates, or permits to be
incorporated, in any Immersion Innovations. Van Naarden agrees that Van Naarden
will not incorporate, or permit to be incorporated, any Innovations conceived,
reduced to practice, created, derived, developed or made by others into any of
the Immersion Innovations without Immersion's prior written consent.
5.2 Confidential Information.
(a) Definition of Confidential Information. "Confidential
Information" as used in this Agreement shall mean any and all technical and
non-technical information including patent, copyright, trade secret, and
proprietary information, techniques, sketches, drawings, models, inventions,
know-how, processes, apparatus, equipment, algorithms, software programs,
software source documents, and formulae related to the current, future and
proposed products and services of Immersion, Immersion's suppliers and
customers, and includes, without limitation, Immersion Innovations, Immersion
Property, and Immersion's information concerning research, experimental work,
development, design details and specifications, engineering, financial
information, procurement requirements, purchasing
manufacturing, customer lists, business forecasts, sales and merchandising and
marketing plans and information.
(b) Nondisclosure and Nonuse Obligations. Except as permitted
in this paragraph, Van Naarden shall neither use nor disclose the Confidential
Information. Van Naarden may use the Confidential Information solely to perform
services hereunder for the benefit of Immersion. Van Naarden agrees that Van
Naarden shall treat all Confidential Information of Immersion with the same
degree of care as Van Naarden accords to Van Naarden's own Confidential
Information, but in no case less than reasonable care. Van Naarden agrees not to
communicate any information to Immersion in violation of the proprietary rights
of any third party. Van Naarden will immediately give notice to Immersion of any
unauthorized use or disclosure of the Confidential Information. Van Naarden
agrees to assist Immersion in remedying any such unauthorized use or disclosure
of the Confidential Information.
(c) Exclusions from Nondisclosure and Nonuse Obligations. Van
Naarden's obligations under Paragraph 5.2(b) ("Nondisclosure and Nonuse
Obligations") with respect to any portion of the Confidential Information shall
not apply to any such portion which Van Naarden can demonstrate, (a) was,
through no fault of Van Naarden, in the public domain at the time such portion
was communicated to Van Naarden by Immersion; (b) was rightfully in Van
Naarden's possession free of any obligation of confidence at the time such
portion was communicated to Van Naarden by Immersion; or (c) was developed by
Van Naarden independently of and without reference to any information
communicated to Van Naarden by Immersion. A disclosure of Confidential
Information by Van Naarden, either (a) in response to a valid order by a court
or other governmental body, (b) otherwise required by law, or (c) necessary to
establish the rights of either party under this Agreement, shall not be
considered to be a breach of this Agreement or a waiver of confidentiality for
other purposes; provided, however, that Van Naarden shall provide prompt prior
written notice thereof to Immersion to enable Immersion to seek a protective
order or otherwise prevent such disclosure. Nothing in this Agreement shall be
interpreted or construed as granting a license to Van Naarden under Immersion's
patents, copyrights or trademarks, except as necessary to carry out Project
Assignment(s) authorized hereunder.
5.3 Ownership and Return of Immersion Property. All materials
(including, without limitation, documents, drawings, models, apparatus,
sketches, designs, lists, and all other tangible media of expression) furnished
to Van Naarden by Immersion, whether delivered to Van Naarden by Immersion or
made by Van Naarden in the performance of services under this Agreement
(collectively, the "Immersion Property") are the sole and exclusive property of
Immersion or Immersion's suppliers or customers, and Van Naarden hereby does and
will assign to Immersion all rights, title and interest Van Naarden may have or
acquire in the Immersion Property. Van Naarden agrees to keep all Immersion
Property at Van Naarden's premises unless otherwise permitted in writing by
Immersion. At Immersion's request and no later than five (5) days after such
request, Van Naarden shall destroy or deliver to Immersion, at Immersion's
option, (a) all Immersion Property, (b) all tangible media of expression in Van
Naarden's possession or control which incorporate or in which are fixed any
Confidential Information, and (c) written certification of Van Naarden's
compliance with Van Naarden's obligations under this sentence.
5.4 Observance of Immersion Rules. At all times while on Immersion's
premises, Van Naarden will observe Immersion's rules and regulations with
respect to conduct, health and safety and protection of persons and property.
