CONSULTING AGREEMENT between John Shallman Royal Oak, MI 48073 and Nephros, Inc.
Exhibit 10.53
between
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and
Nephros,
Inc.
This
Consulting Agreement is made and entered into as of the 2nd
day of January, 2009, (the "Effective Date"), between Nephros, Inc., a Delaware corporation
(the "Company") and ▇▇. ▇▇▇▇ ▇▇▇▇▇▇▇▇ (the "Consultant").
WHEREAS,
the Company desires to engage Consultant to provide consulting services to it in
connection with its business; and
WHEREAS,
Consultant desires to provide consulting services to the Company;
In
consideration of and for the mutual promises and covenants contained herein,
and for
other good and valuable consideration, the receipt of which is hereby
acknowledged, the parties hereto agree as follows:
1. Consulting
Services.
(a)
Subject to the terms and conditions hereinafter set forth, the Company retains
Consultant,
and Consultant hereby accepts such retention by the Company,
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(i)
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As
Marketing Executive to market and sell DSU Water Filtration
products into
healthcare facilities and other market segments as directed by
the President
&
CEO.
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(ii)
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To work
closely with Sales and other Nephros employees to aid in
sales support,
by developing marketing materials and programs, and
other business
development activities.
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(b) The
Company and Consultant hereby acknowledge and agree that Consultant shall
perform the services specified in paragraphs (a) and (b) above (collectively,
the "Consulting Services") as an independent contractor and not as an employee
of the Company. Consultant agrees that he will file his own tax returns on the
basis of his status as an independent contractor for the reporting of all
income, social security, employment and other taxes due and owing on the
consideration received by him under this Agreement and that she is responsible
for the payment of such taxes. Similarly, Consultant shall not be
entitled to receive additional benefits specifically
associated with employment status, such as medical, dental and life
insurance, stock or stock options
of the Company and shall not be entitled to participate in any other
employee benefit programs. As
an independent contractor, Consultant acknowledges, understands and
agrees that she is not, and shall not
represent himself to third parties as being, the agent or representative of the
Company nor does she have, and shall not represent himself to third parties as
having, power or authority to do or take any action for or on behalf of the
Company, as its agent, representative or otherwise, except as specifically
herein set forth.
(d) The
Consultant will work from his home office and have the necessary infrastructure
conducive to good selling principles and his role as Business Development
Executive. From time to time it will be necessary for the Consultant to attend
meetings and work from the Nephros office in New York.
2. Consideration for Consulting
Services.
In
consideration of Consultant's performance of the Consulting Services, during the
Term (as defined below in Section 4 below) the Company shall pay Consultant a
consulting fee (the"Consulting Fee") at the rate of one hundred dollars
($100.00) per hour not to exceed 40 hours per month, to be paid to Consultant on
a monthly basis, on receipt of invoice net 10.
3. Reimbursement of
Expenses.
The
Company shall reimburse Consultant for all normal, usual and necessary expenses
in excess of twenty-five dollars ($25.00) in the aggregate incurred by
Consultant in furtherance of the business and affairs of the Company against
receipt by the Company of appropriate vouchers or other proof of the Company's
expenditures and otherwise in accordance with such expense-reimbursement policy
as may from time to time be adopted by the Company.
4. Term and
Termination.
(a) The
term of This Agreement shall commence on the Effective Date and shall expire on
December 31, 2009.
(b) This
Agreement may be terminated by either party upon fourteen (14) days written
notice to the other party and may be terminated by either party at any time for
any reason. Said termination will be effective after either party sends to the
other by Certified Mail, Return Receipt Requested, a written notice of intent to
terminate at the expiration of fourteen (14) days from the date upon which such
notice is mailed to the other. Such termination will then occur at the end of
the fourteen (14) day notice period. Notwithstanding the foregoing, the Company
shall be able to terminate this Agreement immediately, without the sending of
the aforesaid written fourteen (14) day notice, upon your death, bankruptcy, or
in the event the Consultant breaches any of the material terms in this
Agreement.
(c)
In the
event that the Consultant sends the Company written notice of intent to
terminate
this Agreement pursuant to Paragraph (b) above, the Consultant shall continue to
solicit orders for the Company during the aforesaid fourteen (14) day period.
