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Exhibit 10.32
DUPLICATE Original No. ______ of ______
February 28, 2000
Xx. Xxxxxxxx X. XxXxxx
c/o Xxx. Xxxxxxxx XxXxxx
000 Xxxxxx Xxxxxx
00000 Xxxxxx
XXXXXX
RE: CONSULTING AGREEMENT BETWEEN XXXXXXXX X. XXXXXX AND
BOSTON SCIENTIFIC CORPORATION
This letter constitutes a Consulting Agreement ("Agreement") between you,
Xxxxxxxx X. XxXxxx ("Consultant"), and Boston Scientific Corporation and its
affiliated and associated companies (collectively "Boston Scientific").
1. FIELD OF CONSULTATION: To identify new business opportunities in the
European Union and Eastern Europe (comprising Poland, Czech Republic,
Croatia, Slovakia, Slovenia, and Hungary) which may be of interest to
Boston Scientific and to advise Boston Scientific on emerging
technologies and modalities applicable or potentially applicable to
existing Boston Scientific business areas in the European Union and
Eastern Europe.
2. CONTRACT LIAISON: The performance of Consulting Services (defined
below) under this Agreement will be coordinated through Xxxxxx X.
XxxXxxx ("Xx. XxxXxxx"), the Boston Scientific executive who has been
designated as the Contract Liaison for this Agreement (the "Contract
Liaison"). The Contract Liaison will direct the activities of
Consultant and from time to time specify Consultant's assignments. If
BSC designates a new Contract Liaison to replace Xx. XxxXxxx, it will
provide notice to Consultant. All reports, documents, and
communications relating to the provision of the Consulting Services
shall be transmitted to Boston Scientific through the Contract Liaison,
or to persons designated by the Contract Liaison. Boston Scientific may
designate a new Contract Liaison by written notice to Consultant.
Xxxxxx X. XxxXxxx can be reached by calling (000) 000-0000 (unless or
until this number changes).
3. CONSULTING SERVICES: The Consultant is engaged to perform Consulting
Services in the Field of Consultation as follows: (a) to assist in the
identification, development and conduct of new and existing BSC
business in the European Union and Eastern Europe, including, in
particular, the identification of new business development
opportunities in fields of current or potential interest to BSC; (b) to
analyze and give advice to BSC in areas of current BSC
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business focus, with particular emphasis on the fields of endovascular
aneurysmal repair, peripheral angioplasty, and stenting, endourological
and gastrointestinal endoscopic procedures; and, (c) to perform other
related tasks (the "Consulting Services") in consultation with and
under the general direction of the Contract Liaison. BSC acknowledges
that the Consulting Services will not be on a full-time basis and shall
not exceed 800 hours per year, excluding travel time. Consultant will
not be required to travel outside Europe, except for a maximum of four
meetings per year.
4. TERM: The initial term of this Agreement shall be for a two-year period
commencing March 1, 2000 and ending February 28, 2002 ("Term"). The
Term may be extended by mutual written agreement of the parties for
additional six (6) month periods, notice of the request for any such
extension to be given by each party to the other no later than 30 days
prior to the expiration of the applicable term.
5. PAYMENT:
(a) Boston Scientific will pay Consultant a retainer of Ninety-five
Thousand Dollars and no cents ($95,000.00) per quarter for
services performed by Consultant and related to Consulting
Services. Payment for services shall be made by Boston Scientific
within the first thirty (30) days of the commencement of each
quarter. The first quarter will cover the period from March 1,
2000 to May 31, 2000 and payment will be due on or before April
15, 2000.
(b) Boston Scientific will reimburse Consultant for reasonable
expenses incurred while performing the Consulting Services.
Generally, all reimbursement requests should be submitted for
prior approval. Major expenses, including travel expenses, must
be approved by the Contract Liaison in advance. Invoices and
receipts must be submitted for all expenses whenever possible.
Payment for expense reimbursement shall be made by Boston
Scientific within thirty (30) days after receipt of Consultant's
reimbursement request.
