Consulting Services Agreement - Acacia Research Corp. and CombiMatrix Corp.
CONSULTING SERVICES AGREEMENT
Effective November 8, 2000, ACACIA RESEARCH CORPORATION, located at 55 S. Lake
Avenue, Pasadena CA 91101 ("Acacia") and COMBIMATRIX CORPORATION, located at
34935 S.E. Douglas St., Ste. 101, Snoqualmie, WA 98065 ("CBMX") agree as
follows:
1. INDEPENDENT CONSULTING SERVICES. Acacia hereby agrees to provide members of
its executive staff to CBMX to perform consulting services in business
research, analysis and development, general and technical consulting, and
other areas as needed from time to time by CBMX ("Services"). CBMX will
reimburse Acacia at an hourly rate for such consulting services based on
the pro-rated salaries of each Acacia executive rendering services. The
Acacia executives presently providing services to CBMX are Amit Kumar,
Vincent Xiang, Chris Utgaard and Rob Stewart. CBMX may request other
executives to be added to this list or the list may be otherwise modified
by CBMX. Acacia will provide CBMX with a monthly invoice indicating the
amount due for consulting services for each executive on an hourly basis.
CBMX will also reimburse Acacia for reasonable and customary expenses
(including travel expenses) incurred at CBMX's request and in connection
with the consulting services rendered and that are accompanied by complete
and proper documentation. Acacia shall be responsible for paying all
applicable taxes relating to the Services, including, without limitation,
the payment of any self-employment taxes and Acacia acknowledges that CBMX
will not withhold taxes from the fees payable to Acacia on the Acacia's
behalf. This Agreement shall commence on the date hereof and remain in
effect for one year or until terminated by either party giving the other
party written notice of termination at least ten (10) days prior to the
effective date of termination.
2. INDEPENDENT CONTRACTOR. For purposes of this Agreement, each party shall be
and act as an independent contractor. Acacia acknowledges that its staff is
not entitled to any of CBMX's employment rights or benefits and Acacia is
solely responsible for all taxes, withholdings, and other statutory or
contractual obligations of any sort, including but not limited to, workers'
compensation insurance, with respect to the Acacia personnel provided
hereunder. Acacia agrees to defend indemnify and hold CBMX harmless from
and against any and all claims, damages, liability, attorneys' fees and
expenses resulting from any failure by Acacia to satisfy such obligations.
Acacia shall provide its own invoices for payment on its own letterhead.
Nothing in this Agreement shall be construed to create an exclusive
relationship between Acacia and CBMX, so as to prevent the Acacia from
furnishing Services to a third party during the term of this Agreement, so
long as such performance does not conflict with Acacia's duties hereunder,
or so as to prevent CBMX from contracting for the Services with a third
party.
3. CONFIDENTIAL INFORMATION. Acacia agrees that all business, technical,
creative and financial information Acacia learns or obtains during the
period over which it is providing Services that relate to CBMX or that are
received by or for CBMX in confidence, constitute "Confidential
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Information." Acacia will hold in confidence and, except in performing the
Services for CBMX, not disclose, or allow to be disclosed, any Confidential
Information. Acacia also recognizes and agrees that Acacia personnel have
no expectation of privacy with respect to CBMX's telecommunications,
networking or information processing systems (including, without
limitation, stored computer files, e-mail messages and voice messages) and
that their activity, and any files or messages, on or using any of those
systems may be monitored at any time without notice at CBMX's premises.
