CFO CONSULTING AGREEMENT
Exhibit
10.1
THIS
CFO CONSULTING AGREEMENT (the "Agreement") is made effective as of July 24, 2008
(the "Effective Date"), by and between Alsius Corporation, a Delaware
corporation (together with its wholly-owned subsidiary, the "Company"), and
Xxxxxxx X. Xxxxxxxx ("Consultant").
WHEREAS, the Company desires to retain
Consultant to act as the Company's interim principal accounting and financial
officer (as defined in the rules under the Securities Exchange Act of 1934), and
Consultant desires to serve in that capacity;
WHEREAS, in that role Consultant will
serve as the Company's Chief Financial Officer and will perform all functions
related thereto, including but not limited to overseeing the Company's
accounting and finance organization, preparing the Company's financial
statements and signing the Company's reports on Form 10-Q and 10-K,
communicating with shareholders and assisting in a financing or other strategic
transaction (collectively, the "Services");
NOW, THEREFORE, in consideration of the
mutual promises and obligations herein, and other valuable consideration, the
receipt and sufficiency of which are acknowledged, the parties agree as
follows:
AGREEMENT
1. Consulting
Services. During the term
of this Agreement, Consultant will provide the Services as the Company's Chief
Financial Officer, and will report directly to Xxxxxxx Xxxxxxx, the Company's
Chief Executive Officer. Consultant will provide the Services a
minimum of three (3) full business days per week through December 31, 2008,
working at least two (2) of those days at the Company's headquarters
in Irvine, California. In 2009, Consultant agrees to be available to
assist in the preparation and completion of the Company's 2008 financial audit,
the Company's annual report on Form 10-K, and the Company's proxy
statement. Consultant's exact schedule and the days on which he
works in 2008 and 2009 will be mutually agreed to by him and Xx.
Xxxxxxx. Consultant's Service will begin on the Effective
Date.
2. Consultant's
Fees. During the term
of this Agreement, the Company shall pay Consultant $1,250 for each full day
Consultant provides Services (the "Per Diem Fee"), to be paid in accordance with
the Company's bi-weekly payroll. On a case by case basis, if Xx.
Xxxxxxx and Consultant agree Consultant will work a partial day, he will be paid
half the Per Diem Fee for that day. In addition, Consultant will be
entitled to a success fee of $50,000 in the event the Company raises a minimum
of $7.5 million in a debt or equity financing transaction (a "Financing"), and a
success fee of $100,000 if the Company or its assets are acquired by a third
party (an "Acquisition"). The success fee will only be paid if
Consultant has provided Services to the Company at least through December 31,
2008 and if the Financing or Acquisition closes within ninety (90) days of
Consultant's termination of Service to the Company. The success fee
will be paid to Consultant no later than the next regular Company payroll date
after the closing of the Financing or Acquisition, but if the closing occurs
before December 31, 2008, Consultant will be paid the success fee on the next
payroll date after December 31, 2008 as long as he is in Service to the Company
through such date. Notwithstanding the foregoing, if an Acquisition
closes before December 31, 2008 and the buyer asks that Consultant resign or
otherwise terminates his service prior to December 31, 2008, then the success
fee for the Acquisition must be paid to Consultant no later than his last day of
service to the Company.
3. Term
& Termination. This Agreement
shall commence on the Effective Date and shall continue through March 31, 2009,
unless terminated or extended as set forth below.
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(a)
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Termination For
Convenience. Either party may terminate this Agreement
at any time for any or for no reason by giving thirty (30) days' written
notice of termination to the other
party.
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(b)
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Termination For
Cause. The Company may immediately terminate
Consultant’s engagement for Cause upon written notice of termination to
Consultant, with the particular Cause being specified in such
notice. “Cause” means any of the following in the
Company's judgment: (a) Consultant’s conduct, failure or omission which
has, or may have, an adverse effect on the Company; (b) Consultant’s act
or acts amounting to gross negligence or willful misconduct to the
detriment of the Company; (c) Consultant’s fraud or embezzlement of funds
or property; or (d) Consultant’s failure to observe or perform any
covenant, condition or provision of this
Agreement.
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(c)
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Extension. Upon
the mutual agreement of Consultant and Xx. Xxxxxxx, the term of this
Agreement may be extended beyond March 31, 2009. In the event
Consultant continues at Xx. Xxxxxxx'x request to perform Services to the
Company beyond March 31, 2009, the Agreement will be deemed extended for
so long as Consultant performs such
Services.
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Any
termination of this Agreement shall discontinue Company's payment obligations,
other than (i) payment of the Per Diem Fee for Services satisfactorily rendered
prior to the date of termination, which will be made on the next regular payroll
date after termination, and (ii) payment of the success fee for a Financing or
an Acquisition that closes within ninety (90) days of termination, but only if
Consultant has performed Services to the Company through December 31, 2008
(except as set forth in the last sentence of Section 2 above) and the
termination is not for Cause. Upon termination, Consultant will
promptly return to the Company all copies of any Company data, records, or
material of whatever nature or kind, including all materials incorporating any
Confidential Company Information (defined below).
4. Independent
Contractor. Consultant is and
shall at all times be, act, function, and perform all services and
responsibilities in the legal capacity of an independent contractor, and not as
an employee of the Company. Consultant shall be solely responsible
for reporting income and expenses, and for paying any taxes relating
thereto. Consultant shall not be eligible to participate in any
benefits or programs sponsored or financed by the Company for its employees,
including, but not limited to, any insurance, workers' compensation, retirement,
vacation, sick, or holiday programs and benefits.