Notwithstanding the foregoing, if the Company sends the Consultant written
notice of its intent to terminate this Agreement pursuant to Paragraph (b)
above, the Consultant shall cease soliciting orders for the Company immediately
on the day the said notice of termination is received by the
Consultant.
(d) At
the termination of this Agreement, the Consultant shall cease using any sales
materials and product samples in his possession or under his control and shall
return same, including all computer equipment, software, catalogs, brochures,
advertising, literature and other property of the Company, immediately upon
Company request. Final compensation due, if any, shall not be paid until such
property is received by the Company and has been returned in reasonably good
condition, together with a Termination Certification, exhibit A.
(e) The
provisions of Sections 5 through 18 hereof shall survive any termination
of this
Agreement at the expiration of the Term or prior thereto.
5. Ownership Of Proprietary
Information. Consultant agrees that all information that has been
created, discovered or developed by the Company, its subsidiaries, affiliates,
licensors, licensees, successors or assigns (collectively, the "Affiliates"),
including, without limitation, information relating to the development of the
Device created, discovered, developed or made known to the Company or any of the
Affiliates by Consultant during the Consulting Term and information relating to
the Company's customers, suppliers, consultants, and licensees, and/or in which
property rights have been assigned or otherwise conveyed to the Company or the
Affiliates, shall be the sole property of the Company or the Affiliates, as
applicable, and the Company or the Affiliates, as the case may be, shall be the
sole owner of all patents, copyrights and other rights in connection therewith,
including without limitation the right to make application for statutory
protection. All of the aforementioned information is hereinafter called
"Proprietary Information." By way of illustration, but not limitation,
Proprietary Information includes trade secrets, processes, discoveries,
structures, inventions, designs, ideas, works of authorship, copyrightable
works, trademarks, copyrights, formulas, data, know-how, show-how, improvements,
inventions, product concepts, techniques, information or statistics contained
in, or relating to, marketing plans, strategies, forecasts, blueprints,
sketches, records, notes, devices, drawings, customer lists, patent
applications, continuation applications, continuation-in-part applications, file
wrapper continuation applications and divisional applications and information
about the Company's or the Affiliates' employees and/or consultants (including,
without limitation, the compensation, job responsibility and job performance of
such employees and/or consultants).
6. Delivery of Documents and
Data. On the expiration of the Term or the earlier termination of this
Agreement pursuant to Section 4 hereof, Consultant agrees that Consultant will
deliver to the Company all documents and data of any nature and embodied in any
media pertaining to his work with the Company or the Affiliates, Consultant will
not take with him or deliver to anyone else any documents or data of any
description and embodied in any media or any reproduction, abstract or summary
of any description containing or pertaining to any Proprietary Information and
Consultant will sign and deliver the "Termination Certification" attached hereto
as Exhibit A.
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7.
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Disclosure of
Inventions.
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During
the Term, Consultant agrees that she will promptly disclose to the Company, or
any persons designated by it, all improvements, inventions, designs, ideas,
works of authorship, copyrightable works, discoveries, trademarks, copyrights,
trade secrets, formulas, processes, structures, product concepts, marketing
plans, strategies, customer lists, information about the Company's employees
and/or consultants (including, without limitation, job performance of such
employees and/or consultants), techniques, blueprints, sketches, records, notes,
devices, drawings, know-how, data, whether or not patentable, patent
applications, continuation applications, continuation-in-part applications, file
wrapper continuation applications and divisional applications, made or conceived
or reduced to practice or learned by him, either alone or jointly with others,
which result from use of premises or equipment owned, leased or contracted for
by the Company or the Affiliates (all said improvements, inventions, designs,
ideas, works of authorship, copyrightable works, discoveries, trademarks,
copyrights, trade secrets, formulas, processes, structures, product concepts,
marketing plans, strategies, customer lists, information about the Company's or
the Affiliates' employees and/or consultants, techniques, blueprints, sketches,
records, notes, devices, drawings, know-how, data, patent applications,
continuation applications, continuation-in-part applications, file wrapper
continuation applications and divisional applications shall be collectively
hereinafter called "Inventions"). Notwithstanding any provisions to the contrary
herein, however, Consultant agrees that Consultant shall not disclose to the
Company any improvements, inventions, designs, ideas, works of authorship,
copyrightable works, discoveries, trademarks, copyrights, trade secrets,
formulas, processes, structures, product concepts, marketing plans, strategies,
customer lists, blueprints, sketches, records, notes, devices, drawings,
techniques, know-how, data, patent applications, continuation applications,
continuation-in-part applications, file wrapper continuation applications and
divisional applications which Consultant possesses under the obligation of
secrecy or confidentiality to a third party.
