Exhibit 10.12
RUBICON MEDICAL, L.C.
MEDICAL ADVISORY BOARD AGREEMENT
In exchange for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, Rubicon Medical, L.C.
("Rubicon"), and Xxxxxxx XxXxxxxxx, MD, a Medical Advisory Board Member ("MAB
Member") hereby agree as follows:
RECITALS
WHEREAS, Rubicon is a Utah Limited Liability Company which, through its
efforts, has developed the device known as the Guardian Balloon Embolization
Protection Device and other medical devices (the "Devices"); and
WHEREAS, Rubicon will, within six (6) months following the date of this
Agreement, enter into a Plan of Reorganization or other agreement through
which it will become a corporation with shares of its stocks publicly traded
through the OTC Bulletin Board of the NASD or some other national stock
exchange; and
WHEREAS, MAB Member has acquired special education, training and
experience which qualifies MAB Member to evaluate and test the reliability,
efficacy, and design of the Devices and to propose to Rubicon any necessary or
desirable modifications to those Devices which MAB Member may recognize; and
WHEREAS, MAB Member will, upon the execution of this Agreement, become a
member of the Medical Advisory Board of Rubicon; and
WHEREAS, MAB Member desires to acquire common stock of Rubicon at such
time as Rubicon, upon a reorganization or other means, issues common stock;
and
WHEREAS, Rubicon desires to compensate MAB Member for the services to be
rendered as a member of the Medical Advisory Board through the transfer of the
common stock of Rubicon to the MAB Member.
NOW, THEREFORE, In consideration of the following mutual promises,
covenants and agreements, the parties agree as follows:
1. Duties and Responsibilities of MAB Member. Rubicon hereby engages
MAB Member as an independent contractor and consultant to serve as a member of
the Medical Advisory Board. MAB Member hereby accepts that engagement and
agrees to serve on the Medical Advisory Board and to provide services to
Rubicon through the testing, evaluation and preparation of design
recommendations of the Devices including, but not limited to, the Guardian
Balloon Embolization Protection Device and such other Devices as Rubicon may
present to the Medical Advisory Board, and shall also render such other
services and duties as may be assigned from time to time by Rubicon. MAB
Member's duties shall include, but are not limited to, the following:
a) Recommendations for Improving Services. MAB Member shall
communicate to Rubicon all suggestions, recommendations and proposals
concerning the improvement of the functionality and efficacy of the Devices.
In addition, MAB Member shall convey to Rubicon the impressions, results of
studies or testing concerning the functionality, efficacy and reliability of
the Devices.
b) Disclosure of Status. As member of Medical Advisory Board, MAB
Member shall disclose his/her membership in the Medical Advisory Board
whenever necessary to avoid any appearance of impropriety or any conflict of
interest such as to participants in medical conferences, industry meetings,
researchers, study groups and other similar entities.
2. Proprietary Information and Ownership of Intellectual Property.
MAB Member will not disclose, absent the express written consent of Rubicon,
any information or data of a proprietary nature to any person not a member of
the Medical Advisory Board or an employee of Rubicon. Rubicon shall own, as
its exclusive intellectual property, all suggestions, recommendations,
proposals, studies, conclusions and analyses of any of the medical devices
evaluated by MAB Member in his/her capacity as a member of the Medical
Advisory Board.
3. Best Efforts of MAB Member. MAB Member agrees, at all times,
to faithfully and to the best of his or her ability, experience, education and
talents, to perform all duties that may be required of him or her pursuant to
this agreement at such locations as Rubicon, in good faith, may require.
4. Term of Agreement. The term of this agreement shall be until
terminated pursuant to Paragraph No. 5, below.
5. Termination of Agreement. MAB Member or Rubicon may terminate
this agreement upon providing written notice within 30 days following the
occurrence of any of the following:
a) Any default under this Agreement which continues for more than
thirty (30) days after written notice stating the nature of the default and
the actions which must be taken to cure the default.
b) The retirement of MAB Member from medical professional pursuits;
c) The sale or transfer of the medical practice of the MAB Member;
d) MAB Member's employment by, or affiliation with, any other
corporation, limited liability company or other entity which employment or
affiliation creates a conflict of interest with Rubicon;
e) Ninety days (90) following the written notification of either
party to terminate this Agreement.
6. Expenses & Travel. Rubicon shall reimburse MAB Member all
preapproved expenses or travel including airfare, lodging, meals, ground
transportation and entertainment.
