CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT, dated as of March 25, 1997 by and between
LifeRate Systems, Inc., a Minnesota corporation (the "COMPANY") and Xxxxxxx X.
Xxxxxxx, M.D., the manager and principal member of APF, LLC, an individual
presently residing in the State of Oregon ("Consultant").
A. The Company and Consultant desire to establish a consulting
arrangement under which Consultant would serve as consultant and senior advisor
to the Company.
B. The Company desires reasonable protection of its confidential
business and technical information that has been acquired and is being developed
by the Company at substantial expense.
C. Consultant has functioned as the co-inventor and system architect
for the Company for the past two years and wishes to continue to work with the
Company in this regard.
D. The Company wishes to obtain reasonable protection against unfair
competition from Consultant following termination of engagement and to further
protect against unfair use of its confidential business and technical
information and Consultant is willing to grant the Company the benefits of a
covenant-not-to-compete for these purposes.
In consideration of the foregoing and of the respective covenants and
agreements of the parties herein contained, the receipt and sufficiency of which
consideration are hereby acknowledged, the parties hereto agree as follows:
1. Consultancy and Senior Advisor.
(a) The Company agrees to retain Consultant as a consultant and senior
advisor, and Consultant agrees to serve the Company, on the terms and conditions
set forth herein. The retention of Consultant by the Company as a consultant and
senior advisor shall be for the period commencing on April 1, 1997 and expiring
April 1, 2002 (the "Expiration Date"), unless such consultancy shall have been
sooner terminated as hereinafter set forth in Section 4.
(b) This Agreement shall be renewable for subsequent two (2) year
periods upon mutual agreement of the parties.
2. Title and Responsibilities.
(a) Consultant shall have the titles of Senior Adviser and System
Architect.
(b) In Consultant's role hereunder as System Architect, Consultant
shall report to the Company's Vice President--Development and will be
responsible for providing expert level understanding of application of
information systems in the clinic and clinical administration. In such role,
Consultant shall have the responsibilities outlined on Exhibit A hereto, and
shall perform such other duties as the Vice President--Development and the
Consultant shall mutually determine.
(c) In Consultant's role hereunder as Senior Advisor, Consultant shall
perform such duties as the Chief Executive Officer and the Consultant shall
mutually determine from time to time, including, but not limited to, identifying
business opportunities, assistance in translating technology and health care
changes into business opportunities and promotion of the Company's products and
services.
(d) In order to permit Consultant to perform his duties as Senior
Advisor and System Architect, the Company, through the Vice President -
Development, shall inform Consultant of operations committee discussions (at
present through summaries of operating committee discussions currently produced
by the Vice President Development), including all major customer contracts,
development agreements, production scheduling, and marketing, strategic and
business plans. Vice President - Development shall provide any comments
expressed by the Consultant consistent with his role as Senior Advisor and
System Architect to the operations committee. Notwithstanding anything to the
contrary herein, the Company and its senior officers, and not Consultant, shall
have ultimate control over all such matters.
(e) The Company and Consultant anticipate that Consultant's duties will
change over time, in particular as development of the LifeRate system matures.
(f) While the time commitment required by Consultant to fulfill his
duties hereunder will vary and subject to the last sentence of Section 4(b), it
is understood that such duties assigned hereunder are generally expected to
constitute a minimum of [10] hours and not more than 20 hours per month.
Consultant agrees to make himself reasonably available to perform the duties and
responsibilities hereunder. The Company acknowledges that Consultant is a
full-time practicing surgeon and the Company agrees that the performance of
Consultant's duties under this Agreement shall at all times be subject and
subordinate to the demands and responsibilities of Consultant's duties as a
surgeon.
3. Compensation Consultant shall receive a consulting fee of One Hundred
Thousand Dollars ($100,000) per year. The consulting fee shall be payable to
APF, LLC in monthly installments of $8,333.33. If Consultant is requested to
travel to render services hereunder, the Company shall reimburse Consultant for
all necessary and reasonable expenses incurred by Consultant in accordance with
and as permitted by the expense reimbursement policies applicable to senior
management adopted by the Company, except that air travel shall be governed by
Section 5.2 of the Purchase Agreement.
4. Termination
(a) Death. Consultant's consultancy hereunder shall terminate upon his
death.
