CONSULTING AGREEMENT
Exhibit
10.1
THIS
CONSULTING AGREEMENT (this "Agreement"), made and entered into by and between
Xxxxxx Systems Inc., 0000 Xxxxxx Xx., Xxxxx 0000, Xxxxxxx, XX 00000, XXX
(hereinafter "Company") and Xxxxx Xxxx, 00 Xxxxxxxx Xxxxxx, X. Xxxxxxxxxx,
XX
00000 XXX (hereinafter referred to as "Consultant") as of
August
1, 2008 (the “Effective Date”), with respect to the following
facts:
RECITALS
A. Consultant
represents that it has expertise in the area of financial activities and is
ready, willing, and able to provide consulting assistance to the Company on
the
terms and conditions set forth herein.
B. Company
is willing to engage Consultant as an independent Consultant, and not as an
employee, to provide consultation services to the Company on the terms and
conditions set forth herein for the purpose of assisting the Company in the
areas of strategic initiatives and corporate guidance.
In
consideration of the obligations herein made and undertaken, as well as other
good and valuable consideration, the sufficiency of which is hereby
acknowledged, the parties, intending to be legally bound, covenant and agree
as
follows:
AGREEMENT
1. Definitions
1.1. "Company"
means Xxxxxx Systems Inc., and its employees, officers and directors, agents,
consultant or independent Consultants who disclose information to Consultant
pursuant to this agreement.
1.2. "Confidential
Information" means all information and material which is proprietary to Company,
whether or not marked as "confidential" or "proprietary" and which is disclosed
to or obtained by Consultant, which relates to Company's or its parent Company’s
past, present or future research, development or business activities.
Confidential Information is all information or materials prepared by or for
Company and includes, without limitation, all of the following: designs,
drawings, specifications, techniques, models, data, documentation, diagrams,
flow charts, research, development, processes, procedures, "know-how," new
product or new technology information, product prototypes, product copies,
manufacturing, development or marketing techniques and materials, development
or
marketing timetables, strategies related to customers, suppliers or personnel,
pricing policies and financial information, and other information of a similar
nature, whether or not reduced to writing or other tangible form, and any other
Trade Secrets or nonpublic business information. Confidential Information does
not include any information which (a) was in the lawful and unrestricted
possession of Consultant prior to its disclosure by Company, (b) is or becomes
generally available to the public by acts other than those of Consultant after
receiving it, or (c) has been received lawfully and in good faith by Consultant
from a third party who did not derive it from Company.
-
1
-
1.3. "Trade
Secrets" shall mean any scientific or technical data, information, design,
process, procedure, formula, or improvement that is commercially valuable to
the
Company and is not generally known in the medical device industry.
2. Scope
of Services.
Consultant shall provide advisory and consulting services in the area of
financial affairs and is to perform all activities as conducted as Interim
President & CEO. Company specifically agrees that Consultant may perform
similar services for another entity so long as such services do not violate
the
terms and conditions of this Agreement, or impede his ability to perform his
duties hereunder. Direction of consulting services shall be provided by the
Board of Directors.
3. Term
And Termination
3.1. Term.
This
Agreement shall commence on the Effective Date, and continue for a period
through August 31, 2008, unless earlier terminated pursuant to the terms of
this
Agreement. The parties may amend this Agreement to extend it for an additional
period of time following the term of this Agreement.
3.2. Termination
for Breach.
This
Agreement may be terminated by either party upon ten (10) days' prior written
notice, if the other party breaches any term hereof and the breaching party
fails to cure such breach within the ten-day (10) period.
3.3. Termination
Without Cause.
Subject
to the terms of Section 4 below, either party may terminate this Agreement
at
any time upon thirty (30) days’ advance written notice to the other
party.
3.4. Survival.
In the
event of any termination of this Agreement, Sections 5, 6, 7 and 9 hereof shall
survive and continue in effect.
4. Compensation/Expenses.
4.1. Consulting
Fees. In consideration for Consultant's consulting services to be rendered
hereunder, Company agrees to pay to Consultant the sum $5,000 per month. Payment
shall be made in arrears within thirty (30) days of receipt of the invoice
from
Consultant for such services, or on such terms that the parties mutually agree.
Consultant agrees to prepare a detailed monthly invoice to evidence services
rendered as reasonably required by Company for auditing or other business
requirements.