6. PERFORMANCE AND SUBSTANTIATION OF CONSULTING SERVICES: Consultant shall
perform the Consulting Services requested by the Boston Scientific
Contract Liaison during the Term of this Agreement. Consultant shall
document and record all time spent in the performance of the Consulting
Services to the reasonable satisfaction of the Boston Scientific
Contract Liaison. This documentation shall be delivered to the Boston
Scientific Contract Liaison in person or by fax on or before the first
business day of each calendar quarter, such documentation to contain
information for the prior quarter. The first such documentation shall
be due on or before June 30, 2000.
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7. TERMINATION OF CONSULTING SERVICES: This Agreement will become
effective when signed by both parties and shall continue for the Term
specified in Section 4, above. Should Consultant breach any of his
obligations under Paragraphs 8, 10, 11, 13, 14 and 15, below, Boston
Scientific may terminate this Agreement upon written notice to
Consultant if any such breach is not remedied, so long as Boston
Scientific shall have first given Consultant a thirty (30) day
opportunity to cure any such breach. In the event of such termination,
Boston Scientific will, as its sole and exclusive obligation, pay
Consultant at the rate specified in Paragraph 5, above, for Services
rendered up to Consultant's receipt of termination notice. Upon
termination of this Agreement, Consultant shall promptly deliver to
Boston Scientific all Boston Scientific Property, as defined in Section
9 below, including work in progress, which was furnished by Boston
Scientific to Consultant. Boston Scientific may withhold final payment
until receipt of all such Boston Scientific Property. Consultant's
obligations under Sections 8, 10, 11, 12, 13, 14 and 15 hereof shall
survive expiration or any termination of this Agreement. Consultant may
terminate this Agreement at any time upon thirty (30) days prior
written notice to BSC.
8. CONFIDENTIAL INFORMATION:
(a) "Boston Scientific Confidential Information" shall mean all
information disclosed by Boston Scientific to Consultant,
including without limitation, information relating to the Field
of Consultation of this Agreement, and all other information
regarding Boston Scientific's past, present, or future research,
technology, know-how, ideas, concepts, designs, products,
prototypes, processes, machines, manufacture, compositions of
matter, business plans and operations, technical information,
drawings, specifications, and the like, and any knowledge or
information developed by Consultant as a result of work in
connection with this Agreement, except information which:
(i) is at the time of disclosure, or thereafter becomes, a part
of the public domain through no act or omission by
Consultant;
(ii) is lawfully in the possession of Consultant prior to
disclosure by Boston Scientific, as shown by Consultant's
written records; or
(iii) is lawfully disclosed to Consultant by a third party which
did not acquire the same under an obligation of
confidentiality from or through Boston Scientific, as shown
by Consultant's written records.
(b) Consultant will not, without the prior written consent of Boston
Scientific, disclose any Boston Scientific Confidential
Information to anyone for any reason at any time or use any
Boston Scientific Confidential Information for any purpose,
except as requested by Boston Scientific.
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(c) Consultant will not disclose to Boston Scientific any
confidential or proprietary information belonging to any third
party without the written consent of such party, or represent as
being unrestricted any designs, plans, models, samples, or other
writings or products that Consultant knows are covered by valid
patent, copyright, or other forms of intellectual property
protection.
9. BOSTON SCIENTIFIC PROPERTY: To the extent that it is provided, the
parties agree that all tangible property provided to Consultant in
connection with this Agreement, including without limitation all
samples, reports, communications, drawings, notes, analyses and
materials received from Boston Scientific or produced in connection
with this Agreement (collectively, "Boston Scientific Property"), shall
be and remain the exclusive property of Boston Scientific. Consultant
agrees to keep and maintain in Consultant's custody and control any
Boston Scientific Property that Consultant receives or develops during
the term of this Agreement, and agrees to return or surrender to Boston
Scientific all Boston Scientific Property upon termination of this
Agreement or otherwise upon request by Boston Scientific.
