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EXHIBIT 10.3
ENDOCARE, INC.
CONSULTING AND CONFIDENTIALITY AGREEMENT
This Consulting Agreement is entered into as of June 1, 2001 (the
"Effective Date") between Xxxxxxx Xxxxxxx, M.D. ("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
Corporation hereby agrees to retain Consultant, and Consultant agrees to
act as a consultant to Corporation until either party cancels this Agreement
with notice pursuant to Section 8 below.
2. NATURE OF CONSULTING RELATIONSHIP
Consultant will provide general recruiting and hiring advice and
services to Corporation and assist Corporation in developing company strategies
related to obtaining governmental and private insurance cover-age and payment
for the costs associated with patients' use of Corporation's medical device
products as specified in Exhibit A attached to this Agreement. In addition,
Corporation may ask Consultant to provide additional services as needed; in such
event, company will specify the additional services requested in a written
letter to Consultant.
3. COMPENSATION
As consideration for his services, Consultant shall receive from
Corporation 10,000 Endocare Nonstatutory Stock Options (hereinafter "Options"),
in accordance with the Endocare, Inc. 1995 Stock Option Plan as amended. The
vesting of said options shall occur as follows: 2,500 shares shall vest upon
signing of this Agreement. On the last day of any subsequent calendar-year
quarters in which the Consultant has remaining shares that are not yet vested
(beginning with September 30, 2001), an additional 2,500 shares shall vest as
long as the Consultant has provided an additional 24-48 hours of time on
required duties (as set forth in Exhibit A) since any previous vesting of
shares.
4. EXPENSES
Corporation shall reimburse Consultant for reasonable out-of-pocket
expenses incurred by Consultant in connection with Corporation's business, but
only if the incurring of any such expenses is approved by an executive officer
of Corporation and Consultant provides Corporation with such substantiating
receipts or other documentation as Corporation may reasonably require.
5. CONSULTANT'S DUAL ROLE AS DIRECTOR AND CONSULTANT OF CORPORATION
The parties hereto recognize and agree that Consultant is also a
Director of Corporation on its Board of Directors and that nothing in this
Agreement shall be construed to limit, change or otherwise alter Consultant's
on-going fiduciary obligations as a Director of Corporation.
6. 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, 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/her retention by Corporation
as well as information developed or learned by Consultant during the course of
his/her retention; (ii) information that has 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
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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, such as
internal operations, services, physician practices, surgical operation
procedures, computer programs, designs, 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
Corporation or its actual or anticipated business, research or development, or
information which is received in confidence by Corporation.
(b) Consultant acknowledges and agrees that Confidential Information is
a valuable and unique asset of Corporation, and Consultant will, at all times
during the period of his retention by Corporation and thereafter, keep in
confidence and trust all Confidential Information.
(c) Consultant acknowledges and agrees that during the period of his
retention by Corporation and thereafter, he/she will not directly or indirectly
use or exploit the Confidential Information other than in the course of
performing duties as a consultant of Corporation.
(d) Consultant acknowledges and agrees that he will directly or
indirectly discloses any Confidential Information to any person or entity
without the prior written consent of Corporation.
(e) Consultant agrees to abide by Corporation's policies and
regulations, as established from time to time, for the protection of its
Confidential Information;
(f) Consultant agrees to use reasonable 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,
7. COMPANY OWNERSHIP OF INNOVATIONS
(a) As used in this 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 useful in
the business of Corporation or result from Consultant's retention by Corporation
or from the use of premises owned, leased or otherwise used 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, title 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/her agent and attorney-in-fact,
to act for and in his/her 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/her own time without using Corporation's equipment, supplies, facilities
or trade
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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.
8. CANCELLATION
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 provide Company with all work in progress, or portions
thereof, including all incomplete work, as required by Section 9 below. The
termination of this Agreement pursuant to this Section shall not release either
party from any 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 confidentiality obligations set forth under
Paragraph 4 below shall survive the termination of this Agreement.
