EXHIBIT 10.26
CONSULTING AGREEMENT
This Agreement is entered into as of the 1st day of August, 1997, by
and between Angeion Corporation, 0000 Xxxxxxxxx Xxxx, Xxxxx 000, Xxxxxxxxxxx,
Xxxxxxxxx 00000-0000, a Minnesota corporation and ELA Medical, 00-000 xxx
Xxxxxxx Xxxxxx, 00000 Xxxxxxxxx, Xxxxxx (the "Companies") and Xxxxxx Xxxxxx,
0000 Xxxxxxxxx Xxxx, Xxxxxxxxx, XX 00000 ("Consultant")
WHEREAS, the Companies design, develop, manufacture and distribute
medical devices for the treatment of cardiac dysrhythmias and provide related
services; and are currently negotiating a potential Joint Venture between them;
and
WHEREAS, the Companies desire to engage Consultant for the purpose of
providing certain services to the Companies during the term of this Agreement;
and
WHEREAS, Consultant has represented that it has the knowledge,
experience and expertise necessary to effectively provide such services to the
Companies.
NOW, THEREFORE, in consideration of the foregoing and the mutual
promises and covenants contained below, the parties agree as follows:
1. Engagement. Upon the terms and subject to the conditions of this
Agreement, the Companies hereby engage Consultant, and Consultant hereby accepts
such engagement, as an independent contractor to use its best efforts to consult
with, provide services to and advise the Companies with respect to the matters
described in Exhibit A, which Exhibit may be amended from time to time by the
parties.
2. Status as Independent Contractor. Consultant's relationship with the
Companies under this Agreement shall be exclusively that of an independent
contractor. In no event shall Consultant claim to be or be deemed to be an
employee of the Companies. Consultant shall have exclusive control over the
manner and means of the performance of all services under this Agreement.
Consultant specifically agrees (a) to conduct itself strictly as an independent
contractor under this Agreement with respect to the Companies, (b) to comply
with all applicable laws, rules and regulations, including without limitation
those governing workmen's compensation and unemployment insurance and payment of
federal and state income taxes, self-employment taxes, estimated taxes, sales,
use and service taxes, and all other federal, state, local and foreign taxes of
any nature imposed with respect to any services under this Agreement or payments
therefor and that Consultant shall not be entitled to any of the benefits that
the Companies provide to its employees.
3. Scope of Authority. Unless specifically authorized in writing by the
Companies, Consultant shall have no authority to act on behalf of the Companies
(except by providing the services described in Exhibit A) or to bind the
Companies by any promise or representation.
4. Term. This engagement shall continue in effect from the date of this
Agreement and shall terminate on January 31, 1998, unless sooner terminated in
accordance with section 8. Consultant's engagement hereunder may only be
continued and extended thereafter pursuant to a written agreement executed by
the Companies.
5. Compensation; Expenses.
(a) For the services described herein, the Companies shall each pay
Consultant compensation as set forth on Exhibit A.
(b) The Companies shall reimburse Consultant for all expenses incurred
by Consultant in performing services hereunder which are approved in writing by
the Companies in advance in accordance with the policies and procedures of the
Companies. Consultant shall be solely responsible for, and shall hold the
Companies harmless from, all other costs and expenses incurred by Consultant.
(c) Unless otherwise set forth in Exhibit A, Consultant shall invoice
each of the Companies on a monthly basis for time and expenses incurred during
the previous month and shall provide documentation of expenses satisfactory to
the Companies. Payment of fees and reimbursement for expenses shall be made
within thirty (30) days of receipt from Consultant of an itemized monthly
invoice and shall be made in the manner set forth in Exhibit A.
6. Confidential Information. Consultant has executed separate
Confidentiality Agreements with each Company and said Agreements shall continue
in force and effect during the term of this Consulting Agreement and thereafter
as called for in said Agreements.
7. No Violation of Other Agreements. Consultant hereby represents and
warrants that neither Consultant's entering into this Agreement nor Consultant's
carrying out of the provisions of this Agreement will (i) violate any other
agreement, oral or written, to which Consultant is a party or by which
Consultant is bound or (ii) conflict with any relationships or duties Consultant
performs for other parties. Without limiting the foregoing, Consultant agrees
that at no time shall Consultant utilize any trade secrets or other intellectual
property of any third party while performing services hereunder. The parties
understand that Consultant is a member of Angeion's Board of Directors and
likely will continue in that capacity during the term of this Agreement.
