Exhibit 10.1


 


THE SPECTRANETICS CORPORATION


MASTER CONSULTING AGREEMENT


 


This Master
Consulting Agreement (“Agreement”) is entered into this 8th day of
April, 2010 by and between The Spectranetics Corporation, a Delaware
Corporation, 9965 Federal Drive, Colorado Springs, CO 80921 (“Spectranetics”),
and Dr. Craig Walker (“Consultant”).


 


RECITALS


 


A.                                   Spectranetics is engaged in, among other
things, the business of researching, developing, and commercializing proprietary lasers,
catheters, and other devices for the treatment of coronary and peripheral
vascular disease and management of cardiac leads throughout the United States
and the world.


 


B.                                     Consultant
represents that he or she is a qualified physician, experienced in treatment of
coronary and/or peripheral vascular disease techniques, including but not
limited to the use of the Spectranetics coronary and/or peripheral
applications, and duly licensed in the state of Louisiana with knowledge and insights
regarding the treatment of coronary and/or peripheral vascular disease and/or
management of cardiac leads


 


C.                                     Spectranetics and Consultant desire to
enter into an agreement in which Consultant will provide consulting services to
Spectranetics according to the terms and conditions set forth below.


 


AGREEMENT


 


NOW, THEREFORE, in
consideration of the recitals above and the mutual promises set forth below and
other good and valuable consideration, the parties agree as follows:


 


Duties. 
Consultant shall provide consulting services as requested in writing by
an authorized employee at Spectranetics as specified in paragraph below, from
time to time in a variety of areas where, in Spectranetics’ opinion, such
services would be useful or necessary, including but not limited to the areas
of laser coronary and/or peripheral application treatment products, product
development, non-laser products, procedures, and/or clinical
operations/studies.  In addition,
Consultant may be asked to directly support clinical training, education of physicians
or other medical professionals and/or Spectranetics employees, and/or act as an
advisor with respect to new marketing materials, initiatives and programs, in
each case related to treatment of coronary and/or peripheral vascular
disease.  Spectranetics reserves the
right to review and/or approve any or all presentation materials, including not
only slide presentations but also the selection of live cases at any SPNC
sponsored event, to ensure consistency with the FDA approved indications for
use.  Exhibit A is a list of types of services which
Spectranetics may request.


 


Consultant shall
perform the consulting services in accordance with all applicable local,
federal and state laws and regulations and generally accepted standards of good
clinical


 

















 


practice,
including without limitation the Health Insurance Portability and
Accountability Act (“HIPPA”), the anti fraud and abuse provisions of the
Medicare laws, and the Food, Drug and Cosmetic Act and their implementing
regulations.


 


1                                          Term. The term of this agreement shall be from the date of
this Agreement until March 31, 2011.


 


2.                                       Compensation. 
Consultant shall receive compensation from Spectranetics as outlined in Exhibit A,
plus previously agreed upon-reasonable out-of-pocket expenses for consulting
services rendered under this Agreement, provided further than Consultant shall
not be paid for consulting services in excess of 10 days in any month without
prior approval in writing from an Executive Officer of Spectranetics. Services
outside of those outlined in Exhibit A will be negotiated separately and
will be subject of a written amendment or separate agreement.


 


Consultant shall
invoice Spectranetics monthly for services rendered pursuant to this Agreement,
which invoice shall describe the services provide and the number of hours associated
with such work.  Spectranetics shall pay
such invoice within 30 days of receipt.


 


The compensation
paid under this Agreement shall constitute revenues to Consultant.  Spectranetics shall not withhold any amounts
therefrom as federal or state income tax or as employee contributions under
FICA or any federal or state unemployment, welfare or health insurance program,
and Spectranetics shall not make any employer contributions thereunder with
respect to Consultant’s compensation under this Agreement.