10. DEVELOPMENT RIGHTS: Consultant shall, during the term of this Agreement
and for a period of one (1) year thereafter, promptly report and
disclose to Boston Scientific all improvements to Boston Scientific
products tested and evaluated by Consultant and all ideas and concepts
heard, developed or conceived, either alone or with others, including
any ideas and concepts which result in new products or significant
enhancements to existing products, while performing the Consulting
Services ("Developments"). Developments shall be the sole and exclusive
property of Boston Scientific and are hereby assigned to Boston
Scientific without any additional payments to Consultant by Boston
Scientific. It is understood that Boston Scientific shall have the
right but not the obligation to initiate, prosecute, maintain and
defend any and all patentable ideas and concepts with respect to
Developments. Consultant shall provide reasonable assistance to Boston
Scientific with respect to any such patents and patent applications,
and shall execute all appropriate documents and assignments with
respect to any such patents and patent applications. Consultant agrees
not to assert any rights in law or in equity in the Developments.
11. PUBLISHING: During the term of this Agreement and for a period of one
(1) year thereafter, Consultant shall submit to Boston Scientific any
paper Consultant intends to publish relating to the Field of
Consultation of this Agreement, and shall not submit any such paper to
a publisher or other party prior to the expiration of forty-five (45)
days from the date an outline of the paper is submitted to Boston
Scientific. If Boston Scientific determines in good faith during such
period that publication or presentation of such paper would be
detrimental to its intellectual property interests, Consultant shall
work in good faith with Boston Scientific to retract or modify the
paper to remove all language which is detrimental to Boston
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Scientific's intellectual property interests, or, in the alternative
and at Boston Scientific's election, shall refrain from submitting such
paper to a publisher or other party for an additional 120 days to
permit Boston Scientific to file patent applications or take other
steps to protect its intellectual property interests.
During the term of this Agreement and for a period of one (1) year
thereafter, Consultant shall also submit to Boston Scientific for
review, on a confidential basis, any patent applications relating to
the Field of Consultation naming Consultant as an inventor, either
alone or with others, which Consultant or any third party intends to
file with any U.S. or international patent offices in advance of the
filing of any such application. Boston Scientific shall have thirty
(30) days in which to review such applications. If Boston Scientific
makes a good faith determination, within such period, that the filing
of such an application would be contrary to its intellectual property
rights set forth herein, Consultant shall amend, or cause to be
amended, such proposed patent application to remove any language that
is determined by Boston Scientific to be contrary to its intellectual
property rights hereunder.
12. INDEMNIFICATION: Consultant agrees to defend, indemnify and hold Boston
Scientific harmless from any and all suits, claims, actions, damages or
losses whatsoever (including reasonable attorney's fees):
(a) arising out of any claim that the use of the Developments by
Boston Scientific infringes any patent or copyright or otherwise
violates the rights of any third party; or resulting in any way
from any act or omission of Consultant in his performance of the
Consulting Services or his presence at a Boston Scientific
facility.
(b) Consultant agrees to indemnify and hold harmless Boston
Scientific to the extent of any obligations imposed by law on
Boston Scientific to pay any withholding taxes, social security,
unemployment or disability insurance, or similar items in
connection with any payment made to Consultant by Boston
Scientific for Consultant's services provided hereunder.
13. NON-SOLICITATION OF BOSTON SCIENTIFIC EMPLOYEES: Consultant agrees that
during the term of this Agreement and for a period of one (1) year
after its termination, Consultant will not attempt to or actually
solicit for hire any individual who was an employee of Boston
Scientific within the twelve (12) month period immediately preceding
the termination date of this Agreement, assist in the hiring away of
any such employee by another person, or encourage any such employee to
terminate his or her employment with Boston Scientific, whether
directly or indirectly, unless the President of Boston Scientific or
his designee shall have given prior written approval.