Consultant
understands and acknowledges that all original works of authorship which
are made
by him (solely or jointly with others) while performing the Consulting Services
and which are protectable by copyright are being created at the instance of the
Company and are "works made for hire," as that term is defined in the United
States Copyright Act (17 USCA, Section 101).
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8.
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No Prior Employer
Property.
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Consultant
undertakes that, in the performance of the Consulting Services, Consultant
will not
use any materials or documents of a former or current employer which are not
generally available to the public, unless Consultant or the Company has obtained
written authorization from the current or former employer for their possession
and use.
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9.
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Non-Solicitation.
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During
the Term, and for a period of two (2) years thereafter, Consultant shall not,
directly or indirectly, without the prior written consent of the
Company:
(a)
solicit or induce any employee of the Company or any Affiliate to leave the
employ of the Company or any Affiliate or hire for any purpose any employee of
the Company or any Affiliate or any employee who has left the employment of the
Company or any Affiliate within six months of the termination of said employee's
employment with the Company; or
(b)
solicit or accept the business of any customer or supplier of the Company or any
Affiliate
with respect to products similar to those supplied by the
Company.
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10.
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Consultant
recognizes that in the course of his duties hereunder, Consultant may receive
from the Company or others information which may be considered "material,
non-public information" concerning a public company that is subject to the
reporting requirements of the Securities and Exchange Act of 1934, as amended.
Consultant agrees that she will not, without the prior written consent of the
Company, perform any of the following:
(a)
purchase, trade, offer, pledge, sell, contract to sell or to purchase or sell
"short" or "short
against the box" (as such terms are generally understood in the securities
markets), or otherwise dispose of or acquire any securities of the Company or
options or other derivative securities
in respect of such securities while in possession of relevant material,
non-public information
received from the Company or others in connection herewith;
(b)
provide the Company with information with respect to any public company that
may be
considered material, non-public information; and
(c)
provide any person with material, non-public information, received from the
Company,
including any relative, associate, or other individual who intends to, or may,
(i) trade securities with respect to the Company which is the subject of such
information or (ii) otherwise directly or indirectly benefit from such
information.
11. Non-disparagement.
During and after the Term, Consultant agrees not to make any
disparaging comment or statement about the Company, whether or not true,
including but not limited to comments which could adversely affect the conduct
of the Company's business, any of its plans or prospects, or the business name
or reputation of the Company.
12. Non-Competition.
The Consults agrees that during the term of this Agreement, she will
not sell, promote, or offer for sale, directly or indirectly, any product which
might in any way be deemed competitive to the Company's DSU Water Filtration or
ESRD Therapy lines and that she presently is representing no competing company.
The Consultant understands and recognizes that his services to the Company are
special and unique and agrees that, during the Consulting Term and for a period
of two (2) years from the date of termination of his retention hereunder, she
shall not in any manner, directly or indirectly, on behalf of himself or any
person, firm, partnership, joint venture, corporation or other business entity
("Person"), enter into or any business which manufactures or distributes any
product directly or indirectly competitive with an existing (as of the
"Effective Date") technology of, or equivalent (as of the "Effective Date")
product manufactured or distributed by, the Company ("Conflicting Product"),
either as an individual for his own account, or as a proprietor, partner,
member, joint venturer, employee, consultant, agent, salesperson, officer,
director or shareholder of a Person operating or intending to operate within the
area that the Company is, during
the term hereof and as of the date of termination, conducting or planning
to conduct its business (the"Restricted Businesses"); provided, however, that
nothing herein will preclude Consultant from holding one percent (1
%) or less of the stock of any publicly traded company; or from holding a
position with a Person which engages in a business directly or indirectly
competitive with a Conflicting Product or a Restricted Business so long as
Consultant works solely in a division of such Person which carries on a bona
fide business which is not directly or indirectly competitive with a Conflicting
Product or a Restricted Business.
