REPLIDYNE, INC. CONSULTANT AGREEMENT FOR Peter Letendre
[ * * * ] CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO
RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
EXHIBIT
10.23
This Consultant Agreement (“Agreement”) is entered into by and between Xxxxx
Xxxxxxxx, an individual (“Consultant”), and Replidyne, Inc., (the “Company”), effective as of April
16, 2008 (“Effective Date”).
Whereas, the Company is a biopharmaceutical company currently focused on developing
and commercializing innovative anti-infective products, including but not limited to faropenem
medoxomil (collectively, the “Products”);
Whereas, Consultant, having been involved with the Company since 2005 and serving as
the Company’s Chief Commercial Officer, is a significant source of knowledge and expertise about
the Company’s business and its potential clinical development and commercialization strategies for
the Products;
Whereas, the parties have agreed that Consultant shall be retained as a Consultant to
allow the Company to retain the benefit of Consultant’s knowledge and expertise; and
Whereas, the Company terminated Consultant’s full time employment with the Company
effective April 15, 2008 pursuant to a Separation Agreement with an Effective Date of April 15,
2008 and the parties hereby desire to mutually agree upon the terms and conditions of Consultant’s
consulting relationship with the Company.
Now, Therefore, in consideration of the mutual promises and covenants contained
herein, it is agreed by and between the parties as follows:
1. Consulting Relationship.
1.1 Consulting Services. As part of the services provided by Consultant to the Company
pursuant to this Agreement, Consultant will:
(a) Advise and consult with the Company on strategic planning and partnership opportunities
related to the Products; and
(b) Participate in discussions and negotiations with potential partnership prospects;
(c) Perform such other services that relate to Consultant’s areas of expertise and which the
Company’s executive officers believe would be beneficial to the Company (collectively, the
“Consulting Services”).
1.2 Performance. As and when requested from time to time by the Company’s President and Chief
Executive Officer, Xxxxxxx Xxxxxxx or his delegates, Consultant agrees to provide services to the
Company under this Agreement. The time commitment required for Consulting Services under this
Agreement will generally not exceed 40 hours per month from April 16, 2008 until July 31, 2008
(“Initial Consulting Period”) and will generally not exceed 20 hours per month from August 1, 2008
until December 31, 2008 or at such earlier or later date as agreed to by the Company and Consultant
pursuant to Section 6.1 herein (“Termination Date”), although the time commitment required during
any specific monthly period may vary from the time commitment required in other periods.
Consultant will render the Consulting Services to the best of his ability. The manner and means by
which Consultant chooses to perform the Consulting Services are in Consultant’s sole discretion and
control. Consultant agrees to exercise the highest degree of professionalism, and to utilize his
best efforts, skills, expertise and creative talents in performing such Consulting Services. In
performing Consulting Services, Consultant agrees to provide his own equipment, tools and other
materials in addition to the Retained Property provided to him by the Company. Consultant shall
perform his Consulting Services in a timely and professional manner consistent with industry
standards. Consultant agrees to provide the Consulting Services at the times reasonably requested
by the Company; provided that, the Company will reasonably cooperate with Consultant in the event
that he has conflicts in connection with other obligations, whether such obligations are work
related or personal. Consultant may not subcontract or otherwise delegate his obligations under
this Agreement without the Company’s prior written consent.
2. Compensation.
2.1 Consulting Fees. In consideration of his agreement to provide the Consulting Services
hereunder, during the Initial Consulting Period, Consultant will be paid an amount equal to $10,000
for each full month of Consulting Services rendered to the Company during the Initial Consulting
Period. Consulting Fees shall be pro rated for any partial months of work during the Initial
Consulting Period. From the end of the Initial Consulting Period through the Termination Date, and
for any hours in excess of forty hours per month during the Initial Consulting Period, Consultant
will be compensated at a rate of $300 per hour. Consultant agrees to submit a monthly invoice to
the Company for approval detailing all consulting hours worked in the prior month.