7.Compensation. On, or before, September 30, 2000, through merger, a
Plan of Reorganization, or other means, Rubicon shall trade its common stock
on a national exchange. Within sixty (60) days after the first day of trading
of Rubicon's common stock on any national exchange by three (3) or more
"market makers", Rubicon shall cause to be issued, or shall issue, to MAB
Member, or his or her designee, that number of shares of its common stock
having an aggregate value of Thirty Thousand Dollars ($30,000.00). The number
of shares of common stock to be issued to MAB Member is based on fifty percent
(50%) of the price which shall be calculated based on the average bid per
share of the common stock over the first ten (10) days of the trading of the
common stock on the OTC Bulletin Board of the NASD or any other national
exchange. The common stock to be issued or transferred to MAB Member shall be
restricted stock and certificates representing those shares shall bear the
following legend:
The securities represented by the certificate have not been registered
under the Securities Act of 1933, as amended, or under the securities
laws of any State or other jurisdiction, and may not be sold,
transferred, assigned, pledged or hypothecated unless and until
registered under such Act and applicable state securities laws, or unless
the company has received an opinion of counsel or other evidence
satisfactory to the company and its counsel that such registration is not
required.
On the anniversary date of this Agreement, beginning with the first
anniversary date, the Board of Directors of Rubicon or any successor entity of
Rubicon will ratify an Agreement which will provide to MAB Member shares of
the restricted common stock of Rubicon having the value equal to the shares to
be issued pursuant to this Agreement, the value of the shares to be calculated
as of the anniversary date. Those shares shall be restricted. In the
alternative, at the sole discretion of Rubicon, Rubicon may pay to MAB Member
the sum of Thirty Thousand Dollars ($30,000.00) in lieu of the issuance of
restricted stock. Should restricted stock be issued, those share certificates
shall bear the restrictive legend set forth above in this paragraph no. 7.
8. MAB Member's Representations Concerning Stock. MAB Member
understands that the Rubicon common stock, to be issued following a Plan of
Reorganization, is not currently registered under the Securities Act of 1933,
as amended, and will be issued to MAB Member on the grounds that the issuance
will be exempt from registration under the Securities Act of 1933, pursuant to
section 4(2), thereof, and Rubicon's reliance on such exemption is based on
MAB Member's representations as set forth herein. MAB Member acknowledges
that the common stock shall be issued to him or her in reliance upon his or
her representation, that the common stock shall be acquired for investment for
the MAB Member's own account, not as nominee or agent, and not with a view to
the resale or distribution of any part thereof, and that MAB Member has no
present intentions of selling, granting any participation in, or otherwise
distributing the same. MAB Member has no contract, undertaking, agreement or
arrangement with any person to sell, transfer or grant participation to any
third person with respect to any of the common stock. MAB Member has had an
opportunity to ask questions and receive answers from Rubicon regarding its
business, properties, prospects, management and financial condition and has
sufficient knowledge and experience in financial and business matters so as to
be capable of evaluating the risk and merits of an investment in Rubicon and
is capable of bearing the economic risks of such an investment.
9. Trade Secrets. MAB Member shall not at any time or in any
manner, directly or indirectly, divulge, disclose or communicate to any
person, firm, corporation or other entity any information concerning any
matters affecting or relating to the business of Rubicon, including, without
limitation, any of its product designs, research and development data,
suppliers, customers, price structures or any other information concerning the
business of Rubicon, its manner of operation, its plans, processes or other
data, the parties hereto agreeing and acknowledging that all of the
aforementioned information is important, material and confidential and will
gravely affect the effective and successful conduct of the business of Rubicon
and will effect Rubicon's good will. Any breech of the terms of this
paragraph shall be deemed, and it is agreed to be, a material breech of this
agreement.
All the terms of this paragraph shall remain in full force and affect for
a period of three (3) years following the termination of this agreement for
any reason and during such three year period MAB Members shall not make or
permit the making of any public announcement or statement of any kind that he
or she was formerly employed by, or connected with, Rubicon.
10. Covenant Not to Compete. MAB Member agrees that during the
period of this Agreement, and for a period of one year from the date of the
termination of this Agreement, he or she will not directly or indirectly
engage in any business, or be affiliated with, employed by or associated with
any corporation or other entity which in any way competes with the
interventional cardiology, neuro-Interventional radiology and other peripheral
enodovascular intervention business of Rubicon, in the United States of
America, whether as an employee, officer, shareholder, partner or otherwise.
