Attached files
| file | filename |
|---|---|
| S-1/A - BAETA CORP | v165701_s1a.htm |
| EX-5.1 - BAETA CORP | v165701_ex5-1.htm |
| EX-10.9.2 - BAETA CORP | v165701_ex10-92.htm |
| EX-10.12.13 - BAETA CORP | v165701_ex10-1213.htm |
| EX-10.12.14 - BAETA CORP | v165701_ex10-1214.htm |
| EX-23.1 - BAETA CORP | v165701_ex23-1.htm |
CONSULTING
AGREEMENT
Effective
February 25, 2009, Burkland Consulting, Inc. (“Consultant”) and BAETA Corp
(“Company”) agree as follows:
1. Services and
Payment. Consultant agrees to undertake and complete the
Services (as defined in Exhibit A) in accordance with and on the schedule
specified in Exhibit
A. As the only consideration due Consultant regarding the
subject matter of this Agreement, Company will pay Consultant in accordance with
Exhibit A.
2. Ownership; Rights;
Proprietary Information; Publicity.
A. Company
shall own all right, title and interest (including patent rights, copyrights,
trade secret rights, mask work rights, trademark rights, sui generis database rights and all
other intellectual and industrial property rights of any sort throughout the
world) relating to any and all inventions (whether or not patentable), works of
authorship, mask works, designations, designs, know-how, ideas and information
made or conceived or reduced to practice, in whole or in part, by Consultant
during the term of this Agreement that relate to the subject matter of, or arise
out of, the Services or any Proprietary Information (as defined below)
(collectively, “Inventions”) and Consultant will promptly disclose and provide
all Inventions to Company. Consultant hereby makes all assignments
necessary to accomplish the foregoing ownership; provided that no assignment is
made that extends beyond what would be allowed under California Labor Code
Section 2870 (attached as Exhibit B) if
Consultant was an employee of Company. Consultant shall further
assist Company, at Company’s expense, to further evidence, record and perfect
such assignments, and to perfect, obtain, maintain, enforce, and defend any
rights assigned. Consultant hereby irrevocably designates and
appoints Company as its agents and attorneys-in-fact, coupled with an interest,
to act for and in Consultant’s behalf to execute and file any document and to do
all other lawfully permitted acts to further the foregoing with the same legal
force and effect as if executed by Consultant.
B. Consultant
agrees that all Inventions and all other business, technical and financial
information (including, without limitation, the identity of and information
relating to customers or employees) Consultant develops, learns or obtains
during the period over which Consultant is to be providing Services that relate
to Company or the business or demonstrably anticipated business of Company or
that are received by or for Company in confidence, constitute “Proprietary
Information.” Consultant will hold in confidence and not disclose or,
except in performing the Services, use any Proprietary
Information. However, Consultant shall not be obligated under this
paragraph with respect to information Consultant can document is or becomes
readily publicly available without restriction through no fault of
Consultant. Upon termination and as otherwise requested by Company,
Consultant will promptly return to Company all items and copies containing or
embodying Proprietary Information, except that Consultant may keep its personal
copies of its compensation records and this Agreement. Consultant also
recognizes and agrees that Consultant has no expectation of privacy with respect
to Company’s telecommunications, networking or information processing systems
(including, without limitation, stored computer files, email messages and voice
messages) and that Consultant’s activity, and any files or messages, on or using
any of those systems may be monitored at any time without
notice.
C. As
additional protection for Proprietary Information, Consultant agrees that during
the period over which it is to be providing Services (i) and for one year
thereafter, Consultant will not encourage or solicit any employee or consultant
of Company to leave Company for any reason and (ii) Consultant will not
engage in any activity that is in any way competitive with the business or
demonstrably anticipated business of Company, and Consultant will not assist any
other person or organization in competing or in preparing to compete with any
business or demonstrably anticipated business of Company.
D. To
the extent allowed by law, Section 2.a and any license to Company hereunder
includes all rights of paternity, integrity, disclosure and withdrawal and any
other rights that may be known as or referred to as “moral rights,” “artist’s
rights,” “droit moral,” or the like. Furthermore, Consultant agrees that
notwithstanding any rights of publicity, privacy or otherwise (whether or not
statutory) anywhere in the world and without any further compensation, Company
may and is hereby authorized to use Consultant’s name in connection with
promotion of its business, products and services and to allow others to do so
and. To the extent any of the foregoing is ineffective under
applicable law, Consultant hereby provides any and all ratifications and
consents necessary to accomplish the purposes of the foregoing to the extent
possible. Consultant will confirm any such ratifications and consents
from time to time as requested by Company. If any other person
provides any Services or provides services similar to any of those referred to
above in this paragraph in connection with the Services, Consultant will obtain
the foregoing ratifications, consents and authorizations from such person for
Company’s exclusive benefit.