9. RETURN OF COMPANY MATERIALS UPON TERMINATION
Upon the termination of this Agreement for any reason, Consultant agrees
to promptly and without request 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/her control and which pertain to his/her 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 writing by Corporation. Consultant may retain copies of any such
records required to be retained by Consultant to satisfy tax reporting or other
legal requirements if permitted by Corporation. 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.
10. REMEDIES
Consultant acknowledges that his/her services under this Agreement and
his. agreements in Sections 5-7 are of a special, unique, unusual, extraordinary
and/or intellectual character, which give them particular value, that his/her
violation of this Agreement could substantially injure the Corporation's
business and directly and irreparably harm the company. Consultant further
acknowledges and agrees that the his/her disclosure of any Confidential
Information could substantially injure Corporation's business, impair its
investments and goodwill, and jeopardized the Corporation's relationships with
its customers and suppliers. The parties recognize that a remedy at law for any
breach of this Agreement would necessarily be inadequate, and therefore
stipulate that, in the event of any such breach, they shall be entitled to seek
appropriate equitable relief, including, but not limited to, injunctive relief
or specific performance, in addition to monetary damages. The parties waive the
posting of a bond or other security as a condition to the entry of any
injunction.
11. CONFLICTING AGREEMENTS
Consultant represents that his/her 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/she will
not enter into, any agreement either written or oral in conflict with this
Agreement.
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12. MISCELLANEOUS
i. GOVERNING LAW
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.
ii. MANDATORY ARBITRATION
Any controversy or claim arising out of or relating to the
interpretation, enforcement, or breach of this Agreement or the relationship
between the parties hereto (other than actions for equitable relief) shall be
resolved by final and binding arbitration venued in a Southern California office
of the American Arbitration Association ("AAA") and conducted in accordance with
the Commercial Arbitration Rules of the AAA. This paragraph shall be
specifically enforceable under the Federal Arbitration Act. The award rendered
by the arbitrator(s) may be entered and enforced in any court of competent
jurisdiction.
iii. 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.
iv. ENTIRE AGREEMENT
This Agreement contains all of the terms and conditions agreed
upon by the parties, and supersedes any prior agreements or understandings, with
respect to the subject matter of this Agreement.
v. AMENDMENT OR MODIFICATION OF AGREEMENT
This Agreement may be modified, altered or amended only by the
written agreement of both the parties.
vi. 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.
vii. COUNTERPARTS
This Agreement may be executed in one or more counterparts, each
of which shall be a valid original agreement.
viii. 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.
ix. WAIVERS
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.
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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.
x. 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: 00000 Xxxxxxxx Xx., Xxxxxxxxxx, 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.
xi. INDEPENDENT CONTRACTOR
Consultant is retained by Corporation only for the purposes and
to the extent set forth in this Agreement, and all services performed by
Consultant pursuant to this Agreement shall be deemed to be services performed
by Consultant as 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.
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EXECUTED at Irvine, California as of the date first written above.
CORPORATION:
ENDOCARE, INC.,
a Delaware corporation
By: /s/ Xxxxx Xxxxxxxx
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Vice President, Human Resources and
General Counsel.
CONSULTANT:
/s/ Xxxxxxx Xxxxxxx
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Signature
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Xxxxxxx Xxxxxxx, PhD
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EXHIBIT A
DUTIES
- Recruiting: Consultant will assist Corporation in identifying, recruiting
and interviewing potential candidates for employment, in particular
candidates who are being considered for senior management positions and
candidates being considered for a position as a specialist in the area of
obtaining government and private insurance coverage and payment for the
costs associated with patients' use of Corporation's medical device
products.
- Insurance Reimbursement Strategies: Consultant will assist Corporation in
developing the company strategies to enhance the likelihood of governmental
and private insurance coverage for all costs associated with patients' use
of Corporation's medical device products. Consultant also will provide
strategic advice and consultation for marketing and reimbursement staff,
including organizing and attending meetings with policy experts and
executives, as appropriate.
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