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EXHIBIT 10.26
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CONSULTING AGREEMENT
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Date: July 26, 1999
NOVOSTE: NOVOSTE CORPORATION
0000 Xxxxx Xxxxxxxx Xxxx.
Xxxxxxxx, Xxxxxxx 00000
Name of Consultant: Xxxxxxx X. Xxxxxx
SSN: ###-##-####
Address: Xxxxxxx X. Xxxxxx
0000 Xxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Telephone: (000) 000-0000
Name and Address of Novoste Contact:
Xxxxxxx X. Xxxxxxx
0000 Xxxxx Xxxxxxxx Xxxx.
Xxxxxxxx, XX 00000
Term of Consulting Service: From May 03, 1999 to May 03, 2000.
Novoste and Consultant agree:
1. Scope of Work
Consultant will perform the consulting services for Novoste Corporation
("Novoste") described as follows and in attached Schedule 1 (the
"Services"):
o Consultant will provide the same types of services he provided while
employed at Novoste as Chief Technical Officer. These include, but
are not limited to, the job functions listed in Novoste's 1999 Job
Description for the position Chief Technical Officer, which is
attached hereto as Schedule 1.
o Consultant's main responsibilities will be in assisting the
research, design and development efforts at Novoste. However,
Consultant's experience and expertise in the Medical Device Industry
may be utilized with respect to other aspects of the business.
o Also, Consultant will assist with administering the maintenance of
Novoste's facilities.
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2. Compensation
Novoste will pay Consultant a consulting fee in the amount and on the
terms set forth below:
o As compensation for Services, Novoste will pay Consultant relatively
equal payments on a biweekly basis, the combined total for a year of
such payments (26 payments) being one hundred forty thousand dollars
($140,000.00).
o Reasonable expenses and travel expenses, including meals,
transportation, and housing, incurred during performance of the work
as specified under this agreement will be reimbursed by Novoste.
Additionally, Novoste will provide Consultant with a computer and
adequate work space during the term of this Agreement.
o For the consulting fee of $140, 000.00 per year, Consultant will be
expected to work a yearly average of approximately forty (40) hours
per month.
o Consultant is not an employee of Novoste and will not receive any
benefits other than the above defined consulting fee and reimbursed
expenses. Thus, Consultant is not eligible for participation in the
Novoste Employee Bonus Plan or the Novoste 401(k) Plan and does not
benefit from Health Care Insurance, Life & Accidental Death or
Dismemberment Insurance, and Long-term Disability Insurance provided
by Novoste to its employees.
3. Manner of Performance
(a) This agreement is binding on Consultant, an individual named Xxxxxxx
X. Xxxxxx. Consultant represents that Consultant has the requisite
expertise, ability and legal right to render the Services and will
perform the Services in an efficient manner. Consultant will abide
by all laws, rules and regulations that apply to the performance of
the services, including applicable requirements regarding equal
employment opportunity and the provisions of any Executive Orders
and related rules. Consultant when on Novoste's premises will comply
with Novoste's policies with respect to conduct of visitors.
(b) Consultant may retain third parties to assist in the rendering of
Services only upon approval by Novoste and only upon written
agreement by such third parties, a copy of which shall be provided
to Novoste, that they agree to be bound by all the terms and
conditions of this agreement as if Consultant hereunder.
4. Confidentiality
In the course of this agreement, it is anticipated that Consultant will
learn of information that Novoste regards as confidential or proprietary.
Consultant will keep confidential this information and any other
information which Consultant may acquire with respect to Novoste's
business, including, but not limited to, information developed by
Consultant and information relating to new products, customers, pricing
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know-how, processes, and practices, unless and until Novoste consents in
writing to disclosure, or unless such knowledge and information otherwise
becomes generally available to the public through no fault of Consultant.
Consultant will not disclose to others, without Novoste's written consent,
the fact that it is acting on behalf of Novoste and will not publish on
the subject of this consulting relationship without first providing
Novoste with the opportunity to review and offer reasonable objection to
the contemplated publication. This undertaking to keep information
confidential will survive the termination of this agreement. At the
termination of this agreement, Consultant will return to Novoste all
physical specimens, devices, and prototypes, and all drawings,
specifications, manuals and other printed or reproduced material
(including information stored on machine readable media) provided by
Novoste to Consultant and all copies of such information made by
Consultant.
5. Conflicts of Interest
Consultant represents that it has advised Novoste in writing prior to the
date of signing this agreement of any relationship with third parties,
including competitors of Novoste, which would present a conflict of
interest with the rendering of the Services, or which would prevent
Consultant from carrying out the terms of this agreement or which would
present a significant opportunity for the disclosure of confidential
information. Consultant will advise Novoste of any such relationships that
arise during the term of this agreement. Novoste will then have the option
to terminate this agreement without further liability to Consultant,
except to pay for Services actually rendered.
