Exhibit 10.9
CONSULTANT AGREEMENT
This Consultant Agreement
(“Agreement”) is made and effective Feb. 29, 2008
(“Effective Date”), by and between Jeremy Roll
(“Consultant”) and BioDrain Medical, Inc., a Minnesota
corporation (the “Company”).
Now, therefore, Consultant and
the Company agree as follows:
1. Services . The Company
shall, and hereby does, grant Consultant the non-exclusive right to
present, introduce and/or refer to the Company a limited number of
qualified and “accredited” investors residing in the
state of California and other jurisdictions expressly approved in
writing by the Company (“Investors”) who may purchase
shares of the Company’s common stock and warrants
(“Common Stock”) that are being offered in a private
offering (“Private Offering”) pursuant to Regulation D
under Rule 506 of the Rules and Regulations promulgated by the
Securities and Exchange Commission (“SEC”), The Company
shall effect the sale and shall retain sole discretion in
determining whether or not to enter into any transaction with any
Investor and may accept or reject any subscription made by any
Investor identified by Consultant hereunder. This Agreement shall
be non-exclusive as to both the Company and Consultant.
2. Term . Consultant Shall
provide services to the Company pursuant to this Agreement for a
term commencing on the date of this Agreement and ending upon
termination of the Company’s Private Offering or one year
from the date hereof, whichever is earlier, or unless sooner
terminated in accordance with the provisions of Section
5.
3. Compensation
.
3.1
The Company shall pay Consultant a referral fee in cash equal to
ten percent (10%) of the gross proceeds received by the
Company-from Investors introduced to the Company through
Consultant’s direct efforts. Cash referral fees shall be paid
upon receipt of invoice, provided that gross proceeds have cleared
into good funds deposited in the designated bank account of the
Company. Consultant may elect to receive all or part of the cash
referral fee in the form of the Company’s restricted Common
Stock based upon the Fair Market Value of the Common Stock on the
date such referral fees shall become due and payable.
3.2.
The Company shall also issue Consultant a warrant to purchase
restricted Common Stock of the Company, at an exercise price of
$0.35 per share, equal to ten percent (10%) of the gross proceeds
received by the Company from Investors introduced to the Company
through Consultant’s direct efforts, based upon the Fair
Market Value of the Common Stock on the date any referral fees
shall become due and payable.
3.3.
The compensation described in paragraphs 3.1 and 3.2 (above) shall
reflect only compensation for the sale of shares pursuant
Company’s Private Offering and shall not apply to any other
type of financing transaction contemplated by the Company,
Consultant shall bear all of Consultant’s own expenses
incurred in the performance of this Agreement. The Company shall
incur the expense of mailing investment information to
Investors.
3.4
“FAIR MARKET VALUE” means, as of any date, the value of
a share of the Company’s Common Stock determined as
follows:
(a)
such Common Stock is publicly traded and is then listed on a
national securities exchange, its closing price on the date of
determination on the principal national securities exchange on
which the Common Stock is listed or admitted to trading;
1
(b) If
such Common Stock is quoted on the NASDAQ National Market or the
NASDAQ Capital Market, its closing price on the NASDAQ National
Market or the NASDAQ Capital Market, respectively, on the date of
determination;
(c) if
such Common Stock is not listed on a national securities exchange
or quoted on the NASADQ National Market or the NASDAQ Capital
Market, but is traded in the over-the-counter market, the average
of the bid and ask prices for a share of Common Stock on the most
recent date on which the Common Stock was publicly
traded;
(d) if
none of the foregoing is applicable, by the Company’s Board
of Directors in good faith.
4. Confidential
Information . Consultant shall not, without the prior written
consent of the Company, disclose to anyone any Confidential
Information. “Confidential Information” for the
purposes of this Agreement shall include the Company’s
proprietary and confidential information such as, but not limited
to, customer lists, business plans, marketing plans, financial
information, designs, drawing, specifications, models, software,
source codes and object codes. Confidential Information shall not
include any information that: (A) Is disclosed by the Company
without restriction, (B) Becomes publicly available through no act
of Consultant, or (C) Is rightfully received by Consultant from a
third party.
5. Termination . This
Agreement may be terminated by either party at any time for any
reason, by providing the other party with written notification of
such termination. Termination shall become effective upon the later
of the date of actual receipt of such notice or five (5) calendar
days after deposit of such notice in the U.S. mail, first class
postage prepaid, addressed to the other party, The date of deposit
in the U.S. mail shall be determined by the postmark or
cancellation date. The referral fee payment obligations of the
Company shall survive for a period of one (1) year following
termination of this Agreement with regard to any Investors referred
by Consultant, notwithstanding the termination of this Agreement by
either party for any reason.
6. Independent Contractor
. Consultant is and throughout this Agreement shall be an
independent contractor and not an employee, partner or agent of the
Company. Consultant shall not be entitled to not receive any
benefit normally provided to the Company’s employees such as,
but not limited to, vacation payment, retirement, health care or
sick pay. The Company shall not be responsible for withholding
income or other taxes from the payments made to Consultant.
Consultant shall be solely responsible for filing all returns and
payi
