April 7, 2009 Warren Bielke 18719 Bearpath Trail Eden Prairie, MN 55347 Dear Warren:
EXHIBIT 10.43
Xxxxx 0,
0000
Xxxxxx
Xxxxxx
00000
Xxxxxxxx Xxxxx
Xxxx
Xxxxxxx, XX 00000
Dear
Xxxxxx:
The
purpose of this letter Agreement (this “Agreement”) is to acknowledge and set
forth the terms and conditions of your retention as a non-exclusive independent
contractor (“you” or “Consultant”) to Vision-Sciences, Inc., a Delaware
corporation (the “Company,” or “us”).
1. Retention
as a Consultant. The Company
hereby agrees to retain you and you hereby agree to provide services to the
Company as a non-exclusive independent consultant subject to, and in accordance
with, the terms and conditions of this Agreement.
2. Duties. You will serve as
a marketing consultant for the Company, leading the market development program
of the Company’s trans-nasal esophagoscope (the “Services”), in coordination
with the Company’s chief executive officer and marketing team.
3. Fees and
Expenses. The Company will
pay you a consulting fee of $8,000 per month for the Services, based on an
expectation that you will provide approximately thirty (30) hours of working
time in performing the Services. You will issue a monthly invoice and
Company will make payment within 30 days. This fee excludes any
additional sums to which you may be entitled by virtue of your role as a member
of the Company’s Board of Directors. The Company will reimburse you
in accordance with the Company’s expense reimbursement policy, for all
reasonable and necessary business expenses incurred in connection with the
performance of the Services.
4. Independent
Contractor. Your engagement
hereunder will be as an independent contractor, rather than as an employee of
the Company, and you will not be entitled to any benefits available to employees
of the Company. You acknowledge that you will be solely responsible
for any federal, state or local income or self-employment taxes arising with
respect to your fees hereunder and that you have no state law workers’
compensation rights with respect to your services under this
Agreement. As an independent contractor, you will have no authority
to legally bind the Company and will not hold yourself out as having such
authority. You agree to observe all policies and rules established by
the Company for its independent contractors.
5. Termination. Either
party may terminate this Agreement at any time, with or without cause, for
convenience or for any other purpose, by giving five days prior written notice
to the other party.
00
Xxxxxxx Xxxx Xxxxx Xxxxxxxxxx, XX 00000
Tel:
(000) 000-0000 Fax: (000)
000-0000 xxx.xxxxxxxxxxxxxx.xxx
6. Restrictive
Covenants.
(a) Confidentiality. While you are a
consultant to the Company and thereafter, you will hold in a fiduciary capacity
for the benefit of the Company and any of its affiliates (the “Company Group”)
all secret or confidential information, knowledge or data relating to the
Company Group and their respective businesses, practices or technologies which
is obtained by in connection with your providing Services and which is not or
does not become public knowledge (other than by acts by you or your
representatives in violation of this Agreement). You will not, except
as may be required to perform your duties hereunder or as may otherwise be
required by law or legal process, without limitation in time or until such
information becomes public or known in the Company Group’s industry (other than
by acts by you or your representatives in violation of this Agreement),
communicate or divulge to others or use, whether directly or indirectly, any
such information, knowledge or data regarding the Company Group and their
businesses, practices or technologies.
(b) Inventions. You
will promptly disclose to the Company all processes, trademarks, inventions,
improvements, discoveries and other information (collectively, “Inventions”)
conceived, developed or acquired by you alone or with others during
(i) your provision of Services to the Company, whether or not conceived
during regular working hours and whether conceived through the use of the time,
material or facilities of the Company or related parties or otherwise and
(ii) the period of six months following the date you last provide Services
to the Company. All such Inventions will be the sole and exclusive property of
the Company and, upon request of the Company, you will deliver to the Company
all drawings, sketches, models, codes, data and records relating to such
Inventions and irrevocably confirm your assignment of such Inventions to the
Company or its designee, including executing any documents necessary to effect
such assignments. If any such Inventions will be deemed by
the Company to be patentable, you will, at the expense of the Company (which
will, in the event that you are no longer retained under this Agreement, include
reasonable compensation to you for the time involved), assist the Company or its
designee in obtaining a patent or patents thereon and execute all documents and
do all other things necessary or proper to obtain letters patent and to vest the
Company or its designee with full title and rights thereto.
