EXHIBIT 10.1
CARDIODYNAMICS INTERNATIONAL CORPORATION
SERVICE AGREEMENT
This Service Agreement (the "Agreement") is entered into as of January
1, 2002 between CardioDynamics International Corporation (the "Company"),
Rivertek Medical Systems, Inc. ("Rivertek"), and, with respect to the rights and
obligations of ▇▇▇▇▇▇ ▇. ▇▇▇▇ ("▇▇▇▇") hereunder, ▇▇▇▇, with reference to the
following facts:
A. On July 1, 1995, the Company and Rivertek entered into a Service
Agreement, as amended (the "Prior Agreement").
B. The Company and Rivertek desire to amend and restate, and thereby
supercede and effectively replace, the Prior Agreement with this Agreement.
1. Definitions.
(a) Employees. Individuals who perform Services for and on behalf of
Rivertek in an employer-emloyee relationship to Rivertek.
(b) Consultants. Individuals who perform Services for or on behalf of
Rivertek in the capacity of an independent Consultant to Rivertek.
(c) Person or Personnel. Both Employees and Consultants.
(d) Confidential Information means all confidential data,
specifications, ideas, know-how, designs, code, writings, technology, plans and
other information of the Company, or of another person which have been entrusted
to the Company. Results (as defined below) generally are Confidential
Information.
(e) Company Materials means all physical embodiments of Confidential
Information (such as in documents or computer tapes, or physical objects such as
prototypes or models), and other Company physical property (such as hardware,
equipment, supplies and tools).
(f) Rights means ownership of intellectual property rights (patents,
patent applications, copyrights, trademarks, service marks, mask work rights,
"moral rights," and trade secrets) in Confidential Information and in Results.
If "moral rights" cannot legally be transferred to the Company, where this
Agreement requires transfer of "moral rights" to the Company this shall be
construed to require the owner of the "moral rights" to the Company to waive
them and to consent to any Company action which would violate the "moral
rights."
(g) Results means all results of the Services including all data, ideas,
information, tangible results, all documentation, and all Technology/Writings.
(h) Technology/Writings means any aspect of the Results in which one can
have Rights (e.g., inventions/patents; working of authorship/copyrights;
know-how/trade secrets)
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2. Services.
(a) Description of Services. During the term of this Agreement, Rivertek
shall provide the Company with the Services described in Exhibit A attached
hereto, as requested by the Company from time-to-time, including the Personnel
necessary to provide the Services.
(b) Work Location. Services shall be performed at Rivertek's, the
Company's or authorized supplier facilities, consistent with the needs of the
Services to be rendered, unless otherwise agreed to by Rivertek and the Company.
3. Assignment and Release of Personnel.
(a) Assignment of Personnel. Rivertek shall select Personnel to perform
Services for the Company who are qualified to perform the requested Services and
submit their names and qualifications to the Company. The Company shall review
the qualifications of the Personnel and conduct interviews of those Personnel
where appropriate to determine their suitability for the job, after which the
Company will accept or reject such Personnel.
(b) Assignment of ▇▇▇▇▇▇ ▇▇▇▇. Rivertek shall make ▇▇▇▇ available to
provide engineering and management services to accomplish certain Engineering
and Product Development objectives. ▇▇▇▇ shall spend a substantial portion of
his time rendering Services, including travel and attendance at executive
committee, board and engineering staff meetings. ▇▇▇▇ shall be a Company officer
with the title of Chief Technology Officer and with the powers and duties of
such officer position; provided, however, that ▇▇▇▇ shall not be responsible,
within the Company, for awarding work to or approving payment to Rivertek, which
functions shall be handled by the Company's President. The Company shall provide
coverage for ▇▇▇▇ under its directors and officers liability insurance policy.
The Company shall indemnify ▇▇▇▇ against claims as it would any other Company
officer.
(c) Release of Personnel. After acceptance of a Person to perform
Services, the Company may release such Person from performing Services at any
time, for any reason or no reason, upon five (5) business days prior notice to
Rivertek; provided, however, the Company may release any Person without prior
notice to Rivertek if, in the Company's opinion, such Person does not perform
satisfactorily, does not comply with Company's security requirements or other
rules and regulations applicable to the conduct of Company's employees, or for
other good cause relating to the performance of Services by such Person.
(d) Withdrawal. Except for Services to be rendered by ▇▇▇▇, after
acceptance of a Person to perform Services, Rivertek may withdraw such Person
from performing Services on ten (10) working days prior written notice to the
Company; provided, however, Rivertek shall promptly provide the Company with a
replacement Person acceptable to the Company.