E. If
any part of the Services or Inventions is based on, incorporates, or is an
improvement or derivative of, or cannot be reasonably and fully made, used,
reproduced, distributed and otherwise exploited without using or violating
technology or intellectual property rights owned or licensed by Consultant and
not assigned hereunder, Consultant hereby grants Company and its successors a
perpetual, irrevocable, worldwide royalty-free, non-exclusive, sublicensable
right and license to exploit and exercise all such technology and intellectual
property rights in support of Company’s exercise or exploitation of the
Services, Inventions, other work performed hereunder, or any assigned rights
(including any modifications, improvements and derivatives of any of
them).
3. Warranty. Consultant
warrants that: (i) the Services will be performed in a professional and
workmanlike manner and that none of such Services or any part of this Agreement
is or will be inconsistent with any obligation Consultant may have to others;
(ii) all work under this Agreement shall be Consultant’s original work and
none of the Services or Inventions or any development, use, production,
distribution or exploitation thereof will infringe, misappropriate or violate
any intellectual property or other right of any person or entity (including,
without limitation, Consultant); and, (iii) Consultant has the full right
to allow it to provide the Company with the assignments and rights provided for
herein.
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4. Termination. If
either party materially breaches a material provision of this Agreement, the
other party may terminate this Agreement upon 15 days’ notice unless the breach
is cured within the notice period. Company also may terminate this
Agreement at any time, with or without cause, upon 15 days’ notice, but, if (and
only if) without cause, Company shall upon termination pay Consultant all unpaid
amounts due for Services completed prior to notice of
termination. Sections 2 (subject to the limitations on Section
2.c stated therein) through 8 of this Agreement and any remedies for breach of
this Agreement shall survive any termination or expiration. Company
may communicate such obligations to any other (or potential) client or employer
of Consultant.
5. Relationship of the Parties;
Independent Contractor; No Employee Benefits. Notwithstanding
any provision hereof, Consultant is an independent contractor (not an employee
or other agent) solely responsible for the manner and hours in which Services
are performed, is solely responsible for all taxes, withholdings, and other
statutory, regulatory or contractual obligations of any sort (including, but not
limited to, those relating to workers’ compensation, disability insurance,
Social Security, unemployment compensation coverage, the Fair Labor Standards
Act, income taxes, etc.), and is not entitled to any to participate in any
employee benefit plans, fringe benefit programs, group insurance arrangements or
similar programs.
Consultant agrees to indemnify Company from any and all claims, damages,
liability, settlement, attorneys’ fees and expenses, as incurred, on account of
the foregoing or any breach of this Agreement or any other action or
inaction of Consultant. If Consultant is a corporation, it will
ensure that its employees and agents are bound in writing to Consultant’s
obligations under this Agreement.
6. Assignment. This
Agreement and the services contemplated hereunder are personal to Consultant and
Consultant shall not have the right or ability to assign, transfer, or
subcontract any obligations under this Agreement without the written consent of
Company. Any attempt to do so shall be void. Company may
assign its rights and obligations under this agreement in whole or
part.
7. Notice. All
notices under this Agreement shall be in writing, and shall be deemed given when
personally delivered, or three days after being sent by prepaid certified or
registered U.S. mail to the address of the party to be noticed as set forth
herein or such other address as such party last provided to the other by written
notice.
8. Miscellaneous. Any
breach of Section 2 or 3 will cause irreparable harm to Company for which
damages would not be a adequate remedy, and, therefore, Company will
be entitled to injunctive relief with respect thereto in addition to any other
remedies. The failure of either party to enforce its rights under
this Agreement at any time for any period shall not be construed as a waiver of
such rights. No changes or modifications or waivers to this Agreement
will be effective unless in writing and signed by both parties. In
the event that any provision of this Agreement shall be determined to be illegal
or unenforceable, that provision will be limited or eliminated to the minimum
extent necessary so that this Agreement shall otherwise remain in full force and
effect and enforceable. This Agreement shall be governed by and
construed in accordance with the laws of the State of California without regard
to the conflicts of laws provisions thereof. In any action or
proceeding to enforce rights under this Agreement, the prevailing party will be
entitled to recover costs and attorneys fees. Headings herein are for
convenience of reference only and shall in no way affect interpretation of the
Agreement.
