EXHIBIT 10.18
CONSULTING AGREEMENT
BY AND BETWEEN
UROHEALTH SYSTEMS, INC.
AND
VISTA MEDICAL TECHNOLOGIES, INC.
THIS CONSULTING AGREEMENT (this "Agreement") is entered into as of December
13, 1996 (the "Effective Date"), by and between UROHEALTH Systems, Inc.
("UROHEALTH"), and Vista Medical Technologies, Inc. ("Consultant") and, with
respect to Sections 1, 4, 6, 7, 8 and 9 below, Xxxxx Xxxxxx, Consultant's
employee ("Xxxxxx").
WITNESSETH:
WHEREAS, UROHEALTH desires to retain the medical and consultation services
of Consultant to aid in UROHEALTH's continuing mission to develop, improve, and
expand its medical product business, including those products relating to
minimally invasive surgery;
WHEREAS, Consultant possesses the medical knowledge and professional
expertise to aid UROHEALTH in its mission to develop, improve and expand its
business as referenced above;
NOW, THEREFORE, in consideration of the mutual promises contained herein
and other good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, the parties agree as follows:
SECTION 1. CONSULTING SERVICES. During the term of this Agreement,
Consultant shall serve as a consultant for UROHEALTH, using its reasonable
commercial efforts to make available to Urohealth 25% of the working time of
Xxxxxx. In connection herewith, Xxxxxx'x duties shall include, but not be
limited to, assisting UROHEALTH in developing and obtaining regulatory approvals
for Licensed Products under the terms of that certain License Agreement, dated
the date hereof, between UROHEALTH and Consultant (the "License Agreement") and
otherwise exploiting the rights granted to UROHEALTH under the License
Agreement.
Xxxxxx shall also perform any other services as are mutually agreed upon by
the parties. Consultant shall use its reasonable commercial efforts to ensure
that Xxxxxx devotes sufficient time and best efforts as a consultant in order to
perform the responsibilities under this Agreement to the reasonable satisfaction
of UROHEALTH. Xxxxxx shall provide services under this Agreement as reasonably
requested by UROHEALTH at the times mutually agreeable to UROHEALTH and
Consultant.
SECTION 2. TERM. The term of this Agreement shall begin on the Effective
Date of the License Agreement and shall continue until the first Licensed
Product (as defined in the License Agreement) under the License Agreement is
commercially introduced by UROHEALTH.
SECTION 3. TERMINATION. This Agreement may be terminated by either
party immediately upon written notice of termination in the event the other
party has materially breached this Agreement and has not cured such breach
within thirty (30) days following written notice of the breach from the
non-breaching party. In addition, this Agreement shall be terminated
automatically upon the (i) termination of the License Agreement or (ii) death
or incapacity, whether mental or physical, of Xxxxxx. UROHEALTH or its
designee shall determine in good faith whether Xxxxxx is incapacitated for
the purposes of this Section 3. In addition, UROHEALTH may in its sole
discretion terminate this Agreement if Xxxxxx is unavailable, unwilling or
unable to provide the consulting services contemplated hereby on behalf of
the Company. Notwithstanding anything to the contrary herein contained, in
the event performance by either party hereto of any term, covenant, condition
or provision of this Agreement shall (i) jeopardize the licensure of
UROHEALTH, (ii) jeopardize its participation in (a) Medicare, Medicaid, Blue
Cross, or other reimbursement or payment programs, or (b) the FDA approval
process, regulatory program and guidelines, or (c) any other state or
nationally recognized accrediting organization, or (iii) be in violation of
any statute, ordinance, or be otherwise deemed illegal, or be deemed
unethical by any recognized body, agency, or association in the medical
fields, UROHEALTH may, at its option, terminate this Agreement immediately.