13. Remedies
for Breach. Consultant understands and agrees that any breach of
Sections
within this Agreement by the Consultant could cause irreparable damage to the
Company and to the Affiliates and that monetary damages alone would not be
adequate and, the event of such breach, the Company shall have, in addition to
any and all remedies of law, the right to an injunction, specific performance or
other equitable relief to prevent or redress the violation of Consultant's
obligations under such Sections.
14. Severability.
Every provision of this Agreement is intended to be severable. If
any term
or provision hereof is deemed unlawful or invalid in any jurisdiction for any
reason whatsoever, such unlawfulness or invalidity shall not affect the validity
of the remainder of this Agreement or the enforceability of such term or
provision in any other jurisdiction. To the extent that any such term or
provision is held to be unlawful or invalid, the parties agree to reform such
term or provision in such a way which will be enforceable in the jurisdiction to
which such holding applies, and which will reflect, as nearly as permissible,
the intention of the parties.
18. Representation
of Consultant; Use of Name. Consultant represents that there are no
binding agreements to which she is a party or by which she is bound, forbidding
or restricting his activities herein. In addition,
Consultant consents to the use of his name in various reports, brochures or
other documents produced by or on behalf of the Company, including any and all
documents filed with the Securities and Exchange Commission.
19. Miscellaneous
Any notice or other communication between parties shall be sufficiently given if
sent by certified or registered mail, postage prepaid, if to the Company,
addressed to it at Nephros, Inc., ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇ ▇▇, ▇▇▇▇▇,
Attention: President &
CEO, or if to Consultant, addressed to Consultant at the address set
forth below Consultant's name on the signature page hereof, or to such address
as may hereafter be designated in writing by one party to the other. Such notice
or other communication shall be deemed to be given on the date of
receipt.
This
Agreement embodies the entire agreement and understanding between the Company
and Consultant regarding the subject matter hereof and supersedes any and all
negotiations, prior discussions and preliminary and prior agreements and
understandings related to the central subject matter thereof.
This
Agreement shall in all respects be governed by, and contained and enforced in
accordance
with the internal substantive laws of the State of New Jersey and not the law of
conflict of laws.
This
Agreement may be executed in one or more counterparts, each of which, when so
executed shall be deemed to be an original and all of which counterparts, taken
together, shall constitute one and the same instrument.
Neither
this Agreement nor any term hereof may be amended, modified, supplemented or
waived save in a written instrument executed by each of the parties
hereto.
IN
WITNESS WHEREOF, the parties have hereto set their hand on the date first above
wirtten.
CONSULTANT:
By:
Name:
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Address:
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▇▇▇, ▇▇ ▇▇▇▇▇
NEPHROS,
INC.
By:
Name:
▇▇▇▇▇▇ ▇▇▇▇▇, President &
CEO
EXHIBIT
A
NEPHROS,
INC.
TERMINATION
CERTIFICATION
This is
to certify that, except as permitted by the Consulting Agreement (as defined
below) I do not have in my possession, nor have I failed to return, any
structures, inventions, designs, works of authorship, copyrightable works,
formulas, data, marketing plans, forecasts, product concepts, marketing plans,
strategies, forecasts, devices, records, data, notes, reports, proposals,
customer lists, correspondence, specifications, drawings, blueprints, sketches,
materials, patent applications, continuation applications, continuation-in-part
applications, divisional applications, other documents or property, or
reproductions of any aforementioned items belonging to Nephros, Inc., its
subsidiaries, affiliates, successors or assigns (together, the "Company").
I further
certify that I have complied with all the terms of the Consulting Agreement,
dated July 7, 2008 between the Company and me (the "Consulting Agreement"),
relating to the reporting of any Inventions (as defined therein), conceived or
made by me (solely or jointly with others) covered by the Consulting Agreement.
I further
acknowledge that the provisions of the Consulting Agreement relating to
Proprietary Information, as defined in the Consulting Agreement, continue in
effect beyond the termination of the Consulting Agreement, as set forth
therein.
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Date: 1/29/09
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Signature:
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/s/
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