CONSULTING AGREEMENT
Exhibit 10.2
THIS CONSULTING AGREEMENT (this “Agreement”)
is entered into on August 4, 2023, but will be effective as of September 4, 2023 (the “Effective Date”), between Nuwellis, Inc., a Delaware corporation,
having a principal place of business at 00000 Xxxxxx Xxxx Xxxx, Xxxx Xxxxxxx, Xxxxxxxxx 00000 (the “Company”), and LL Blake Consulting, LLC, a Minnesota
Limited Liability Company having a principal place of business at, 0000 Xxxxxxx Xxxxx, Xxxx Xxxxxxx, XX 00000 (“Consultant”).
BACKGROUND
The Company desires to retain Consultant, and Consultant desires to be engaged by the Company, to perform certain consulting
services pursuant to the terms and conditions of this Agreement.
TERMS AND CONDITIONS
NOW, THEREFORE, in
consideration of the foregoing and the terms, conditions and covenants hereinafter set forth, the Company and Consultant agree as follows:
1. CERTAIN DEFINITIONS. Capitalized terms used in this Agreement and not otherwise defined shall have the following meanings:
(a) “Company Documents and Materials” means documents or other media, whether in tangible or intangible form, that contain or
embody Proprietary Information or any other information concerning the business, operations or plans of the Company, whether such documents or media have been prepared by Consultant or by others. Company Documents and Materials include, without
limitation, blueprints, drawings, photographs, charts, graphs, notebooks, tests, test results, experiments, customer lists, computer disks, tapes or printouts, sound recordings and other printed, electronic, typewritten or handwritten documents
or information, sample products, prototypes and models.
(b) “Inventions” means, without limitation, all software programs or subroutines, source or object code, algorithms,
improvements, inventions, works of authorship, trade secrets, technology, designs, formulas, ideas, processes, techniques, know-how and data, whether or not patentable or copyrightable, made or discovered or conceived or reduced to practice or
developed by Consultant, either alone or jointly with others.
(c) “Proprietary Information” means information that was or will be developed, created, or discovered by or on behalf of the
Company, or which became or will become known to, or was or is conveyed to the Company, which has commercial value in the Company’s business, whether or not patentable or copyrightable, including, without limitation, information about software
programs and subroutines, source and object code, algorithms, trade secrets, designs, technology, know-how, processes, data, ideas, techniques, inventions, works of authorship, formulae, business and product development plans, customer lists,
terms of compensation and performance levels of the Company’s employees and consultants, the Company’s 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 or entity.
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(d) “Services” means the consulting services to be performed by Consultant as the same shall be mutually agreed to from time to time, but primarily
related to coaching and development of select members of the Company finance organization related to investor relations and capital formation.
2. SERVICES. The Company hereby engages Consultant, and Consultant accepts such engagement, to perform the Services. Consultant shall provide the Services at such
specific times and at such particular locations as Consultant and the Company mutually determine from time to time. Consultant shall only accept engagement or work instructions from either the President and Chief Executive Officer or the Chief
Financial Officer of the Company.
3. TERM. The term of this Agreement shall commence on the Effective Date and continue until the later of (i) March 31, 2024 or (ii) the termination by either party (a)
for any reason, upon giving not less than 14 days’ notice to the other party or (b) immediately upon occurrence of any of the following events: (i) the breach of this Agreement by the other party, which breach is not cured within ten days after
written notice of such breach; (ii) the dissolution, voluntary or involuntary bankruptcy of either party, or assignment by either party of all or substantially all of its assets for the benefit of creditors; or (iii) embezzlement, fraud or
deceit in the performance of the other party’s obligations hereunder. Notwithstanding the termination of this Agreement, any liability or obligation of either party which may have accrued prior to such termination shall continue in full force
and effect, including but not limited to the rights and obligations of the parties hereto under Sections 6 through 25 of this Agreement.
4. COMPENSATION. In exchange for Consultant’s performance of the Services, the Company shall compensate Consultant at the rate of $250 per hour, up to a maximum of $750
per day and no more than $2,500 per week, except upon the prior agreement of the parties hereto.
5. EXPENSES. The Company shall reimburse Consultant for reasonable, documented and actual expenses incurred by Consultant in connection with its performance of the
Services; provided, however, that Consultant shall not incur any such expense relating to a single activity or trip in excess of $100 (the “Threshold Amount”)
without first obtaining the written consent and approval of the Company. The Company shall make any such reimbursement within 30 days after receipt of an invoice therefor, accompanied by receipts, vouchers or other written evidence of the
expenses incurred. The Company shall have no obligation to reimburse Consultant for expenses in excess of the Threshold Amount that were not approved in advance by the Company.
