CONSULTING AGREEMENT
Exhibit
10.27
This
Consulting Agreement is made and entered into as of the 11 day of January,
2006,
(the "Effective Date"), between Nephros,
Inc., a Delaware corporation (the “Company”) and Xxxxx Xxxxxxxx (the
“Consultant”).
WHEREAS,
the Company desires to engage Consultant to provide consulting services to
it in
connection with its business; and
WHEREAS,
Consultant desires to provide consulting services to the Company;
In
consideration of and for the mutual promises and covenants contained herein,
and
for other good and valuable consideration, the receipt of which is hereby
acknowledged, the parties hereto agree as follows:
1. Consulting
Services.
(a)
Subject to the terms and conditions hereinafter set forth, the Company retains
Consultant, and Consultant hereby accepts such retention by the
Company,
(i)
to
undertake on a best-efforts basis such consultative and advisory services as
the
Company shall reasonably request, in connection with the Company's business,
including, but not limited to, accounting and finance services, and
(ii)
to
provide such other consulting services as reasonably requested by the
Company.
(b)
The
Company and Consultant hereby acknowledge and agree that Consultant shall
perform the services specified in paragraph (a) above (the "Consulting
Services") as an independent contractor and not as an employee of the Company.
Consultant agrees that he will file his own tax returns on the basis of his
status as an independent contractor for the reporting of all income, social
security, employment and other taxes due and owing on the consideration received
by him under this Agreement and that he is responsible for the payment of such
taxes. Similarly, Consultant shall not be entitled to receive additional
benefits specifically associated with employment status, such as medical, dental
and life insurance, or stock or stock options of the Company additional to
those
held by the Consultant as of the Effective Date above written, and shall not
be
entitled to participate in any other employee benefit programs. As an
independent contractor, Consultant acknowledges, understands and agrees that
he
is not, and shall not represent himself to third parties as being, the agent
or
representative of the Company nor does he have, and shall not represent himself
to third parties as having, power or authority to do or take any action for
or
on behalf of the Company, as its agent, representative or otherwise, except
as
specifically herein set forth.
(c)
In
order to protect the Company's patent rights, any services provided by
Consultant under this Agreement shall be done at the Company's business or
at
some other location approved in advance by the Company
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2. Consideration
for Consulting Services.
In
consideration of Consultant's performance of the Consulting Services, during
the
Term (as defined in Section 4 below) the Company shall pay Consultant a
consulting fee (the "Consulting Fee") at the rate of $1,100.00 per working
day,
to be paid to Consultant on a monthly basis, payable on the first day of each
month.
3. Term
and Termination.
(a) The
term
of this Agreement shall commence on the Effective Date and shall expire on
February 24, 2006 (the "Term"); provided, however, that the Term may be extended
upon mutual written consent.
(b) The
provisions of Sections 3 through 15 hereof shall survive any termination of
this
Agreement at the expiration of the Term or prior thereto.
4. Ownership
Of Proprietary Information.
Consultant agrees that all information that has been created, discovered or
developed by the Company, its subsidiaries, affiliates, licensors, licensees,
successors or assigns (collectively, the "Affiliates") and information relating
to the Company's customers, suppliers, consultants, and licensees, and/or in
which property rights have been assigned or otherwise conveyed to the Company
or
the Affiliates, shall be the sole property of the Company or the Affiliates,
as
applicable, and the Company or the Affiliates, as the case may be, shall be
the
sole owner of all patents, copyrights and other rights in connection therewith,
including without limitation the right to make application for statutory
protection. All of the aforementioned information is hereinafter called
"Proprietary Information." By way of illustration, but not limitation,
Proprietary Information includes trade secrets, processes, discoveries,
structures, inventions, designs, ideas, works of authorship, copyrightable
works, trademarks, copyrights, formulas, data, know-how, show-how, improvements,
inventions, product concepts, techniques, information or statistics contained
in, or relating to, marketing plans, xxxxxx-xxxx, forecasts, blueprints,
sketches, records, notes, devices, drawings, customer lists, patent
applications, continuation applications, continuation-in-part applications,
file
wrapper continuation applications and divisional applications and information
about the Company's or the Affiliates' employees and/or consultants (including,
without limitation, the compensation, job responsibility and job performance
of
such employees and/or consultants).
5. Delivery
of Documents and Data.