(b) Cause. The Company may terminate Consultant's consultancy hereunder
for Cause. For the purposes of this Agreement, the Company shall have "Cause" to
terminate Consultant's consultancy hereunder upon Consultant's (i) willful,
continuing, material and bad faith failure to perform and discharge his duties
and responsibilities hereunder, or (ii) gross misconduct that is materially and
demonstratively injurious to the Company, or (iii) conviction of a felony
(unless such conviction is reversed in any final appeal thereof); provided that,
in the case of termination under clauses (i) or (ii)of this Section 4(b), (a)
Consultant shall have first received written notice of proposed termination at
least 30 days prior thereto, specifying the grounds for such termination and
Consultant shall have failed to cure such matters and (b) such termination shall
have been approved by a committee of the Company's Board of Directors comprised
solely of outside directors. "Cause" shall not include the nonperformance of
services by Consultant during any period of time during which the Company fails
to identify services consistent with Consultant's role as Senior Advisor and
System Architect to be performed.
(c) Date of Termination. "Date of Termination" shall mean the earlier
of (i) the Expiration Date or (ii) if Consultant's engagement is terminated by
his death, then the date of his death, or if pursuant to Section 4(b), then the
date specified in the notice of termination.
5. Competitive Activities
Consultant agrees that during the Noncompetition Period:
(a) He will not alone, or in any capacity with another entity:
(i) directly or indirectly engage in any commercial activity
that competes with the Company's business, as the Company has conducted it
during the 12-month period before the Consultant's consultancy with the Company
ends;
(ii) in any way interfere or attempt to interfere with the
Company's relationships with any of its current or potential customers; or
(iii) employ or attempt to employ any of the Company's then
employees on behalf of any other entity competing with the Company.
(b) The Noncompetition Period shall be the term of this Agreement,
provided that the Company may extend the Noncompetition Period for up to one
year by paying Consultant a noncompetition fee of $50,000 per year, payable
bi-weekly. During the Noncompetition Period:
(i) He will, prior to accepting employment with any new
employer in the software industry, inform that employer of this Agreement and
provide that employer with a copy of this Agreement.
(ii) Consultant may seek the advice of the Company from time
to time on whether prospective employment he proposes would, in the Company's
opinion, violate the provisions of this Section 5, by submitting in writing to
the Company appropriate information.
6. Confidential Information
(a) Confidential Information. For purposes of this Agreement, the term
"Confidential Information" means information that is not generally known and
that is proprietary to the Company, including (i) trade secret information about
the Company and its products and services; (ii) information relating to the
business of the Company as conducted at any time or anticipated to be conducted
by the Company, and to any of its past, current or anticipated products and
services, including without limitation, information about the Company's
research, development, design, manufacturing, purchasing, accounting,
engineering, marketing, selling, leasing or servicing; and (iii) any Invention,
as defined below. All information that Consultant has a reasonable basis to
consider Confidential Information or which is treated by the Company as being
Confidential Information shall be presumed to be Confidential Information,
whether originated by Consultant or by others, and without regard to the manner
in which Consultant obtains access to such information. Notwithstanding the
foregoing, information shall cease to be Confidential Information for purposes
of this Section 6 when (i) it is required by law or legal process to be
disclosed in the public domain or (ii) it has become public information as a
direct or indirect result of disclosure by any person other than by Consultant
in breach of this Agreement. In the event Consultant receives any notice of any
action to require disclosure of any Confidential Information, as required by law
or legal process, Consultant immediately shall notify the Company of the notice
and any action to require disclosure of Confidential Information to permit the
Company to challenge the required disclosure and seek a protective order.
(b) Restricted Use and Nondisclosure. Consultant shall not, either
during the term of this Agreement or at any time following expiration or
termination of this Agreement, (i) use any Confidential Information for any
purpose other than the performance of his duties and responsibilities under this
Agreement for the benefit of the Company or (ii) disclose any Confidential
Information to any person not employed by the Company, without the prior
authorization of the Company. Consultant shall exercise prudence and the highest
degree of care to safeguard and protect, and to prevent the unauthorized
disclosure of, all such Confidential Information.