4. Fees and Payment.
(a) Fees. Except for ▇▇▇▇'▇ Services, charges for Services shall be on a
time incurred basis as set forth in Exhibit A hereto and such rates shall be
fixed for 90 days. Charges for ▇▇▇▇'▇ Services shall be 65% of the standard rate
for ▇▇▇▇, which standard rate is set forth on Exhibit A. A new schedule of
charges may be negotiated no more often than quarterly;
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provided, however, that in no event will ▇▇▇▇'▇ full list rate exceed the
average rate Rivertek then actually charges other Rivertek clients for ▇▇▇▇'▇
time. Personnel subject to overtime payments will have their overtime hourly
rate specified. Travel costs will not be billed at higher than Coach class rates
(or, if lower, the fare actually paid). ▇▇▇▇'▇ travel time is billable to the
Company unless he works for other Rivertek clients while traveling.
(b) Invoices. Rivertek shall submit invoices weekly to the Company for
Services rendered and for authorized items purchased and authorized expenses
incurred. Invoices shall be sent to the Company's address as set forth in
Section 8(a) below, Attention: Accounts Payable. Each invoice shall show the
name and number of hours for each Person who performed Services during the
invoice period and, for equipment supplied by Rivertek, the type of equipment
and hours used. All invoices shall reference the Company's Contract Number,
Order Number or Standing Order Number.
(c) Payment. Invoices shall be payable thirty (30) days following
receipt of Rivertek's invoice.
(d) Supporting Documentation. The Company, upon request, shall be
permitted to inspect all time reports and similar documentation in Rivertek's
possession and control relating to Services provided pursuant to this Agreement.
5. Rivertek Personnel.
(a) Personnel of Rivertek. The relationship of Rivertek to the Company
shall be independent contractor. Rivertek and Company acknowledge and agree that
although Personnel performing Services may at some times perform those Services
under the general direction of Company, all Personnel, except for ▇▇▇▇ (who
shall be a "leased employee" of the Company), shall at all times and for all
purposes be deemed Employees or Consultants of Rivertek and not employees of
Company. Rivertek shall advise all Personnel of this fact.
(b) Wages and Salaries. Rivertek shall be responsible for all contract
obligations it may have with its Consultants. Rivertek shall be responsible for
the payment of all wages and salaries payable to Employees. Rivertek shall be
responsible for (i) withholding payroll taxes from the wages and salaries paid
to Employees, (ii) the payment of such payroll and employer taxes to government
agencies, (iii) the provision of ▇▇▇▇▇▇▇'▇ compensation insurance, unemployment
insurance, and any other insurance required by statute in respect of Employees
provided hereunder and (iv) and the cost of providing Employees with any fringe
benefits to which they are entitled by reason of being employed by Rivertek,
provided, however, that the Company shall remit funds to Rivertek (which amounts
shall be included in Rivertek's invoices to the Company) to cover the complete
compensation, including all payroll taxes, of ▇▇▇▇ with respect to the
compensation payable for ▇▇▇▇'▇ Services.
(c) Benefits for ▇▇▇▇. The Company shall have the exclusive right, in
its sole discretion, to grant stock compensation to ▇▇▇▇ for Services rendered
to the Company hereunder. Notwithstanding the replacement of the Prior Agreement
with this Agreement, the option to purchase 90,000 shares of Company Common
Stock granted to ▇▇▇▇ on October 16, 1998 pursuant to Amendment No. 2 to the
Prior Agreement (which option replaced in their
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entirety the options granted to ▇▇▇▇ pursuant to Amendment No. 1 to the Prior
Agreement) shall remain exercisable until the earlier of October 16, 2008 or 90
days after successful completion of contracted service to the Company. ▇▇▇▇
shall have the ability to participate in the Company's employee benefit plans,
if any, on the same basis as other comparable employees of the Company.
(d) Indemnification. Services performed under this Agreement by Rivertek
Personnel shall be performed at the request of Company personnel. The Company
shall indemnify and hold Rivertek harmless from any loss, damage, cost or
expense which the Company or Rivertek may incur by reason of or arising out of
any Person filing any lien against any property of the Company or Rivertek or
any claim or lawsuit against the Company or Rivertek arising from providing
Services pursuant to this Agreement (except in the case of willful misconduct,
gross negligence or material breach of contract by Rivertek or Rivertek
Personnel).
(e) Pass-through of Obligations. Rivertek shall have a written agreement
in place with each Person defining the Rivertek/Person relationship in such a
way, and imposing any indicated obligations on the Person, to give Rivertek (or
Rivertek's client directly) rights against such Person sufficient to enable
Rivertek to comply with its obligations to the Company under Article 6. For
example, the Person must agree that Rivertek (or Rivertek's client directly) is
the owner of all Rights, so that Rivertek can assign the Rights to the Company.