On the
expiration of the Term or the earlier termination of this Agreement pursuant
to
Section 3 hereof, Consultant agrees that Consultant will deliver to the Company
all documents and data of any nature and embodied in any media pertaining to
his
work with the Company or the Affiliates, Consultant will not take with him
or
deliver to anyone else any documents or data of any description and embodied
in
any media or any reproduction, abstract or summary of any description containing
or pertaining to any Proprietary Information and Consultant will sign and
deliver the "Termination Certification" attached hereto as Exhibit A.
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6. Disclosure
of Inventions.
During
the Term, Consultant agrees that he will promptly disclose to the Company,
or
any persons designated by it, all improvements, inventions, designs, ideas,
works of authorship, copyrightable works, discoveries, trademarks, copyrights,
trade secrets, formulas, processes, structures, product concepts, marketing
plans, strategies, customer lists, information about the Company's employees
and/or consultants (including, without limitation, job performance of such
employees and/or consultants), techniques, blueprints, sketches, records, notes,
devices, drawings, know-how, data, whether or not patentable, patent
applications, continuation applications, continuation-in-part applications,
file
wrapper continuation applications and divisional applications, made or conceived
or reduced to practice or learned by him, either alone or jointly with others,
which result from use of premises or equipment owned, leased or contracted
for
by the Company or the Affiliates (all said improvements, inventions, designs,
ideas, works of authorship, copyrightable works, discoveries, trademarks,
copyrights, trade secrets, formulas, processes, structures, product concepts,
marketing plans, strategies, customer lists, information about the Company's
or
the Affiliates' employees and/or consultants, techniques, blueprints, sketches,
records, notes, devices, drawings, know-how, data, patent applications,
continuation applications, continuation-in-part applications, file wrapper
continuation applications and divisional applications shall be collectively
hereinafter called "Inventions"). Notwithstanding any provisions to the contrary
herein, however, Consultant agrees that Consultant shall not disclose to the
Company any improvements, inventions, designs, ideas, works of authorship,
copyrightable works, discoveries, trademarks, copyrights, trade secrets,
formulas, processes, structures, product concepts, marketing plans, strategies,
customer lists, blueprints, sketches, records, notes, devices, drawings,
techniques, know-how, data, patent applications, continuation applications,
continuation-in-part applications, file wrapper continuation applications and
divisional applications which Consultant possesses under the obligation of
secrecy or confidentiality to a third party.
Consultant
understands and acknowledges that all original works of authorship which are
made by him (solely or jointly with others) while performing the Consulting
Services and which are protectable by copyright are being created at the
instance of the Company and are "works made for hire," as that term is defined
in the United States Copyright Act (17 USCA, Section 101).
7. Assignment
of and Assistance with Inventions.
Consultant
hereby assigns to the Company all right, title and interest he may have or
acquire in all Inventions and agrees that all Inventions 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, copyrights and other rights in connection
therewith. Consultant further agrees to assist the Company in every proper
way
(but at the Company's expense) to obtain and from time to time enforce patents,
copyrights or other rights on said Inventions in any and all countries, and
to
that end Consultant will execute all documents necessary:
| (i) |
to
apply for, obtain and vest in the name of the Company alone (unless
the
Company otherwise directs) letters patent, copyrights or other analogous
protection in any country throughout the world and when so obtained
or
vested to renew and restore the same;
and
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| (ii) |
to
defend any opposition proceedings in respect of such applications
and any
opposition proceedings or petitions or applications for revocation
of such
letters patent, copyright or other analogous
protection.
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Consultant's
obligation to assist the Company in obtaining and enforcing patents and
copyrights for the Inventions in any and all countries shall continue beyond
the
Term or earlier termination of this Agreement pursuant to Section 4 hereof,
but
the Company agrees to compensate Consultant at a reasonable rate after the
expiration of the Term or such earlier termination for time actually spent
by
Consultant at the Company's request on such assistance.
The
provisions of Section 8(a) shall not apply to any Invention meeting the
following conditions: (i) such Invention was developed entirely on Consultant's
own time; and (ii) such Invention was made without the use of any Company
equipment, supplies, facilities or Proprietary Information; and (iii) such
information does not relate either (X) directly to the business of the Company;
or (Y) to the Company's actual or anticipated research or development; and
(iv)
such Invention does not result from the performance of the Consulting
Services.
8. No
Breach of Duty.
