GENERAL SURGICAL INNOVATIONS, INC.
CONSULTING AGREEMENT
This Consulting Agreement (the "AGREEMENT") is entered into by and
between General Surgical Innovations, Inc. (the "COMPANY") and Xxxxxxxx Xxxxx
("CONSULTANT"), effective as of this 1st day of November, 1998 (the
"Effective Date").
1. CONSULTING RELATIONSHIP. Beginning on the Effective Date and
during the term of this agreement, Consultant will provide consulting
services (the "SERVICES") to the Company as described on EXHIBIT A attached
to this Agreement. Consultant shall use Consultant's best efforts to perform
the Services in a manner satisfactory to the Company.
2. FEES; SUPPORT. As consideration for the Services to be provided by
Consultant and other obligations, the Company will compensate Consultant as
described in EXHIBIT B to this Agreement. As additional consideration for
the Services, the Company will provide Consultant with such support
facilities and space as may be required in the Company's judgment to enable
Consultant to properly perform the Services.
3. EXPENSES. Consultant shall not be authorized to incur on behalf of
the Company any expenses, except in compliance with the Company's policies
without the prior written consent of the Company's Chief Financial Officer.
As a condition to receipt of reimbursement, Consultant shall be required to
submit to the Company reasonable evidence that the amount involved was
expended and related to Services provided under this Agreement.
4. TERM AND TERMINATION. Consultant shall serve as a consultant to
the Company for a period commencing on the Effective Date and terminating on
the earlier of: (i) Xxxxx 0, 0000, (xx) the date Consultant begins rendering
services as an employee or consultant in excess of thirty hours per week to
any person or entity other than the Company, or (iii) Consultant's
termination of this Agreement at any time upon ten (10) days' written notice
to the Company (which date shall be the "TERMINATION DATE").
5. INDEPENDENT CONTRACTOR. Consultant's relationship with the Company
will be that of an independent contractor and not that of an employee.
Consultant will not be eligible for any employee benefits, nor will the
Company make deductions from payments made to Consultant for taxes, all of
which will be Consultant's responsibility. Consultant agrees to indemnify
and hold the Company harmless from any liability for, or assessment of, any
such taxes imposed on the Company by relevant taxing authorities. Consultant
will have no authority to enter into contracts that bind the Company or
create obligations on the part of the Company without the prior written
authorization of the Company.
6. SUPERVISION OF CONSULTANT'S SERVICES. All services to be performed
by Consultant, including but not limited to the Services, will be as agreed
between Consultant and the Company's Chief Executive Officer. Consultant
will be required to report to the Chief
Executive Officer concerning the Services performed under this Agreement.
The nature and frequency of these reports will be left to the discretion of
the Chief Executive Officer.
7. CONSULTING OR OTHER SERVICES FOR COMPETITORS. Consultant
represents and warrants that Consultant will not, during the term of this
Agreement, perform any consulting or other services for any company, person
or entity whose business or proposed business in any way involves products or
services which could reasonably be determined to be competitive with the
products or services or proposed products or services of the Company.
8. CONFIDENTIALITY AGREEMENT. Consultant has signed a Confidential
Information and Invention Assignment Agreement substantially in the form
attached to this Agreement as EXHIBIT C (the "CONFIDENTIALITY AGREEMENT"),
prior to the date hereof.
9. CONFLICTS WITH THIS AGREEMENT. Consultant represents and warrants
that Consultant is not under any pre-existing obligation in conflict or in
any way inconsistent with the provisions of this Agreement. Consultant
warrants that Consultant has the right to disclose or use all ideas,
processes, techniques and other information, if any, which Consultant has
gained from third parties, and which Consultant discloses to the Company in
the course of performance of this Agreement, without liability to such third
parties. Consultant represents and warrants that Consultant has not granted
any rights or licenses to any intellectual property or technology that would
conflict with Consultant's obligations under this Agreement. Consultant will
not knowingly infringe upon any copyright, patent, trade secret or other
property right of any former client, employer or third party in the
performance of the services required by this Agreement.
10. STOCK VESTING. As of the date hereof, Consultant owns options to
purchase an aggregate of 159,817 shares of Common Stock of the Company. Such
options shall continue to vest in accordance with their vesting schedules on
EXHIBIT D until the Termination Date, PROVIDED, HOWEVER, that if Consultant
terminates this Agreement pursuant to subsection 4(iii) Consultant will not
be eligible to exercise any options that were repriced in October, 1998.