(f) Non-Solicitation. During, and for twelve (12) months after
termination of this Agreement, none of the parties shall solicit any personnel
of any other party to leave in order to become an employee or consultant of such
party. Offers to the public or the trade generally shall not constitute
solicitation.
6. Property Rights of the Company.
(a) Confidentiality. Rivertek and ▇▇▇▇ acknowledge that Personnel will
have access to Confidential Information while performing Services pursuant to
this Agreement. Rivertek, for itself and its Personnel, and ▇▇▇▇ agree to
maintain the confidentiality of such Confidential Information and to not
disclose it to third parties or Personnel of Rivertek other than those Personnel
who have a need to have such Confidential Information to perform Services,
without prior written consent of the Company.
(b) Use of Company Property. Neither Rivertek, ▇▇▇▇ nor any other Person
shall use for their benefit, or for the benefit of any person or entity other
than the Company, any Confidential Information or Company Materials.
(c) Returnability. Neither ▇▇▇▇, any other Rivertek Personnel nor
Rivertek shall have any ownership or license rights in any Confidential
Information (including Results) or Company Materials or related Rights. Upon
completion of the Services, Rivertek, ▇▇▇▇ and all other Rivertek Personnel
shall return to the Company all copies and originals of Company Materials
(including Results), and all copies and originals of all notes, documents or
other materials created by Rivertek Personnel embodying or reflecting any of the
foregoing.
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(d) Ownership of Rights. All Rights in all Results shall be the sole
property of the Company. Rivertek and ▇▇▇▇ hereby assign (and agree to assign)
to the Company all such Rights. Furthermore, it is agreed that all works of
authorship within the Results are works made for hire.
(e) Cooperation in Assignment/Enforcement of Rights. Rivertek (for it
and its Personnel) and ▇▇▇▇ agree to provide all reasonable assistance to the
Company in obtaining, maintaining, defending and enforcing Rights, in the name
of (or transferred to) the Company, with respect to the Results. ▇▇▇▇ and
Rivertek, for itself and its Personnel, hereby irrevocably designate and appoint
the Company and its duly authorized officers and agents, as their agents and
attorneys-in-fact to act for and on behalf and instead of them, to execute and
file any documents and to do all other lawfully permitted acts to further the
above purposes with the same legal force and effect as if executed by ▇▇▇▇ and
Rivertek.
(f) Disclosure. Rivertek and ▇▇▇▇ shall promptly disclose to the Company
Results which Rivertek or ▇▇▇▇ in good faith believe are material to the
Company, and agree to conform to the Company's Engineering and Product
Development Procedures, including those relating to the delivery of Results.
Rivertek and ▇▇▇▇ shall promptly disclose to the Company all inventions of
Personnel for which, to Rivertek's or ▇▇▇▇'▇ knowledge, a patent application
relating to the subject matter of the Services is filed and for which a
conception and/or reduction-to-practice date earlier than six (6) months after
termination of this Agreement is claimed. Such disclosure shall be kept
confidential by the Company unless the Company is the true owner of the Rights
to the invention.
(g) Originality Warrant. Rivertek warrants to the best of its knowledge
that all technology/writings created by Personnel shall be original creations
for the Company for hire and shall not knowingly infringe any U.S. rights of a
third party. ▇▇▇▇ warrants to the best of his knowledge that all
technology/writings created by ▇▇▇▇ shall be original creations for the Company
for hire and shall not knowingly infringe any U.S. rights of a third party.
(h) License. If any Rights in any Results are based on, or incorporate,
or are improvements or derivatives of, or cannot be reasonably made, used,
reproduced and distributed without using or violating technology or Rights owned
or licensed by Rivertek or ▇▇▇▇ and not assigned hereunder, Rivertek and ▇▇▇▇
hereby grant the Company a perpetual, worldwide, royalty-free non-exclusive
sublicensable right and license to exploit and exercise all such technology and
Rights in support of the Company's exercise or exploitation of any Results or
Rights (including any modifications, improvements and derivatives thereof).
7. Term; Termination. This Agreement will continue in effect until
December 31, 2002 and shall automatically renew for one year periods thereafter,
unless it is earlier terminated by either Rivertek or the Company upon giving
the other party not less than seventy-two (72) hours prior written notice of
termination. The obligations set forth in Sections 4(d), 5, 6 and 8 shall
survive the termination of this Agreement. The Company shall be entitled to
communicate the obligations of Rivertek and ▇▇▇▇ under this Agreement to any
future client or potential client (or employer or potential employer) of
Rivertek and ▇▇▇▇.
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8. Miscellaneous.
