EXHIBIT 10.28
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (hereinafter "AGREEMENT") is made and
entered into by and between XxXxxxx and Xxxxxx Consulting (hereinafter "MWC")
and Digirad Corporation (hereinafter "DIGIRAD") on July 31, 2001 (the
"Execution Date").
RECITALS
A. The only principals of MWC are Xx. Xxxxxxx XxXxxxx and Xx.
Xxxx Xxxxxx
B. DIGIRAD has a need for the consulting services of MWC and MWC
is willing to provide such consulting services to DIGIRAD upon the terms and
conditions stated in this AGREEMENT.
NOW, THEREFORE, for and in consideration of the execution of this
AGREEMENT and the mutual covenants contained in the following paragraphs,
DIGIRAD and MWC agree as follows:
1. CONSULTING PERIOD. The parties agree that during the period
from the Execution Date through *** (the "Consulting Period"), DIGIRAD will
retain MWC as a consultant, pursuant to the terms and conditions stated herein.
The Consulting Period will thereafter be automatically renewed for additional,
successive *** periods unless either party notifies the other party in writing
at least *** prior to the end of the applicable Consulting Period of its
intention to discontinue this AGREEMENT. Notwithstanding the foregoing, however,
*** may terminate this AGREEMENT at any time for any reason, with or without
cause, by delivering written notice of such termination to the *** with such
termination to be effective upon the *** receipt of such notice.
2. SERVICES. The parties agree that the nature of the consulting
services which MWC will provide to DIGIRAD hereunder shall consist of the
following:
a) Provide and generate sales leads for DIGIRAD's products and
Digirad Imaging Solutions ("DIS") services.
b) Reasonably accept and promptly respond to DIGIRAD product
sales and DIS service inquiries from existing customers,
potential customers, DIGIRAD personnel, and others at
DIGIRAD's discretion (e.g. investors, potential employees,
analysts, etc.)
c) ***
***
d) ***
***
*** Portions of this page have been omitted pursuant to a request for
Confidential Treatment and filed separately with the Commission.
e) ***
***
f) ***
*** MWC ***
g) Act as advisors on future product developments.
h) ***
***
3. INDEPENDENT CONTRACTOR STATUS. The parties agree that nothing
herein contained shall be deemed to create an agency, joint venture, partnership
or franchise relationship between parties hereto. MWC acknowledges that it is an
independent contractor, is not an agent or employee of DIGIRAD and is not
entitled to any DIGIRAD employment rights or benefits and is not authorized to
act on behalf of DIGIRAD. MWC shall be solely responsible for any and all tax
obligations of MWC and those of its employees and representatives, including but
not limited to, all city, state and federal income taxes, social security
withholding tax and other self employment tax incurred by MWC DIGIRAD shall not
dictate the work hours of MWC during the term of this AGREEMENT. Anything herein
to the contrary notwithstanding, the parties hereby acknowledge and agree that
DIGIRAD shall have no right to control the manner, means, or method by which MWC
performs the services called for by this AGREEMENT. Rather, DIGIRAD shall be
entitled only to direct MWC with respect to the elements of services to be
performed by MWC and the results to be derived by Company, to inform MWC as to
where and when such services shall be performed, and to review and assess the
performance of such services by MWC for the limited purposes of assuring that
such services have been performed and confirming that such results were
satisfactory. DIGIRAD shall be entitled to exercise broad general power of
supervision and control over the results of work performed by MWC personnel to
ensure satisfactory performance, including the right to inspect, the right to
stop work, the right to make suggestions or recommendations as to the details of
the work, and the right to propose modifications to the work.
4. COMPENSATION. During the Consulting Period, customer
identification will take place as follows:
a) *** MWC ***
***
***
b) ***
*** MWC ***
*** MWC ***
During the Consulting Period, DIGIRAD shall compensate MWC as follows:
*** Portions of this page have been omitted pursuant to a request for
Confidential Treatment and filed separately with the Commission.
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a) DIGIRAD will pay MWC *** per customer site visit to ***
DIGIRAD will also pay MWC an additional $*** if the
customer on the site visit is not an Identified Customer
and they purchase a DIGIRAD gamma camera within *** after
the site visit.
b) For Identified Customers that are a part of a national
contract (i.e., *** ), DIGIRAD will pay MWC *** of the sales
price of the complete DIGIRAD camera system without
accessories purchased by an Identified Customer after such
customer has purchased a DIGIRAD system, had it installed and
completed all necessary payments for the system in full. For
Identified Customer that are a not a part of a national
contract, DIGIRAD will pay MWC *** of the sales price of the
complete DIGIRAD camera system without accessories purchased
by an Identified Customer after such customer has purchased a
DIGIRAD system, had it installed and completed all necessary
payments for the system in full. Additionally, DIGIRAD will
issue to MWC warrants to purchase *** *** *** The warrant
value of the DIGIRAD Common Stock will be as determine by
the Board of Directors of DIGIRAD at its meeting immediately
following the date the aforementioned criteria have been
satisfied. *** *** *** The warrant value of the DIGIRAD
Common Stock will be as determined by the Board of Directors
of DIGIRAD at its meeting immediately following the date the
aforementioned criteria have been satisfied.
c) DIGIRAD will issue MWC a warrant to purchase shares of DIGIRAD
common stock at a per share exercise price of $*** Such
warrant will be exercisable for an increasing number of shares
of DIGIRAD common stock in the following amounts and under the
following schedules: ***
***
***
*** In the event that DIGIRAD is acquired
by a third party whether by means of a merger, a sale of
substantially all of its assets or the sale of more than 50%
of its outstanding securities (each, an "Acquisition Event"),
the warrant will be immediately exercisable in full for ***
shares of DIGIRAD common stock upon the closing of the
Acquisition Event.
d) All references to a number of shares of common stock to be
issued pursuant to any warrant and the exercise price thereof
shall be appropriately adjusted to reflect any stock splits,
stock dividends or combinations relating to DIGIRAD's Common
Stock after the Execution Date.
