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EXHIBIT 10.11
CONSULTING SERVICES AGREEMENT
August 1, 1997
Following is the agreement between Cam X. Xxxxxx (the "Consultant") and
CardioDynamics International Corporation, a California corporation (together
with its successors and assigns, the "Company"), with respect to consulting
services of Consultant for the Company:
1. Consultant agrees to render consulting services ("Services") to the
Company, upon request by the Company, for the term of this Agreement.
Consultant's duties shall include, but are not limited to, those duties set
forth in Attachment A hereto and such other duties as the Company may from time
to time prescribe. Consultant shall report directly to the President of the
Company and shall provide Services in accordance with the instructions of the
President, and with such reasonable instructions given to Consultant by any
other officer of the Company.
2. Consultant shall be paid a monthly fee of $2,083.33 for performing
Services under this Agreement. In addition, the Company shall reimburse
Consultant for reasonable long distance travel (transportation, lodging, and
meals) and telephone expenses Consultant is required to incur in providing the
Services. All long-distance travel and lodging will be coach class or equivalent
and must be authorized in writing by the Company in advance. The foregoing fees
and expense reimbursements are Consultant's sole compensation for rendering
Services to the Company.
3. Consultant's performance of Services under this Agreement shall be
conducted with due diligence and in full compliance with the highest
professional standards of practice in the industry. Consultant shall comply with
all applicable laws and Company safety rules in the course of performing the
Services.
4. Consultant is an independent contractor and is solely responsible
for all taxes, withholdings, and other similar statutory obligations, including,
but not limited to, Workers' Compensation Insurance; and Consultant agrees to
defend, indemnify and hold Company harmless from any and all claims made by any
person or entity on account of an alleged failure by Consultant to satisfy any
such tax or withholding obligations.
5. Consultant has no authority to act on behalf of or to enter into any
contract, incur any liability or make any representation on behalf of the
Company, and Consultant agrees not to purport to do any of such things.
6. Consultant will indemnify and hold Company harmless as well as
defend Company against any and all loss, liability, damage, settlements, claims,
demands or suits
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plus related costs and expenses to persons or property that arise (directly or
indirectly) from acts or omissions of Consultant, or breach of any term or
condition of this Agreement.
7. In consideration of the mutual covenants and agreements herein set
forth, the parties further agree as follows:
a. Consultant understands that the Company possesses and will
possess Proprietary Information which is important to its business. For purposes
of this Agreement, "Proprietary Information" is information that was or will be
developed, created, or discovered by or on behalf of the Company, or which
become or will become known by, or was or is conveyed to the Company (including,
without limitation, "Results" as defined above), which has commercial value in
the Company's business. "Proprietary Information" includes, but is not limited
to, information about trade secrets, computer programs, software, code,
algorithms, designs, technology, ideas, know-how, processes, formulas,
compositions, data, techniques, improvements, inventions (whether patentable or
not), works of authorship, business and product development plans, the salaries
and terms of compensation of Company employees and other consultants, customers
and other information concerning the Company's actual or anticipated business,
research or development, or which is received in confidence by or for the
Company from any other person. Consultant understands that the consulting
arrangement between Consultant and the Company creates a relationship of
confidence and trust between Consultant and the Company with respect to
Proprietary Information.
b. Consultant understands that the Company possesses or will
possess "Company Materials" which are important to its business. For purposes of
this Agreement, "Company Materials" are documents or other media or tangible
items that contain or embody Proprietary Information or any other information
concerning the business, operations or plans of the Company, whether such
documents have been prepared by Consultant or by others. "Company Materials"
include, but are not limited to, blueprints, drawings, photographs, charts,
graphs, notebooks, customer lists, computer disks, tapes or printouts, sound
recordings and other printed, typewritten or handwritten documents, as well as
samples, prototypes, models, products and the like.
c. All Proprietary Information and all title, patents, patent
rights, copyrights, mask work rights, trade secret rights, and other
intellectual property and rights anywhere in the world (collectively "Rights")
in connection therewith shall be the sole property of the Company. Consultant
hereby assigns to the Company any Rights Consultant may have or acquire in such
Proprietary Information. At all times, both during the term of this Agreement
and after its termination, Consultant will keep in confidence and trust and will
not use or disclose any Proprietary Information or anything relating to it
without the prior written consent of an officer of the Company. Consultant
acknowledges that any disclosure or unauthorized use of Proprietary Information
will constitute a material breach of this Agreement and cause substantial harm
to the Company for which damages would not be a fully adequate remedy, and,
therefore, in the event of any such
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breach, in addition to other available remedies, the Company shall have the
right (without posting any bond or other security) to obtain temporary,
preliminary and/or permanent injunctive relief.
