THIS
CONSULTING AGREEMENT (this “Agreement”) is made and
entered into as of January 15, 2009, (the “Effective
Date”), by and between Cardiogenesis Corporation, a
California corporation (the “Company”) and Paul J.
McCormick (“Consultant”).
In
consideration of the mutual covenants and agreements hereinafter
set forth, the parties to this Agreement agree as
follows:
1. Consulting Engagement.
(a)
Engagement . The Company hereby engages Consultant, and
Consultant hereby accepts such engagement, to perform, during the
term and subject to the conditions of this Agreement, such
consulting services as are contemplated by this
Agreement.
(b)
Consulting Services . Consultant shall consult with and
render to the Company services relating corporate strategy
development and execution, financing and investor relations.
Consultant shall render such services at such times and places as
reasonably determined by Consultant. Consultant shall take
direction from, and report to the Board of Directors of the
Company. Consultant shall devote approximately 40% of normal work
hours (16 hours per week on average) to consulting services
hereunder. Such time shall be exclusive of time spent by Consultant
in his role as a director of the Company and Chairman of the Board
. Consultant shall track the time spent on consulting
activities hereunder periodically (not less often than quarterly)
provide a report to the Company on time spent.
(a)
Term . Consultant’s engagement with the Company shall
commence on the Effective Date and shall continue for eighteen
(18) months from the Effective Date, unless terminated as
hereinafter provided.
(b)
Termination . This Agreement may be terminated at any time
by either the Company or Consultant upon sixty (60) days
written notice.
(a)
Compensation for Services . During the term of this
Agreement, Consultant shall be paid eight thousand dollars ($8,000)
per month, on the Company’s normal schedule for payment of
payroll.
(b)
Reimbursement of Expenses . Consultant shall be reimbursed
for all reasonable out-of-pocket expenses incurred by Consultant in
rendering services hereunder, including reasonable travel expenses
and third party costs incurred by Consultant in the course of
performing the services hereunder, provided that the incurrence of
such expenses has received the prior written approval of the
Company. Consultant shall be reimbursed within thirty
(30) days of the submission of an expense report in which
adequate support is provided for the expenses to be
reimbursed.
(c)
Reimbursement of Health Care Coverage . Company shall
reimburse Consultant his cost of health care insurance coverage for
himself and family in an amount not to exceed fifteen thousand six
hundred dollars ($15,600) per year.
(d)
Independent Contractor Status . It is expressly agreed and
understood that Consultant, including his employees and/or
subcontractors, is performing services under this Agreement as an
independent contractor for the Company and neither Consultant nor
any of his employees or subcontractors is an employee or agent of
the Company. The Company’s liability hereunder shall be
limited to payment of the fees and expense reimbursements provided
in this Agreement. All liability to the persons actually providing
services under this Agreement or related to the providing of such
services, including but not limited to, payment of wages or other
compensation, withholding of taxes and similar charges related to
such wages or other compensation, and worker’s compensation,
shall be the sole responsibility of Consultant.
4. Confidential Information.
(a)
Company Information . Consultant agrees at all times during
the term of his engagement and thereafter to hold in strictest
confidence, and not to use, except for the benefits of the Company,
or to disclose to any person, firm or corporation without written
authorization of the Company, any trade secrets, confidential
knowledge, data or other proprietary information relating to
products, processes, know-how, designs, formulas, developmental or
experimental work, computer programs, data bases, other original
works of authorship, customer lists, business plans, financial
information or other subject matter pertaining to any business of
the Company or any of its clients, consultants or licensees,
including any such information developed hereunder (hereinafter
referred to as “Confidential Information”).
(b)
Other Employer Information . Consultant agrees that he will
not, during the term of his engagement by the Company, improperly
use or disclose any proprietary information or trade secrets of
former or concurrent employers or companies, and that he will not
bring onto the premises of, or provide to, the Company any
unpublished documents or any property belonging to former or
concurrent employers or companies, if any, unless consented to in
writing by said employers or companies.
(c)
Third Party Information . Consultant recognizes that the
Company has received and in the future will receive from third
parties their confidential or proprietary information subject to a
duty on the Company’s part to maintain the confidentiality of
such information and to use it only for certain limited purposes.
Consultant agrees that he owes the Company and such third parties,
during the term of engagement and thereafter, a duty to hold all
such confidential or proprietary information in the strictest
confidence and not to disclose it to any person, firm or
corporation (except as necessary in carrying out work for the
Company consistent with the Company’s agreement with such
third party) or to use it for the benefit of anyone other than for
the Company or such third party (consistent with the
Company’s agreement with such third party) without the prior
express written authorization of the Company.
(d)
Employees and Subcontractors . Consultant shall cause all of
his employees or subcontractors to execute and deliver to the
Company an agreement covering the matters set forth in this
Section 4.
2
5. Retaining and Assigning Inventions and Original
Works.
(a)
Prior Inventions and Original Works . Attached hereto, as
Exhibit A , is a list describing all inventions,
original works of authorship, developments, improvements, and trade
secrets (collectively the “Prior Disclosures”) which
were made by Consultant prior to engagement by the Company, which
belong to Consultant, which relate to the Company’s business
and products, and which are not assigned to the Company; or, if no
such list is attached, or no entries are made thereon, Consultant
represents that there are no such Prior Disclosures.
(b)
Inventions and Original Works Assigned to the Company .
Consultant agrees that he will promptly make full written
disclosure to the Company, will hold in trust f
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