Exhibit 10.10 to Biodrain Medical, Inc. Form S-1



Exhibit 10.10 


CONSULTING AGREEMENT


          This
Consulting Agreement (“Agreement”) is made as of June 30, 2008 by and between
BioDrain Medical, Inc., a Minnesota corporation (the “Company”) and Namaste
Financial, Inc., a California corporation (the “Consultant”).  


RECITALS


          A. The Company
is an early stage company
developing a patented medical device designed to provide medical facilities
with an effective, efficient and affordable means to safely dispose of
contaminated fluids.


          B. The
Consultant has significant expertise
in the health
sciences industry.


          C. The Company
desires to engage the
Consultant, as an independent contractor, to perform the services described in
this Agreement and the Consultant desires to perform such services for the Company,
in accordance with the terms and conditions set forth in this Agreement. This
Agreement is not an employment agreement and neither the Company nor Consultant
intends to create any such employment relationship.


          NOW,
THEREFORE, for good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the Company and the
Consultant agree as follows:


AGREEMENT


          1. Term.
The Company retains the
Consultant and the Consultant accepts this appointment with the Company for a
period of twelve months, beginning on April 15, 2008 and ending on April 14,
2009 (the “Term”) unless terminated earlier in accordance with the provisions
of Section 5.


          2. Duties of
Consultant. The
Consultant agrees to render consulting services to the Company for the Term of
this Agreement. The Consultant’s duties and obligations shall be to advise the
Company with regard to various aspects of its operations and business and to
provide general business, strategic and growth advisory services. The
Consultant will determine the required hours, method, details and means of
performing the services. The Consultant shall be obligated to perform services
up to an aggregate of forty (40) hours per month at the Consultant’s
discretion.


          3.
Compensation. The Company shall
pay to the Consultant, as compensation for the services performed pursuant to
this Agreement, the following:


	
 

	
 

	
 


	
 

	
(a)

	
Consultant shall
 receive 125,000 shares (“Consultant Shares”).
 The Company represents that upon the issuance of the Consultant Shares, all
 shares of the Consultant Shares shall be duly and validly issued, fully paid
 and non-assessable.





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(b)

	
Warrants. Consultant
 shall be issued warrants to purchase 125,000 shares of Company common stock
 at an exercise price of $0.46 per share (the “Warrants”). The Warrants will be fully vested
immediately
 upon the date of issuance and will expire five years after the date of
 issuance. The Warrants will have a cashless exercise provision. The Company
 represents that upon the issuance of the shares of common stock underlying
 the Warrants, such shares shall be duly and validly issued, fully paid and
 non-assessable.


	
 

	
 

	
 


	
 

	
(c)

	
Reimbursement. The Company shall reimburse the Consultant for reasonable
costs and
 expenses incurred by the Consultant in providing the consulting services, in
 accordance with the Company’s expense reimbursement guidelines. All expenses
 must be approved in advance by the Company’s Chief Financial Officer;
 provided, however, that the Company may elect at its sole discretion not to
 reimburse Consultant for any particular expense. The Company retains the
 right to determine the reasonableness of any submitted expense and to deny
 unreasonable expenses in its sole discretion. The Company will not reimburse
 Consultant for basic office expenses including, but not limited to, meals,
 office space, equipment telephone, postage, copying, stationary, business
 cards.





          4.
Nondisclosure. The Consultant
acknowledges and agrees that:


                    (a)
Any and all information disclosed by the Company and/or any of its affiliates to
the Consultant and/or any of his agents, representatives or affiliates in
connection with this Agreement, regardless of the method or purpose of
disclosure, is considered confidential information, unless such information
falls within the exceptions as stated in this section (collectively, “Confidential
Information”).