 


3.                                       Engagement of Consultant. 
An authorized Spectranetics employee shall provide each request for a
consulting service in writing in sufficient detail to provide clear
instructions to Consultant and to allow Spectranetics to verify that Consultant
performed the service requested.  Only
authorized employees to engage Consulting Services are listed in attached Exhibit B.  Spectranetics shall pay Consultant for each
service requested by Spectranetics and performed by Consultant at the rate set
forth in Exhibit A pursuant to Section 2.  Such rates are full consideration for the
service rendered to Spectranetics, inclusive of travel time, associated
incidental expenses (as set forth below) and reasonable preparation.  No additional amounts shall be paid for such
services and such rates are not in consideration for patient care for which
Consultant is otherwise compensated.  Any
payments due are payable within thirty (30) days from the date Spectranetics
confirms that the services was performed in accordance with this Agreement.


 


4.                                       Reimbursement for Business Expenses. 
Spectranetics shall reimburse Consultant for reasonable and necessary
business expenses (e.g., air/train/car, hotel, meals, etc.) incurred by
Consultant in connection with a service performed as requested by
Spectranetics, provided that such expenses have been pre-approved in writing by
Spectranetics personnel prior to any consulting work being performed and that
such expenses are consistent with Spectranetics Travel and Entertainment Policy
reimbursement guidelines, which shall be made available to Consultant upon
request.  Reimbursement for such expenses
is payable within thirty (30) days from the date Spectranetics receives
documentation from Consultant supporting the fact that such expenses are reimbursable
in accordance with this Agreement.


 


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5.                                 No Payments in Excess of Legal Limits. 
The parties acknowledge and agree that the compensation paid under this
Agreement is intended to be consistent with applicable law, regulation and
industry guidelines, and does not exceed the fair market value of the service
to be provided to Spectranetics under the Agreement.  The parties understand and agree that the
payments under this Agreement are not intended, directly or indirectly, to
induce or reward Consultant for ordering, using, or recommending Spectranetics’
products and Consultant is under no obligation under this Agreement or
otherwise to make any use or to arrange for or recommend any use of
Spectranetics products or as a reward for past business.


 


6.                                 Non-Exclusive Activity. 
The parties understand that performance under this Agreement is not the
exclusive activity of Spectranetics or Consultant and that Spectranetics and
Consultant each may undertake other activities, provided that Consultant shall
not compete with Spectranetics except as expressly permitted under Paragraph 8
below.


 


7.                                 Non-Disclosure of Confidential
Information.  Consultant acknowledges that the services to
be rendered under this Agreement may cause each party to receive confidential
and proprietary information from the other party.  Proprietary Information shall include,
without limitation, Spectranetics customer data, custom databases, computer programs,
computer applications, product development plans, inventions, invention
disclosures, intellectual property, and other business methods, processes,
techniques, plans and more (“Proprietary Information”).  All Proprietary Information disclosed to or
created or developed by Consultant pursuant to this Agreement shall be deemed
to be the exclusive property of Spectranetics.


 


Consultant acknowledges that
the Proprietary Information has economic value to Spectranetics due to the fact
that the Proprietary Information is not generally known to the public or the
trade and that the unauthorized use or disclosure of Proprietary Information is
likely to be extremely detrimental to Spectranetics’ interests.  Consultant therefore agrees to hold in strict
confidence and not to disclose to any third party any Proprietary Information
acquired or created or developed by Consultant under this Agreement.  Upon termination of this Agreement,
Consultant shall deliver to Spectranetics all documents acquired or created or
developed during the course of rendering services to Spectranetics under this
Agreement, whether in written or electronic form, including without limitation,
all correspondence, memoranda, and notes and all summaries, indices and
excerpts thereof, that are in Consultant’s possession, custody or control.


 


Proprietary Information disclosed to a receiving party
shall, for a period of five years from the date of termination of the project
or a date set forth by mutual agreement by both parties, whichever is later, be
held in confidence by the receiving party. 
Such Proprietary Information shall not be disclosed to others by the
receiving party, nor shall it be used by the receiving party except for the
purpose set forth above, without the prior written approval of the disclosing
party.