Consultant has advised Novoste that in addition to being an independent
consultant for Novoste, Consultant separately owns, operates and is an
employee of The Innovation Factory, LLC, a company located at 0000-X,
Xxxxxxxxxxxxx Xxxx., Xxxxxxxx, XX 00000. Consultant declares that The
Innovation Factory does not present a conflict of interest and
furthermore, is not and will not be engaged in the development,
management, manufacture, distribution or sale of Radiotherapy products or
services during the term of this Agreement and for at least one year
thereafter.
6. Relationship with Others
During the term of this agreement and for one year after its termination
date, Consultant will not perform services in the specific area in which
Consultant actually has consulted under this agreement for any other
entity engaged in the development, management, manufacture, distribution
or sale of Radiotherapy products or services.
7. Independent Contractor
Consultant is an independent contractor, not an employee of Novoste; and
nothing in this Consulting Agreement shall render Consultant an employee
of Novoste. Although Consultant is an independent contractor and not an
employee of Novoste, Novoste will be responsible for deducting from
Consultant's paychecks all federal, state, and local income taxes and
Social Security contributions.
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8. Ownership of Developments
All written materials and other works which may be subject to copyright
and all patentable and unpatentable inventions, discoveries, and ideas
(including but not limited to any computer software) which are made,
conceived or written by Consultant during the term of this agreement, and
for 90 days after it expires, and which are based upon the Services
performed by Consultant for Novoste ("Developments") shall become
Novoste's property. Consultant represents and warrants that Consultant's
employer, The Innovation Factory, has no ownership, license or other
rights to the aforementioned Developments, and Consultant is under no
obligation to assign, license or transfer rights to the aforementioned
Developments to Consultant's employer, The Innovation Factory.
Consultant agrees to hold all Developments confidential in accordance with
paragraph 4 of this agreement.
9. Disclosure and Transfer of Developments
Consultant will disclose promptly to Novoste each Development and, upon
Novoste's request and at Novoste's expense, Consultant will assist
Novoste, or anyone it designates, in filing patent or copyright
applications in any country in the world. Each copyrightable work, to the
extent permitted by law, will be considered a work made for hire and the
authorship and copyright of the work shall be in Novoste's name.
Consultant will execute all papers and do all things which may be
necessary or advisable, in the opinion of Novoste, to process such
applications and to vest in Novoste, or its designee, all the right, title
and interest in and to the Developments. If for any reason Consultant is
unable to effectuate a full assignment of any Development, Consultant will
transfer to Novoste, or its designee, its transferable rights, whether
they be exclusive or nonexclusive, or as a joint inventor or partial owner
of the Development.
10. Disclosures to Novoste
If during the term of this agreement, Consultant discloses any
copyrightable works, inventions, discoveries, or ideas to Novoste which
were conceived or written prior to this agreement or which are not based
upon the Services performed by consultant for Novoste under this
agreement, Novoste will have no liability to Consultant because of its use
of such works, inventions, discoveries or ideas.
11. Term
The term of this agreement is as specified on the first page of this
agreement, but in no event will the term of this agreement extend beyond
three years from the date of this agreement.
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12. Termination
Novoste may terminate this Consulting Agreement effective the day of
notice by giving Consultant written notice of termination if Consultant:
(a) breaches any of its obligations under Paragraphs 4,6, 8 or 9 of the
agreement; or (b) fails to provide the standard of performance of Services
that substantially meets Novoste's reasonable expectations; or (c) fails
at any time to provide the contracted services defined in section 1,
section 2 and schedule 1 of this agreement. If Novoste determines that it
no longer requires the services of Consultant it may terminate this
agreement by giving Consultant thirty (30) days written notice.
13. General
No assignment by Consultant of this agreement or any sums due under it
will be binding on Novoste without Novoste's prior written consent. This
agreement supersedes all prior agreements and understandings between the
parties respecting the subject matter of this agreement, with the
exception of Agreements signed between Consultant and Novoste as a
condition of Consultant's previous employment with Novoste. This agreement
may not be changed or terminated orally by or on behalf of either party
and nothing in any attachments or schedules to this agreement may vary the
terms of this agreement.
In the event the terms of any attachments or schedules are inconsistent
with the terms of the numbered paragraphs of this agreement, the terms of
the numbered paragraphs of this agreement shall control.
In the event either party breaches this agreement, the other party will
have the right to terminate the agreement. In the event of the actual or
threatened breach of any of the terms of paragraphs 4, 6, 8, and 9,
Novoste will have the right to specific performance and injunctive relief.
The rights granted by this paragraph are in addition to all other remedies
and rights available at law or in equity.
This agreement shall be construed according to the laws of Georgia for
contracts made within that state.
The undersigned warrant and represent that they have authority to enter
this agreement on behalf of Novoste or Consultant, respectively.
NOVOSTE CORPORATION CONSULTANT
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Xxxxxxx X. Xxxxxxx, President & CEO Xxxxxxx X. Xxxxxx
Date: _____________________________ Date: __________________________________
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