EXHIBIT A
CONSULTING AND ADVISORY AGREEMENT
THIS CONSULTING AGREEMENT, dated as of September 1, 1996 by and between
LifeRate Systems, Inc., a Minnesota corporation (the "COMPANY") and Xxxxxxx X.
Xxxxx, M.D., an individual presently residing in the State of Georgia
("CONSULTANT").
A. The Company and Consultant desire to establish a consulting and
advisory arrangement.
B. The Company and Consultant are entering into this Consulting and
Advisory Agreement in conjunction with the simultaneous execution of the
Agreement, dated of even date herewith, between the Company and Consultant
regarding the settlement of certain claims (the "AGREEMENT").
In consideration of the foregoing and of the respective covenants and
agreements of the parties herein contained, the receipt and sufficiency of
which consideration are hereby acknowledged, the parties hereto agree as
follows:
1. CONSULTANCY. The Company agrees to retain Consultant as a consultant and
advisor, and Consultant agrees to serve the Company, on the terms and
conditions set forth herein. The retention of Consultant by the Company as a
consultant and advisor shall be for the period commencing on September 1, 1996
and expiring September 1, 1998 (the "EXPIRATION DATE"), unless such consultancy
shall have been sooner terminated as hereinafter set forth in Section 4.
2. RESPONSIBILITIES. Consultant's role hereunder (i) as an advisor shall
primarily be as a clinical advisor to the Company and (ii) as consultant shall
primarily be in the area of support and promotion of the Company's products and
services. As a clinical advisor, Consultant's duties would include, but not be
limited to: providing design input on product releases; identifying appropriate
data fields and data structures; assisting in testing of new design concepts;
and interacting with the Company's clinical liaisons and product managers.
Consultant shall report directly to the Chief Executive Officer of the Company
and shall perform such duties as the Chief Executive Officer shall reasonably
assign from time to time to Consultant. While the daily commitment required by
Consultant to fulfill his duties hereunder will vary, it is understood that
such duties assigned hereunder and not intended to materially interfere or
prevent Consultant from reasonably performing his duties with Atlanta
Cardiology Group, P.C.
3. COMPENSATION. During the term of his consultancy hereunder, Consultant
shall receive a consulting fee of $60,000, per year, payable bi-weekly. If
Consultant is requested to travel to render services hereunder, the Company
shall reimburse Consultant for all necessary and reasonable expenses incurred
by Consultant in accordance with and as permitted by the expense reimbursement
policies adopted by the Company.
4. TERMINATION
(a) DEATH. Consultant's consultancy hereunder shall terminate upon his
death.
(b) CAUSE. The Company may terminate Consultant's consultancy hereunder
for Cause. For the purposes of this Consulting Agreement, the Company shall
have "Cause" to terminate Consultant's consultancy and advisory relationship
hereunder upon Consultant's (i) willful, continuing, material and bad faith
failure to perform and discharge his duties and responsibilities hereunder, or
(ii) gross misconduct that is materially and demonstratively injurious to the
Company, or (iii) conviction of a felony (unless such conviction is reversed in
any final appeal thereof); provided that, in the case of termination under
clauses (i) or (ii)of this Section 4(b), Consultant shall have first received
written notice of proposed termination at least 30 days prior thereto,
specifying the grounds for such termination and Consultant shall have failed to
cure such matters.
(c) DATE OF TERMINATION. "Date of Termination" shall mean the earlier of
(i) the Expiration Date or (ii) if Consultant's employment is terminated by his
death, then the date of his death, or if pursuant to Section 4(b), then the
date specified in the notice of termination.
5. COMPETITIVE ACTIVITIES
Consultant agrees that during his consultancy hereunder, for a period of
12 months after his consultancy and advisory relationship with the Company ends:
(a) He will not alone, or in any capacity with another entity:
(i) directly or indirectly engage in any commercial activity that
competes with the Company's business, as the Company has conducted it during
the 12-month period before the Consultant's consultancy and advisory
relationship with the Company ends, within any state in the United States in
which the Company directly or indirectly markets or services products or
provides services;
(ii) in any way interfere or attempt to interfere with the Company's
relationships with any of its current or potential customers; or
(iii) employ or attempt to employ any of the Company's then
employees on behalf of any other entity competing with the Company.
(b) He will, prior to accepting employment with any new employer, inform
that employer of this Consulting Agreement and provide that employer with a
copy of this Consulting Agreement.
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(c) Consultant may seek the advice of the Company from time to time on
whether prospective employment he proposes would, in the Company's opinion,
violate the provisions of this Section 5, by submitting in writing to the
Company appropriate information.