8. Termination. Any party may terminate this Agreement at any time and
for any reason, with or without cause, by giving 30 days' advance written notice
to the other parties. Upon termination Consultant shall provide Companies with
the results of Consultant's work as of the date of termination. Consultant shall
be paid by Companies up through the date of termination.
9. Governing Law. This Agreement shall be construed in accordance with,
and any dispute or controversy arising from any breach or asserted breach of
this Agreement shall be governed by, the laws of the State of Minnesota.
10. Arbitration.
(a) Any dispute or controversy arising out of or relating to this
Agreement, whether during or after its term, shall be finally settled by
arbitration in accordance with the Commercial Arbitration Rules of the American
Arbitration Association ("AAA"), as hereinafter modified: (i) any notice
initiating arbitration shall be filed at the Regional Office of the AAA in
Minneapolis, Minnesota; (ii) the arbitration shall be held in Minneapolis,
Minnesota; (iii) the arbitration panel shall consist of one arbitrator appointed
by mutual agreement of the parties or, should the parties fail to so agree
within 45 days after service of the notice of arbitration, one arbitrator
appointed by the AAA; (iv) pre-hearing discovery by each party shall be limited
to five depositions, twenty-five interrogatories and receipt of copies of all
documents of the other party relating to the dispute; (v) the arbitrator shall
have authority, at the Companies' request with regard to the provisions of
section 6 to order a party to take or refrain from taking actions in breach of
this Agreement.
(b) Notwithstanding the foregoing, nothing in this section shall
prevent the Companies from seeking injunctive relief against Consultant from any
judicial or administrative authority of competent jurisdiction pending the
resolution of a dispute or controversy by arbitration to enjoin Consultant from
breaching any provision of this Agreement.
11. Entire Agreement. This Agreement, together with Exhibit A attached
hereto and incorporated as an integral part hereof, constitutes the entire
agreement and understanding between the Companies and Consultant with respect to
the subject matter hereof and supersedes all previous proposals, oral or
written, and all previous negotiations, conversations or discussions between the
parties related to this Agreement. Consultant acknowledges that it has not been
induced to enter into this Agreement by any representations or statements, oral
or written, not expressly contained herein.
12. Severability. Each section and provision of this Agreement shall be
considered severable and any invalidity of any provision shall not render
invalid or impair to any extent any other section or provisions hereof.
13. Notices. All notices, requests, demands, instructions and other
communications hereunder shall be in writing, shall refer specifically to this
Agreement and shall be deemed effective if delivered by hand, mailed by
registered or certified mail, return receipt requested, postage prepaid, or
delivered by express delivery service to the other party at the address set
forth below or at such other address as is furnished by written notice to such
other party from time to time:
To the Companies: To Consultant:
Angeion Corporation ELA Medical Xxxxxx Xxxxxx
0000 Xxxxxxxxx Xxxx, Xxxxx 000 98-100 rue Xxxxxxx Xxxxxx 0000 Xxxxxxxxx Xxxx
Xxxxxxxxxxx, XX 00000-0000 92120 Montrouge Shorewood MN 55331
U.S.A. France U.S.A.
Attn.: Chief Executive Officer Attn.: President
All notices shall be deemed given on the date on which delivered or, if mailed,
on the date postmarked.
14. Amendment, Waiver. No provision in this Agreement may be altered,
amended, modified, waived or discharged in any way whatsoever except by written
agreement executed by all parties. No delay or failure of either party to
insist, in any one or more instances, upon performance of any of the terms and
conditions of this Agreement or to exercise any rights or remedies hereunder
shall constitute a waiver or a relinquishment of such rights or remedies or any
other rights or remedies hereunder.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first written above.
/s/ /s/ /s/ Xxxxxx Xxxxxx
____________________ _____________________ _____________________
Angeion Corporation ELA Medical Consultant
EXHIBIT A
SERVICES, PROJECT DATES, COMPENSATION
1. - Business Plan Development for potential Joint Venture.
- Strategic Marketing Services as requested.
- Other related services as requested.
2. The Companies each shall pay consultant $7,710 per month.
Reimbursement of expenses specific to the potential Joint Venture
shall be shared 50/50 between the Companies. Consultant shall split
expenses specific to the potential Joint Venture between the two
invoices. Expenses for international travel must be approved in
advance by both Companies. Expenses for international travel
requested and approved by only one Company shall be billed to and
paid by said Company.
