NEWCARDIO, INC. CONSULTING AGREEMENT
Exhibit 10.23
This
Consulting Agreement (“Agreement”) is entered into as
of February 22, 2008 by and between NEWCARDIO, INC. (the “Company”) and Xxxxxx X. Xxxxx
(“Consultant”). The
Company desires to retain Consultant as an independent contractor to perform
consulting services for the Company, and Consultant is willing to perform such
services, on the terms described below. In consideration of the mutual promises
contained herein, the parties agree as follows:
1. Services and Compensation.
Consultant agrees to perform for the Company the services described in Exhibit A (the
“Services”), and the
Company agrees to pay Consultant the compensation described in Exhibit A for
Consultant’s performance of the Services.
2. Confidentiality.
A. Definition. “Confidential Information”
means any non-public information, as evidenced in written corporate records,
that relates to the actual or anticipated business or research and development
of the Company, technical data, trade secrets or know-how, including, but not
limited to, research, product plans or other information regarding Company’s
products or services and markets therefor, software, developments, inventions,
processes, formulas, technology, designs, drawing, engineering, hardware
configuration information, marketing, finances or other business information.
Confidential Information does not include information that (i) is known to
Consultant at the time of disclosure to Consultant by the Company as evidenced
by written reasonable documentation of Consultant, (ii) has become publicly
known and made generally available through no wrongful act of Consultant or
(iii) has been rightfully received by Consultant from a third party who is
authorized to make such disclosure.
B. Nonuse and Nondisclosure.
Consultant will not, during or subsequent to the term of this Agreement,
(i) use the Confidential Information for any purpose whatsoever other than
the performance of the Services on behalf of the Company or (ii) disclose
the Confidential Information to any third party. Consultant agrees that all
Confidential Information will remain the sole property of the Company.
Consultant also agrees to take all reasonable precautions to prevent any
unauthorized disclosure of such Confidential Information.
C. Former Client Confidential
Information. Consultant agrees that Consultant will not, during the term
of this Agreement, improperly use or disclose any proprietary information or
trade secrets of any former or current employer of Consultant or other person or
entity with which Consultant has an agreement or duty to keep in confidence
information acquired by Consultant, if any. Consultant also agrees that
Consultant will not bring onto the Company’s premises any unpublished document
or proprietary information belonging to any such employer, person or entity
unless consented to in writing by such employer, person or entity.
D. Third Party Confidential
Information. Consultant recognizes that the Company has received and in
the future will receive from third parties their confidential or proprietary
information subject to a duty on the Company’s part to maintain the
confidentiality of such information and to use it only for certain limited
purposes. Consultant agrees that, during the term of this Agreement and
thereafter, Consultant owes the Company and such third parties a duty to hold
all such confidential or proprietary information in the strictest confidence and
not to disclose it to any person, firm or corporation or to use it except as
necessary in carrying out the Services for the Company consistent with the
Company’s agreement with such third party.
E. Return of Materials. Upon the
termination of this Agreement, or upon Company’s earlier request, Consultant
will use all reasonable efforts to deliver to the Company all of the Company’s
property, including but not limited to all electronically stored information
that is part of such property, or Confidential Information that
Consultant may have in Consultant’s possession or control, except that
Consultant may keep a copy of any such Confidential Information for Consultant’s
sole use for personal legal matters so long as Consultant and the Company
execute a non-disclosure agreement for such Confidential
Information.
3. Ownership.
A. Assignment. Consultant agrees
that all copyrightable material, notes, records, drawings, designs, inventions,
improvements, developments, discoveries and trade secrets conceived, discovered,
developed or reduced to practice by Consultant, solely or in collaboration with
others, during the term of this Agreement that relate in any manner to the
business of the Company that Consultant may be directed to undertake,
investigate or experiment with or that Consultant may become associated with in
work, investigation or experimentation in the Company’s line of business in
performing the Services under this Agreement (collectively, “Inventions”), are the sole
property of the Company. Consultant also agrees to assign (or cause to be
assigned) and hereby assigns fully to the Company all Inventions and any
copyrights, patents, mask work rights or other intellectual property rights
relating to all Inventions.
B. Further Assurances.
Consultant agrees to assist Company, or its designee, at the Company’s expense,
in every reasonable and proper way to secure the Company’s rights in
Inventions and any copyrights, patents, mask work rights or other intellectual
property rights relating to all Inventions in any and all countries, including
the disclosure to the Company of all pertinent information and data with respect
to all Inventions, the execution of all applications, specifications, oaths,
assignments and all other instruments that the Company may deem necessary in
order to apply for and obtain such rights and in order to assign and convey to
the Company, its successors, assigns and nominees the sole and exclusive right,
title and interest in and to all Inventions, and any copyrights, patents, mask
work rights or other intellectual property rights relating to all Inventions.
