EXHIBIT 10.10
ENDOCARE, INC.
CONSULTING AGREEMENT
This Consulting Agreement is entered into as of January 6, 1999 between
Xxxxxx Xxxxxx ("Consultant") and ENDOCARE, INC., a Delaware corporation
("Corporation"). In consideration of the mutual covenants set forth in this
Agreement, the parties agree as follows:
1. TERM OF RETENTION AS CONSULTANT
Upon the terms and conditions set forth in this Agreement, Corporation
hereby agrees to retain Consultant, and Consultant agrees to act, as a
consultant to Corporation. During the term of this Agreement, Consultant agrees
to perform the duties set forth in Exhibit A of this Agreement.
2. COMPENSATION
For his/her services to Corporation under Section 1 during the term of
this Agreement, Consultant shall receive from Corporation Endocare Stock
Options, issued from the 1995 Stock Plan, as outlined on Exhibit A of this
Agreement.
3. EXPENSES
Corporation shall reimburse Consultant for reasonable out-f-pocket
expenses incurred by Consultant in connection with Corporation's business, but
only if the incurring of any such expenses is approved in writing by an
executive officer of Corporation and Consultant provides Corporation with such
substantiating receipts or other documentation as Corporation may reasonably
require.
4. TERM
The term of this Agreement shall begin on the date set forth in the
first paragraph and, unless modified in writing by mutual agreement of the
parties or terminated earlier pursuant to the terms of this Agreement, shall
continue until the earlier of (1) the satisfactory completion of project as
outline in Exhibit A and attached hereto or; (2)12/31/99. Either party may
terminate this Agreement, at such party's discretion with or without cause, by
giving at least seven (7) days prior written notice of the termination to the
other party. Upon termination of this Agreement for any reason, Consultant shall
promptly return to Endocare all copies of Endocare's data, records or materials
of whatever nature or kind, including all materials incorporating proprietary
information of Endocare. Consultant shall also furnish to Endocare, all work in
progress, or portions thereof, including all incomplete work. The termination of
this Agreement pursuant to this Section shall not release either party from any
accrued obligation to pay any sum to the other party (whether then or thereafter
payable) or operate to discharge any liability incurred prior to the termination
date. In addition, the obligations under the following sections shall survive
the termination of this Agreement.
5. CONFIDENTIAL INFORMATION
(a) As used in this Agreement, the term "Confidential Information"
refers to any and all valuable information of a confidential, proprietary or
secret nature related to the present or future business of Corporation, the
research and development activities of Corporation or the business of any
customer of or supplier or contractor to Corporation. Confidential Information
is to be broadly construed and includes, without limitation: (i) information
disclosed by Corporation or its customers, suppliers or contractors ("together,
"Contractors") to Consultant in the course of his retention by Corporation as
well as information developed or learned by Consultant during the course of his
retention; (ii) information that his or could have commercial value or other
utility in the business in which Corporation or its Contractors are engaged or
contemplate being engaged; (iii) information of which the unauthorized
disclosure could be detrimental to the interests of Corporation or its
Contractors, whether or not such information is identified as Confidential
Information by Corporation or its Contractors; and (iv) trade secrets,
operations, services, physician practices, surgical operation procedures,
computer programs, design, technology, ideas, compositions, processes, formulas,
data, source code, know-how, improvements, inventions (whether patentable or
not), works of authorship, business and product development plans, techniques,
test results, specifications, costs and pricing data, employee information,
terms of Corporation's agreements, production and marketing plans and
strategies, customers, and other information concerning Endocare or the
Company's actual or anticipated business, research or development, or which is
received in confidence by Endocare or the Company or for Endocare or the Company
from any other person, and information concerning Corporation's Contractors.
(b) Consultant acknowledges that the Confidential Information is a
valuable and unique asset of Corporation, and Consultant agrees at all times
during the period of his retention by Corporation and thereafter to keep in
confidence and trust all Confidential Information. Consultant agrees that during
the period of his retention by Corporation and thereafter he will not directly
or indirectly use or exploit the Confidential Information other than in the
course of performing duties as a consultant of or other contractor to
Corporation, nor will Consultant directly or indirectly disclose any
Confidential Information to any person or entity, except in the course of
performing his duties to Corporation with the consent of Corporation's executive
officers. Consultant will abide by Corporation's policies and regulations, as
established from time to time, for the protection of its Confidential
Information. Consultant agrees to use his best efforts to ensure that
Corporation's confidential information, and any records or documents containing
such information, will not be exposed to theft, embezzlement or unauthorized
reproduction or disclosure.
6. COMPANY OWNERSHIP OF INNOVATIONS
(a) As used in the Agreement, "Developments" means all inventions,
discoveries, written or printed materials, trade secrets, designs, techniques,
know-how, data or other technical developments which Consultant makes,
conceives, reduces to practice or learns of, either individually or jointly with
others, during the term of this Agreement, and which are related to or
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useful in the business of Corporation or result from Consultant's retention by
Corporation or from the use of premises owned, leased or otherwise use or
acquired by Corporation.