6. CONFIDENTIALITY OF PROPRIETARY INFORMATION.
(a) Nature of Information. Consultant understands that the Company possesses and will possess Proprietary Information which is important to its business. Consultant
understands that Consultant’s engagement creates a relationship of confidence and trust between the Company and Consultant with respect to Proprietary Information.
(b) Property of the Company. Consultant acknowledges and agrees that all Company Documents and Materials, Proprietary Information and all patents, patent rights,
copyrights, trade secret rights, trademark rights and other rights (including, without limitation, intellectual property rights) anywhere in the world in connection therewith is and shall be the sole property of the Company.
Consultant hereby assigns to the Company any and all rights, title and interest Consultant may have or acquire in any Proprietary Information or Company Documents and Materials.
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(c) Confidentiality. At all times, both during the term of Consultant’s engagement by the Company and after Consultant’s termination, Consultant
shall keep in confidence and trust and shall not use or disclose any Proprietary Information or anything relating to it without the prior written consent of a duly designated officer of the Company, except as may be necessary in the ordinary
course of performing the Services.
(d) Compelled Disclosure. In the event that Consultant is requested in any proceeding to disclose any Proprietary Information, Consultant shall
give the Company prompt notice of such request so that the Company may seek an appropriate protective order. If, in the absence of a protective order, Consultant is nonetheless compelled by any court or tribunal of competent jurisdiction to
disclose Proprietary Information, Consultant may disclose such information without liability hereunder; provided, however, that Consultant gives the Company notice of the Proprietary Information to be disclosed as far in advance of its
disclosure as is practicable and uses Consultant’s best efforts to obtain assurances that confidential treatment will be accorded to such Proprietary Information.
(e) Records. Consultant agrees to make and maintain adequate and current written records, in a form specified by the Company, of all Inventions,
trade secrets and works of authorship assigned or to be assigned to the Company pursuant to this Agreement.
(f) Handling of the Company Documents and Materials. Consultant agrees that during Consultant’s engagement by the Company, Consultant shall not remove
any Company Documents and Materials from the business premises of the Company or deliver any Company Documents and Materials to any person or entity outside the Company, except as Consultant may be required to do in connection with performing
the Services. Consultant further agrees that, immediately upon the termination of Consultant’s engagement for any reason, or during Consultant’s engagement if so requested by the Company, Consultant shall return all Company Documents and
Materials, apparatus, equipment and other physical property, or any reproduction of such property, excepting only (i) Consultant’s personal copies of personnel records and records relating to Consultant’s compensation; and (ii) Consultant’s
copy of this Agreement.
7. INVENTIONS.
(a) Disclosure. Consultant shall promptly disclose in writing to Consultant’s supervisor or to such person designated by the Company all Inventions made
during the term of Consultant’s engagement with the Company related to the Services. Consultant shall also disclose to Consultant’s supervisor or such designee all Inventions made, discovered, conceived, reduced to practice or developed by
Consultant either alone or jointly with others, within six (6) months after the termination of Consultant’s engagement with the Company which resulted, in whole or in part, from Consultant’s prior engagement with the Company and are related to
the Services. Such disclosures shall be received by the Company in confidence, to the extent such Inventions are not assigned to the Company pursuant to subsection (b) below, and do not extend the assignments made in such
subsection.
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(b) Assignment of Inventions to the Company. Consultant agrees that all Inventions which Consultant makes, discovers, conceives, reduces to practice or develops (in whole
or in part, either alone or jointly with others) during Consultant’s engagement related to the Services, including, but not limited to, conceptions or ideas derived prior to Consultant’s engagement but related to the Services and reduced to
practice or developed (in whole or in part, either alone or jointly with others) during Consultant’s engagement with the Company, shall be the sole property of the Company to the maximum extent permitted by law and Consultant agrees to assign
and hereby does assign to the Company all right, title and interest to the Inventions.
(c) Works Made for Hire. Consultant agrees that the Company shall be the sole owner of all patents, patent rights, copyrights, trade secret rights, trademark rights and
all other intellectual property or other rights in connection with Inventions related to the Services. Consultant further acknowledges and agrees that such Inventions related to the Services, including, without limitation, any computer
programs, programming documentation and other works of authorship, are “works made for hire” for purposes of the Company’s rights under copyright laws. Consultant hereby assigns to the Company any and all rights, title and interest Consultant
may have or acquire in such Inventions.