6. No Conflict of Interest. During the term of this Agreement, Van Naarden
will not accept work, enter into a contract, or accept an obligation,
inconsistent or incompatible with Van Naarden's obligations, or the scope of
services rendered for Immersion, under this Agreement. Van Naarden warrants
that, to the best of Van Naarden's knowledge, there is no other contract or duty
on Van Naarden's part which conflicts with or is inconsistent with this
Agreement. Van Naarden agrees to indemnify Immersion from any and all loss or
liability incurred by reason of the alleged breach by Van Naarden of any
obligation owed by Van Naarden to any third party.
7. Survival. The definitions contained in this Agreement and the rights
and obligations contained in Paragraphs 5 ("Intellectual Property Rights"), 7
("Survival"), and 8 ("General Provisions") will survive any termination or
expiration of this Agreement.
8. General Provisions.
8.1 Successors and Assigns. Van Naarden may not subcontract or
otherwise delegate Van Naarden's obligations under this Agreement without
Immersion's prior written consent. Subject to the foregoing, this Agreement will
be for the benefit of Immersion's successors and assigns, and will be binding on
Van Naarden's assignees.
8.2 Notices. Any notice required or permitted by this Agreement
shall be in writing and shall be delivered as follows, with notice deemed given
as indicated: (a) by personal delivery, when delivered personally; (b) by
overnight courier, upon written verification of receipt; (c) by telecopy or
facsimile transmission, upon acknowledgment of receipt of electronic
transmission; or (d) by certified or registered mail, return receipt requested,
upon verification of receipt. Notice shall be sent to the addresses set forth
above or to such other address as either party may specify in writing.
8.3 Governing Law. This Agreement shall be governed in all respects
by the laws of the United States of America and by the laws of the State of
California; as such laws are applied to agreements entered into and to be
performed entirely within California between California residents. Each of the
parties irrevocably consents to the exclusive personal jurisdiction of the
federal and state courts located in the State of California, as applicable, for
any action brought to enforce the terms of this Agreement, except that in
actions seeking to enforce any order or any judgment of such federal or state
courts located in Maryland, such personal jurisdiction shall be nonexclusive.
8.4 Severability. If any provision of this Agreement is held by a
court of law to be illegal, invalid or unenforceable, (i) that provision shall
be deemed amended to achieve as nearly as possible the same economic effect as
the original provision, and (ii) the legality, validity and enforceability of
the remaining provisions of this Agreement shall not be affected or impaired
thereby.
8.5 Waiver; Amendment; Modification. No term or provision hereof
will be considered waived by Immersion, and no breach excused by Immersion,
unless such waiver or
consent is in writing signed by Immersion. The waiver by Immersion of, or
consent by Immersion to, a breach of any provision of this Agreement by Van
Naarden, shall not operate or be construed as a waiver of, consent to, or excuse
of any other or subsequent breach by Van Naarden. This Agreement may be amended
or modified only by mutual agreement of authorized representatives of the
parties in writing.
8.6 Injunctive Relief for Breach. Van Naarden's obligations under
this Agreement are of a unique character that gives them particular value. Van
Naarden's breach of any of such obligations will result in irreparable and
continuing damage to Immersion for which there will be no adequate remedy at
law; and, in the event of such breach, Immersion will be entitled to seek
injunctive relief and/or a decree for specific performance, and such other and
further relief as may be proper (including monetary damages if appropriate).
8.7 Entire Agreement. This Agreement constitutes the entire
agreement between the parties relating to this subject matter and supersedes all
prior or contemporaneous oral or written agreements concerning such subject
matter. The terms of this Agreement will govern all Project Assignments and
services undertaken by Van Naarden for Immersion.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
IMMERSION CORPORATION ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇
------------------------ -----------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: President & CEO
EXHIBIT 1
STATEMENT OF WORK
Van Naarden will complete the following tasks within the first term of this
Agreement:
1. Identify those medical associations that could provide accreditation
and influence in the industry.
2. Develop a plan to bring the above into the fold
3. Assess the viability of a medical advisory committee to become the
industry guru evangelists for Immersion Medical
4. Determine whether a change in product mix is appropriate (this is an
issue of focus relative to maximizing the available resources to be applied to
the largest revenue potential)
5. Determine what the market is asking for (this can best be done by going
on some sales calls around the country with sales staff)
6. Determine what additional services could be added to increase revenues
without straining the organization
7. Assess the sales process and make recommendations for improvement in
order to reach a goal of 10X revenue from today's levels, if possible.