*** Portions of this page have been omitted pursuant to a request for
Confidential Treatment and filed separately with the Commission.
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5. OUTSIDE ACTIVITIES. The parties agree that during the
Consulting Period, MWC and its employees and personnel shall not become employed
by, or act as a consultant to, any person or entity that is directly competitive
with the business activities of DIGIRAD. Persons and entities which shall be
considered "directly competitive with the business activities of DIGIRAD" are
*** *** The parties agree that nothing in this AGREEMENT shall prohibit or
otherwise limit MWC from becoming employed by, or acting a consultant to, any
person or entity that is not directly competitive with the business activities
of DIGIRAD. MWC specifically represents that it agrees that the foregoing
limitation on its outside activities and those of its employees and personnel,
is reasonable in scope and duration, and does not impose an unreasonable burden
on the ability of its employees and personnel to earn a living.
6. PROMISE TO MAINTAIN CONFIDENTIALITY OF DIGIRAD'S
CONFIDENTIAL INFORMATION. MWC acknowledges that in its capacity as a
consultant to DIGIRAD it shall continue to be privy to confidential
information belonging to DIGIRAD. MWC hereby promises and agrees that, unless
compelled by legal process, MWC, as well as its employees and personnel, will
not disclose to others and will keep confidential all information it has
received while working as a consultant to, DIGIRAD concerning DIGIRAD's
research and development activities, products and procedures, the identifies
of DIGIRAD's customers, DIGIRAD's sales, DIGIRAD's prices, the terms of any
of DIGIRAD's contracts with third parties, and the like. MWC agrees that a
violation by it or any of its employees or personnel of the foregoing
obligation to maintain the confidentiality of DIGIRAD's confidential
information will constitute a material breach of this AGREEMENT and will
entitled DIGIRAD to immediately terminate this AGREEMENT, with no further
obligations then being owed to MWC. MWC specifically confirms that MWC, as
well as its employees and personnel, will continue to comply with the terms
of the Non-Disclosure Agreement executed between MWC and DIGIRAD.
7. EFFECT OF TERMINATION. Within *** after the termination of
this Agreement in its entirety for any reason, the parties shall promptly
return to one another all property and other materials of the other party in
their respective possessions, including all media (and copies thereof)
containing confidential information of DIGIRAD and including without
limitation all marketing materials, customer lists, placement records,
service records and sales forecasts. If this Agreement is terminated by
DIGIRAD, then within *** after DIGIRAD gives MWC notice of its intention to
terminate this Agreement, *** MWC *** *** For *** after the termination date
of this Agreement, DIGIRAD shall compensate MWC pursuant to the terms of this
Agreement, *** ***
8. INTEGRATED AGREEMENT. The parties acknowledge and agree that
no promises or representations were made to them which do not appear written
herein and that this AGREEMENT contains the entire agreement of the parties on
the subject matter thereof. The parties further acknowledge and agree that parol
evidence shall not be required to interpret the intent of the parties.
*** Portions of this page have been omitted pursuant to a request for
Confidential Treatment and filed separately with the Commission.
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9. VOLUNTARY EXECUTIONS. The parties hereby acknowledge that they
have read and understand this AGREEMENT and that they sign this AGREEMENT
voluntarily and without coercion.
10. WAIVER, AMENDMENT AND MODIFICATION OF AGREEMENT. The parties
agree that no waiver, amendment or modification of any of the terms of this
AGREEMENT shall be effective unless in writing and signed by all parties
affected by the waiver, amendment or modification. No waiver of any term,
condition or default of any term of this AGREEMENT shall be construed as a
waiver of any other term, condition or default.
11. REPRESENTATION BY COUNSEL. The parties represent that they
understand that they have the right to be represented in negotiations for the
preparation of this AGREEMENT by counsel of their own choosing, and that they
have entered into this AGREEMENT voluntarily, without coercion, and based upon
their own judgment, and not in reliance upon any representations or promises
made by the other party, other than those contained within this AGREEMENT. The
parties further agree that if any of the facts or matters upon which they now
rely in making this AGREEMENT hereafter provide to be otherwise, this AGREEMENT
will nonetheless remain in full force and effect.
12. CALIFORNIA LAW. The parties agree that this AGREEMENT and its
terms shall be construed under California law.
13. ATTORNEY'S FEES. If any action at law or in equity is
necessary to enforce or determine the terms of this AGREEMENT, the prevailing
party shall be entitled to reasonable attorneys' fees, costs, and necessary
disbursements, in addition to any other relief to which the party may be
entitled.
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IN WITNESS WHEREOF, the parties have executed this AGREEMENT as of the
date first above written.
XXXXXXX AND XXXXXX CONSULTING
Dated: 8/9/2001 /s/ ***
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Xx. Xxxxxxx XxXxxxx
Dated: 8/9/2001 /S/ ***
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Xx. Xxxx Xxxxxx
DIGIRAD CORPORATION
Dated: 7-13-01 By: /s/ Xxxxx ILLEGIBLE
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Its: President & CEO
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*** Portions of this page have been omitted pursuant to a request for
Confidential Treatment and filed separately with the Commission.
[SCHEDULE 1]