                    (b)
The Consultant hereby acknowledges and agrees that all such Confidential
Information is the sole and exclusive property of the Company. Confidential
Information shall be held and retained in trust and in a manner adequate to
protect the Company’s proprietary rights and interests and such information
shall not be disclosed to others or used for purposes other than performing
under this Agreement without the Company’s prior written consent.
Notwithstanding the foregoing, the Consultant may disclose Confidential
Information where the Consultant believes in good faith that such disclosure
must be made in order to not commit a violation of law (which may be statutory,
regulatory, judicial or otherwise). In the event that the Consultant or any of
his representatives are required, in the opinion of counsel (by oral questions,
interrogatories, requests for information or documents, subpoena, civil
investigative demand or similar process), or requested by any governmental
authority, to disclose any information supplied to him or to any of his
representatives in the course of his dealings with the Company or its
representatives, the Consultant agrees to provide the Company with prompt
written notice of such request(s) so that it may, with the assistance and
cooperation of the Consultant, seek an appropriate protective order and/or
waive the Consultant’s compliance with the provisions of this Agreement.


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                    (c)
Confidential Information may be disclosed to agents of the Consultant, but only
when such disclosure is required and necessary for successful performance under
this Agreement and only to those agents who have become signatories to this
Agreement.


                    (d)
Confidential Information, as used in this section, does not include information
that:


                              (i)
is or becomes legally known and available to the public prior to or subsequent
to its disclosure to the Consultant;


                              (ii)
was acquired by the Consultant from a third party who was lawfully in
possession of the information and under no obligation to the Company to
maintain its confidentiality; or


                              (iii)
was independently developed by the Consultant, without utilizing the
Confidential Information of the Company.


                    (e)
The Consultant acknowledges that any disclosure or unauthorized use of
Confidential Information will constitute a material breach of this Agreement
and cause substantial harm to the Company for which damages would not be a
fully adequate remedy, and, therefore, in the event of any such breach, in
addition to other available remedies, the Company shall have the right to
obtain injunctive relief. The Consultant further agrees that, immediately upon
the Company’s request and in any event upon termination of this Agreement, the
Consultant shall deliver to the Company all Confidential Information in the
Consultant’s possession.


          5.
Termination.


                    (a)
Termination on Notice. Either party may
terminate this Agreement at any time during the Term by giving thirty (30) days
prior written notice to the other party.


                    (b)
Termination on Default. Should either
party default in the performance of this Agreement or materially breach any of its
provisions, the non-breaching party may terminate this Agreement by giving
written notification to the
breaching party. Termination shall be effective immediately on receipt of said
notice. For purposes of this section, material breaches of this Agreement shall
include, but not be limited to, (i) non-payment of compensation by the Company;
(ii) the willful breach or habitual neglect by the Consultant of the duties
which he is required to perform under the terms of this Agreement; or (iii)
the Consultant’s commission of acts of fraud or material misrepresentation
against the Company.


                    (c)
Payment upon Termination. In the event
of termination of this Agreement pursuant to this Section 5, the Company shall
promptly pay the Consultant (i) any consulting fees earned but unpaid before
termination, and (ii) any expenses reasonably incurred by the Consultant


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prior
to termination, so long as the Consultant submits appropriate expense
reimbursement requests within thirty (30) days following the date of the
termination notice.


          6.
Consultant’s Representations. The
Consultant represents and warrants that:


                    (a)
The Consultant’s performance of the consulting services or of any term of this Agreement will not breach any
agreement or
understanding that the Consultant has with any other person or entity and that there is no other contract or duty
now
in existence inconsistent with the terms of this Agreement.


                    (b)
During the Term of this Agreement, the Consultant shall not be bound by any
agreement, nor assume any obligation, which would in any way be inconsistent
with the consulting services to be performed by the Consultant under this
Agreement.


                    (c)
In performing the consulting services, the Consultant will not use any
confidential or proprietary information of any other person or entity or
infringe the intellectual property rights (including, without limitation,
patent, copyright, trademark or trade secret rights) of any other person or
entity nor will the Consultant disclose to the Company, or bring onto the
Company’s premises, or induce the Company to use any confidential information
of any person or entity other than the Company or the Consultant.