Acacia has or may have had, and during the term of this Agreement may
continue to have, access to confidential information of CBMX and its
affiliates, including, without limitation, corporate books and records,
financial information, personnel information, data, lists of and
information concerning customers, suppliers, licensors, licensees, joint
ventures, licensors, licensees, distributors and other persons and entities
with whom CBMX does business, trade secrets, know-how, computer programs,
equipment materials, designs, techniques or processes, formulae, plans,
techniques, procedures, methods, trade marks, patents, copyrights, devices,
software programs (functional specifications, source code and object code),
improvements, inventions, marketing plans, strategies, forecasts,
databases, patterns, compilations, and/or methods, owned by, developed by,
known by, or assigned or otherwise conveyed to CBMX (collectively, the
"Confidential Information"). All Confidential Information shall be the sole
property of CBMX and its assigns, and CBMX and its assigns shall be the
sole owner of all patents, copyrights and other rights in connection
therewith. Acacia hereby assigns to CBMX any rights Acacia may have or
acquire in such Confidential Information. To ensure the continued secrecy
of the Confidential Information, Acacia agrees to keep the Confidential
Information confidential and will not at any time during the term of this
Agreement or at any time thereafter divulge any Confidential Information in
any manner whatsoever to any person or entity (other than the Acacia's
employees or agents with a genuine need to know such Confidential
Information in order for Acacia to perform the Services) or use any
Confidential Information outside of Acacia's relationship with CBMX.
4. EXCEPTIONS TO COVENANT OF CONFIDENTIALITY. Confidential Information does
not include any information that (i) is or becomes within the public domain
through no act of Acacia, (ii) was in the possession of the Acacia prior to
its disclosure under this Agreement, as shown by written records, (iii) is
independently developed by Acacia without reference to any Confidential
Information, (iv) is received from a source other than CBMX or its
affiliates, employees, agents, subcontractors or consultants without any
restriction on its use or disclosure, as shown by written records or (v) is
required by law to be disclosed in the written opinion of Acacia's legal
counsel.
5. WARRANTIES AND REPRESENTATIONS. Acacia represents and warrants that: (i)
the Services will be performed in a professional and workmanlike manner and
that Acacia personnel will use their best efforts; (ii) none of such
Services or any part of this Agreement is or will be inconsistent with any
obligation Acacia may have to others; (iii) all work under this Agreement
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and none of the Services 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, Acacia); and, (iv) Acacia has the full right to provide
CBMX with the assignments and rights provided for herein.
6. TERMINATION. Sections 2, 3 and 4 survive termination and continue in full
and force effect between the parties after the expiration or early
termination of this Agreement.
7. ASSIGNMENT. This Agreement and the services contemplated hereunder are
personal to Acacia and Acacia shall not have the right or ability to
assign, transfer, or subcontract any obligations under this Agreement
without the written consent of CBMX. Any attempt to do so shall be void.
8. CHANGES OR MODIFICATIONS. No changes or modifications or waivers to this
Agreement will be effective unless in writing and signed by both parties.
9. SEVERABILITY. 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.
10. GOVERNING LAW. 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.
11. ENTIRE AGREEMENT. This Agreement contains the entire agreement of the
parties relating to the subject matter hereof. It is intended by the
parties as a complete and exclusive statement of the terms of their
agreement. It supercedes all prior negotiations and agreements, proposed or
otherwise, whether written or oral between the parties concerning services
provided by Acacia. Any representation, promise or agreement not
specifically included in this Agreement shall not be binding upon or
enforceable against either party. This is a fully integrated document.
12. ARBITRATION. Any controversy or claim arising out of or relating to this
Agreement, its enforcement or interpretation, or because of an alleged
breach, default, or misrepresentation in connection with any of its
provisions, or otherwise arising out of the employment of Acacia personnel
by CBMX, including any claims for discrimination, sexual or other unlawful
harassment, retaliation, breach of public policy, torts or the violation of
any federal, state or local law, regulation or ordinance or the common law,
shall be submitted to arbitration, which shall be final and binding, to be
held in Los Angeles County, California in accordance with the American
Arbitration Association Rules for Resolution of Employment Disputes then
obtaining. In the event either party institutes arbitration under this
Agreement, the parties shall bear their own costs.
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IN WITNESS WHEREOF, the parties have executed this agreement as of the date
written above.
COMBIMATRIX CORPORATION
By: /s/ Patrick de Maynadier
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Its: Executive Vice President
and General Counsel
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ACACIA RESEARCH CORPORATION
By: /s/ Paul Ryan
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Its: CEO
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