MAB Member agrees not to consult with, or advise, any such business which
competes, in any way, with the business of Rubicon.
In the event a court of competent jurisdiction should determine that the
time or geographic area identified in this paragraph is longer or broader than
permissible, then the time period and geographic area shall be for the time
and area permitted by that court.
11. Independent Contractor. The status of MAB Member under this
Agreement shall be that of an independent contractor and MAB Member shall not
be deemed or construed to be an employee, agent, joint venturer, partner or
legal representative of Rubicon for any purpose whatsoever. MAB Member shall
not have any right or authority to assume or otherwise create any obligation
or responsibility, express or implied, on behalf of or in the name of Rubicon
or to bind Rubicon in any manner or thing whatsoever. MAB Member shall be
responsible for the payment of any taxes incurred by MAB Member which may be
payable because of this agreement.
12. Agreement Outside of Contract. This contract contains the
complete agreement concerning the arrangement between the parties and shall,
as of the effective date hereof, supersede all other agreements between the
parties. The parties stipulate that neither of them has made any
representation with respect to the subject matter of this Agreement or any
representations, including the execution and delivery hereof, except such
representations as are specifically set forth herein and each of the parties
hereto acknowledges that he or she relied on their own judgment in entering
into this Agreement.
The parties hereto further acknowledge that any payments or
representations that may have heretofore been made by either of them to the
other are of no effect and that neither of them has relied thereon in
connection with his or her dealings with the other.
13. Modification of Agreement. No waiver or modification of this
Agreement or of any covenant, condition or limitation herein contained shall
be valid unless in writing and duly executed by the party to be charged
therewith, and no evidence of any waiver or modification shall be offered or
received in evidence of any proceeding, arbitration or litigation between the
parties hereto arising out of or affecting this Agreement, or the rights or
obligations of the parties hereunder, unless such waiver or modification is in
writing, duly executed as aforesaid, and the parties further agree that the
provisions of this section may not be waived except as herein set forth.
14. Fidelity Bond. Upon request of Rubicon, MAB Member will
immediately make application for a fidelity or a surety bond, to any company
designated by Rubicon, in such amount as may be specified by Rubicon. Rubicon
shall pay the premium on such bond, and such bond shall continue in force in
such amounts as Rubicon may from time to time require, and in the event such
bond is refused, or is ever canceled, except with the approval of Rubicon, MAB
Member may be terminated immediately and MAB Member shall be entitled to
compensation to the date of such termination only.
15. Severability. All agreements and covenants contained herein are
severable, and in the event any of them shall be held to be invalid by any
competent court, this Agreement shall be interpreted as if such invalid
agreements or covenants were not contained herein.
16. Choice of Law. It is the intention of the parties hereto that
this Agreement and the performance hereunder and all suits and special
proceedings hereunder be construed in accordance with and pursuant to the laws
of the State of Utah, and that any action, special proceeding, or other
proceeding that may be brought arising out of, in connection with, or by
reason of this Agreement, the laws of the State of Utah shall be applicable
and shall govern to the exclusion of the law of any other forum, without
regard to the jurisdiction in which any action or special proceeding may be
instituted.
17. Return of Rubicon Property. Upon termination of MAB Member's
employment, whether under this Agreement or for any period thereafter, MAB
Member agrees to return to Rubicon all property of Rubicon or any other
affiliate or subsidiary of Rubicon of which he has had custody and to deliver
to Rubicon all documents, keys, credit cards, forms, contracts, notebooks and
other data relating to customers, management studies conducted by him or her,
inventions designed by him or her, and any personal property of Rubicon in MAB
Member's possession at the time of termination.
18. Equitable Remedies. It is further agreed that any breach or
evasion of any of the terms of this Agreement by either party hereto will
result in immediate and irreparable injury to the other party and will
authorize recourse to injunction and/or specific performance as well as to any
other legal or equitable remedies to which such injured party may be entitled
hereunder.
19. Attorneys' Fees. Should either party engage in litigation to
enforce the terms of this Agreement, seek injunctive relief, or recover
damages for breach of this Agreement, the prevailing party shall be awarded
all attorneys' fees and related costs.
IN WITNESS WHEREOF, the parties have executed this Agreement on the day
and year first above written.
RUBICON: MAB MEMBER:
By /s/ /s/
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Xxxxxxx X. Xxxxxx Xxxxxxx XxXxxxxxx, MD
President/CEO
5/31/00 6/1/2000
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