Exhibit 10.1


 


CONSULTING AGREEMENT


 


This
Agreement  is made the 22nd day of July 2008
by and among NeuroMetrix, Inc., a Delaware corporation having an address
of 62 Fourth Avenue, Waltham, Massachusetts 02451 (“NeuroMetrix” or the “Company”)
and Joseph A. Calo, an independent contractor (“Consultant”), having a
principal place of business or residence at 97 Green Street, Medfield,
Massachusetts 02052.


 


WHEREAS,
NeuroMetrix is currently engaged in the development of innovative neurological
diagnostic and therapeutic solutions;


 


WHEREAS,
NeuroMetrix previously engaged Consultant to provide various executive
financial services under that certain Consulting Agreement, dated as of March 8,
2004, by and between the Company and Consultant (the “Prior Consulting Agreement”);


 


WHEREAS,
NeuroMetrix wishes to engage the services of Consultant described in this
Agreement, and Consultant desires to provide such services, upon the terms and
conditions set forth herein; and


 


WHEREAS,
NeuroMetrix and Consultant are entering into an Indemnification Agreement
concurrently herewith (the “Indemnification Agreement”);


 


NOW,
THEREFORE, for good and valuable consideration, the sufficiency of which is
hereby acknowledged, the parties hereby agree as follows:


 


1.                                Services
and payment.  As of July 22,
2008 (the “Start Date”), the Prior Consulting Agreement shall be terminated
(except for those provisions that survive termination by the terms of the Prior
Consulting Agreement) and Consultant shall provide the services set forth in
the statement of work attached hereto as Exhibit A (the “Services”).
Such Services shall be performed, unless NeuroMetrix otherwise consents,
personally and exclusively by Consultant. NeuroMetrix shall compensate
Consultant in the amount and manner stated in Exhibit A.


 


2.                                Nondisclosure
and Non-Use Obligations.  (a) During
the term of this Agreement and in the course of Consultant’s performance
hereunder, Consultant may receive and otherwise be exposed to NeuroMetrix
confidential and proprietary information. Any information provided by  NeuroMetrix or on behalf of NeuroMetrix in
connection with this Agreement shall constitute confidential and proprietary
information and shall include, without limitation, marketing and customer
support strategies, website password and password-protected material, financial
information, sales, costs, profits and pricing methods, internal organization
information, employee information, and customer lists, technology information,
discoveries, inventions research and development efforts, processes,
hardware/software design and maintenance tools, samples, media, formulas,
methods, product know-how and show-how, and all derivatives, improvements and
enhancements to any of the above whether created or developed by Consultant
under this Agreement or otherwise, and information of third parties as to which
NeuroMetrix has an obligation of confidentiality (collectively referred to as “Confidential
Information”); provided however, that Confidential Information shall not
include information 


 

















 


which
(i) is now or hereafter becomes, through no act or failure of any party
hereto, generally known or available; (ii) is known by the Consultant at
the time of receiving such Confidential Information (and Consultant is not
otherwise obligated to maintain the confidentiality of such information); (iii) is
hereafter furnished to the Consultant without restriction on disclosure; (iv) is
independently developed by the Consultant without any breach of this Agreement
(or Consultant’s other obligations to NeuroMetrix); or (v) is the subject
of written permission to disclose by NeuroMetrix.


 


(b) Consultant
acknowledges the confidential and secret character of the Confidential
Information, and agrees that the Confidential Information is the sole,
exclusive and extremely valuable property of NeuroMetrix. Accordingly,
Consultant agrees (i) not to reproduce any of the Confidential Information
without the prior written consent of NeuroMetrix, (ii) not to use the
Confidential Information except in the performance of this Agreement, and (iii) not
to disclose all or any part of the Confidential Information in any form to any
third party, either during or after the term of this Agreement. Upon
termination of this Agreement for any reason, including expiration of term,
Consultant agrees to cease using and return to NeuroMetrix all whole and
partial copies and derivatives of the Confidential Information, whether in
Consultant’s possession or under Consultant’s direct or indirect control.


 


(c) Consultant
shall not disclose or otherwise make available to NeuroMetrix in any manner any
confidential information of Consultant. Consultant shall not disclose or
otherwise make available to NeuroMetrix in any manner any information received
by Consultant from third parties as to which Consultant has an obligation of
confidentiality.


 


3.                            Non-Solicitation.
The Consultant shall not, directly or indirectly, entice, solicit or
encourage any NeuroMetrix employee to leave the employ of NeuroMetrix, nor
shall the Consultant, directly or indirectly, be involved in the recruitment of
any NeuroMetrix employee, within a period of one year after such person is no
longer employed by NeuroMetrix.