5. Ownership
of Work Product; Proprietary Information. Consultant agrees
that all product information, specifications, marketing plans, financial,
accounting, statistical or technical data, business and strategic plans,
research and development, personnel and customer information, know-how,
inventions, records, and any and all other proprietary information related to
the Company that Consultant develops, learns or obtains in connection with his
services for the Company, and that have not been publicly disclosed by the
Company, constitute “Confidential Company Information.” Consultant
agrees that all of the preceding listed types of information shall be presumed
confidential, regardless of whether it is marked "confidential" or
"proprietary." Consultant shall not copy, take, distribute, disclose,
directly or indirectly, or use for any purpose, any Confidential Company
Information without the prior written consent of the Company, and Consultant
shall take reasonable precautions to protect the Confidential Company
Information. However, Consultant shall not be obligated under this
paragraph with respect to information Consultant can document is or becomes
readily publicly available without restriction through no fault of Consultant
and that he does not or should not believe was improperly disclosed to the
public by someone else. Upon termination of his services under this
Agreement, and as otherwise requested by the Company, Consultant will promptly
return to Company all items and copies containing or embodying Confidential
Company Information, except that Consultant may keep his personal copies of his
compensation records and this Agreement. Consultant also recognizes
and agrees that Consultant has no expectation of privacy with respect to
Company’s telecommunications, networking or information processing systems
(including, without limitation, stored computer files, email messages and voice
messages) and that Consultant’s activity, and any files or messages, on or using
any of those systems may be monitored at any time without notice.
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6. Non-Solicitation. During the term
of this Agreement and for a period of one (1) year from the date of Consultant's
termination of service to the Company for any reason, he will not directly or
indirectly induce any employee or consultant, customer or business partner, of
the Company to cease or diminish his, her or its relationship with the
Company.
7. Representations
and Warranties.
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(a)
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Consultant
represents and warrants that he is not subject to any employment agreement
or confidentiality agreement that conflicts, or is likely to conflict,
with Consultant’s obligations to the Company under this
Agreement. Consultant further represents and warrants that he
will not provide to the Company any proprietary intellectual property of a
third party that might subject the Company to a claim of misappropriation
of trade secrets.
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(b)
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The
Company represents and warrants that the Company carries and maintains a
D&O insurance policy, which coverage extends to Consultant in his
capacity as the interim Chief Financial Officer of the
Company.
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8. Indemnity. The Company will
enter into a separate Indemnification Agreement with Consultant to indemnify him
for acts within the scope of his Services to the Company so that he is
indemnified in the same manner as he would be if acting as a full time Chief
Financial Officer of the Company.
9. Governing
Law & Venue. This Agreement is
to be governed by and construed in accordance with the internal laws of the
State of California, excluding its choice of law provisions. Any
disputes relating to this Agreement shall be resolved exclusively by binding
arbitration at JAMS in Orange County, California, before an arbitrator mutually
acceptable to the Company and Consultant, or if they cannot agree on one within
thirty (30) days of beginning the selection process, by an arbitrator selected
by JAMS. The decision of the arbitrator may be enforced in a state or
federal court.
10. Severability. If any provision
of this Agreement is determined to be invalid or unenforceable, such
determination shall not affect the validity or enforceability of any part or
provision of this Agreement.
11. Waiver. No waiver by any
party of any breach of provision hereof shall constitute a waiver of any other
breach of that or any other provision hereof.
12. Entire
Agreement. This Agreement
and the related Indemnification Agreement to be entered into by the Company and
Consultant contain the entire agreement of the parties relating to the subject
matter hereof, and supersede any prior or contemporaneous
agreement.
13. Notices. Any
notices required or permitted hereunder shall be given to the appropriate party
at the address specified below or at such other address as the party shall
specify in writing. Such notice shall be deemed given upon proof of
delivery if sent by messenger or overnight courier service, three
days after the date of mailing if sent by U.S. mail, and when transmitted if
sent by email with confirmation of successful transmission.
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If to the
Company:
Alsius
Corporation
00000
Xxxxxx Xxxxxx Xxxx, Xxxxx 000
Xxxxxx,
Xxxxxxxxxx 00000
Attn: Xxxxxxx
X. Xxxxxxx, CEO
Email: xxxxxxxx@xxxxxx.xxx
With a copy to:
Xxxxxxxx
Xxxxxx Xxxxxxx & Hampton LLP
000 Xxxx
Xxxxxx Xxxxx, 0xx Xxxxx
Xxxxx
Xxxx, Xxxxxxxxxx 00000
Attn:
Xxxxx X. Xxxxxx, Esq.
Email:
xxxxxxx@xxxxxxxxxxxxxx.xxx
If to
Consultant:
Xxxxxxx
X. Xxxxxxxx
0000 Xxx
Xxxx
Xxxxxxxx,
XX 00000
Email: xxxxxxxxxxxx@xxx.xxx
IN WITNESS WHEREOF, the parties
acknowledge that they have read this Agreement, fully understand it, and freely
and voluntarily agree to each of its provisions.
ALSIUS CORPORATION
By: /s/ Xxxxxxx X.
Xxxxxxx
Xxxxxxx X. Xxxxxxx
Chief Executive Officer
CONSULTANT
By: /s/ Xxxxxxx X.
Xxxxxxxx
Xxxxxxx X. Xxxxxxxx
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