Consultant also agrees that Consultant’s obligation to execute or cause to be
executed any such instrument or papers shall continue after the termination of
this Agreement.
C. Pre-Existing Materials.
Subject to Section 3.A, Consultant
agrees that if, in the course of performing the Services, Consultant
incorporates into any Invention developed under this Agreement any pre-existing
invention, improvement, development, concept, discovery or other proprietary
information owned by Consultant or in which Consultant has an interest,
(i) Consultant will inform Company, in writing before incorporating such
invention, improvement, development, concept, discovery or other proprietary
information into any Invention, and (ii) the Company is hereby granted a
nonexclusive, royalty-free, perpetual, irrevocable, worldwide license to make,
have made, modify, use and sell such item as part of or in connection with such
Invention. Consultant will not incorporate any invention, improvement,
development, concept, discovery or other proprietary information owned by any
third party into any Invention without Company’s prior written
permission.
D. Attorney-in-Fact. Consultant
agrees that, if the Company is unable because of Consultant’s unavailability,
dissolution, mental or physical incapacity, or for any other reason, to secure
Consultant’s signature for the purpose of applying for or pursuing any
application for any United States or foreign patents or mask work or copyright
registrations covering the Inventions assigned to the Company in Section 3.A, then
Consultant hereby irrevocably designates and appoints the Company and its duly
authorized officers and agents, providing such persons are in good standing, as
Consultant’s agent and attorney-in-fact, to act for and on Consultant’s behalf
to execute and file any such applications and to do all other lawfully permitted
acts to further the prosecution and issuance of patents, copyright and mask work
registrations with the same legal force and effect as if executed by
Consultant.
4. Conflicting
Obligations.
A. Conflicts. Consultant
certifies that Consultant has no outstanding agreement or obligation that is in
conflict with any of the provisions of this Agreement or that would preclude
Consultant from complying with the provisions of this Agreement in the area of
electro-cardiac medical devices. Consultant will not enter into any
such conflicting agreement during the term of this Agreement in the area of
electro-cardiac medical devices. Consultant’s violation of this Section 4.A will be
considered a material breach under Section 6.B.
B. Substantially Similar
Designs. In view of Consultant’s access to the Company’s trade secrets
and proprietary know-how, Consultant agrees that Consultant will not, without
Company’s prior written approval, design identical or substantially similar
designs as those developed under this Agreement for any third party during the
term of this Agreement and for a period of 12 months after the termination of
this Agreement. Consultant acknowledges that the obligations in this Section 4 are ancillary
to Consultant’s nondisclosure obligations under Section 2.
5. Reports. Consultant also
agrees that Consultant will, from time to time during the term of this Agreement
or any extension thereof, keep the Company advised as to Consultant’s progress
in performing the Services under this Agreement. Consultant further agrees that
Consultant will, as requested by the Company, prepare written reports with
respect to such progress. The Company and Consultant agree that the time
required to prepare such written reports will be considered time devoted to the
performance of the Services.
6. Term and
Termination.
A. Term. The term of this
Agreement will begin on the date of this Agreement and will continue until
the termination as provided in Section 6.B.
B. Termination. Either party may
terminate this Agreement upon giving the other party 30 days’ prior written
notice of such termination pursuant to Section 11.E of this
Agreement. The Company may terminate this Agreement immediately and without
prior notice if Consultant is in breach of any material provision of this
Agreement.
C.
Survival. Upon such
termination, all rights and duties of the Company and Consultant toward each
other shall cease except:
(1) The
Company will pay, within 30 days after the effective date of termination, all
amounts owing to Consultant for Services completed and accepted by the Company
prior to the termination date and related expenses, if any, submitted in
accordance with the Company’s policies and in accordance with the provisions of
Section 1 of this
Agreement; and
(2) Section 2
(Confidentiality), Section 3 (Ownership),
Section 4
(Conflicting Obligations), Section 7 (Independent
Contractor; Benefits), Section 8 (Indemnification),
Section 9
(Nonsolicitation) and Section 10 (Arbitration
and Equitable Relief) will survive termination of this Agreement.
7. Independent Contractor;
Benefits.
A. Independent Contractor. It is
the express intention of the Company and Consultant that Consultant perform the
Services as an independent contractor to the Company. Nothing in this Agreement
shall in any way be construed to constitute Consultant as an agent, employee or
representative of the Company. Without limiting the generality of the foregoing,
Consultant is not authorized to bind the Company only to the extent consistent
with the duties described in Exhibit A. Consultant
agrees to furnish (or reimburse the Company for) all tools and materials
necessary to accomplish this Agreement and shall incur all expenses associated
with performance, except as expressly provided in Exhibit A. Consultant
acknowledges and agrees that Consultant is obligated to report as income all
compensation received by Consultant pursuant to this Agreement. Consultant
agrees to and acknowledges the obligation to pay all self-employment and other
taxes on such income.