 


The conditions of this Paragraph 7 hereof shall not apply to
information:


 


(i)                                   which was in the public domain or
generally available to the public prior to receipt thereof by the receiving
party from the disclosing party, or which subsequently becomes


 


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part of the public
domain or generally available to the public except by wrongful act of the
receiving party or an employee or agent of the receiving party; or


(ii)                                which the receiving party can show was in
its possession prior to receipt from the disclosing party, or was received
thereafter from a third party having no obligation of confidentiality to the
disclosing party with respect to such information.


(iii)                             which the receiving party can show was independently
developed by the receiving party without use of or access to the disclosing
party’s proprietary information.


 


Notwithstanding
anything to the contrary in this Paragraph 7, Proprietary Information and the
relationship between the parties may be disclosed by a party to those of its
employees and agents who require knowledge thereof in connection with their
duties in conducting the aforesaid purpose of the Agreement, provided such
party informs all such employees and agents of the terms of the Agreement and
their duties hereunder and obtains their consent hereto as a condition for
their relationship between the parties may be disclosed by a party to
legislative, judicial, or regulatory body requiring its disclosure, provided
that prior to such disclosure, such party has notified the other party of the
requirement with an opportunity for such other party to seek an appropriate
protective order.


 


Upon written
request of a party who has disclosed Proprietary Information to a receiving
party, the receiving party shall promptly return all Proprietary Information
except that one copy may be retained by legal counsel of the receiving part as
evidence of what was disclosed.


 


8.                                       No Competition. 
Consultant acknowledges that Consultant’s use and creation and
development of Proprietary Information under this Agreement will render
Consultant unable to perform similar services for any person, business, company
or concern that competes or is likely to compete with Spectranetics (“Competitor”)
without using and/or disclosing one or more Proprietary Information.  In consideration of the confidence placed in
Consultant by Spectranetics, Consultant agrees not to render similar services
for any Competitor from the date of this Agreement through the first anniversary
of the termination of this Agreement (the “Term”), except with the prior
written consent of Spectranetics, which consent shall not be unreasonably
withheld.  During the Term, Consultant
shall not solicit or cause to be solicited, directly or indirectly, any person
who is or has been a Spectranetics employee or consultant, to work for a
Competitor.


 


9.                                       Termination. 
Either party may terminate this Agreement without cause upon fifteen
(15) days written notice to the other party. 
Termination for cause shall be in writing and shall be effective as
provided in such written notice.  Upon
termination of this Agreement, Consultant shall be paid all compensation then
owing and unpaid.  The payment of such
amount, plus any properly documented reimbursable expenses under Paragraph 3
and 5 shall satisfy all obligations of Spectranetics to Consultant under this
Agreement.  The provisions of Paragraphs
7, 8, 9, 13, 21, 22 and 23 shall survive termination of this Agreement.


 


10.                                 Status of Consultant. 
Consultant is not an employee of Spectranetics and shall not participate
in any employee benefit plans or other benefits or conditions of employment
available to Spectranetics employees. 
Consultant shall have no authority to act as an agent of Spectranetics,
except as specially delegated in writing, and Consultant shall not represent to
the


 


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contrary to any
person.  Consultant shall not direct the
work of any employee of Spectranetics, make any management decisions, or
undertake to commit Spectranetics to any course of action in relation to any
third party.  Consultant shall not be
subject to any control or direction of Spectranetics in the manner or
performance of rendering services hereunder, Spectranetics being interested
only in the end product of Consultant’s efforts as requested by Spectranetics.


 


11.                                 Qualifications of Consultant. 
Consultant represents and warrants that Consultant has not:  (i) been convicted of any felony, any
business crime, or any crime relating to Consultant’s honesty or integrity; (ii) had
Consultant’s license to practice any licensed profession in any state is
suspended, revoked, or limited; (iii) been reprimanded or censured by any
federal or state licensing or regulatory agency; or the delivery of healthcare
items or services, or (iv) been excluded from participation in Medicare,
Medicaid or another Federal Health Care Program (as defined in 42 U.S.C.
§ 1320a-7b(f) or been disbarred or suspended from participation in
any activity regulated by the Food and Drug Administration or in any federal
procurement or non procurement program. 
Consultant shall promptly notify Spectranetics if any of these events
occur.