11. MISCELLANEOUS.
(a) AMENDMENTS AND WAIVERS. Any term of this Agreement may be
amended or waived only with the written consent of the parties.
(b) SOLE AGREEMENT. This Agreement, including the Exhibits
hereto, constitutes the sole agreement of the parties and supersedes all oral
negotiations and prior writings with respect to the subject matter hereof.
The parties hereby agree and acknowledge that the Change of Control Agreement
between the Company and Consultant dated January 20, 1998 is hereby
terminated as of the Effective Date. The parties hereby agree and
acknowledge that the offer letter between the Company and Consultant is
hereby terminated as of the Effective Date.
(c) NOTICES. Any notice required or permitted by this Agreement
shall be in writing and shall be deemed sufficient upon receipt, when
delivered personally or by courier,
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overnight delivery service or confirmed facsimile, or forty-eight (48) hours
after being deposited in the regular mail as certified or registered mail
(airmail if sent internationally) with postage prepaid, if such notice is
addressed to the party to be notified at such party's address or facsimile
number as set forth below, or as subsequently modified by written notice.
(d) CHOICE OF LAW. The validity, interpretation, construction and
performance of this Agreement shall be governed by the laws of the State of
California, without giving effect to the principles of conflict of laws.
(e) SEVERABILITY. If one or more provisions of this Agreement are
held to be unenforceable under applicable law, the parties agree to
renegotiate such provision in good faith. In the event that the parties
cannot reach a mutually agreeable and enforceable replacement for such
provision, then (i) such provision shall be excluded from this Agreement,
(ii) the balance of the Agreement shall be interpreted as if such provision
were so excluded and (iii) the balance of the Agreement shall be enforceable
in accordance with its terms.
(f) COUNTERPARTS. This Agreement may be executed in counterparts,
each of which shall be deemed an original, but all of which together will
constitute one and the same instrument.
(g) ARBITRATION. Any dispute or claim arising out of or in
connection with any provision of this Agreement, excluding Section 7 hereof,
will be finally settled by binding arbitration in Santa Xxxxx County,
California in accordance with the rules of the American Arbitration
Association by one arbitrator appointed in accordance with said rules. The
arbitrator shall apply California law, without reference to rules of
conflicts of law or rules of statutory arbitration, to the resolution of any
dispute. Judgment on the award rendered by the arbitrator may be entered in
any court having jurisdiction thereof. Notwithstanding the foregoing, the
parties may apply to any court of competent jurisdiction for preliminary or
interim equitable relief, or to compel arbitration in accordance with this
paragraph, without breach of this arbitration provision. This Section 11(g)
shall not apply to the Confidentiality Agreement.
(h) ADVICE OF COUNSEL. EACH PARTY ACKNOWLEDGES THAT, IN EXECUTING
THIS AGREEMENT, SUCH PARTY HAS HAD THE OPPORTUNITY TO SEEK THE ADVICE OF
INDEPENDENT LEGAL COUNSEL, AND HAS READ AND UNDERSTOOD ALL OF THE TERMS AND
PROVISIONS OF THIS AGREEMENT. THIS AGREEMENT SHALL NOT BE CONSTRUED AGAINST
ANY PARTY BY REASON OF THE DRAFTING OR PREPARATION HEREOF.
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The parties have executed this Agreement on the respective dates set forth
below.
GENERAL SURGICAL INNOVATIONS, INC.
By: /s/ Xxxxxxx Xxxxxxxx
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Name: Xxxxxxx Xxxxxxxx
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Title: Chief Executive Officer
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00000 Xxxx Xxxx
Xxxxxxxxx, XX 00000
Date: November 13, 1998
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XXXXXXXX XXXXX
/s/ Xxxxxxxx Xxxxx
----------------------------------
Signature
Address: 000 Xxxxxx Xxxxxx
Xxxxxxxx, XX 00000
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Date: November 12, 1998
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SIGNATURE PAGE TO GENERAL SURGICAL INNOVATIONS, INC. CONSULTING AGREEMENT
EXHIBIT A
DESCRIPTION OF CONSULTING SERVICES
Consulting to the Chief Executive Officer and the Board of Directors
with regard to strategic business considerations, with specific projects to
be as mutually determined by the Consultant and the Chief Executive Officer.
EXHIBIT B
COMPENSATION
Consultant shall be paid the following monthly fees payable in
accordance with the Company's normal payroll policies:
November 1998 $10,000
December 1998 $10,000
January 1998 $10,000
February 1998 $5,000
March 1998 $5,000