 


4.                            Ownership
of Work Product. (a) Consultant shall specifically describe and
identify in Exhibit B to this Agreement all technology which
Consultant intends to use in performing under this Agreement and which is (i) owned
solely by the Consultant or licensed to Consultant with the right to
sublicense, and (ii) in existence in the form of a writing or working
prototype prior to the effective date of this Agreement (“Background Technology”).


 


(b) Consultant
agrees that any and all reports, summaries, work product, ideas, improvements,
inventions and works of authorship conceived, written, created or first reduced
to practice in the performance of Services (collectively, the “Work Product”)
shall be the sole and exclusive property of NeuroMetrix and hereby assigns to
NeuroMetrix all their respective right, title and interest in and to any and
all such ideas, improvements, inventions and works of authorship. Any works of
authorship shall be deemed works made for hire under U.S. copyright law.


 


(c) Consultant further agrees that except for
Consultant’s rights in Background Technology, NeuroMetrix is and shall be
vested with all rights, title and interests including patent, copyright, trade
secret and trademark rights in all Work Product.


 


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(d) Consultant
shall execute all papers, including, without limitation, patent applications,
invention assignments and copyright assignments, and otherwise shall assist
NeuroMetrix as reasonably required to perfect in NeuroMetrix the rights, title
and other interests in the Work Product. Costs related to such assistance, if
required, shall be paid by NeuroMetrix.


 


5.                            Representations
of Consultant. NeuroMetrix acknowledges that during the term of
this Agreement Consultant may render consulting services on behalf of other
parties. Consultant hereby represents and warrants to NeuroMetrix that the
terms of this Agreement and Consultant’s performance of Services do not and
will not conflict with any of Consultant’s obligations.  Consultant represents that Consultant has not
brought and will not bring with Consultant to NeuroMetrix or use in the
performance of Services any equipment, confidential information or trade
secrets of any third party which are not generally available to the public,
unless Consultant has obtained written authorization for their possession and
use.


 


6.                            Indemnification/Release. Consultant
warrants that Consultant has good and marketable title to all Work Product.
Consultant further warrants that the Work Product shall be free and clear of
all liens, claims, encumbrances or demand of third parties, including any
claims by any third parties of any right, title or interest in or to the Work
Product arising out of any trade secret, copyright, or patent or otherwise.
Consultant shall indemnify, defend and hold harmless NeuroMetrix and its
officers, agents, directors, employees and customers from and against any
claim, loss, judgment or expense (including reasonable attorneys’ and expert
witness’ fees and costs)  resulting from
or arising in any way out of any such claims by any third parties which are
based upon or are the result of any breach of the ongoing warranty, and
Consultant shall, at no additional cost to NeuroMetrix, replace or modify the
Work Product with functionality equivalent and conforming Work Product, obtain
for NeuroMetrix the right to continue using the Work Product and, in all other
respects, use its best efforts to remedy the breach. Consultant shall have no
liability under this Section 6 for any Work Product created in accordance
with detailed and specific design instructions provided to Consultant by
NeuroMetrix.


 


Should
NeuroMetrix permit Consultant to use any of NeuroMetrix equipment, tools or
facilities during the term of this Agreement, such permission will be
gratuitous and Consultant shall indemnify and hold harmless NeuroMetrix and its
officers, agents, directors and employees from and against any claim, loss,
judgment, expense (including reasonable attorneys’ and expert witnesses’ fees
and costs) and injury to person or property (including death) arising out of
the use of any such equipment, tools or facilities, whether or not such claim
is based upon its condition or on the alleged negligence of NeuroMetrix in
permitting its use.


 


7.                            Termination.
NeuroMetrix or Consultant may terminate this Agreement for convenience
with thirty (30) days written notice. In such event, Consultant shall
immediately cease rendering Services after receiving notice from NeuroMetrix,
unless otherwise advised by NeuroMetrix, and shall notify NeuroMetrix of costs
incurred up to the termination date. Notwithstanding the termination of this
Agreement for any reason or cessation of provision of Services, Sections 2, 3,
4, 5, 6, 8, 9, and 10 hereof shall survive.


 


8.                            Independent
Contractor. The Consultant is an independent Consultant, is not
an agent or employee of NeuroMetrix and is not authorized to act on behalf of
NeuroMetrix except 


 


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as
otherwise authorized by the Board of Directors or Chief Executive Officer of
NeuroMetrix. Consultant will not be eligible for any employee benefits of
NeuroMetrix. NeuroMetrix will not make deductions from any amounts payable to
Consultant for taxes. Taxes shall be the sole responsibility of
Consultant.  Consultant shall bear sole
responsibility for paying and reporting his own applicable federal and state
income taxes, social security taxes, unemployment insurance, workers’
compensation, and health or disability insurance, retirement benefits, and
other welfare or pension benefits, if any, and shall indemnify and hold
NeuroMetrix harmless from and against any liability with respect thereto.