(a) Notices. Written notices required or permitted hereunder shall be
deemed to have been delivered if sent by first class mail, postage prepaid, to
the following addresses or such other address as may be designated by a party:
If to Rivertek or ▇▇▇▇:
Rivertek Medical Systems, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Managing Director
If to Company:
CardioDynamics International Corporation
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: President
(b) Insurance. Rivertek shall maintain liability insurance providing
coverage for personal injury (including death) and property damage caused by any
negligence or intentional act or omission or Rivertek, its directors, officers,
employees or agents.
(c) Disclaimer of Agency. This Agreement shall not make any party the
legal representative or agent of the other parties, nor shall any party have the
right or authority to assume, create, or incur any third party liability or
obligation of any kind, express or implied, against or in the name of or on
behalf of the other parties except as expressly set forth in this Agreement.
Each party agrees that it will not attempt to assume, create, or incur any such
liability or obligation against or in the name of or on behalf of the other
parties.
(d) Entirety of Agreement. This Agreement sets forth the entire
agreement and understanding of the parties relating to the subject matter
contained herein and merges all prior discussions between them, and no party
shall be bound by any representation other than as expressly stated in this
Agreement, or by a written amendment to this Agreement signed by authorized
representatives of the parties.
(e) Non-Waiver. The failure of a party in any one or more instances to
insist upon strict performance of any of the terms and conditions of this
Agreement shall not be constructed as a waiver or relinquishment, to any extent,
of the right to assert or rely upon any such terms or conditions on any future
occasion.
(f) Headings. The headings contained in this Agreement have been added
for convenience only and shall not be constructed as limiting.
(g) Severability. In the event any term of this Agreement is or becomes
or is declared to be invalid or void by any court of competent jurisdiction,
such term or terms shall be
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construed in such a way as to make them valid and enforceable to the maximum
extent possible in such a way as to make effective the parties expressed intent
insofar as possible, and all the remaining terms of this Agreement shall remain
in full force and effect.
(h) Governing Law. The validity, performance and construction of this
Agreement shall be governed by the laws of the State of California. The parties
hereby agree that any dispute relating to this Agreement shall be subject to the
jurisdiction of the courts within the State of California.
(i) Alternative Dispute Resolution. Any future disputes between the
Company, Rivertek and ▇▇▇▇ arising out of or related to this Agreement shall be
resolved pursuant to this paragraph. The parties will first attempt to resolve
the dispute through non-binding mediation, before a mediator selected by the
parties. The parties shall split the costs of the mediation. If the matter is
not resolved through mediation, the parties agree that the dispute shall be
resolved by binding arbitration in San Diego County, California. If the parties
are unable to jointly select an arbitrator, they will obtain a list from the
American Arbitration Association and select an arbitrator by striking names from
that list. The parties will share the fees of the arbitrator, and each party
shall pay its own attorneys' fees, unless the arbitrator orders otherwise,
pursuant to applicable law. Notwithstanding any other provision herein to the
contrary, each party retains the right to seek preliminary injunctive relief in
court regarding or related to matters involving confidential, proprietary or
trade secret information to preserve the status quo or prevent irreparable
injury before the matter can be heard in arbitration.
(j) Assignment. Neither this Agreement nor the rights and obligations
arising hereunder may be assigned or transferred by any party without the prior
written consent of the other parties. Any attempted assignment in violation of
the preceding sentence shall be null and void.
(k) Limited Noncompetition. Each of Rivertek and ▇▇▇▇ agree that during
the period commencing January 1, 2002 and ending upon the later of the
termination of this Agreement or nine (9) months following the end of ▇▇▇▇'▇
tenure as Chief Technology Officer of the Company, neither Rivertek nor ▇▇▇▇
will not consult for any person besides the Company on any external-electrode
thoracic electrical bioimpedance matter.
(l) Equitable Remedies. Rivertek and ▇▇▇▇ acknowledge that the Company
will suffer serious, irreparable harm if Rivertek or ▇▇▇▇ violate this
Agreement, and that damages would not be an adequate remedy for the breach.
Therefore, in the event of any such breach, in addition to other available
remedies, the Company shall have the right (without being required to post any
bond or other security) to obtain temporary, preliminary and/or permanent
injunctive relief and/or specific performance.
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IN WITNESS WHEREOF the parties have caused this Agreement to be
executed, effective as of date set forth above.
Rivertek Medical System, Inc.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
----------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇
Managing Director
CardioDynamics International Corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------
Title: CEO
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
----------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇
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EXHIBIT A
Dated as of January 1, 2002
1. Description of Services. Design, development and testing of thoracic
electrical bioimpedance heart monitors and support products, as requested.
2. Acceptance Criteria. The Services shall not be considered complete until
accepted by the Company in accordance with established specifications and
accepted hardware and software development practices.
3. Schedule of Charges. Charges for Personnel will be billed at the rates on
Attachment 1 to this Exhibit A, subject to the provisions of Section 4(a)
of the Agreement.
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