2.2 Stock Options. As further consideration of his agreement to provide Consulting Services
hereunder, subject to the approval of the Company’s Compensation Committee, the Company will
provide Consultant with a non-qualified stock option grant to purchase up to 40,000 shares of
Company common stock at the fair market value of the stock as of the date of grant pursuant to the
Company’s 2006 Equity Incentive Plan (“Consulting Option”). The Consulting Option shall vest over
the course of the Consulting Agreement in eight (8) equal monthly installments and shall have an
exercise period of up to three (3) years from Termination Date of this Consulting Agreement. The
stock options previously granted to Consultant during his employment with the Company shall
continue to vest for so long as Consultant continues to provide Continuous Service to the Company
as defined in the Company’s 2006 Equity Incentive Plan. Consultant understands and acknowledges
that on July 15, 2008, all options previously granted to Consultant shall become NonQualified
Options. Consultant is advised to seek
independent tax or accounting advice with regard to the exercise and tax treatment of any
vested options.
2.3 Partnering Bonus. In the event that prior to the Termination Date, the Company concludes
a faropenem partnership with [ * * * ], Consultant will be eligible to receive a one time lump sum
Partnering Bonus equal to $250,000, provided that Consultant is actively providing Consulting
Services through the date of the execution of the partnering agreement with [ * * * ].
2.4 Expenses. Consultant shall receive, against presentation of proper receipts and vouchers,
reimbursement for direct and reasonable out-of-pocket expenses incurred by him in connection with
the performance of services hereunder, according to the policies of the Company.
3. Independent Contractor Status.
Consultant’s relationship with the Company will be that of an independent contractor and
nothing in this Agreement should be construed to create a partnership, joint venture, or
employer-employee relationship. Consultant is not the agent of the Company and is not authorized
to make any representation, contract, or commitment on behalf of the Company. Consultant will not
be entitled to any of the benefits that the Company may make available to its employees. Because
Consultant is an independent contractor, the Company will not withhold or make payments for income
taxes; social security; make unemployment insurance or disability insurance contributions; or
obtain workers’ compensation insurance on Consultant’s behalf with respect to any payment made
pursuant to this Agreement. Consultant agrees to accept exclusive liability for complying with
applicable state and federal laws governing self-employed individuals, including obligations such
as payment of taxes, social security, disability and other contributions based on compensation paid
to Consultant. Consultant hereby agrees to indemnify and defend the Company against any and all
claims for such taxes or contributions, including penalties and interest due with respect to all
payments under this Agreement.
4. Proprietary Information Obligations. Consultant understand and agrees that the terms
of his Proprietary Information Agreement, attached as Exhibit A to the Separation Agreement of even
date, remain in full force and effect during the term of this Consulting Agreement and are fully
incorporated herein by reference.
5. Other Activities.
5.1 Other Services. Consultant is free to enter any contract to provide services to other
business entities, except any contract that would tend to induce Consultant to violate this
Agreement. Further, during the term of this Agreement, Consultant will not, without the prior
written consent of the Company, perform any services related to the development, preparation,
manufacture, marketing or sale of any drugs or therapeutics that may reasonably be considered to
compete with any Products, whether on behalf of his own interest or that of any other person or
entity.
6. Term; Termination.
6.1 Term. Unless sooner terminated in accordance with this Section 6 or mutually extended,
the term of this Agreement shall commence on the Effective Date and shall terminate on December 31,
2008. Notwithstanding the foregoing, this Agreement shall automatically terminate immediately upon
(i) Just Cause (as defined below) or (ii) consummation of a Change in Control.
6.2 Termination for Just Cause. The Company may terminate this Agreement immediately in its
sole discretion for Just Cause. In the event the Company terminates this Agreement pursuant to
this Section 6.2, the Company shall be entitled to cease any further payments under the terms of
this Consulting Agreement and shall reimburse Consultant for any business expenses that were
incurred but not reimbursed as of the date of termination. As used in this Agreement, “Just Cause”
shall mean the occurrence of one or more of the following: (i) Consultant’s conviction of a felony
or a crime involving moral turpitude or dishonesty; (ii) Consultant’s participation in a fraud or
act of dishonesty against the Company; (iii) Consultant’s intentional and material damage to the
Company’s property; (iv) Consultant’s material breach of any provision of this Agreement that is
not remedied by Consultant within fourteen (14) days of written notice of such breach from the
Board of Directors; (v) Consultant’s failure to perform the Consulting Services in accordance with
Section 1.2 hereof at the times reasonably requested by the Company; or (vi) Consultant’s failure
to execute the Separation Agreement, including Exhibit B, within twenty-one (21) days of receipt of
the Separation Agreement.