SECTION 4. COMPENSATION. In consideration for the services rendered by
Consultant to UROHEALTH under this Agreement, UROHEALTH shall pay to Consultant
during the term of this Agreement, an amount equal to * * *
* * * of Consultant to employ Xxxxxx; provided, that such
annualized costs shall not exceed $* * * . Such sum shall be paid in monthly
installments to cover the cost of regular salary and benefits and an additional
amount shall be paid in the month following verification that a bonus has been
paid to Xxxxxx and the amount thereof. Consultant shall be reimbursed by
UROHEALTH for all proper, necessary and reasonable business expenses incurred as
a result of the performance of services requested by UROHEALTH. Consultant
shall submit a detailed xxxx and documentation as deemed necessary by UROHEALTH
for expenses which shall be subject to the reasonable approval of UROHEALTH's
Chief Financial Officer. Consultant is not required to, and nothing herein nor
in any other agreement shall be construed to require Consultant to, utilize
UROHEALTH products.
SECTION 5. INDEMNIFICATION. UROHEALTH shall indemnify Consultant with
respect to all matters relating to services rendered by Consultant hereunder,
except for those caused by Consultant's willful misconduct.
* * * Confidenial Treatment Requested
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SECTION 6. CONFIDENTIALITY. During the term of this Agreement, UROHEALTH,
its clients, and its prospective clients may reveal to Consultant confidential
and proprietary information of UROHEALTH ("Confidential Information").
Confidential Information shall include, but not be limited to, that information
which is designated as confidential either in writing or orally, or that
information which is not generally known to the public. With respect to any
Confidential Information disclosed to Consultant, Consultant agrees to: (a) not
disclose such Confidential Information to third parties except: (i) third
parties for whom Consultant has secured the prior written approval of UROHEALTH,
and/or (ii) as required by law or by any court or governmental body, agency or
department of competent jurisdiction; (b) use at least the same degree of care
to protect the Confidential Information as used with respect to Consultant's
confidential and proprietary information, however in no event shall the degree
of care be less than holding the Confidential Information in confidence; and (c)
use the Confidential Information only for the purpose of performing its
obligations under this Agreement. Notwithstanding anything to the contrary
herein, Consultant shall not have an obligation to preserve the confidentiality
of any Confidential Information which was previously known to Consultant free of
any obligation to keep it confidential or is or becomes publicly available by
other than unauthorized disclosure. The provisions of this Section 6 shall
survive expiration or termination of this Agreement for any reason. As used
herein, "Confidential Information" shall not include anything which is not
"Confidential Information" as defined in the License Agreement.
SECTION 7. STATUS OF THE PARTIES. In the performance of this Agreement,
it is mutually understood and agreed that Consultant, Xxxxxx, its other
employees, officers, directors and agents are performing as independent
contractors with, and not as an employee, partner, or joint venturer of or with
UROHEALTH. Neither Consultant nor Xxxxxx shall have any claim under this
Agreement or otherwise against UROHEALTH for workers' compensation, unemployment
compensation, vacation pay, sick leave, disability benefits, retirement
benefits, social security benefits or any other employee benefits of any kind,
all of which shall be the sole responsibility of Consultant. UROHEALTH shall
not withhold on behalf of Consultant or Xxxxxx pursuant to this Agreement any
sums for income tax, unemployment insurance, social security or otherwise
pursuant to any law or requirement of any government agency, and all such
withholding, if any is required, shall also be the sole responsibility of
Consultant. Consultant shall indemnify and hold UROHEALTH harmless from any and
all loss or liability, if any, arising with respect to any of the foregoing
benefits or withholding requirements.
SECTION 8. GOVERNING LAW. This Agreement is being delivered and executed
in the State of California and the validity, construction, and enforcement of
this Agreement shall be governed in all respects by the laws of the State of
California. Venue shall be proper only in a court of competent jurisdiction
located in the State of California. The parties agree to be subject to personal
jurisdiction and consent to service of process issued by a court in which venue
is proper as defined in this Section 8.