                    (d)
During the Term of this Agreement, the Consultant will not disclose to the
Company, or use, or induce the Company to use, any proprietary information or
trade secrets of others. The Consultant further represents and warrants that
the Consultant’s performance of the terms of this Agreement will not breach any
agreement to keep in confidence proprietary information acquired by the Company
Consultant in confidence or in trust prior to or concurrent with this Agreement
with the Company. The Consultant has not entered into, and agrees not to enter
into, any oral or written agreement in conflict with this one.


                    (e)
The Consultant will abide by all applicable laws in the course of performing
the Consulting Services.


                    (f)
Consultant is acquiring the Shares, for its own account and not with a view
towards, or for resale in connection with, the public sale or distribution
thereof, except pursuant to sales registered or exempted under the 1933 Act;
provided, however, that by making the representations herein, Consultant does
not agree to hold any of the Shares for any minimum or other specific term and
reserves the right to dispose of the Shares at any time in accordance with, or
pursuant to, or a registration statement or an exemption under the 1933 Act.
Consultant is acquiring the Shares hereunder in the ordinary course of its
business. Consultant does not presently have any agreement or understanding,
directly or indirectly, with any “Person” to distribute any of the Shares. For
purposes of this Agreement, a “Person” is any individual, limited liability
company, partnership, joint venture, corporation, trust, unincorporated
organization and government or any department or agency thereof.


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                    (g)
Consultant is an “accredited investor” as that term is defined in Rule 501(a)
of Regulation D under the 1933 Act. Consultant is not required to be registered
as a broker dealer under Section 15 of the Securities Exchange Act of 1934
(“1934 Act”). Consultant is not purchasing the Shares as a result of any
advertisement, article, notice or other communication regarding the Shares published
in any newspaper, magazine or similar media or broadcast over television or
radio or presented at any seminar or to Consultant’s knowledge, any general
solicitation or advertisement.


                    (h)
Consultant understands that the Shares are being offered and sold to it in
reliance on specific exemptions from the registration requirements of United
States federal and state securities laws and that the Company is relying in
part upon the truth and accuracy of, and Consultant’s compliance with, the
representations, warranties, agreements, acknowledgments and understandings of
Consultant set forth herein in order to determine the availability of such
exemptions and the eligibility of Consultant to acquire the Shares.


                    (i)
Consultant and its advisors, if any, have been furnished with all materials
relating to the business, finances and operations of the Company and materials
relating to the offer and sale of the Shares which have been requested by
Consultant. Consultant and its advisors, if any, have been afforded the
opportunity to ask questions of the Company and to receive answers thereto
concerning the Company and the transactions contemplated herein. Neither such
inquiries nor any other due diligence investigations conducted by Consultant or
its advisors, if any, or its representatives shall modify, amend or affect
Consultant’s right to rely on the Company’s representations and warranties
contained herein. Consultant understands that its investment in the Shares
involves a high degree of risk. Consultant has sought such accounting, legal
and tax advice as it has considered necessary to make an informed investment
decision with respect to its acquisition of the Shares.


                    (j)
Consultant acknowledges that it can bear the economic risk and complete loss of
its investment in the Shares and has such knowledge and experience in financial
or business matters that it is capable of evaluating the merits and risks of
the investment contemplated hereby.


                    (k)
Consultant understands that no United States federal or state agency or any
other government or governmental agency has passed on or made any
recommendation or endorsement of the Shares or the fairness or suitability of
the investment in the Shares nor have such authorities passed upon or endorsed
the merits of the offering of the Shares.


          7.
Notices. All notices given under this Agreement shall
be in writing. Any notice may be transmitted by any means selected by the
sender. A notice that is mailed to a party at its address given below,
registered or certified mail, return receipt requested, with all postage
prepaid, will be deemed to have been given and received on the earlier of the
date reflected on the return receipt or the third business day after it is
posted. Any notice sent by facsimile


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transmission to a party
at its facsimile number given
below shall be deemed to have been given and received upon confirmation of
transmission by the sender’s
facsimile machine. Any notice transmitted by recognized overnight courier
service to a party at its address given below shall be deemed given and
received on the first business day after it is delivered to the courier. Any
notice given by any other means shall be deemed given and received only upon
actual receipt. The addresses and facsimile numbers of the parties for notice
purposes are as follows:


	
 

	
 


	
 

	
If to the Company:


	
 

	
 


	
 

	
BioDrain Medical, Inc.