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9. Arbitration. Any
controversy or claim (except those regarding Inventions, Proprietary Information
or intellectual property) arising out of or relating to this Agreement, or the
breach thereof, shall be settled by arbitration in accordance with the
Commercial Arbitration Rules of the American Arbitration Association, and
judgment on the award rendered by the arbitrator may be entered in any court
having jurisdiction thereof, provided however that each party will have a right
to seek injunctive or other equitable relief in a court of law. The
prevailing party will be entitled to receive from the nonprevailing party all
costs, damages and expenses, including reasonable attorneys’ fees, incurred by
the prevailing party in connection with that action or proceeding whether or not
the controversy is reduced to judgment or award. The prevailing party
will be that party who may be fairly said by the arbitrator(s) to have prevailed
on the major disputed issues. The Consultant hereby consents to the
arbitration in the State of California.
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Burkland Consulting, Inc
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BAETA
Corp
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(Consultant)
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/s/ Jeff Burkland
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/s/ Dr Alexander Gak,
President
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By
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By
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Printed
(Name, Title and Address)
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Printed
(Name, Title and
Address)
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EXHIBIT
A
SERVICES (IF THE SERVICES ARE FOR
A FIXED TERM, STATE IT HERE: ________________ ; IF NO FIXED TERM IS
STATED THE TERM WILL CONTINUE UNTIL THE SERVICES ARE COMPLETED OR THE AGREEMENT
IS TERMINATED UNDER SECTION 4, WHICHEVER OCCURS FIRST) DESCRIBE
SERVICES:
CFO
Support: Financial Modeling, Accounting, Financial Statement
production, HR advice and support, Fundraising support, Tax return assistance,
Management reports, strategic advice.
Business Plan
Development: Assistance with production of documenting the
company’s business plan to help with fundraising.
FEES/EXPENSES (APPLICABLE ONLY WHERE
CHECKED AND COMPLETED)
For CFO Support
Services:
_X__ Hourly
fee of $_187.50 plus an immediately vested option to purchase 150 shares of
common stock at a exercise price of $0.50 per share. Any options
shall be exercisable for at least five years and include standard terms for long
expiration options.
___ Flat
fee of $___________ payable 30 days after timely completion of the following
milestones prior to termination:
For Business Plan
Development:
___ Hourly
fee of $_187.50 plus an immediately vested option to purchase 150 shares of
common stock at a exercise price of $0.50 per share. Any options
shall be exercisable for at least five years and include standard terms for long
expiration options.
_X__ Flat
fee of $2,000 per month, beginning March 1, 2009, plus options to purchase
100,000 shares of common stock, as outlined in the separate Stock Option
Purchase Agreement. This work will terminate on September 1, 2009,
unless otherwise extended by mutual agreement of both parties or terminated
earlier as provided for in this agreement.
For All
Services:
_X__ Expense
reimbursement (even if this item is checked, and therefore applicable,
reimbursement is (1) limited to required, reasonable telephone expenses (while
traveling) and long distance coach class (or equivalent) travel (transportation,
lodging and meals) authorized in writing by company in advance, and (2) payable
only 15 days after itemized invoice and delivery of receipts).
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EXHIBIT
B
CALIFORNIA LABOR CODE
SECTION 2870
(a) Any
provision in an employment agreement which provides that an employee shall
assign, or offer to assign, any of his or her rights in an invention to his or
her employer shall not apply to an invention that the employee developed
entirely on his or her own time without using the employer's equipment,
supplies, facilities, or trade secret information except for those inventions
that either:
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1.
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Relate
at the time of conception or reduction to practice of the invention to the
employer's business, or actual or demonstrably anticipated research or
development of the employer; or
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2.
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Result
from any work performed by the employee for the
employer.
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(b) To
the extent a provision in an employment agreement purports to require an
employee to assign an invention otherwise excluded from being required to be
assigned under subdivision (a), the provision is against the public policy of
this state and is unenforceable.
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