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Exhibit 10.6 CONSULTING AGREEMENT
This Consulting Agreement dated
effective January 20, 2009 ("Agreement’), is by and
among ev3 Endovascular, Inc. ("ev3" or "Company") and Patrick
Spangler, ("Spangler"). Recitals
WHEREAS, ev3 desires to terminate
Spangler’s employment which employment shall continue through
January 19, 2009; and WHEREAS,
as part of the terms of Spangler’s separation from
employment, the Company desires to retain Spangler to provide
limited consulting services from time to time for a period of time
following the termination. Agreement NOW THEREFORE, in
consideration of the mutual covenants and agreements hereinafter
provided, the parties agree as follows:
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1.
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Transition to Consulting .
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(a)
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Spangler shall continue to work as an employee of the Company on
a full-time basis to and through January 19th, 2009, after
which time Spangler’s employment with the Company will
terminate (the "Termination Date").
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(b)
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From January 20, 2009 through December 31, 2009 (the
"Consulting Term"), Spangler will work as a consultant to the
Company, performing services for the Company from time to time at
the Company’s request. During this time, Spangler will have
the title of Consultant and will report to the Chief Executive
Officer of Company.
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(c)
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Spangler and the Company intend and agree that, as of
January 20, 2009, an independent contractor relationship shall
be created by this Agreement. Spangler shall not be considered an
agent or employee of the Company for any purpose. Spangler shall
not have any right or authority to bind or commit the Company to
any legal obligation whatsoever. Spangler shall not be eligible to
participate in any of the Company’s employee benefit plans,
fringe benefit programs, group insurance arrangements or similar
programs as an active employee.
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(d)
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The parties understand and agree that Spangler’s status as
Consultant will qualify him as a "service provider" under the plan
or plans under which stock options and/or grants have been made to
him. Spangler’s rights as a "service provider" will be
governed according to the terms of those respective plans.
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2.
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Scope of Consulting Services . During the Consulting
Term, Spangler shall consult on projects as agreed upon with the
Chief Financial Officer of the Company.
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3.
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Compensation . Provided Spangler has (a) provided
the Company with an original executed Separation Agreement and
Release of Claims, (b) any applicable revocation or rescission
period set forth in the Agreement has expired, and
(c) Spangler has not revoked, rescinded or attempted to revoke
or rescind the Release, Spangler shall receive a nonrefundable
consulting fee of $1000 per month, for twelve (12) consecutive
months beginning the first business day after the above-referenced
revocation and rescission periods expire, and every month
thereafter, payable in advance on or about the 1st of each month.
For purposes of this Consulting Agreement, a "month" shall run from
the 1st day of a calendar month to the last day of that same
calendar month. The Company will be entitled to request and receive
up to ten (10) hours of Consulting Services from Spangler
during each such month. Should the Company request and receive
additional services to be performed by Spangler hereunder in excess
of ten (10) hours during any such month, the Company will
compensate Spangler at the rate of $150 per hour for such
additional services. All such additional services shall be approved
in advance by the Chief Executive Officer of the Company. The
Company shall not be responsible for withholding taxes from any
such payments to Spangler in connection with these Consulting
Services. In addition to the consulting fee, the Company will
promptly reimburse Spangler for all reasonable expenses incurred by
him in the performance of such Consulting Services, including, but
not limited to, transportation, lodging, meals, and other related
expenses.
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4.
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Termination . This is an "at will" Agreement. Either
party may terminate this Agreement at any time upon ten
(10) days prior written notice.
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5.
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Further Responsibilities and Duties .
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(a)
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Compliance with Company Policies . Spangler shall, at all
times, comply with all policies, rules, and procedures of the
Company which include, but are not limited to, ev3’s Code of
Conduct, Corporate Compliance Policy, and Insider Trading Policy.
By Spangler’s signature below, Spangler acknowledges that
Spangler has received, read, and agrees to abide by, each of the
foregoing policies.
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(b)
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Duty of Loyalty . In all aspects of Spangler’s
Consulting Services with the Company, Spangler shall act in the
utmost good faith, deal fairly with the Company, and fully disclose
to the Company all information that the Company might reasonably
consider to be important or relevant to the Company’s
business. Spangler further agrees that during the Consulting Term,
Spangler shall not engage in any conduct that might result in, or
create the appearance of using Spangler’s position for
Spangler’s private gain, or otherwise create a conflict of
interest, or the appearance of a conflict of interest, with the
Company. Such prohibited conduct includes, but is not limited to,
having an undisclosed financial interest in any vendor or supplier
of the Company or its affiliates, accepting payments of any kind or
gifts other than of a nominal value from vendors, customers, or
suppliers, or having an undisclosed relationship with a family
member or other individual who is employed by any entity in active
or potential competition with the Company or its affiliates, and
which creates a conflict of interest.
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(c)
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No Conflicting Employment . During the term of this
Consulting Agreement, Spangler agrees that he will not engage in
any other employment, occupation or consulting directly related to
the business in which the Company or its affiliates is now
involved, or to a
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