Exhibit 10.18
CUTERA, INC.
CONSULTING
AGREEMENT
This Consulting Agreement
(“Agreement”) is entered into as of March 2, 2009
by and between Cutera, Inc., a Delaware corporation (the
“Company”) and David A. Gollnick
(“Consultant”). The Company desires to retain
Consultant as an independent contractor to perform consulting
services for the Company, and Consultant is willing to perform such
services, on the terms described below. In consideration of the
mutual promises contained herein, the parties agree as
follows:
1. Services.
A. Scope and Compensation .
Consultant shall begin providing Services to the Company as a
Consultant at 6:01 p.m. PT on March 20, 2009. During the term
of this Agreement, Consultant will report to the President and
Chief Executive Officer of the Company. Consultant agrees to
perform for the Company the services described in
Exhibit A (the “Services”), and the Company
agrees to pay Consultant the compensation described in
Exhibit A for Consultant’s performance of the
Services.
B. Termination of
Employment/Board Membership. Consultant shall resign from his
position of Executive Vice President and as an employee of the
Company at 6:00 p.m. PT on March 20, 2009. Consultant will
remain a director on the Company’s board of directors (the
“Board”) but will resign from the Board if requested by
a majority of the other directors. Consultant will be eligible to
receive the Company’s standard compensation for non-employee
directors beginning ninety (90) days following the date of
this Agreement. Consultant and Company agree that Consultant will
not be eligible under the Company’s 2004 Equity Incentive
Plan (as amended) (the “Plan”) to receive the First
Option (as defined in the Plan) but that he shall be eligible to
receive the Subsequent Options (as defined in the Plan) at annual
stockholders meetings beginning in 2010 according to the terms and
conditions of the Plan.
C. Option Grants . Consultant
agrees that he has entered into the following stock option
agreements with the Company that are still subject to vesting: 1)
Consultant was granted options to purchase 20,000 shares of Common
Stock on August 13, 2003 (the “First Option”)
pursuant to which all shares have vested and 2,917 shares are
unexercised, 2) Consultant was granted options to purchase 10,000
shares of Common Stock on July 20, 2004 (the “Second
Option”) pursuant to which all shares have vested and 3,958
shares are unexercised; 3) Consultant was granted options to
purchase 15,000 shares of Common Stock on July 28, 2005 (the
“Third Option”) pursuant to which 937 shares are
unvested and 8,750 shares are vested and unexercised, 4) Consultant
was granted options to purchase 25,000 shares of Common Stock on
June 8, 2006 (the “Fourth Option”) pursuant to
which 7,812 shares are unvested and 17,188 shares are vested and
unexercised; 5) Consultant was granted options to purchase 14,000
shares of Common Stock on June 8, 2007 (the “Fifth
Option”) pursuant to which 7,875 shares are
unvested and 6,125
shares are vested and unexercised; 6) Consultant was granted
options to purchase 5,000 shares of Common Stock on July 27,
2007 (the “Sixth Option”) pursuant to which 2,812
shares are unvested and 2,188 shares are vested and unexercised; 7)
Consultant was granted options to purchase 11,700 shares of Common
Stock on May 28, 2008 (the “Seventh Option”)
pursuant to which 11,700 shares are unvested; 8) Consultant was
granted options to purchase 50,000 shares of Common Stock on
May 28, 2008 (the “Eighth Option”) pursuant to
which 50,000 shares are unvested; and 9) Consultant was granted the
right to receive 5,000 shares of Common Stock under the terms and
conditions of a restricted stock agreement on July 28, 2005
(the “RSA”) pursuant to which 1,250 shares are
unvested. Consultant agrees that vesting under the Third Option,
Fourth Option, Fifth Option, Sixth Option, Seventh Option and
Eighth Option and the RSA shall cease as of the date of this
Agreement and any unvested shares shall be returned to the
Company’s 2004 Equity Incentive Plan (as amended). Consultant
also agrees that he will have until the earlier of: 1) the
90 th day following termination of
this Agreement or 2) the expiration date of the respective option
to exercise any vested shares under the First Option, Second
Option, Third Option, Fourth Option, Fifth Option and Sixth
Option.
2. Confidentiality
.
A . Definition .
“Confidential Information” means any non-public
information that relates to the actual or anticipated business or
research and development of the Company, technical data, trade
secrets or know-how, including, but not limited to, research,
product plans or other information regarding Company’s
products or services and markets therefor, customer lists and
customers (including, but not limited to, customers of the Company
on whom Consultant called or with whom Consultant became acquainted
during the term of this Agreement), software, developments,
inventions, processes, ideas, formulas, technology, designs,
drawing, engineering, hardware configuration information,
marketing, forecasts, finances, product plans or other business
information whether disclosed to Consultant during or prior to this
Agreement. Confidential Information does not include information
that (i) has become publicly known and made generally
available through no wrongful act of Consultant or (ii) has
been rightfully received by Consultant from a third party who is
authorized to make such disclosure.