6.3 Termination by Consultant. Consultant may terminate this Agreement at his convenience upon
ten (10) days prior written notice to the Company. In the event the Consultant terminates this
Agreement pursuant to this Section 6.3, the Company shall be entitled to cease any further payments
under the terms of this Consulting Agreement and shall reimburse Consultant for any business
expenses that were incurred but not reimbursed as of the date of termination
6.4 Change in Control. In the event that the Company consummates a Change in Control (as
defined in the 2006 Equity Incentive Plan) prior to the Termination Date of this Agreement, then,
notwithstanding anything contained in Consultant’s stock option agreements or the Company’s 2006
Equity Incentive Plan to the contrary, the vesting of all of Consultant’s then outstanding stock
options shall be accelerated in full and such options shall become fully vested and exercisable in
accordance with the Company’s 2006 Equity Incentive Plan.
6.5 Return of Company Property. Upon termination of the Agreement or earlier as requested by
the Company, Consultant will deliver to the Company any and all drawings, notes, photographs,
memoranda, specifications, samples, formulas, and documents, together with all copies thereof, and
any other material containing or disclosing any Company Work Product or Proprietary Information of
the Company. Consultant further agrees that any property situated on the Company’s premises and
owned by the Company, including work and storage areas or filing cabinets, is subject to inspection
by Company personnel at any time with or without notice.
7. General Provisions.
7.1 Notices. Any notices provided hereunder must be in writing and will be deemed effective
upon the earlier of personal delivery (including personal delivery by facsimile), the third day
after mailing by first class mail, or the day following delivery by overnight courier, to the
Company at its primary office location and to Consultant at his address and facsimile number as
provided by Consultant to the Company in writing.
7.2 Severability. Whenever possible, each provision of this Agreement will be interpreted in
such manner as to be effective and valid under applicable law, but if any provision of this
Agreement is held to be invalid, illegal or unenforceable in any respect under any applicable law
or rule in any jurisdiction, such invalidity, illegality or unenforceability will not affect any
other provision or any other jurisdiction, but this Agreement will be reformed, construed and
enforced in such jurisdiction to the extent possible in conformance with the intent of the parties
expressed herein.
7.3 Waiver. If either party should waive any breach of any provisions of this Agreement, he
or it will not thereby be deemed to have waived any preceding or succeeding breach of the same or
any other provision of this Agreement.
7.4 Complete Agreement. This Agreement constitutes the complete, final, and exclusive
embodiment of the entire agreement between Consultant and the Company with regard to the subject
matter contained herein. It is entered into without reliance on any promise or representation, and
it cannot be modified or amended except in a writing signed by an officer of the Company and
Consultant. Each party has carefully read this Agreement, has been afforded the opportunity to be
advised of its meaning and consequences by his or its respective attorneys, and signed the same of
his or its own free will.
7.5 Counterparts. This Agreement may be executed in two counterparts, each of which need not
contain signatures of more than one party, but all of which taken together will constitute one and
the same Agreement.
7.6 Headings. The headings of the sections hereof are inserted for convenience only and will
not be deemed to constitute a part hereof nor to affect the meaning thereof.
7.7 Successors and Assigns. This Agreement is intended to bind and inure to the benefit of
and be enforceable by Consultant and the Company, and their respective successors, assigns, heirs,
executors and administrators, except that Consultant may not assign any of his duties hereunder and
he may not assign any of his rights hereunder without the written consent of the Company, which
will not be withheld unreasonably.
7.8 Attorney Fees. If either party brings any action to enforce his or its rights hereunder,
the prevailing party in any such action will be entitled to recover his or its reasonable attorneys
fees and costs incurred in connection with such action.
7.9 Choice of Law. All questions concerning the construction, validity and interpretation of
this Agreement will be governed by the law of the State of Colorado.
| Xxxxx Xxxxxxxx, | Replidyne, Inc. | |||||||||
| an Individual | ||||||||||
Sign:
|
/s/ Xxxxx Xxxxxxxx | By: | /s/ Xxxxxxx X. Xxxxxxx | |||||||
| Xxxxxxx X. Xxxxxxx | ||||||||||
| President & Chief Executive Officer | ||||||||||
Date:
|
April 15, 2008 | |||||||||