Consultant represents and warrants that the performance by him of all the terms
of this Agreement will not breach any agreement or duty to keep in confidence
proprietary information acquired by Consultant in confidence or in trust prior
to his engagement hereunder. Consultant further represents and warrants that
he
has not entered into, and, subject to Section 10 hereof, Consultant hereby
agrees to not enter into, any agreement either written or oral in conflict
herewith.
9. Xxxxxxx
Xxxxxxx, Etc.
Consultant recognizes that in the course of his duties hereunder, Consultant
may
receive from the Company or others information which may be considered
"material, non-public information" concerning a public company that is subject
to the reporting requirements of the Securities and Exchange Act of 1934, as
amended. Consultant agrees that he will not, without the prior written consent
of the Company, perform any of the following:
(a)
purchase, trade, offer, pledge, sell, contract to sell or to purchase or sell
"short" or "short against the box" (as such terms are generally understood
in
the securities markets), or otherwise dispose of or acquire any securities
of
the Company or options or other derivative securities in respect of such
securities while in possession of relevant material, non-public information
received from the Company or others in connection herewith;
(b)
provide the Company with information with respect to any public company that
may
be considered material, non-public information; and
(c)
provide any person with material, non-public information, received from the
Company, including any relative, associate, or other individual who intends
to,
or may, (i) trade securities with respect to the Company which is the subject
of
such information or (ii) otherwise directly or indirectly benefit from such
information.
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10. Non-disparagement.
During
and after the Term, Consultant agrees not to make any disparaging comment or
statement about the Company or its Affiliates, whether or not true, including
but not limited to comments which could adversely affect the conduct of the
Company's business, any of its plans or prospects, or the business name or
reputation of the Company.
11. Remedies
for Breach.
Consultant understands and agrees that any breach of Sections 4 through 10
of
this Agreement by the Consultant could cause irreparable damage to the Company,
and to the Affiliates and that monetary damages alone would not be adequate
and,
the event of such breach, the Company shall have, in addition to any and all
remedies of law, the right to an injunction, specific performance or other
equitable relief to prevent or redress the violation of Consultant's obligations
under such Sections.
12. Severability.
Every
provision of this Agreement is intended to be severable. If any term or
provision hereof is deemed unlawful or invalid in any jurisdiction for any
reason whatsoever, such unlawfulness or invalidity shall not affect the validity
of the remainder of this Agreement or the enforceability of such term or
provision in any other jurisdiction. To the extent that any such term or
provision is held to be unlawful or invalid, the parties agree to reform such
term or provision in such a way which will be enforceable in the jurisdiction
to
which such holding applies, and which will reflect, as nearly as permissible,
the intention of the parties.
13. Representation
of Consultant; Use of Name.
Consultant represents that there are no binding agreements to which he is a
party or by which he is bound, forbidding or restricting his activities herein.
In addition, Consultant consents to the use of his name in various reports,
brochures or other documents produced by or on behalf of the Company, including
any and all documents filed with the Securities and Exchange
Commission.
14. Miscellaneous.
Any
notice or other communication between parties shall be sufficiently given if
sent by certified or registered mail, postage prepaid, if to the Company,
addressed to it at Nephros, Inc, 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or
if
to Consultant, addressed to Consultant at the address set forth below
Consultant's name on the signature page hereof, or to such address as may
hereafter be designated in writing by one party to the other. Such notice or
other communication shall be deemed to be given on the date of
receipt.
This
Agreement embodies the entire agreement and understanding between the Company
and Consultant regarding the subject matter hereof and supersedes any and all
negotiations, prior discussions and preliminary and prior agreements and
understandings related to the central subject matter thereof.
This
Agreement shall in all respects be governed by, and contained and enforced
in
accordance with the internal substantive laws of the State of New York and
not
the law of conflict of laws.
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This
Agreement may be executed in one or more counterparts, each of which, when
so
executed shall be deemed to be an original and all of which counterparts, taken
together, shall constitute one and the same instrument.
Neither
this Agreement nor any term hereof may be amended, modified, supplemented or
waived save in a written instrument executed by each of the parties
hereto.
IN
WITNESS WHEREOF, the parties have hereto set their hand on the date first above
written.
| CONSULTANT: | ||
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| By: | /s/ | |
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Name: Xxxxx Xxxxxxxx
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Address:
00 Xxxxxxxx Xxxxx
Xxxxx Xxxxx, XX 00000
Tel:
SS#:__________________________________________________
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| NEPHROS, INC. | ||
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| By: | /s/ | |
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Name: Xxxxxx Xxxxx |
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| Title: President & CEO | ||