(c) Return of Information at Termination. Upon termination of the
consultancy, Consultant shall deliver to the Company all tangible evidence of
Confidential Information or Inventions, including but not limited to product
formulations, customer lists, business plans, business strategies, instruction
sheets, drawings, manuals, letters, notes, notebooks, books, reports and copies
thereof, computer records, audiotapes and videotapes or other media that include
Confidential Information. Consultant shall not retain any copies or
reproductions of any tangible evidence of Confidential Information or
Inventions, including, but not limited to, product formulations, customer lists,
business plans, business strategies, instruction sheets, drawings, manuals,
letters, notes, notebooks, books, reports and copies thereof, computer records,
audiotapes, videotapes or other materials of the Company that came into
Consultant's possession at any time during the term of this Agreement, provided,
however, that Consultant may retain an archival copy of the foregoing which copy
shall be used for reference purposes only in the event that any issues arise
between the parties hereto after the termination of this agreement, it being
understood that such copies shall continue to constitute Confidential
Information under the terms of this Agreement and shall be subject to the terms
hereof.
7. Inventions.
(a) Definition. For purposes of this Agreement, "Invention" means any
invention, enhancement, alteration, modification, improvement, discovery, new
idea, formula, process, design, trade secret, or other useful technical
information or know-how made, generated, discovered, developed, conceived, or
first reduced to practice by Consultant during the term of this Agreement,
whether or not shown or described in writing or whether or not copyrightable or
patentable, relating to the Company's existing products, products under
development and all other products developed during the term of this Agreement.
(b) Disclosure and Assignment. During the term of this Agreement,
Consultant agrees to continue to disclose to the Company, in a manner
substantially similar to the methods and procedures used by Consultant in his
consultancy work with the Company during the months immediately prior to the
date hereof, all Inventions and Confidential Information made, generated,
discovered, developed, conceived, perfected or first reduced to practice by
Consultant alone or in conjunction with others at the Company.
To the extent that any Invention or Confidential information qualifies as "work
made for hire" as defined in 17 U.S.C. Section 101 (1976), as amended, such
Inventions and Confidential Information shall constitute "work made for hire"
and, as such, shall be the exclusive property of the Company. Consultant hereby
assigns to the Company all of Consultants right, title and interest in all
Inventions and Confidential Information.
(c) Limitation of Section 7(b). The provisions of Section 7(b) above
shall not apply to any Invention meeting all of the following conditions:
(i) Such Invention was developed entirely on Consultant's own
time; and
(ii) Such Invention was made without the use of any of the
Company's trade secret information; and
(iii) Such Invention does not relate (A) directly to the
business of the Company or (B) to the Company's actual or demonstrably
anticipated research and development; and
(iv) Such Invention does not result from any work performed by
Consultant for the Company.
(d) Assistance of Consultant. Consultant agrees, at the Company's
expense, to give the Company all assistance it reasonably requires to perfect,
protect, and use its rights to Inventions and Confidential Information. In
particular, but without limitation, Consultant agrees to sign all documents, and
supply all information that the Company may deem necessary or desirable to (i)
transfer or record the transfer of Consultant's entire right, title, and
interest in Inventions and Confidential Information; and (ii) enable the Company
to obtain patent, copyright, or trademark protection for Inventions anywhere in
the world.
(e) Continuing Obligation after Termination of Agreement. The
obligations of this Section 7 shall continue beyond the termination of this
Agreement with respect to Inventions conceived or made by Consultant during the
term hereof and shall be binding upon Consultant's assigns, executors,
administrators, and other legal representatives. In the event Consultant is
called upon to render assistance to the Company pursuant to Section 7(d) after
termination of this Agreement, the Company shall pay Consultant reasonable
mutually agreeable hourly compensation and shall call upon Consultant for
assistance at such reasonable times so as not to interfere with Consultant's
employment or business. For purposes of this Agreement, any Invention upon which
Consultant files a patent application during the Noncompetition Period shall be
presumed to have been made during the term of this Agreement, subject to proof
to the contrary by good faith, written and duly corroborated records
establishing that such Invention or discovery was conceived and made by
Consultant following termination of this Agreement.
(f) Records. Consultant shall keep records of the type that the
Consultant has kept in connection with the services that Consultant has provided
to the Company in the past, provided that the Company shall keep such other
records as the Consultant and the Company mutually agree would be beneficial to
the Company. Such accounts, notes, data, and records shall be the property of
the Company, and upon its request, subject to the last sentence of Section 6(c),
Consultant shall promptly surrender the same to the Company.
