[ * * * ] CERTAIN CONFIDENTIAL
INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS
BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE
ACT OF 1934, AS AMENDED.
REPLIDYNE, INC.
CONSULTANT AGREEMENT FOR
Roger
Echols
This Consultant Agreement
(“ Agreement ”) is entered into by and between
Roger Echols, an individual (“ Consultant ”),
and Replidyne, Inc., (the “ Company ”),
effective as of May 2, 2008 (“ Effective Date
”).
Whereas, the Company is a
biopharmaceutical company currently focused on developing and
commercializing innovative anti-infective products, including but
not limited to faropenem medoxomil (collectively, the “
Products ”);
Whereas, Consultant, having
been involved with the Company since 2004 and serving as the
Company’s Chief Medical Officer, is a significant source of
knowledge and expertise about the Company’s business and its
potential clinical development and commercialization strategies for
the Products;
Whereas, the parties have
agreed that Consultant shall be retained as a Consultant to allow
the Company to retain the benefit of Consultant’s knowledge
and expertise; and
Whereas, the Company
terminated Consultant’s full time employment with the Company
effective May 1, 2008 pursuant to a Separation Agreement with
an Effective Date of May 1, 2008 and the parties hereby desire
to mutually agree upon the terms and conditions of
Consultant’s consulting relationship with the
Company.
Now, Therefore , in
consideration of the mutual promises and covenants contained
herein, it is agreed by and between the parties as
follows:
1.
Consulting
Relationship.
1.1 Consulting
Services. As part of the services provided by Consultant to the
Company pursuant to this Agreement, Consultant will:
(a) Advise and consult with the Company on clinical
development and regulatory strategies related to the Products;
and
(b) Advise and consult with the Company on strategic
planning;
(c) Perform such other services that relate to
Consultant’s areas of expertise and which the Company’s
executive officers believe would be beneficial to the Company
(collectively, the “ Consulting Services
”).
1.2
Performance. As and when requested from time to time by the
Company’s President and Chief Executive Officer, Kenneth
Collins or his delegates, Consultant agrees to provide services to
the Company under this Agreement. The time commitment required for
Consulting Services under this Agreement will generally not exceed
40 hours per month from May 2, 2008 until July 31, 2008
(“ Initial Consulting Period ”) and will
generally not exceed 20 hours per month from August 1, 2008
until December 31, 2008 or at such earlier or later date as
agreed to by the Company and Consultant pursuant to
Section 6.1 herein (“ Termination Date ”),
although the time commitment required during any specific monthly
period may vary from the time commitment required in other periods.
Consultant will render the Consulting Services to the best of his
ability. The manner and means by which Consultant chooses to
perform the Consulting Services are in Consultant’s sole
discretion and control. Consultant agrees to exercise the highest
degree of professionalism, and to utilize his best efforts, skills,
expertise and creative talents in performing such Consulting
Services. In performing Consulting Services, Consultant agrees to
provide his own equipment, tools and other materials in addition to
the Retained Property provided to him by the Company. Consultant
shall perform his Consulting Services in a timely and professional
manner consistent with industry standards. Consultant agrees to
provide the Consulting Services at the times reasonably requested
by the Company; provided that, the Company will reasonably
cooperate with Consultant in the event that he has conflicts in
connection with other obligations, whether such obligations are
work related or personal. Consultant may not subcontract or
otherwise delegate his obligations under this Agreement without the
Company’s prior written consent.
2.1 Consulting
Fees. In consideration of his agreement to provide the
Consulting Services hereunder, during the Initial Consulting
Period, Consultant will be paid an amount equal to $10,000 for each
full month of Consulting Services rendered to the Company during
the Initial Consulting Period. The Consulting Fees will be pro
rated for any partial months of service. From the end of the
Initial Consulting Period through the Termination Date, and for any
hours in excess of forty hours per month during the Initial
Consulting Period, Consultant will be compensated at a rate of $300
per hour. Consultant agrees to submit a monthly invoice to the
Company for approval detailing all consulting hours worked in the
prior month.
2.2 Stock
Options . As further consideration of his agreement to provide
Consulting Services hereunder, subject to the approval of the
Company’s Compensation Committee, the Company will provide
Consultant with a non-qualified stock option grant to purchase up
to 40,000 shares of Company common stock at the fair market value
of the stock as of the date of grant pursuant to the
Company’s 2006 Equity Incentive Plan (“ Consulting
Option ”). The Consulting Option shall vest over the
course of the Consulting Agreement in eight (8) equal monthly
installments and shall have an exercise period of up to three
(3) years from Termination Date of this Consulting Agreement.
The stock options previously granted to Consultant during his
employment with the Company shall continue to vest for so long as
Consultant continues to provide Continuous Service to the Company
as defined in the Company’s 2006 Equity Incentive Plan.
Consultant understands and acknowledges that on July 31, 2008,
all options previously granted to Consultant shall become
NonQualified Options. Consultant is advised to seek independent tax
or accounting advice with regard to the exercise and tax treatment
of any vested options.
2.3 Partnering
Bonus . In the event that prior to the Termination Date, the
Comp
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