6. CONFIDENTIAL INFORMATION
(a) CONFIDENTIAL INFORMATION. For purposes of this Consulting Agreement,
the term "Confidential Information" means information that is not generally
known and that is proprietary to the Company, including (i) trade secret
information about the Company and its products and services; and (ii)
information relating to the business of the Company as conducted at any time or
anticipated to be conducted by the Company, and to any of its past, current or
anticipated products and services, including without limitation, information
about the Company's research, development, design, manufacturing, purchasing,
accounting, engineering, marketing, selling, leasing or servicing. All
information that Consultant has a reasonable basis to consider Confidential
Information or which is treated by the Company as being Confidential
Information shall be presumed to be Confidential Information, whether
originated by Consultant or by others, and without regard to the manner in
which Consultant obtains access to such information. Notwithstanding the
foregoing, information shall cease to be Confidential Information for purposes
of this Section 6 when (i) it is required by law or legal process to be
disclosed in the public domain or (ii) it has become public information as a
direct or indirect result of disclosure by any person other than Consultant.
In the event Consultant receives any notice of any action to require disclosure
of any Confidential Information, as required by law or legal process,
Consultant immediately shall notify the Company of the notice and any action to
require disclosure of Confidential Information to permit the Company to
challenge the required disclosure and seek a protective order.
(b) RESTRICTED USE AND NONDISCLOSURE. Consultant shall not, either
during the term of this Consulting Agreement or for a period of five years
following expiration or termination of this Consulting Agreement, (i) use any
Confidential Information for any purpose other than the performance of his
duties and responsibilities under this Consulting Agreement for the benefit of
the Company or (ii) disclose any Confidential Information to any person not
employed by the Company, without the prior written authorization of the
Company. Consultant shall exercise prudence and the highest degree of care to
safeguard and protect, and to prevent the unauthorized disclosure of, all such
Confidential Information.
(c) RETURN OF INFORMATION AT TERMINATION. Upon termination of the
consultancy, Consultant shall deliver to the Company all materials, including
but not limited to product formulations, customer lists, business plans,
business strategies, instruction sheets, drawings, manuals, letters, notes,
notebooks, books, reports and copies thereof, computer records, audiotapes and
videotapes or other media that include Confidential Information.
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Consultant shall not retain any copies or reproductions of any materials,
product formulations, customer lists, business plans, business strategies,
instruction sheets, drawings, manuals, letters, notes, notebooks, books,
reports and copies thereof, computer records, audiotapes, videotapes or other
materials of the Company that came into Consultant's possession at any time
during the term of this Consulting Agreement.
7. INVENTIONS.
(a) INVENTIONS. For purposes of this Consulting Agreement, the term
"Inventions" means any business plan, strategy, technology, discovery,
improvement, innovation, idea, formula, shop right, trademark or work of
authorship or expression (whether or not patentable or copyrightable, and
whether or not put into writing or reduced to practice) made, generated, or
conceived by Consultant (whether alone or with others) while employed by the
Company or to which Consultant has agreed to assign the rights, interest and
ownership under this Consulting Agreement or under any other document or
instrument.
NOTICE: Pursuant to Minnesota Statutes Section 181.78, Consultant is
hereby notified that this Agreement does not apply to an invention for which no
equipment, supplies, facility, Confidential Information or trade secret
information of the Company was used AND which was developed entirely on
Consultant's own time AND does not relate (1) directly to the business of the
Company OR (2) to the Company's actual or demonstrably anticipated research or
development, OR does not result from any work performed by Consultant for the
Company.
(b) PROPERTY OF THE COMPANY. All Inventions made, authored or conceived
by Consultant, either solely or jointly with others, during Consultant's
consultancy with the Company or within one (1) year after the termination of
this Consulting Agreement, are works made for hire and the entire title and
ownership interest in such items in any form shall be the sole and exclusive
property of the Company. Consultant shall execute instruments of assignment
confirming the foregoing as requested by the Company.
(c) DISCLOSURE. Consultant shall promptly and without request by the
Company fully disclose to the Company in writing any Inventions. Consultant
shall report on a monthly basis to the Company, or more frequently as requested
by the Company, regarding any and all research and development activities
during that period.
(d) COOPERATION. Upon the request of the Company, Consultant shall apply
for such United States or foreign trademarks, patents or copyrights as the
Company may deem desirable, and Consultant shall do any and all acts necessary
in connection with such applications for trademarks, patents or copyrights, or
assignments, in order to establish in the Company the entire right, title and
interest in and to such trademarks, patents or copyrights. All costs and
expenses incurred in connection with any such application for such trademarks,
patents
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or copyrights shall be paid by the Company, and Consultant shall be reimbursed
by the Company to the extent any such costs and expenses were incurred
personally by Consultant.