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14. CONSULTANT'S WARRANTIES: Consultant represents and warrants:
(a) that Consultant has the unrestricted right to disclose any
information it submits to Boston Scientific, free of all claims
of third parties,
(b) that such disclosures do not breach or conflict with any
confidentiality provisions of any agreement to which Consultant
is a party, and
(c) that the services covered by this Agreement are not in violation
of any other agreement with other parties or of any restrictions
of any kind.
15. ABSENCE OF CONFLICTS: Consultant agrees and warrants that Consultant
will not, during the term of this Agreement and for a period of one (1)
year thereafter, work with any competitor on the development of any
products which would be directly competitive with any existing or
proposed Boston Scientific products of which Consultant is reasonably
aware, or provide similar Consultantcy or consulting services relating
to the Field of Consultation. Consultant further agrees to disclose to
Boston Scientific, during the term of this Agreement, any services
Consultant is providing to, or any arrangements Consultant has with,
any competitor of Boston Scientific so that Boston Scientific can
evaluate potential areas of conflict. For the purposes of this
Paragraph, a "competitor" of Boston Scientific means any party in
actual competition or intending or preparing to be in competition with
Boston Scientific's products or business. Notwithstanding the
foregoing, BSC acknowledges that Consultant will be establishing a
Consulting Business that will not compete with BSC and that the
establishment of that business is not a violation of this Agreement.
16. PRIMACY OF AGREEMENT: This Agreement supercedes and cancels all
previous agreements and arrangements between Consultant and Boston
Scientific relating to the Consultant's provision of Consulting
Services. This Agreement may be changed only by a writing signed by
both parties.
17. MISCELLANEOUS: This Agreement is made pursuant to the laws of the
Commonwealth of Massachusetts and questions as to its validity and
effect shall be governed thereby. Further, the Agreement is not
assignable by Consultant, and shall inure to the benefit of Boston
Scientific and its successors and assigns except that Consultant may
assign this Agreement to any Consulting Business he creates and
controls so long as Consultant continues personally to perform the
Consulting Services. Consultant is an independent contractor; is
responsible for paying all foreign, federal, state and local taxes,
including but not limited to income, Social Security and unemployment
taxes; and has no right to sign the name of or bind Boston Scientific
in any manner. No failure of either party to enforce any right under
this Agreement shall be deemed a waiver thereof.
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18. NOTICE: Any notice or communication required or permitted to be given
by either party under the terms of this Agreement shall be deemed
sufficiently given if mailed by registered mail or by a nationally
recognized courier who guarantees overnight delivery and addressed as
follows:
TO BOSTON SCIENTIFIC TO CONSULTANT
Xxxxxx X. XxxXxxx Xxxxxxxx X. XxXxxx
Senior Vice President c/o Xxxxxxxx XxXxxx
Human Resources 000 Xxxxxx Xxxxxx
Xxxxxx Scientific Corporation 00000 Xxxxxx, XXXXXX
Xxx Xxxxxx Xxxxxxxxxx Xxxxx
Xxxxxx, XX 00000-0000
WITH A COPY TO:
General Counsel Xxxxxxx X. Xxxx, Esq.
Boston Scientific Corporation Conn, Kavanaugh, Rosenthal,
One Boston Scientific Place Peisch & Ford, L.L.P.
Xxxxxx, XX 00000-0000 Xxx Xxxx Xxxxxx Xxxxxx
Xxxxxx, XX 00000
(000) 000-0000
- and -
Xxxxxx Xxxxxx & Partners
Attn: Xx. Xxxxx Xxxxxx
Xxxxxxxxxxxxx 0
Xxxxx, Xxxxxxxxxxx
If the foregoing accurately represents our agreement, please sign at
the appropriate place and return one copy of this Agreement to me.
BOSTON SCIENTIFIC CORPORATION
Name: Xxxxxx X. XxxXxxx Title: Senior Vice President,
Human Resources
Name: Date:
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(Signature)
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AGREED TO, ACCEPTED AND ACKNOWLEDGED:
Name: Xxxxxxxx X. XxXxxx
Name: Date:
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(Signature)
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