( ) Cooperation. Consultant agrees to perform, during and after Consultant’s engagement, all acts deemed necessary or desirable by the Company to permit and assist it, at
the Company’s expense, in further evidencing and perfecting the assignments made to the Company under this Agreement and in obtaining, maintaining, defending and enforcing patents, patent rights, copyrights, trademark rights, trade secret
rights or any other rights in connection with such Inventions and improvements related to the Services in any and all countries. Such acts may include, without limitation, execution of documents and assistance or cooperation in legal
proceedings. Consultant hereby irrevocably designates and appoints the Company and its duly authorized officers and agents, as Consultant’s agents and attorney-in-fact, coupled with an interest, to act for and on Consultant’s behalf and in
Consultant’s place and stead, to execute and file any documents, applications or related findings and to do all other lawfully permitted acts to further the purposes set forth above in this Section, including, without limitation, the perfection
of assignment and the prosecution and issuance of patents, patent applications, filing with the FDA, copyright applications and registrations, trademark applications and registrations or other rights in connection with such Inventions and
improvements related to the Services with the same legal force and effect as if executed by Consultant.
( ) Assignment or Waiver of Moral Rights. Any assignment of copyright hereunder (and any ownership of a copyright as a work made for hire) includes all rights of
paternity, integrity, disclosure and withdrawal and any other rights that may be known as or referred to as “Moral Rights” (collectively, “Moral Rights”).
To the extent such Moral Rights cannot be assigned under applicable law and to the extent the following is allowed by the law in the various countries where Moral Rights exist, Consultant hereby waives such Moral Rights and consents to any
action of the Company that would violate such Moral Rights in the absence of such consent.
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(f) Holdover Assignment.
(i) Consultant agrees to, after the termination of Consultant’s engagement with the Company for any reason, (1) disclose immediately to the Company all Inventions related to the Services, patentable or not; (2) assist,
at the Company’s expense, such applications for United States patents and foreign patents covering such Inventions related to the Services as the Company may request; (3) assign to the Company without further compensation to Consultant the
entire title and rights to all such Inventions and applications related to the Services that Consultant may have, and (4) execute, acknowledge, deliver, or act as otherwise necessary at the request of the Company all such papers, including but
not limited to patent applications, assignments, power of attorney, as necessary to secure the Company the full rights to such Inventions and applications related to the Services.
(ii) The Inventions related to the Services which shall come under this Section 7(f) shall include all Inventions related to the Services that (1) Consultant conceives, reduces to practice, or otherwise makes or
develops, either solely or jointly with others, within one year after the termination of this Agreement; and (2) are in any way based on any trade secret or confidential or proprietary information that Consultant learned during his engagement
with the Company; or result from any work performed by Consultant for the Company under this Agreement; or are in any way related to the subject matter or activities of Consultant’s engagement with the Company.
8. NON-SOLICITATION OR HIRE OF THE COMPANY EMPLOYEES. During the term of this Agreement and for one (1) year thereafter, Consultant shall not encourage or solicit any
employee of the Company to leave the Company for any reason or to accept employment with Consultant or any other entity. As part of this restriction, Consultant shall not (a) interview or provide any input to any third party regarding any such
employee during such time period, or (b) retain or hire in any capacity, either individually or for any person or entity by which Consultant may be engaged or with which Consultant may be affiliated, any person who is or was employed by the
Company at any time during the term of this Agreement and six (6) months after the termination of such engagement. The Company will not encourage or solicit any employee of the Consultant’s employer to leave the Consultant’s employer for any
reason or to accept employment with Consultant’s employer or any other entity during the term of this Agreement and for one (1) year thereafter.
9. NON-SOLICITATION OF NON-EMPLOYEES. During the term of this Agreement and for one (1) year thereafter, Consultant shall not interfere with or attempt to impair the
relationship between the Company and any of its non-employee consultants and advisors, nor shall Consultant attempt, directly or indirectly, to solicit, entice, hire or otherwise induce any non-employee consultant or advisor of the Company to
terminate association with the Company. The Company will not interfere with or attempt to impair the relationship between the Consultant and any non-employee consultants and advisors during the term of this Agreement and for one (1) year
thereafter.
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10. NON-COMPETITION. During the term of this Agreement and for one (1) year thereafter, Consultant shall not,
with or without consideration, render services in any capacity to any person,business, firm or corporation engaged in any business competitive with the business conducted by the Company during the term of this Agreement.