(b) Subject to the terms of this Agreement, Consultant agrees that any
and all Developments are and will be the exclusive property of Corporation.
Consultant hereby assigns to Corporation all right, tide and interest Consultant
may have or may acquire in and to all Developments. Consultant shall execute any
assignments to Corporation or other documents requested by Corporation to
evidence such assignment or Corporation's ownership of all such Developments and
otherwise agrees to cooperate fully with and aid Corporation in establishing,
enforcing and disposing of Corporation's patent and other proprietary rights
with respect to all Developments. In the event Corporation is unable to secure
Consultant's signature on any document necessary to apply for, prosecute, obtain
or enforce any patent, copyright or other right or protection relating to any
Development, whether due to mental or physical incapacity or any other cause,
Consultant hereby irrevocably designates and appoints Corporation and each of
its duly authorized officers as his agent and attorney-in-fact, to act for and
in his behalf and stead to execute and file such document and to do all other
lawfully permitted acts to further the prosecution, issuance and enforcement of
such patents, copyrights or other rights or protections with the same force and
effect as if executed and delivered by Consultant.
(c) Except with respect to inventions which are to be assigned to or
owned by the United States under contracts between Corporation and departments
or agencies of the United States, the foregoing assignment to Corporation of
Developments will not apply to any invention that Consultant develops entirely
on his own time without using Corporation's equipment, supplies, facilities or
trade secret information, except for those inventions that either: (i) relate at
the time of conception or reduction to practice of the invention to
Corporation's business or to its actual or demonstrably anticipated research or
development; or (ii result from any work performed by Consultant for
Corporation.
(d) Consultant will make full and prompt disclosure to Corporation of
all Developments made, conceived, reduced to practice or learned by Consultant,
either individually or jointly with others, during the term of this Agreement.
Consultant shall attach to this Agreement a schedule containing a complete
listing of any Developments relevant to his retention by Corporation that were
made, conceived or first reduced to practice by Consultant alone or jointly with
others prior to his retention by Corporation, or which are covered by the
exclusion set forth in (c) above, and that Consultant desires to remove from the
operation of this Agreement. Corporation agrees to hold any disclosure in such
schedule in confidence.
7. RETURN OF COMPANY MATERIALS
Upon the termination of this Agreement for any reason, Consultant agrees
promptly and without request to deliver to Corporation all originals and copies
of notebooks, documents, reports, files, samples, mailing lists, computer
programs and other records and data which are then in Consultant's possession or
under his control and which pertain to his retention by Corporation or include
Confidential Information or Developments, and to return to Corporation any other
tangible personal property owned by Corporation, unless such return is waived in
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writing by Corporation. Provided such retention is disclosed to Corporation and
subject to the Consultant's confidentiality obligations, Consultant may retain
copies of any such records required to be retained by Consultant to satisfy tax
reporting or other legal requirements. Consultant recognizes that the
unauthorized taking of any of Corporation's trade secrets is a crime and could
also result in civil liability to Corporation.
8. COMPETITION
Consultant agrees that, during the term of this Agreement, he will not,
except for Corporation or with the written consent of an executive officer of
Corporation, engage or have an interest, directly or indirectly, in any other
business or venture which would interfere with the performance of his
obligations to Corporation or which competes with any material part of
Corporation's business. However, this restriction shall not prevent Consultant
from passively owning or investing in (a) any shares or other assets which he
owns on the date of this Agreement and are listed on a schedule attached to this
Agreement or (b) less than one percent (1%) of the outstanding shares of a
corporation which are publicly traded.
9. REMEDIES
Consultant acknowledges that his services under this Agreement and his
agreements in Sections 5-8 are of a special, unique, unusual, extraordinary
and/or intellectual character, which give them particular value, that his
violation of this Agreement will constitute a material breach of trust and
confidence and may be an invasion of privacy, that the breach by him of his
agreements set forth in this Agreement could not reasonably or adequately be
compensated in damages in an action at law, and that Corporation shall be
entitled to injunctive relief for such a breach. Such relief may include, but
shall not be limited to, an injunction restraining Consultant from rendering any
service or engaging in any activity which breaches or would violate this
Agreement. However, no remedy conferred by any of the specific provisions of
this Agreement is intended to be exclusive of any other remedy, and each and
every remedy shall be cumulative and shall be in addition to every other remedy
existing at law or in equity. The election of any one or more remedies by
Corporation shall not constitute a waiver of its rights to pursue other
available remedies.
10. CONFLICTING AGREEMENTS
Consultant represents that his retention by Corporation under this
Agreement and related actions have not breached, and will not breach, any
covenant to keep in confidence proprietary information or any other agreement
with a third party. Consultant has not entered into, and agrees that he will not
enter into, any agreement either written or oral in conflict with this
Agreement.
11. MISCELLANEOUS
(a) GOVERNING LAW
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All questions with respect to the construction of this Agreement and the
rights and liabilities of the parties shall be governed by the laws of the State
of California, excluding its conflict of laws rules.