 


9.                                      NeuroMetrix Property. All documents, data, records, apparatus, equipment and other physical property
furnished or made available to Consultant in connection with this Agreement
shall be and remain the sole property of NeuroMetrix and shall be returned
promptly to NeuroMetrix when requested. In any event, Consultant shall return
and deliver all such property, including any copies thereof, upon termination
or expiration of this Agreement, irrespective of the reason for such
termination.


 


10.                               General.
The parties’ rights and obligations under this Agreement will bind and
inure to the benefit of their respective successors, heirs, executors, and
administrators and permitted assigns. This Agreement and the Exhibits attached
hereto and hereby incorporated herein (together with the Indemnification
Agreement) constitute the parties’ final, exclusive, and complete understanding
and agreement with respect to the subject matter hereof, and supersede all
prior and contemporaneous understandings and agreements relating to its subject
matter, including without limitation the Prior Consulting Agreement.  Notwithstanding the foregoing, the provisions
of the Prior Consulting Agreement that survive its termination by its terms shall
continue to apply to the extent related to the Prior Consulting Agreement or
the services provided thereunder.  This
Agreement may not be waived, modified, amended or assigned unless mutually
agreed upon in writing by both parties. In the event any provision of this
Agreement is found to be legally unenforceable, such unenforceability shall not
prevent enforcement of any other provision of the Agreement. This Agreement
shall be governed by the laws of the Commonwealth of Massachusetts, excluding
its conflicts of laws principles. Any notices required or permitted hereunder
shall be given to the appropriate party at the address specified above or at
such other address as the party shall specify in writing. Such notice shall be
deemed given upon personal delivery, or sent by certified or registered mail,
postage prepaid, three (3) days after the date of mailing.


 


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IN WITNESS WHEREOF, the parties hereto have
executed this Agreement as of the date first set forth above.


 


 


	
  NEUROMETRIX, INC.

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ Shai N. Gozani, M.D., Ph.D

  	
   

  	
  /s/ Joseph A. Calo

  
	
   

  	
  Name: Shai N. Gozani, M.D., Ph.D.

  	
   

  	
  Joseph A. Calo

  
	
   

  	
  Title:
    President and Chief Executive Officer

  	
   

  	
   

  
	
   

  	
   

  	
  SS#:

  	
   

  



 


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Exhibit A


 


STATEMENT OF WORK


 


I.                 Services
to be performed:  Provide the
services typically performed by the principal financial officer and principal
accounting officer of a public company, including, without limitation,
performing and directing the other financial personnel at the Company in
performing the following:


 


1.              Reviewing and documenting
areas of accounting, preparing financial statements necessary for annual
audited and quarterly financial reporting in conformance with US GAAP and SEC
reporting requirements, preparing annual and quarterly earnings releases and
otherwise assisting in the disclosure of annual and quarterly financial
results.


2.              Reviewing contracts and
agreements from a financial and business perspective.


3.              Completing company budgets,
forecasts, projections and financial modeling as appropriate.


4.              Managing and directing the
Company’s financial policies, procedures and internal controls.


5.              Preparing all reports that
the Company is required to file with the SEC and, to the extent required in his
capacity as a consultant performing the functions of the principal financial
officer and principal accounting officer of the Company, sign SEC filings of
the Company and accompanying certifications.


6.              Overseeing the Company’s
investor relations function and compliance with securities laws.


7.              Together with the Company’s
principal executive officer, designing, maintaining and evaluating the Company’s
disclosure controls and procedures and internal control over financial
reporting.


8.              Performing such other tasks,
consistent with the role of a principal financial officer and principal
accounting officer of the Company, as are requested by the Company.


 


II.    Payment Terms:


 


Fees: 
NeuroMetrix shall pay Consultant a fee of One Hundred Fifty Dollars
($150.00) per hour for Services rendered by Consultant, or such other amount as
is agreed to by the Company and Consultant.


 


Expenses Reimbursement: Reasonable travel and
accommodation expenses and miscellaneous expenses, such as telephone, courier,
etc., in connection with the Services performed under this Agreement.


 


Invoicing:  Consultant shall invoice NeuroMetrix
every two weeks and will include dates and hours of Services rendered, and any
expenses to be reimbursed.  Net payment
due 15 days from receipt of invoice.


 


All
payments made pursuant to this Agreement shall be made to Consultant.


 

















 


Exhibit B


 


Background Technology