B. Nonuse and Nondisclosure .
Consultant will not, during or for seven years subsequent to the
term of this Agreement, (i) use the Confidential Information
for any purpose whatsoever other than the performance of the
Services on behalf of the Company or (ii) disclose the
Confidential Information to any third party. Consultant agrees that
all Confidential Information will remain the sole property of the
Company. Consultant also agrees to take all reasonable precautions
to prevent any unauthorized disclosure of such Confidential
Information.
C. Former Client Confidential
Information . Consultant agrees that Consultant will not,
during the term of this Agreement, improperly use or disclose any
proprietary information or trade secrets of any former or current
employer of Consultant or other person or entity with which
Consultant has an agreement or duty to keep in confidence
information acquired by Consultant, if any. Consultant also agrees
that Consultant will not bring onto the Company’s premises
any unpublished document or proprietary information belonging to
any such employer, person or entity unless consented to in writing
by such employer, person or entity.
D. Third Party Confidential
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, during the term of this Agreement and for
seven years thereafter, Consultant owes the Company and such third
parties 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 or to use it except as necessary in
carrying out the Services for the Company consistent with the
Company’s agreement with such third party.
E. Return of Materials . Upon
the termination of this Agreement, or upon Company’s earlier
request, Consultant will deliver to the Company all of the
Company’s property, including but not limited to all
electronically stored information and passwords to access such
property, or Confidential Information that Consultant may have in
Consultant’s possession or control.
3. Ownership .
A. Assignment . Consultant
agrees that all copyrightable material, notes, records, drawings,
designs, inventions, improvements, developments, discoveries and
trade secrets conceived, discovered, developed or reduced to
practice by Consultant, solely or in collaboration with others,
during the term of this Agreement that relate in any manner to the
business of the Company that Consultant may be directed to
undertake, investigate or experiment with or that Consultant may
become associated with in work, investigation or experimentation in
the Company’s line of business in performing the Services
under this Agreement (collectively, “Inventions”), are
the sole property of the Company. Consultant also agrees to assign
(or cause to be assigned) and hereby assigns fully to the Company
all Inventions and any copyrights, patents, mask work rights or
other intellectual property rights relating to all
Inventions.
B. Further Assurances .
Consultant agrees to assist Company, or its designee, at the
Company’s expense, in every proper way to secure the
Company’s rights in Inventions and any copyrights, patents,
mask work rights or other intellectual property rights relating to
all Inventions in any and all countries, including the disclosure
to the Company of all pertinent information and data with respect
to all Inventions, the execution of all applications,
specifications, oaths, assignments and all other instruments that
the Company may deem necessary in order to apply for and obtain
such rights and in order to assign and convey to the Company, its
successors, assigns and nominees the sole and exclusive right,
title and interest in and to all Inventions, and any copyrights,
patents, mask work rights or other intellectual property rights
relating to all Inventions. Consultant also agrees that
Consultant’s obligation to execute or cause to be executed
any such instrument or papers shall continue after the termination
of this Agreement.
C. Pre-Existing Material s.
Subject to Section 3.A, Consultant agrees that if, in the
course of performing the Services, Consultant incorporates into any
Invention developed under this Agreement any pre-existing
invention, improvement, development, concept, discovery or other
proprietary information owned by Consultant or in which Consultant
has an interest, (i) Consultant will inform Company, in
writing before incorporating such invention, improvement,
development, concept, discovery or other proprietary information
into any Invention, and (ii) the Company is hereby granted a
nonexclusive, royalty-free, perpetual, irrevocable, worldwide
license to make,
have made, modify, use and sell such item as
part of or in connection with such Invention. Consultant will not
incorporate any invention, improvement, development, concept,
discovery or other proprietary information owned by any third party
into any Invention without Company’s prior written
permission.
D. Attorney-in-Fact .
Consultant agrees that, if the Company is unable because of
Consultant’s unavailability, dissolution, mental or physical
incapacity, or for any other reason, to secure Consultant’s
signature for the purpose of applying for or pursuing any
application for any United States or foreign patents or mask work
or copyright registrations covering the Inventions assigned to the
Company in Section 3.A, then Consultant hereby irrevocably
designates and appoints the Company and its duly authorized
officers and agents as Consultant’s agent and
attorney-in-fact, to act for and on Consultant’s behalf to
execute and file any such applications and to do all other lawfully
permitted acts to further the prosecution and issuance of patents,
copyright and mask work registrations with the same legal force and
effect as if executed by Consultant.
4. Conflicting Obligations
.
A. Conflicts . Consultant
certifies that Consultant has no outstanding agreement or
obligation that is in conflict with any of the provisions of this
Agreement or that would preclude Consultant from complying with the
provisions of this Agreement. Consultant will not enter into any
such conflicting agreement during the term of this Agreement.
Consultant’s violatio