8. Injunctive Relief
Consultant and the Company acknowledge that a breach by the other of
any of the terms of Sections 5, 6 or 7 of this Agreement will render irreparable
harm to the other and that the Company or Consultant (as the case may be) shall
therefore be entitled to any and all equitable relief, including but not limited
to injunctive relief, and to any other remedy that may be available under any
applicable law or agreement between the parties.
9. Representations of Consultant.
Consultant represents and warrants that his execution and delivery of
this Agreement and performance by Consultant of his obligations under this
Agreement shall in no way violate the terms and conditions of any other
agreement, written or oral, or any other instrument or arrangement to which
Consultant is a party or by which Consultant is bound.
10. Miscellaneous.
(a) Waiver. No waiver of any term, condition or covenant of this
Agreement shall be deemed to be a waiver of subsequent breaches of the same or
other terms, covenants or conditions hereof.
(b) Amendment. This Agreement may not be amended, altered or modified
except by a written agreement between the parties hereto.
(c) Assignability.
(i) Consultant Assignability. Consultant shall not assign this
Agreement to any third party for whatever purpose without the express, prior
written consent of the Company.
(ii) Company Assignability. The Company shall have the right
to assign this contract to its successors or permitted assigns, (but not to
other persons,) and all covenants or agreements hereunder shall inure to the
benefit of and be enforceable by or against its successors or assigns.
(iii) Definitions. The terms "successor" and "permitted
assigns" shall include any person, individual or entity that buys all or
substantially all the Company's assets, or a controlling portion of its stock,
or with which it merges or consolidates.
(d) Invalidity and Severability. In the event part or any portion of
this Agreement is determined to be invalid or unenforceable by any court of
competent jurisdiction, the parties agree that this Agreement as so construed
shall remain in force and effect between them and shall be applied as if the
offending part or portion did not comprise an element hereof.
(e) Notices. Any notice required to be given hereunder shall be duly
and properly given if hand delivered, mailed by certified mail with return
receipt postage prepaid to either party at the addresses set forth below,
effective as of the date of mailing:
If to Consultant: APF, LLC
c/o Xxxxxxx Xxxxxxx, M.D.
0000 X.X. Xxxx Xxxxx
Xxxxxxxx, XX 00000
With a copy to: Ropes & Xxxx
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, XX 00000
Attn: Xxxxx Xxxxxx
Xxxx Xxxxxx
If to the Company: LifeRate Systems, Inc.
0000 Xxxxx Xxxxxxxxx
Xxxxxxxxxxx, XX 00000-0000
Attention: Chief Executive Officer
With a copy to: Xxxxxx X. XxXxxx, Esq.
Xxxxxxxxxxx Xxxxx & Xxxxxxxx
00 Xxxxx Xxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxxxxxx, XX 00000
Either party may change its address by giving ten days' prior written
notice to the other party of the new address.
(f) Definitions. For purposes of this Agreement, the following words
shall have the meanings indicated:
(i) Technology. The term "technology" means all know-how,
trade secrets, processes, inventions, specifications, equipment, computer
software, trademarks, trade names, service marks, patents, patent applications,
proprietary information, copyrights and other intellectual property related to
the Company's existing products, products under development and all other
products developed during the term of this Agreement.
(ii) Trade Secret. The term "trade secret" means any
information or compilation of information possessed by the Company that derives
independent economic value, actual or potential, from not being generally known
to, and not being readily ascertainable by proper means by other persons who can
obtain economic value from its disclosure or use. For purposes of this
Agreement, the term "trade secret" includes both information disclosed to
Consultant by the Company and information developed by Consultant in the course
of his employment.
(g) Governing Law. This Agreement shall be governed by and construed
under the laws of the State of Minnesota.
IN WITNESS WHEREOF, the parties have duly executed, or caused to be
executed by a duly authorized representative, this Agreement as of the date
first set forth above.
LIFERATE SYSTEMS, INC.
By _______________________________________
CONSULTANT
__________________________________________
APF, LLC
By________________________________________
Xxxxxxx X. Xxxxxxx
Its Manager
EXHIBIT A
CONSULTANT'S RESPONSIBILITIES
* providing design input to overall system design and direction
* input on development of general clinical database structure and
front end interface for the systems
* input into product features and functions that ensure the product
will be relevant in a variety of clinical settings
* assist in the definition of data elements and reporting formats
* interaction with Company's development project/team manager
