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Exhibit 10.10
CONSULTING AGREEMENT
This
Consulting Agreement (" Agreement ") is made as of June 30,
2008 by and between BioDrain Medical, Inc., a Minnesota corporation
(the " Company ") and Namaste Financial, Inc., a California
corporation (the " Consultant ").
RECITALS
A. The Company is an early stage company developing a
patented medical device designed to provide medical facilities with
an effective, efficient and affordable means to safely dispose of
contaminated fluids.
B. The Consultant has significant expertise in the health
sciences industry.
C. The Company desires to engage the Consultant, as an
independent contractor, to perform the services described in this
Agreement and the Consultant desires to perform such services for
the Company, in accordance with the terms and conditions set forth
in this Agreement. This Agreement is not an employment agreement
and neither the Company nor Consultant intends to create any such
employment relationship.
NOW,
THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Company and the
Consultant agree as follows:
AGREEMENT
1.
Term. The Company retains the Consultant and the
Consultant accepts this appointment with the Company for a period
of twelve months, beginning on April 15, 2008 and ending on April
14, 2009 (the " Term ") unless terminated earlier in
accordance with the provisions of Section 5.
2.
Duties of Consultant. The Consultant agrees to render
consulting services to the Company for the Term of this Agreement.
The Consultant’s duties and obligations shall be to advise
the Company with regard to various aspects of its operations and
business and to provide general business, strategic and growth
advisory services. The Consultant will determine the required
hours, method, details and means of performing the services. The
Consultant shall be obligated to perform services up to an
aggregate of forty (40) hours per month at the Consultant’s
discretion.
3.
Compensation. The Company shall pay to the Consultant,
as compensation for the services performed pursuant to this
Agreement, the following:
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(a)
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Consultant shall receive 125,000
shares (" Consultant Shares "). The Company represents that
upon the issuance of the Consultant Shares, all shares of the
Consultant Shares shall be duly and validly issued, fully paid and
non-assessable.
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(b)
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Warrants . Consultant
shall be issued warrants to purchase 125,000 shares of Company
common stock at an exercise price of $0.46 per share (the "
Warrants "). The Warrants will be fully vested immediately
upon the date of issuance and will expire five years after the date
of issuance. The Warrants will have a cashless exercise provision.
The Company represents that upon the issuance of the shares of
common stock underlying the Warrants, such shares shall be duly and
validly issued, fully paid and non-assessable.
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(c)
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Reimbursement. The
Company shall reimburse the Consultant for reasonable costs and
expenses incurred by the Consultant in providing the consulting
services, in accordance with the Company’s expense
reimbursement guidelines. All expenses must be approved in advance
by the Company’s Chief Financial Officer; provided, however,
that the Company may elect at its sole discretion not to reimburse
Consultant for any particular expense. The Company retains the
right to determine the reasonableness of any submitted expense and
to deny unreasonable expenses in its sole discretion. The Company
will not reimburse Consultant for basic office expenses including,
but not limited to, meals, office space, equipment telephone,
postage, copying, stationary, business cards.
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4. Nondisclosure. The Consultant acknowledges and
agrees that:
(a)
Any and all information disclosed by the Company and/or any of its
affiliates to the Consultant and/or any of his agents,
representatives or affiliates in connection with this Agreement,
regardless of the method or purpose of disclosure, is considered
confidential information, unless such information falls within the
exceptions as stated in this section (collectively, "
Confidential Information ").
(b)
The Consultant hereby acknowledges and agrees that all such
Confidential Information is the sole and exclusive property of the
Company. Confidential Information shall be held and retained in
trust and in a manner adequate to protect the Company’s
proprietary rights and interests and such information shall not be
disclosed to others or used for purposes other than performing
under this Agreement without the Company’s prior written
consent. Notwithstanding the foregoing, the Consultant may disclose
Confidential Information where the Consultant believes in good
faith that such disclosure must be made in order to not commit a
violation of law (which may be statutory, regulatory, judicial or
otherwise). In the event that the Consultant or any of his
representatives are required, in the opinion of counsel (by oral
questions, interrogatories, requests for information or documents,
subpoena, civil investigative demand or similar process), or
requested by any governmental authority, to disclose any
information supplied to him or to any of his representatives in the
course of his dealings with the Company or its representatives, the
Consultant agrees to provide the Company with prompt written notice
of such request(s) so that it may, with the assistance and
cooperation of the Consultant, seek an appropriate protective order
and/or waive the Consultant’s compliance with the provisions
of this Agreement.
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(c)
Confidential Information may be disclosed to agents of the
Consultant, but only when such disclosure is required and necessary
for successful performance under this Agreement and only to those
agents who have become signatories to this Agreement.
(d)
Confidential Information, as used in this section, does not include
information that:
(i)
is or becomes legally known and available to the public prior to or
subsequent to its disclosure to the Consultant;
(ii)
was acquired by the Consultant from a third party who was lawfully
in possession of the information and under no obligation to the
Company to maintain its confidentiality; or
(iii)
was independently developed by the Consultant, without utilizing
the Confidential Information of the Company.
(e)
The Consultant acknowledges that any disclosure or unauthorized use
of Confidential Information will constitute a material breach of
this Agreement and cause substantial harm to the Company for which
damages would not be a fully adequate remedy, and, therefore, in
the event of any such breach, in addition to other available
remedies, the Company shall have the right to obtain injunctive
relief. The Consultant further agrees that, immediately upon the
Company’s request and in any event upon termination of this
Agreement, the Consultant shall deliver to the Company all
Confidential Information in the Consultant’s possession.
5.
Termination.
(a) Termination on Notice. Either party may terminate this
Agreement at any time during the Term by giving thirty (30) days
prior written notice to the other party.
(b) Termination on Default. Should either party default in
the performance of this Agreement or materially breach any of its
provisions, the non-breaching party may terminate this Agreement by
giving written notification to the breaching party. Termination
shall be effective immediately on receipt of said notice. For
purposes of this section, material
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