4.2. Reimbursement
of Expenses.
Company
shall reimburse Consultant for reasonable and necessary out-of-pocket expenses
incurred by Consultant in carrying out the duties of Consultant; provided
however, that such expenses, including travel, shall be approved in advance
by
Company, and Consultant shall provide receipts to the Company for such expenses
prior to receipt of any reimbursement hereunder.
-
2
-
5. Ownership
Rights
5.1. General
Property.
As
between Company and Consultant, all right, title, and interest in and to the
progress, systems, data, or materials used or produced by Consultant in the
performance of the services called for in this Agreement shall remain or become
the property of Company.
5.2. Intellectual
Property.
Consultant agrees that Company shall be entitled to own and control all
proprietary technology and all financial, operating, training ideas, data,
processes, procedures and materials, including works of expression, all
copyrights, all patent rights, and all trade secret rights in such works that
are developed, written, or conceived by Consultant during the term of this
Agreement, to the extent that they relate to the performance or the requirements
of this Agreement.
5.3. Materials
Furnished.
All
right, title, and interest in and to any Confidential Information, mechanical
drawings, sketches, documentation, programs, systems, data, and materials
furnished to Consultant by Company are and shall remain the property of
Company.
6. Confidentiality
and Nondisclosure
6.1. Consultant
will hold in complete confidence and not disclose, produce, publish, permit
access to, or reveal Confidential Information disclosed hereunder, at any time
prior to Company's intentional public disclosure of that information, without
the express prior written consent of Company.
6.2. Consultant
agrees that Company's Confidential Information has been developed or obtained
by
the investment of significant time, effort and expense and provides Company
with
a significant competitive advantage in its business.
7. Consultant
Warranties.
Consultant warrant that Consultant's performance of the services called for
by
this Agreement do not and will not violate any applicable law, rule, or
regulation; any contracts with third parties; or any third-party rights in
any
patent, trademark, copyright, trade secret, or similar right.
8. Indemnification.
Consultant hereby indemnifies and agrees to hold harmless Company, its
directors, officers, employees and agents from and against any and all claims,
demands, and actions, and any liabilities, damages, or expenses resulting
therefrom, including court costs and reasonable attorney fees, arising out
of or
relating to the negligent or intentional acts or omissions by Consultant
hereunder or any breach of the warranties made by Consultant pursuant to Section
7 hereof. Consultant's obligations under this section shall survive the
termination of this Agreement for any reason. Company agrees to give Consultant
prompt notice of any such claim, demand, or action and shall, to the extent
Company is not adversely affected, cooperate fully with Consultant in defense
and settlement of said claim, demand, or action. Company hereby indemnifies
and
agrees to hold harmless Consultant, its officers, directors, employees and
agents from and against any and all claims, demands, and actions, and any
liabilities, damages, or expenses resulting therefrom, including court costs
and
reasonable attorney fees, (“Losses”) arising out of or relating to this
Agreement, except to the extent that such Losses are caused in whole or in
part
by the acts or omissions of Consultant. Company’s obligations under this section
shall survive the termination of this Agreement for any reason. Consultant
agrees to give Company prompt notice of any such claim, demand, or action and
shall, to the extent Consultant is not adversely affected, cooperate fully
with
Company in defense and settlement of said claim, demand, or action.
-
3
-
9. Miscellaneous.
9.1. Relationship
of the Parties.
Consultant is and shall be an independent Consultant to Company, and nothing
herein shall be deemed to cause this Agreement to create an agency, partnership,
or joint venture between the parties. Nothing in this Agreement shall be
interpreted or construed as creating or establishing the relationship of
employer and employee between Company and either Consultant or any employee
or
agent of Consultant.
9.2. Entire
Agreement, Modifications.
This
Agreement contains the entire agreement between the parties hereto with respect
to the transactions contemplated hereby, and contains all of the terms and
conditions thereof and supersedes all prior agreements and understandings
relating to the subject matter hereof. No changes or modifications of or
additions to this Agreement shall be valid unless the same shall be in writing
and signed by each party hereto.
9.3. Severability.
The
provisions of this Agreement shall be deemed severable and the invalidity or
unenforceability of any one or more of the provisions hereof shall not affect
the validity and enforceability of the other provisions hereof.