 


12.                                 Authority.  The parties
represent and warrant that they have full right and authority to enter into
this Agreement under applicable law. 
Consultant will secure any required or necessary notifications or
approvals to provide Services under this Agreement.


 


13.                                 Indemnification. 
Consultant agrees to indemnify and hold forever harmless Spectranetics
and its officers, directors, shareholders, and employees from any claims,
costs, or expenses, including attorneys’ and experts’ fees, arising from any
action against Spectranetics and/or Consultant concerning Consultant’s actions
or failure to act in accordance with this Agreement.


 


14.                                 Assignment.  Spectranetics
may assign its interest in this Agreement to any entity directly or indirectly
controlled by Spectranetics or to any successor by merger or sale of
substantially all of its assets.  The
provisions of this Agreement shall inure to the benefit of the permitted
assigns and successors in the interest of Spectranetics.  Consultant may not assign or transfer this
Agreement, it being deemed personal to him only.


 


15.                                 Entire Agreement. 
This Agreement is the complete, final and exclusive statement of the
agreement between the parties with respect to the subject matter hereof.  This Agreement supersedes all prior or
contemporaneous agreements, negotiations, representations, understandings, and
discussions between the parties and/or their respective agents and counsel with
respect to the subject matter covered hereby.


 


16.                                 Amendments.  This
Agreement may be modified or amended only by a written instrument signed by the
party sought to be bound.


 


17.                                 Captions.  All paragraph
headings are for convenience only and shall not be considered in interpreting
any provision of this Agreement.


 


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18.                                 Severability. 
If any one or more of the provisions contained herein, or the
application thereof in any circumstance, is held invalid, illegal or
unenforceable in any respect and for any reason, the validity, legality and
enforceability of any such provision in every other respect and of the
remaining provisions hereof shall not be affected or impaired in any way, it
being intended that all of the parties’ rights and privileges arising hereunder
shall be enforceable to the fullest extent permitted by law.


 


19.                                 Waiver.  Failure by any
party to enforce any obligation of the other party shall not constitute a
waiver of any further or other obligation of the other party.


 


20.                                 Compliance with Law and Regulations.  Each party
shall comply with any law, statute, ordinance, directive, code, regulation, rule or
order of any Federal, state or local governmental body or agency.  Consultant shall be familiar with the
Indications for Uses for any Spectranetics product that he or she may describe,
discuss, teach or train at any Spectranetics sponsored event.  Consultant further agrees that all aspects of
his or her training of others at any Spectranetics sponsored event shall stay
within the Indications for Use of the product. 
Spectranetics reserves the right to review and/or approve any or all
presentation materials, including not only slide presentations but also the
selection of live cases at any Spectranetics sponsored event, to ensure
consistency with the FDA approved indications for use.  Physician shall provide Spectranetics with a
copy of all presentation materials, including a summary of the live cases
anticipated at any training event, no later than 48 hours in advance of any
such event


 


21.                                 Applicable Law. 
This Agreement and the rights of the parties hereunder shall be governed
by and enforced in accordance with the internal laws of the State of Colorado.


 


22.                                 Arbitration. 
Any controversy or claim arising out of or relating to this Agreement,
or breach thereof, shall be settled by arbitration in accordance with the Rules of
the American Arbitration Association, and judgment upon any proper award
rendered by the arbitrators may be entered in any court having jurisdiction
thereof.  There shall be one arbitrator,
chosen by the mutual agreement of Spectranetics and Consultant.  Each party shall pay the fees of his, her or
its own attorneys, as well as the expenses of his, her or its own witnesses and
all other costs connected with the arbitration. 
The costs of the arbitration (including the cost of the arbitrator, and
any record or transcripts thereof, if any, administrative fees, and all other
fees and costs) shall be borne equally by the parties.