Consultant shall not become interested in any such business involved in competitive activities with the Company, either directly or indirectly, as partner, stockholder, principal, member, employee, agent, trustee, consultant, or any other
relationship or capacity; provided, however, that such restriction shall not apply with respect to a less than or equal to a one percent (1%) interest in any entity which is publicly traded and listed on a recognized securities exchange.
11. COMPANY AUTHORIZATION FOR PUBLICATION. Prior to Consultant’s submitting or disclosing for possible publication or dissemination outside the Company any material
prepared by Consultant that incorporates information that concerns the Company’s business or anticipated research, Consultant agrees to deliver a copy of such material to the President of the Company for review. Within twenty (20) days
following such submission, the Company agrees to notify Consultant in writing whether the Company believes such material contains any Proprietary Information or Inventions related to the Services, and Consultant agrees to make such deletions
and revisions as are reasonably requested by the Company to protect its Proprietary Information and Inventions related to the Services. Consultant further agrees to obtain the written consent of the Company prior to any review of such material
by persons outside the Company.
12. FORMER EMPLOYER INFORMATION. Consultant represents and warrants to the Company that Consultant’s performance of all the terms of this Agreement and as a consultant of
the Company does not and shall not breach any agreement to keep in confidence Proprietary Information, knowledge or data acquired by Consultant in confidence or in trust prior to Consultant’s engagement by the Company, or violate the terms of
any covenant not to compete between Consultant and any other person or entity. Consultant shall not disclose to the Company or induce the Company to use any confidential or Proprietary Information or material belonging to any previous employers
of Consultant or any other person or entity. Consultant has not entered into and Consultant shall not enter into any agreement, either written or oral, in conflict herewith or in conflict with Consultant’s engagement with the Company.
Consultant further agrees to conform to the policies, procedures, rules and regulations of the Company, as in effect from time to time.
13. INDEPENDENT CONTRACTOR. The Company and Consultant mutually understand and agree that Consultant shall be at all times acting and performing as an independent
contractor. Nothing in this Agreement is intended to create an employer/employee relationship or a joint venture relationship between the parties. . The parties agree that Consultant is not eligible for any compensation, fringe benefits,
pension, workers’ compensation, sickness or health insurance benefits, or other similar benefits accorded employees of the Company. The parties agree that the Company will not withhold any sums for income tax, unemployment insurance, social
security, or any other withholding pursuant to any law or requirement of any governmental body on behalf of Consultant. Consultant acknowledges and agrees that the Company has no obligation under local, state, or federal laws regarding
Consultant and that the total commitment and liability of the Company in regard to any arrangement with, or work performed by, Consultant hereunder is to pay the fees and expenses pursuant to the provisions hereof. Consultant shall indemnify
and hold the Company harmless from any and all loss, damage, claims, payments, or liability arising with respect to any such payment, withholdings, and benefits, if any. Nothing in this Agreement is intended to allow the Company to exercise
control or direction over the manner or method by which Consultant performs the Services under the terms of Consultant’s engagement by the Company.
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14. MAINTENANCE OF RECORDS. During the term of this Agreement and, until the expiration of five (5) years after the furnishing of the Services pursuant to this Agreement,
Consultant shall make available, upon written request of the Company or its designee, any records maintained by Consultant regarding any of the Services performed hereunder by Consultant.
15. NO AUTHORITY TO BIND. Consultant shall have no power or authority to execute any agreements or contracts for or on behalf of the Company nor to bind the Company in any other
manner.
16. INDEMNIFICATION. The Company shall indemnify, defend and hold Consultant, its directors, officers, shareholders, employees, representatives and assigns harmless from and
against any and all costs, liabilities, losses and expenses (including, but not limited to, reasonable attorneys’ fees) (collectively, “Losses”) resulting from any claim,
suit, action or proceeding (each, an “Action”) brought by any third party against Consultant or its affiliates based on the Company’s negligence or willful misconduct.
Consultant shall indemnify, defend and hold the Company, its directors, officers, shareholders, employees, representatives and assigns harmless from and against any and all Losses resulting from any Action brought by any third party against the
Company or its affiliates based on Consultant’s negligence or willful misconduct. Each party’s indemnification obligations hereunder will be subject to (a) receiving prompt written notice of the existence of any Action; (b) being able to, at
its option, control the defense of such Action; (c) permitting the indemnified Party to participate in the defense of any Action; and (d) receiving full cooperation of the indemnified party in the defense thereof.