8. INJUNCTIVE RELIEF
Consultant and the Company acknowledge that a breach by the other of any
of the terms of Sections 5, 6 or 7 of this Consulting Agreement will render
irreparable harm to the other and that the Company or Consultant (as the case
may be) shall therefore be entitled to any and all equitable relief, including
but not limited to injunctive relief, and to any other remedy that may be
available under any applicable law or agreement between the parties.
9. REPRESENTATIONS OF CONSULTANT.
Consultant represents and warrants that his execution and delivery of this
Consulting Agreement and performance by Consultant of his obligations under
this Consulting Agreement shall in no way violate the terms and conditions of
any other agreement, written or oral, or any other instrument or arrangement to
which Consultant is a party or by which Consultant is bound.
10. MISCELLANEOUS.
(a) WAIVER. No waiver of any term, condition or covenant of this
Consulting Agreement shall be deemed to be a waiver of subsequent breaches of
the same or other terms, covenants or conditions hereof.
(b) AMENDMENT. This Consulting Agreement may not be amended, altered or
modified except by a written agreement between the parties hereto.
(c) ASSIGNABILITY.
(i) CONSULTANT ASSIGNABILITY. Consultant shall not assign this
Consulting Agreement to any third party for whatever purpose without the
express, prior written consent of the Company.
(ii) COMPANY ASSIGNABILITY. The Company shall have the right to
assign this contract to its successors or permitted assigns, (but not to
other persons,) and all covenants or agreements hereunder shall inure to
the benefit of and be enforceable by or against its successors or assigns.
(iii) DEFINITIONS. The terms "successor" and "permitted assigns"
shall include any person, individual or entity that buys all or
substantially all the Company's assets, or a controlling portion of its
stock, or with which it merges or consolidates.
(d) INVALIDITY AND SEVERABILITY. In the event part or any portion of
this Consulting Agreement is determined to be invalid or
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unenforceable by any court of competent jurisdiction, the parties agree that
this Consulting Agreement as so construed shall remain in force and effect
between them and shall be applied as if the offending part or portion did not
comprise an element hereof; provided that such resulting construction of this
Consulting Agreement does not frustrate the main purpose of this Consulting
Agreement.
(e) NOTICES. Any notice required to be given hereunder shall be duly and
properly given if hand delivered, transmitted by facsimile or mailed postage
prepaid to either party at the addresses set forth below, effective as of the
date of mailing:
If to Consultant: Xxxxxxx X. Xxxxx, M.D.
000 Xxxxxxxx Xxxx Xxxx
Xxxxxxx, XX 00000
If to the Company: LifeRate Systems, Inc.
0000 Xxxxx Xxxxxxxxx
Xxxxxxxxxxx, XX 00000-0000
Attention: Chief Executive Officer
With a copy to: Xxxxxx X. XxXxxx, Esq.
Xxxxxxxxxxx Xxxxx & Xxxxxxxx
00 Xxxxx Xxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxxxxxx, XX 00000
Either party may change its address by giving ten days' prior written
notice to the other party of the new address.
(f) DEFINITIONS. For purposes of this Consulting Agreement, the
following words shall have the meanings indicated:
(i) TECHNOLOGY. The term "technology" means all know-how, trade
secrets, processes, inventions, specifications, equipment, computer
software, trademarks, trade names, service marks, patents, patent
applications, proprietary information, copyrights and other related
intellectual property.
(ii) TRADE SECRET. The term "trade secret" means any information or
compilation of information possessed by the Company that derives
independent economic value, actual or potential, from not being generally
known to, and not being readily ascertainable by proper means by other
persons who can obtain economic value from its disclosure or use. For
purposes of this Consulting Agreement, the term "trade secret" includes
both information disclosed to Consultant by the Company and information
developed by Consultant in the course of his employment.
(g) GOVERNING LAW. This Consulting Agreement shall be governed by and
construed under the laws of the State of Minnesota.
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(h) RESCISSION OF AGREEMENT. Notwithstanding any provision in this
Consulting Agreement to the contrary, in the event Consultant delivers a Notice
of Rescission (as defined in the Settlement Agreement) to the Company, then
this Consulting Agreement shall, upon receipt of the Notice of Rescission by
the Company, also be deemed to be simultaneously rescinded and rendered null
and void in all respects.
IN WITNESS WHEREOF, the parties have duly executed, or caused to be
executed by a duly authorized representative, this Consulting Agreement as of
the date first set forth above.
LIFERATE SYSTEMS, INC.
By /s/ Xxxxxxx X. Xxxxxxx
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CONSULTANT
/s/ Xxxxxxx X. Xxxxx
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Xxxxxxx X. Xxxxx, M.D.
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