	
 

	
Attn: Kevin R. Davidson, President & CEO


	
 

	
699 Minnetonka Highlands Lane


	
 

	
Orono, MN 55356


	
 

	
Facsimile: (952) 476-2361


	
 

	
 


	
 

	
With copy to (which shall not
 constitute notice):


	
 

	
 


	
 

	
Richardson & Patel LLP


	
 

	
Attn: Ryan S. Hong, Esq.


	
 

	
10900 Wilshire Blvd, Suite 500


	
 

	
Los Angeles, CA 90024


	
 

	
Facsimile: (310) 208-1154


	
 

	
 


	
 

	
If to the Consultant:


	
 

	
 


	
 

	
Namaste Financial, Inc.


	
 

	
Attn: Bill Glaser, CEO


	
 

	
12233 Octagon Street


	
 

	
Los Angeles, CA 90049





Any party may change its
address or facsimile number for notice purposes, or add additional persons to
whom copies of any notice should be sent, by written notice to the other party.


          8.
Choice of Law, Jurisdiction and Venue. This Agreement
and all acts and transactions pursuant hereto and the rights and obligations of
the parties hereto shall be governed, construed and interpreted in accordance
with the laws of the State of California, without giving effect to principles
of conflicts of law. Any claim or dispute arising out of, connected with, or in
any way related to this Agreement shall be instituted by the complaining party
and adjudicated in a court of competent jurisdiction located in Los Angeles
County, California, and the parties to this Agreement consent to the personal
jurisdiction of and venue in such courts. In no event shall any party to this
Agreement contest the personal jurisdiction of such courts over or the venue of
such courts.


          9.
Counterparts. This Agreement may
be executed manually or by facsimile signature in two or more counterparts,
each of which shall be deemed an original, and all of which together shall
constitute but one and the same instrument.


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          10.
Severability. If any term or provision of this
Agreement or the application thereof to any person or circumstance shall, to
any extent, be determined to be invalid, illegal or unenforceable under present
or future laws effective during the term of this Agreement, then and, in that
event: (A) the performance of the offending term or provision (but only to the
extent its application is invalid, illegal or unenforceable) shall be excused
as if it had never been incorporated into this Agreement and, in lieu of such
excused provision, there shall be added a provision as similar in terms and
amount to such excused provision as may be possible and be legal, valid and
enforceable, and (B) the remaining part of this Agreement (including the
application of the offending term or provision to persons or circumstances
other than those as to which it is held invalid, illegal or unenforceable)
shall not be affected thereby and shall continue in full force and effect to
the fullest extent provided by law.


          11.
Preparation of Agreement. It is acknowledged by each
party that such party either had separate and independent advice of counsel or
the opportunity to avail itself or himself of the same. In light of these facts
it is acknowledged that no party shall be construed to be solely responsible
for the drafting hereof, and therefore any ambiguity shall not be construed
against any party as the alleged draftsman of this Agreement.


          12. Entire
Agreement. This Agreement
supersedes any and all other agreements, either oral or in writing, between the
parties hereto with respect to the services to be rendered by the Consultant to
the Company and contains all of the covenants and agreements between the
parties with respect to the services to be rendered by the Consultant to the
Company in any manner whatsoever.


[Signature
Page Follows]


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                    WHEREFORE,
the parties have executed this
Agreement on the date first written above.


	
 

	
 

	
 


	
 

	
COMPANY:


	
 

	
 

	
 


	
 

	
BioDrain Medical, Inc.


	
 

	
 

	
 


	
 

	
By: 

	



	
 

	
 

	 


	
 

	
 

	
Kevin R. Davidson, President and CEO


	
 

	
 

	
 


	
 

	
CONSULTANT:


	
 

	
 


	
 

	
Namaste Financial, Inc.


	
 

	
 

	
 


	
 

	
By:

	



	
 

	
 

	 


	
 

	
 

	
Bill Glaser, CEO





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