17. NO ASSIGNMENT. This Agreement may not be assigned by either party without the written consent of the other party.
18. SEVERABILITY. Consultant agrees that if one or more provisions of this Agreement are held to be unenforceable under
applicable law, such provisions shall be excluded from this Agreement and the balance of the Agreement shall be interpreted as if such provision were so excluded and shall be enforceable in accordance with its terms.
19. AMENDMENT. This Agreement may not be amended except by mutual written Agreement of the parties.
20. NOTICES. All notices, requests, demands and other communications shall be in writing and shall be deemed to have been duly given or made if delivered by hand, in which case
notice will be deemed effective upon receipt, or, if by mail by certified or registered mail, with postage prepaid to the address of such party set forth in the introductory paragraph of this Agreement or to such address directed by a party in
writing, in which case notice will be deemed effective upon mailing. The return receipt, the delivery receipt, or the affidavit of messenger will be deemed conclusive but not exclusive evidence of delivery; delivery will also be presumed at
such time as delivery is refused by the addressee upon presentation.
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21. ENTIRE AGREEMENT. This Agreement shall constitute the entire agreement between the parties and supersedes any and all other written or oral agreements between
Consultant and the Company with respect to the subject matter of this Agreement.
22. INJUNCTIVE RELIEF. Consultant acknowledges that breach of any of the provisions of this Agreement could cause the Company irreparable injury for which no adequate
remedy at law exists. Accordingly, the Company shall have the right, in addition to any other rights it may have, and by executing this Agreement Consultant hereby consents, to the entry in any court having jurisdiction of a temporary or
permanent restraining order or injunction restraining or enjoining Consultant from any violation of this Agreement. Consultant further agrees to waive, and to use Consultant’s best efforts to cause Consultant’s directors, officers, employees
and agents, if any, to waive, any requirement for the securing or posting of any bond in connection with such remedy.
23. GOVERNING LAW; CONSENT TO JURISDICTION, WAIVER OF JURY TRIAL. This Agreement shall be governed by and construed in accordance with the internal laws of the State of
Minnesota, without regard to its principles of conflicts of laws. Each of the parties hereto irrevocably submits to the exclusive jurisdiction of the courts of the State of Minnesota and any United States District Court in the State of
Minnesota for the purpose of any suit, action, proceeding or judgment relating to or arising out of this Agreement and the transactions contemplated hereby. Service of process in connection with any such suit, action or proceeding may be served
on each party hereto anywhere in the world by the same methods as are specified for the giving of notices under this Agreement. Each of the parties hereto irrevocably consents to the jurisdiction of any such court in any such suit, action or
proceeding and to the laying of venue in such court. Each party hereto irrevocably waives any objection to the laying of venue of any such suit, action or proceeding brought in such courts and irrevocably waives any claim that any such suit,
action or proceeding brought in any such court has been brought in an inconvenient forum. EACH OF THE PARTIES HERETO WAIVES ANY RIGHT TO REQUEST A TRIAL BY JURY IN ANY LITIGATION WITH RESPECT TO THIS AGREEMENT AND REPRESENTS THAT COUNSEL HAS
BEEN CONSULTED SPECIFICALLY AS TO THIS WAIVER.
24. COLLECTION COSTS AND ATTORNEYS’ FEES. If a party shall fail to perform an obligation or otherwise breaches one or more of the terms of this Agreement, the other party
may recover from the non-performing breaching party all its costs (including actual attorneys’ and investigative fees) to enforce the terms of this Agreement.
25. COUNTERPARTS. This Agreement may be executed in one or more counterparts, each of which shall constitute an original, and all of which together shall constitute one
and the same instrument.
SIGNATURES ON THE FOLLOWING
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IN WITNESS WHEREOF, the Company and Consultant have made this Agreement effective as of the date first set forth above.
| CONSULTANT: |
THE COMPANY:
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LL BLAKE CONSULTING, LLC
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NUWELLIS, INC.
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BY:
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/s/ Xxxx X. Xxxxx
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BY:
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/s/ Xxxxxx Xxxxxxxxx, Xx.
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NAME:
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Xxxx X. Xxxxx
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NAME:
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Xxxxxx Xxxxxxxxx, Xx.
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TITLE:
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Principal
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TITLE:
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Chief Executive Officer
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SIGNATURE PAGE TO CONSULTING AGREEMENT