 


23.                                 Notices.  All notices
provided for or permitted hereunder shall be in writing, signed by the party
giving the same and shall be deemed properly given and received when personally
delivered; or upon receipt of a confirmation by the other party.


 


24.                                 Counterparts. 
This Agreement may be executive in any number of counterparts and by the
parties in separate counterparts, each of which so executive shall be deemed to
be an original, and such counterparts together shall constitute one and the
same Agreement.


 


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


 


 


	
  The
  Spectranetics Corporation

  	
  Consultant:

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ Jason Hein

  	
   

  	
  By:

  	
  /s/ Craig Walker, M.D.

  
	
  Jason Hein

  	
   

  	
  Craig Walker, MD

  
	
  Senior Vice-President

  	
   

  	
  225 Dunn Street

  
	
  Vascular Intervention

  	
   

  	
  Houma, LA 70360

  
	
  Lead Management

  	
   

  	
  985-876-0300

  



 


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EXHIBIT A


 


	
  Type of Engagement

  	
   

  	
  Description

  	
   

  	
  Honorarium

  	
   

  	
  Reimbursable Business

  Expenses

  
	
  A.

   

  Project Consulting

  	
   

  	
   

  Consultant will provide
  input, feedback, or advice on a specific project (i.e. product concepts,
  training process, sales & marketing collateral/strategy, clinical
  studies, manuscripts, etc).

  	
   

  	
   

  $300/hour up to a
  maximum of $2500/day or $3000 if overnight stay is required

  	
   

  	
   

  Reasonable coach air
  travel, ground transportation to and from home to airport and airport to
  meeting venue. One night lodging (if applicable and reimbursement for meals.

  
	
  B.

   

  Educational
  Presentations

  	
   

  	
   

  Consultant will provide
  educational presentations on treatment of coronary and/or peripheral vascular
  disease and coronary and/or laser peripheral applications (indications,
  techniques, cases, etc.) to various audiences that may include physician,
  allied health professionals, or Spectranetics personnel.

  	
   

  	
   

  $300/hour up to a
  maximum of $2500/day or $3000 if overnight stay is required.

   

  Master Summits will be
  paid out separately at $300/hour up to a maximum of $4500 per event, $5000 if
  an overnight stay is required.

  	
   

  	
   

  Reasonable coach air
  travel, ground transportation to and from home to airport and airport to
  meeting venue. One night lodging (if applicable and reimbursement for meals.

  
	
  C.

   

  Offsite Lab Training or
  Proctorships

  	
   

  	
   

  Physicians involved
  with training other physicians in a lab other than their own (3 case
  minimum). Training involves but is not limited to live cases (hands-on),
  presentations, case examples, and Q&A.

  	
   

  	
   

  $300/hour up to a
  maximum of $2500/event or $3000 if overnight stay is required.

   

  No
  payment for training another physician from Consultants practice group or
  LLP.

  	
   

  	
  Reasonable coach air
  travel, ground transportation to and from home to airport and airport to
  meeting venue. One night lodging (if applicable and reimbursement for meals.

  
	
  D.

   

  Observational Coronary
  and/or Peripheral Application Treatment Training

  	
   

  	
   

  Consultant will provide
  observational coronary and/or peripheral application treatment training at
  their own institution for visiting physicians and staff. Training involves
  but is not limited to live cases (minimum of 3 cases with laser assistance),
  didactic presentations, case examples, and Q&A.

  	
   

  	
   

  $300/hour up to a
  maximum of $3000/event 

   

  $300/hour up to a
  maximum of $2500 per event if Spectranetics is the secondary sponsor. 

   

  No
  payment for training another physician from Consultants practice group or
  LLP.

  	
   

  	
   

  No expense
  reimbursement.

  



 


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EXHIBIT B


 


To be eligible for a
consulting payment, Spectranetics must make a specific written request to the
Consultant for the service, in accordance with the terms of this Agreement.


 


Authorized requestors of
services are:


 


Senior Vice President of Vascular Intervention & Lead
Management


Director of Training, Vascular Intervention


Director of National Accounts


 


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