Unassociated Document


    
      Exhibit
10.55



      CONSULTING
AGREEMENT

      


      This
Consulting Agreement is made and entered into as of December 8, 2009,
("Effective Date"), between Nephros, Inc., a Delaware
corporation (the "Company") and Barry A. Solomon, PhD, (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,

      


      (i) to
undertake on a best-efforts basis such consultative and advisory services as the
Company shall reasonably request, in connection with the Company's business,
including, but not limited to, the following:

      


      The
Company's research and development efforts with respect to a high efficiency
hemofiltration device (the "Device") and related technologies in which the
Company develops a proprietary or other interest.

      


      The
Company's gathering, interpretation and recording of data relating to the
development of the Device and related technologies; and

      


      (ii) to
provide such other consulting services as reasonably. requested by the
Company

      


      (b)
In addition to the
consulting services provided in paragraph (a) above, Consultant agrees to serve
as a Scientific Advisor to the Company. Consultant, as a Scientific Advisor to
the Company, agrees to meet at least semi-annually to advise the Company of
advances in his field of expertise, and to consult with the Company, assessing
the feasibility of research and development programs under consideration by the
Company and offering guidance for current and future research and clinical
applications of the Company's technology. In addition to these
semi-annual meetings, Consultant further agrees to meet individually and in
groups as called upon from time to time to review and advise the Company on its
research, development and commercialization of its technology, and to consult at
reasonable times and upon reasonable prior notice with the Company and the
Company's management, agents, employees and other Scientific Advisors on
projects.


      
        
           


        

        
           


          
            

          

        

        
           


        

      

      


      (c) 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 he 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
he is not, and shall not represent himself to third parties as being, the agent
or representative of the Company nor does he 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) In
order to protect the Company's patent rights, any actual research done by
Consultant under this Agreement shall be done at the Company's business or at
some other location approved in advance by the Company All such services shall
be rendered in the greater New York, New York area, unless mutually agreed by
Consultant and the Company, at such times as are consistent with Consultant's
obligations.

      


      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 for
requested services a consulting fee (the "Consulting Fee") at the rate of
twenty-five hundred dollars ($2500) per day or another amount agreed to in
advance according the level effort required and listed in Schedule A attached,
to be paid to Consultant on a monthly basis, payable on the first day of each
month. Nothing herein shall obligate the Company to request any services to be
performed by Consultant.

      


      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
the first anniversary of the Effective Date subject to earlier termination as
provided in Section 4(b) (together with any renewals pursuant to the proviso
following this sentence, the "Term"); provided, however, that the Term may be
extended for additional one (1) year periods upon mutual written
consent.

      


      (b) This
Agreement may be terminated by either party upon thirty (30) days written notice
to the other party.

      


      (c) The
provisions of Sections 5 through 16 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.
Notwithstanding the foregoing, Consultant may retain and use documents
pertaining to his work for academic, noncommercial research purposes with the
prior written approval of the Board of Directors.

      


      7.               Disclosure of
Inventions.

      


      During
the Term, Consultant agrees that he 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).

      


      8.               Assignment of and Assistance
with Inventions.

      


      Consultant
hereby assigns to the Company all right, title and interest he may have or
acquire in all Inventions and agrees that all Inventions shall be the sole
property of the Company and its assigns, and the Company and its assigns shall
be the sole owner of all patents, copyrights and other rights in connection
therewith. Consultant further agrees to assist the Company in every proper way
(but at the Company's expense) to obtain and from time to time enforce patents,
copyrights or other rights on said Inventions in any and all countries, and to
that end Consultant will execute all documents necessary:

      


      
        	
                 
      

              	
                (i)

              	
                to
      apply for, obtain and vest in the name of the Company alone (unless the
      Company otherwise directs) letters patent, copyrights or other analogous
      protection in any country throughout the world and when so obtained or
      vested to renew and restore the same;
and

              


      

      


      
        	
                 
      

              	
                (ii)

              	
                to
      defend any opposition proceedings in respect of such applications and any
      opposition proceedings or petitions or applications for revocation of such
      letters patent, copyright or other analogous
  protection.