B. Benefits. The Company and
Consultant agree that Consultant will receive no Company-sponsored benefits from
the Company. If Consultant is reclassified by a state or federal agency or court
as Company’s employee, Consultant will become a reclassified employee and will
receive no benefits from the Company, except those mandated by state or federal
law, even if by the terms of the Company’s benefit plans or programs of the
Company in effect at the time of such reclassification, Consultant would
otherwise be eligible for such benefits.
8. Indemnification. N/A-
Consultant is a director of the Company. .
9. Nonsolicitation. From the
date of this Agreement until 12 months after the termination of this Agreement
(the “Restricted
Period”), Consultant will not, without the Company’s prior written
consent, directly or indirectly, solicit or encourage any employee or contractor
of the Company or its affiliates to terminate employment with, or cease
providing services to, the Company or its affiliates. During the Restricted
Period, Consultant will not, whether for Consultant’s own account or for the
account of any other person, firm, corporation or other business organization,
intentionally interfere with any person who is or during the period of
Consultant’s engagement by the Company was a partner, supplier, customer or
client of the Company or its affiliates, including, but not limited to, those
customers or clients of the Company on whom Consultant called or with whom
Consultant became acquainted during the term of this Agreement.
11. Miscellaneous.
A. Governing Law. This Agreement
shall be governed by the laws of California without regard to California’s
conflicts of law rules.
B. Assignability. Except as
otherwise provided in this Agreement, Consultant may not sell, assign or
delegate any rights or obligations under this Agreement.
C. Entire Agreement. This
Agreement constitutes the entire agreement between the parties with respect to
the subject matter of this and only this Agreement and supersedes all prior
written and oral agreements between the parties regarding the subject matter of
this Agreement. This Agreement does not include terms associated with
any other agreements between the Parties dated and effective prior to the
effective date of this Agreement.
D. Headings. Headings are used
in this Agreement for reference only and shall not be considered when
interpreting this Agreement.
E. Notices. Any notice or other
communication required or permitted by this Agreement to be given to a party
shall be in writing and shall be deemed given if delivered personally or by
commercial messenger or courier service, or mailed by U.S. registered or
certified mail (return receipt requested), to the party at the party’s address
written below or at such other address as the party may have previously
specified by like notice. If by mail, delivery shall be deemed effective three
business days after mailing in accordance with this Section 11.E.
(1) If
to the Company, to:
0000 Xxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Chief Financial
Officer
With a
copy to:
Wilson, Sonsini, Xxxxxxxx &
Xxxxxx
000 Xxxx Xxxx Xxxx
Xxxx Xxxx,
Xxxxxxxxxx 00000
Attention: Xxxxx Xxxxxx
(2) If
to Consultant, to the address for notice on the signature page to this
Agreement or, if no such address is provided, to the last address of Consultant
provided by Consultant to the Company.
F. Attorneys’ Fees. In any court
action at law or equity that is brought by one of the parties to this Agreement
to enforce or interpret the provisions of this Agreement, the prevailing party
will be entitled to reasonable attorneys’ fees, in addition to any other relief
to which that party may be entitled.
G. Severability. If any
provision of this Agreement is found to be illegal or unenforceable, the other
provisions shall remain effective and enforceable to the greatest extent
permitted by law.
H. Other Agreements. By
executing this Agreement, Consultant and the Company agree to and consent to the
following:
(signature page
follows)
IN
WITNESS WHEREOF, the parties hereto have executed this Consulting Agreement as
of the date first written above.
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CONSULTANT
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By:
/s/ Xxxxxx X.
Xxxxx
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By:/s/ Xxxx
Xxxxxxxxxx
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Name:
Xxxxxx X. Xxxxx
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Name:
Xxxx Xxxxxxxxxx
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Title:
Chief Financial Officer
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Address
for Notice:
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EXHIBIT
A
Services and
Compensation
1. Services. The Services shall
include, but shall not be limited to, the following:
Responsibilities
to include advising on corporate strategy and financial
issues. Consultant may also be asked to participate at meetings with
third parties on the Company’s behalf.
Consultant
shall also serve as a Board Member until his successor is duly elected and
qualified or his earlier resignation or removal.
2. Compensation.
A. Consultant
shall be paid $3,000 per month effective as of January 1, 2008, in accordance
with the Company’s normal payroll procedures.
B. Consultant
shall be eligible to claim reasonable expenses for duties performed under this
Agreement, in line with Company policy.
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CONSULTANT
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By:
/s/ Xxxxxx X.
Xxxxx
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By:/s/ Xxxx
Xxxxxxxxxx
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Name:
Xxxxxx X. Xxxxx
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Name:
Xxxx Xxxxxxxxxx
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Title:
Chief Financial Officer
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