9.4. Assignment.
Company
may assign or otherwise transfer its rights or obligations hereunder to any
affiliated entity, or any entity which shares or which is subject to common
control. Except as set forth herein, no party to this Agreement may, voluntarily
or by operation of law, assign or otherwise transfer any of his, her or its
rights or obligations under this Agreement, without obtaining the prior written
consent of the other party hereto, which may be unreasonably withheld. Any
attempted assignment in violation of this Agreement shall be void and of no
effect.
9.5. Successors
and Assigns.
This
Agreement shall be binding upon and inure to the benefit of the parties, their
successors and assigns.
9.6. Waivers.
No
waiver of any of the provisions of this Agreement shall be deemed to be or
shall
constitute a waiver of any other provision of this Agreement, whether or not
similar, nor shall any waiver constitute a continuing waiver. No waiver of
any
provision of this Agreement shall be binding on the parties hereto unless it
is
executed in writing by the party making the waiver.
9.7. Notices.
All
notices, requests, demands and other communications under this Agreement shall
be in writing and shall be deemed to have been duly given on the date of
delivery if delivered personally to the party to whom notice is to be given,
or
on the third (3rd) day after mailing if mailed to the party to whom notice
is
given, by first class mail, registered or certified, postage prepaid, and
properly addressed as set forth below on the signature page. Either party may
change the address to which notices to such party are to be addressed by giving
the other party hereto written notice of such change in the manner herein set
forth.
-
4
-
9.8. Governing
Law.
This
Agreement is made and shall be governed by, and construed and enforced in
accordance with the laws of the state of Massachusetts, United States of
America.
9.9. Arbitration.
Any
controversy, dispute or claim arising out of or in connection with this
Agreement, or the breach, termination or validity hereof, shall be settled
by
final and binding arbitration to be conducted by an arbitration tribunal in
Boston, Massachusetts, pursuant to the rules of the American Arbitration
Association. The arbitration tribunal shall consist of three arbitrators. The
party initiating arbitration shall nominate one arbitrator in the request for
arbitration and the other party shall nominate a second in the answer thereto
within thirty (30) days of receipt of the request. The two arbitrators so named
will then jointly appoint the third arbitrator. If the answering party fails
to
nominate its arbitrator within the thirty (30) day period, or if the arbitrators
named by the parties fail to agree on the third arbitrator within sixty (60)
days, the office of the American Arbitration Association in Boston,
Massachusetts shall make the necessary appointments of such arbitrator(s).
The
decision or award of the arbitration tribunal (by a majority determination,
or
if there is no majority, then by the determination of the third arbitrator,
if
any) shall be final, and judgment upon such decision or award may be entered
in
any competent court or application may be made to any competent court for
judicial acceptance of such decision or award and an order of enforcement.
In
the event of any procedural matter not covered by the aforesaid rules, the
procedural law of the Commonwealth of Massachusetts shall govern.
9.10. Venue;
Submission to Jurisdiction.
Except
as governed by the above paragraph (9.9), any legal action or proceeding with
respect to this Agreement shall be brought in the courts of The Commonwealth
of
Massachusetts or of the United States of America for the First District of
Massachusetts. By execution and delivery of this Agreement, each of the parties
hereto accepts for itself and in respect of its property, generally and
unconditionally, the jurisdiction of the aforesaid courts. Each of the parties
hereto irrevocably consents to the service of process of any of the
aforementioned courts in any such action or proceeding by the mailing of copies
thereof by certified mail, postage prepaid, to the party at its address set
forth below.
-
5
-
IN
WITNESS WHEREOF, the parties have executed this Agreement as of the date set
forth above.
|
COMPANY:
|
|
|
Xxxxxx
Systems, Inc.
|
|
|
By:
|
/s/
Xxxxx Xxxxxxx
|
|
Name:
|
Xxxxx
Xxxxxxx
|
|
Title:
|
Interim
Chief Financial Officer
|
|
Address:
|
0000
Xxxxxx Xx, Xxxxx 0000
|
|
Xxxxxxx,
XX 00000
|
|
CONSULTANT:
|
|
Xxxxx
X. Xxxx
|
|
By:
/s/ Xxxxx Xxxx
|
|
Xxxxx
X. Xxxx
|
|
00
Xxxxxxxx Xx.
|
|
|
Xxxxx
Xxxxxxxxxx, XX 00000
|
-
6
-