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SECTION 9. MODIFICATION AND WAIVER. No modification of this Agreement
shall be deemed effective unless in writing and signed by each of the parties to
which it applies. Any waiver of a breach of any provision of this Agreement
shall not be deemed effective unless in writing and signed by the party against
whom enforcement of the waiver is sought.
SECTION 10. HEADINGS. The descriptive headings of this Agreement are
inserted for convenience only and shall not control or affect the meaning or
construction of any provision hereof.
SECTION 11. ASSIGNMENT. Neither party may assign, delegate, subcontract,
or otherwise transfer its rights or obligations hereunder without the prior
written consent of the other party and any assignment or other transfer in
violation of this Section 11 shall be void; provided, however, that UROHEALTH
may assign its rights and delegate its duties pursuant to this Agreement to any
successor, subsidiary, or affiliate to the business of UROHEALTH to which this
Agreement relates without the written consent of the Consultant.
SECTION 12. SEVERABILITY. If, as a result of any valid Act of Congress or
act of any legislature or any regulation duly promulgated by the United States
or any state acting in accordance with the law, the terms and conditions of this
Agreement, or the payments made pursuant to this Agreement, are rendered illegal
or in violation of law, then the parties shall negotiate in good faith, and
shall take all steps necessary, including, but not limited to, amendment to the
terms and conditions of this Agreement or return of the compensation or any part
of the compensation paid pursuant to this Agreement, in order to reform this
Agreement such that the terms and conditions of this Agreement, or the payments
made pursuant to this Agreement, if any, shall not render any other relationship
or transaction between the parties, or any affiliate of the parties, illegal or
in violation of law.
SECTION 13. NOTICES. All notices, requests, demands, and other
communications provided for hereunder shall be in writing and shall be deemed to
been duly given if (i) delivered in person; (ii) given by prepaid telex or
telegram, or by facsimile or other instantaneous electronic transmission device;
or (iii) deposited in the United States mail, first class, registered or
certified, return receipt requested, with proper postage prepaid, as follows:
If to UROHEALTH:
UROHEALTH Systems, Inc.
0 Xxxxx Xxxxx, Xxxxx 000
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
Attention: General Counsel
Facsimile: (000) 000-0000
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If to Consultant:
Vista Medical Technologies, Inc.
0000 Xxxxxxx Xxxxxxx, Xxxxx X
Xxxxxxxx, Xxxxxxxxxx 00000
Facsimile: (000)000-0000
Attention: President
SECTION 14. ATTORNEYS' FEES. In the event any party hereto brings an
action or arbitration proceeding in connection with the performance, breach, or
interpretation of this Agreement, the prevailing party in such action or
proceeding shall be entitled to recover from the losing party all reasonable
cost and expenses of such litigation or proceeding, including attorneys' fees,
court costs, costs of investigation, and other costs, fees, and expenses
reasonably related to such action or proceeding.
SECTION 15. BINDING EFFECT. This Agreement shall be binding upon and
shall inure to the benefit of the parties and their respective successors and
permitted assigns.
SECTION 16. ENTIRE AGREEMENT. This Agreement constitutes the entire
understanding and agreement between the parties concerning the subject matter
hereof, and supersedes all prior negotiations, agreements and understandings
between the parties, whether oral or in writing, concerning the subject matter
hereof.
INTENDING TO BE LEGALLY BOUND, the parties, or their duly authorized
representatives, have executed this Agreement to be effective on the Effective
Date.
UROHEALTH SYSTEMS, INC.
By: /s/ Xxxxx X. Xxxxxxx
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Title: Senior Vice-President
VISTA MEDICAL TECHNOLOGIES, INC.
By: /s/ Xxxx Xxxx
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Title: President
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With Respect to Sections
1, 4, 6, 7, 8 and 9 only:
/s/ Xxxxx Xxxxxx
--------------------------------
Xxxxx Xxxxxx
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