(c) Non-Disparagement. You
will not, and you will not induce others to, Disparage (as defined below) the
Company Group or any of their past and present officers, directors or employees
or business, technologies or products. “Disparage” means making
comments or statements to the press, the Company Group’s employees or any
individual or entity with whom the Company Group has a business relationship
that would adversely affect in any manner: (i) the conduct of the business
of the Company Group (including, without limitation, any products, technologies
or business plans or prospects); or (ii) the business reputation of the
Company Group, or any of their businesses, technologies or products, or their
past or present officers, directors or employees.
(d) Non-interference;
Non-solicitation. You will not, and you will not induce others
to (i) interfere with, disrupt or attempt to disrupt any existing relationship,
contractual or otherwise, between the Company Group and any of
its customers, suppliers, clients, executives, employees or other
persons with whom the Company deals, or (ii) solicit for employment, attempt to
employ or assist any other entity in employing or soliciting for employment any
employee or executive who is at that time employed by the Company
Group.
(e) Injunctive
Relief. You understand that any violation of paragraphs 6(a)
through 6(d) of this Agreement will cause the Company Group to suffer immediate
and irreparable injury and that the Company Group would by reason of such
violation be entitled to injunctive relief in a court of appropriate
jurisdiction. You hereby consent and stipulate to the entry of such
injunctive relief in such court, without bond, prohibiting, restraining or
enjoining you from taking any action in violation of paragraphs 6(a) through
6(d) of this Agreement.
(f) Survival
of Provisions. The obligations contained in this Section 6
will survive the termination of this Agreement and the termination of your
consultancy and will be fully enforceable thereafter. If it is
determined by a court of competent jurisdiction in any state that any
restriction in this Section 6 is excessive in duration or scope or extends for
too long a period of time or over too great a range of activities or in too
broad a geographic area or is unreasonable or unenforceable under the laws of
that state, it is the intention of the parties that such restriction may be
modified or amended by the court to render it enforceable to the maximum extent
permitted by the law of that state or jurisdiction.
7. Representations. You represent and
warrant that (i) your execution and performance of this Agreement will not
violate any other agreement to which you are a party and (ii) you shall not
utilize during the term of the consultancy any proprietary information of any
third party, and shall indemnify and hold us harmless against any such
claim.
8. Assignment. Notwithstanding
anything in this Agreement to the contrary, this Agreement is personal to you
and neither this Agreement nor any rights hereunder may be assigned by you to
any other person or entity. The Company may assign this Agreement to
an affiliate or to any acquirer of all or substantially all of the assets of the
Company. This Agreement will inure to the benefit of and be binding
upon the personal or legal representatives, executors, administrators,
successors, heirs, distributees, devisees, legatees and permitted assignees of
the parties.
9. Arbitration. You agree that
all disputes and controversies arising under or in connection with this
Agreement, other than seeking injunctive or other equitable relief under
paragraph 6(e), will be settled by arbitration conducted before one (1)
arbitrator mutually agreed to by the Company and you, sitting in New York, New
York or such other location agreed to by you and the Company, in accordance with
the Commercial Arbitration Rules of the American Arbitration Association then in
effect. If the Company and you are unable to agree on a single
arbitrator within 30 days of the demand by the other party for arbitration, an
arbitrator will be designated by the New York City Office of the American
Arbitration Association. The determination of the arbitrator will be
final and binding on you and the Company Group. Judgment may be
entered on the award of the arbitrator in any court having proper
jurisdiction. Each party will bear their own expenses of such
arbitration.
10. Governing
Law. This Agreement
will be governed by, and construed under and in accordance with the internal
laws of the State of New York, without reference to its conflicts of laws
rules.
11. Entire
Agreement. This Agreement
and any other agreements referenced herein contain the entire agreement of the
parties relating to the subject matter hereof, and supersede in their entirety
any and all prior agreements, understandings or representations, both written
and oral, relating to the subject matter hereof. No amendments,
alterations or modifications of this Agreement will be valid unless made in
writing and signed by both parties hereto.
12. Effective
Date. The effective
date of this Agreement and the commencement of the Company’s obligation to pay
your fees are subject to the approval of the Company’s Board of Directors, and
compliance with any applicable NASD and SEC disclosure
requirements.
We hope
that you find the foregoing terms and conditions acceptable. You may
indicate your agreement with the terms and conditions set forth in this
Agreement by signing the enclosed duplicate original of this Agreement and
returning it to my attention.
Very
truly yours,
VISION-SCIENCES,
INC.
/S/ Xxx
Xxxxxx
Xxx
Xxxxxx
President
and CEO
ACCEPTED
AND AGREED BY:
/S/ Xxxxxx
Xxxxxxx
Xxxxxx
Xxxxxx