              


      

       

      Consultant's
obligation to assist the Company in obtaining and enforcing patents and
copyrights for the Inventions in any and all countries shall continue beyond the
Term or earlier termination of this Agreement pursuant to Section 4 hereof, but
the Company agrees to compensate Consultant at a reasonable rate after the
expiration of the Term or such earlier termination for time actually spent by
Consultant at the Company's request on such assistance.

      


      The
provisions of Section 8(a) shall not apply to any Invention meeting the
following conditions: (i) such Invention was developed entirely on Consultant's
own time; and (ii) such Invention was made without the use of any Company
equipment, or information; and (iii) such Invention is directly related to the
business of the Company; or to the Company's anticipated research or
development; and (iv) such Invention does not result from the performance of the
Consulting Services.


      
        
           


        

        
           


          
            

          

        

        
           


        

      

       

      
        	
                9.

              	
                 
        No
      Breach of
Duty.

              


      

       

      Consultant
represents and warrants that the performance by him of all the terms of this
Agreement will not breach any agreement or duty to keep in confidence
proprietary information acquired by Consultant in confidence or in trust prior
to his engagement hereunder. Consultant hereby agrees to not enter into, any
agreement either written or oral in conflict herewith.

       

      
        	
                10.

              	
                  
       No
      Prior Employer
Property.

              


      

       

      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.

       

      
        	
                11.

              	
                  
       Non-Solicitation.

              


      

      


      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.

      


      12.               Insider Trading,
Etc.

      


      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 he 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, nonpublic 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.


      
        
           


        

        
           


          
            

          

        

        
           


        

      

      
 

      13.               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

      


      14.               Non-Competition.

      


      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 one (1)
year from the date of termination of his retention hereunder, he shall not
engage in any activity that has a conflict of interest with the Company,
including any competitive employment, business, or other activity, and he shall
not assist any other persons or organization that competes, or intends to
compete, with the company (all of the foregoing, "Competitive Activities"). Not
withstanding the foregoing, the restriction on competitive Activities shall not
survive the termination or expiration of this agreement in the event that the
Company has not offered a minimum of three (3) days of services during the
ninety (90) day period preceding the termination or expiration date of
this Agreement.

      


      15.               Remedies for
Breach.

      


      Consultant
understands and agrees that any breach of Sections 5, 7,12,13,14 and 15 of 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.

      


      16.               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.

      


      17.               Representation of
Consultant; Use of Name.

      


      Consultant
represents that there are no binding agreements to which he is a party or by
which he 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.


      
        
           


        

        
           


          
            

          

        

        
           


        

      

      
 

      18.               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., c/o Paramount Capital Investments, LLC, 787
Seventh Avenue, New York, New York 10019, Attention: Michael S. Weiss, 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 York 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
written.

      


      NEPHROS,
Inc

      


      Name:
Ernest Elgin

      Title: President & CEO

      


      BARRY A.
SOLOMON, PhD:

       

      Name: Barry A. Solomon

      Address:
394 North Road

      Bedford,
MA 01730

      SS#:
###-##-####


      
        
           


        

        
           


          
            

          

        

        
           


        

      

      
 

      Schedule
A. Consulting Fees

      


      
        
          
            
              	
                      Minimum Days/Month

                    	 	
                      $/Day
      Minimum

                    	 	 	
                      #
      Months

                    	 	 	
                      Extra
      Days/MonthA

                    	 
	
                      1

                    	 	$	2500	 	 	 	1	 	 	$	2000	 
	
                      1

                    	 	$	2000	 	 	 	6	 	 	$	1500	 
	
                      2

                    	 	$	1800	 	 	 	6	 	 	$	1500	 
	
                      4

                    	 	$	1500	 	 	 	6	 	 	$	1250	 


            

          

        

      

      


      A By mutual
agreement in advance