d. All Company Materials shall be the sole property of the
Company. Consultant agrees that during the term of this Agreement, Consultant
will not remove any Company Materials from the business premises of the Company
or deliver any Company Materials to any person or entity outside the Company,
without the Company's prior express written consent. Consultant further agrees
that, immediately upon the Company's request and in any event upon completion of
the Services, Consultant shall deliver to the Company all Company Materials, any
document or media which contains Results, apparatus, equipment and other
physical property or any reproduction of such property, excepting only
Consultant's copy of this Agreement. At all times before or after completion of
the Services, the Company shall have the right to examine the Results and any
materials relating thereto to ensure Consultant's compliance with the provisions
of this Agreement.
e. During the term of this Agreement and for one (1) year
thereafter, Consultant will not encourage or solicit any employee or consultant
of the Company to leave the Company for any reason.
f. Consultant represents that performance of all the terms of
this Agreement will not breach any agreement to keep in confidence proprietary
information acquired by Consultant in confidence or in trust prior to the
execution of this Agreement. Consultant has not entered into and Consultant
agrees not to enter into, any agreement either written or oral that conflicts or
might conflict with Consultant's performance of the Service under this
Agreement.
g. Consultant agrees that during the term of this Agreement
Consultant will not engage in any employment, business, or activity that in any
way involves or is in any way competitive with the business or proposed business
of the Company, and Consultant will not assist any other person or organization
in competing with the Company or in preparing to engage in competition with the
business or proposed business of the Company.
8. This Agreement will terminate on December 31, 1998, unless
terminated earlier pursuant to Section 9 of this Agreement.
9. Consultant agrees that this Agreement may be terminated by either
the Company or the Consultant at any time, for any reason, with or without
cause, by giving written notice to the other party; termination to be effective
upon the other party's receipt of notice. Termination shall not relieve either
party of liability for prior breach.
10. Consultant agrees that all obligations under Section 4, 6, 7(c),
7(d), and 7(e) of this Agreement shall continue in effect after any expiration
or termination of this
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Agreement, and that the Company is entitled to communicate Consultant's
obligations under this Agreement to any future client or potential client (or
employer or potential employer) of Consultant.
11. This Agreement shall be binding upon, and inure to the benefit of,
the parties hereto and their respective heirs, successors, assigns, and personal
representatives; provided, however, that is shall not be assignable by
Consultant.
12. Consultant agrees that any dispute concerning the breach, meaning,
effect or validity of this Agreement shall be resolved in accordance with the
laws of the State of California without regard to the conflict of laws
provisions thereof, and shall at the Company's option be litigated in San Diego,
California courts. Consultant agrees to submit to the personal and exclusive
jurisdiction and venue of such courts and not to seek the transfer of any case
or proceeding out of such courts. Consultant further agrees that if one or more
provisions of this Agreement are held to be illegal or unenforceable under
applicable California law, such illegal or unenforceable portion(s) shall be
limited or excluded from this Agreement to the minimum extent required and the
balance of the Agreement shall be interpreted as if such portion(s) were so
limited or excluded and shall otherwise remain in full force and effect and be
enforceable in accordance with its terms.
13. All notices required or given under this Agreement shall be
addressed to the Company or Consultant at the designated addresses shown below
(or such other address as either party may notify the other party of by notice
given under this Section 13) by registered mail or by certified courier service:
a. To Company:
CardioDynamics International Corporation
0000 Xxxxxxxxxxx Xxxxx Xxxx
Xxxxx 000
Xxx Xxxxx, XX 00000
b. To Consultant:
Cam X. Xxxxxx
Dura Pharmaceuticals
0000 Xxxx Xxxx.
Xxx Xxxxx, XX 00000
14. This Agreement contains the entire understanding of the parties
regarding its subject matter and can only be modified or waived by a subsequent
written agreement executed by Consultant and the President of the Company, which
expressly refers to this Agreement and expressly states an intention to modify
or waive it. Any such modification or waiver shall be limited to its express
terms and scope. Consultant acknowledges that Consultant has not relied on any
representation, warranty, condition, promise,
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understanding, arrangement, agreement or inducement of any kind in entering into
this Agreement.
CONSULTANT HAS READ THIS AGREEMENT CAREFULLY AND UNDERSTANDS AND ACCEPTS
THE OBLIGATIONS WHICH IT IMPOSES UPON CONSULTANT WITHOUT RESERVATION. NO
PROMISES OR REPRESENTATIONS HAVE BEEN MADE TO CONSULTANT TO INDUCE CONSULTANT TO
SIGN THIS AGREEMENT. CONSULTANT SIGNS THIS AGREEMENT VOLUNTARILY AND FREELY, IN
DUPLICATE, WITH THE UNDERSTANDING THAT ONE COUNTERPART WILL BE RETAINED BY THE
COMPANY AND THE OTHER COUNTERPART WILL BE RETAINED BY CONSULTANT.
Dated: August 1, 1997 [SIG]
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Consultant
Accepted and Agreed to:
CARDIODYNAMICS INTERNATIONAL COPRORATION
By: [SIG]
------------------------------------
President
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ATTACHMENT A
DUTIES OF CONSULTANT
To advise/consult the Company on various business activities including, but not
limited to strategies, alliances, capitalization, sales & marketing, and
corporate strategies.
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