(b) SUCCESSORS AND ASSIGNS
This Agreement shall inure to the benefit of and be binding upon the
parties and their respective successors and assigns. Consultant may not assign
or otherwise transfer any of his rights or obligations under this Agreement
without Corporation's prior written consent and any such transfer in violation
of this paragraph shall be void.
(c) ENTIRE AGREEMENT
This Agreement contains all of the terms and conditions agreed upon by
the patties, and supersedes any prior agreements or understandings, with respect
to the subject matter of this Agreement.
(d) AMENDMENT OR MODIFICATION OF AGREEMENT
This Agreement may be modified, altered or amended only by the written
agreement of both the parties.
(e) ATTORNEYS' FEES AND COSTS
In any legal proceeding to enforce or interpret the terms of this
Agreement, the prevailing party shall be entitled to reasonable attorney's fees
and costs and necessary disbursements in addition to any other relief to which
it or he may be entitled.
(f) COUNTERPARTS
This Agreement may be executed in one or more counterparts, each of
which shall be a valid original agreement.
(g) SEVERABILITY
If any provision of this Agreement or its application to any person or
circumstance is held invalid or unenforceable to any extent, the remainder of
this Agreement and its other application shall not be affected and shall be
enforceable to the fullest extent permitted by law.
(h) FURTHER ACTIONS
Each party agrees to execute and deliver any further documents and to do
any additional acts reasonably required to carry out the terms of this
Agreement.
(i) WAIVERS
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Any provision of this Agreement may be waived at any time by the party
entitled to the benefit thereof by a written instrument executed by the party or
by a duly authorized officer of the party. No waiver of any of the provisions of
this Agreement will be deemed, or will constitute, a waiver of any other
provision, whether or not similar, nor will any waiver constitute a continuing
waiver.
(j) NOTICES
Any notice or other communication to a party provided for in this
Agreement shall be deemed to have been duly given if delivered personally in
writing to the party or on the date of its delivery, in writing addressed to the
party, at such party's address determined in accordance with this paragraph. The
address of Consultant shall be: 0000 X. Xxxxxxxxx Xxxx, Xxxxxx, XX 00000. The
address of Corporation shall be: 7 Studebaker, Xxxxxx, Xxxxxxxxxx 00000. Either
party may change its or his address for purposes of this Agreement by a notice
given to the other party in accordance with this paragraph.
(k) INDEPENDENT CONTRACTOR
Consultant is retained by Corporation only for the purposes and to the
extent set forth in this Agreement, and his relationship to Corporation shall,
during the term of this Agreement, be that of an independent contractor.
Consultant shall not be considered as having employee status or as being
entitled to participate in any plans, arrangements or distributions by
Corporation pertaining to any pension, stock, bonus, profit sharing or similar
benefits for Corporation's employees. Corporation shall not withhold any of
Consultant's compensation payments for income tax purposes and shall not have
any obligations with regard to Social Security payments for Consultant,
insurance or workers' compensation coverage for Consultant, or any similar
items. Nothing contained in this Agreement shall be deemed or construed to
constitute a relationship of partnership, joint venture, principal and agent,
employer and employee, franchisor and franchisee, or any other association
between the parties.
(1) JURISDICTION
Each party to this Agreement agrees that an action or proceeding to
determined or enforce any rights or obligations under this Agreement may be
brought in the courts of the State of California in and for the Counties of
Orange and Los Angeles. Each party consents to the jurisdiction of such courts
over such party for purposes of any such action or proceeding.
(m) GENDER
Where required by the context, the masculine gender of pronouns shall be
deemed to include the feminine or the neuter.
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EXECUTED at Irvine, California as of the date first written above.
CORPORATION:
ENDOCARE, INC.,
a Delaware corporation
By: /s/ Xxxx Xxxxx
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CEO & Chairman
By: /s/ Xxxxxxxxx Xxxxxxxxxx
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Human Resources Manager
CONSULTANT:
/s/ Xxxxxx Xxxxxx
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Signature
Xxxxxx Xxxxxx
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Printed Name
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EXHIBIT A
DUTIES
1. To assist in the development of a direct sales effort. To assess and
develop the knowledge, skills and customer opportunities of Endocare's
sales representatives.
2. To support Endocare's Sr. Vice President of Sales and Marketing during
the development of a comprehensive training and education program.
Compensation
30,000 Endocare Stock Options in accordance with the 1995 Stock Plan.
Vesting Schedule: 12,000 (40%) to vest on 3/31/99
9,000 (30%) to vest on 6/30/99
9,000 (30%) to vest on 9/30/99
20,000 Endocare Stock Options in accordance with the 1995 Stock Plan.
Vesting Schedule: Options vest 25% per quarter over 4
consecutive quarters in 1999 if
specified sales targets are met according to
the attached schedule. Vesting is judged on
a quarter by quarter basis (e.g. If Ql
target is not met, the corresponding Ql
options will not vest and are null and void,
however if Q2 is met, only the 25% tied to
that quarter will vest.)
If this Agreement terminates prior to the Term set forth in Section 4, all
corresponding unvested options shall cancel.
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