Exhibit
10.1


 


CONSULTING AGREEMENT


 


	
  PARTIES

  	
   

  	
  DATA SCIENCES INTERNATIONAL, INC.

  	
   

  	
  [the “COMPANY”]

  
	
   

  	
   

  	
  4211 Lexington Avenue North, Suite 2244

  	
   

  	
   

  
	
   

  	
   

  	
  St. Paul, MN 55126-6164

  	
   

  	
   

  
	
   

  	
   

  	
  Phone: 651-481-7410

  	
   

  	
   

  
	
   

  	
   

  	
  Fax: 651-481-7417

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Michael Berman

  	
   

  	
  [the “CONSULTANT”]

  
	
   

  	
   

  	
  10727 Genevieve Lane

  	
   

  	
   

  
	
   

  	
   

  	
  Minnetonka, MN 55305

  	
   

  	
   

  
	
   

  	
   

  	
  Phone: 952-512-1523

  	
   

  	
   

  
	
   

  	
   

  	
  Fax:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  DATE

  	
   

  	
  June 28, 2001

  	
   

  	
   

  



 


RECITALS


 


A.            The parties wish to
provide for the engagement of CONSULTANT by the COMPANY.


 


B.                                    CONSULTANT wishes to receive compensation
from the COMPANY for CONSULTANT’s services, and the COMPANY desires reasonable
protection of its confidential business and technical information which has
been acquired and is being developed by the COMPANY at substantial expense.


 


AGREEMENT


 


The COMPANY and CONSULTANT, each intending to be legally bound, agree
as follows:


 


1.                                      ENGAGEMENT. Subject to all of the terms and conditions of this Agreement, the
COMPANY agrees to engage CONSULTANT as requested from time to time by an
authorized officer of the COMPANY during the term of this Agreement and
CONSULTANT agrees to consider acceptance of such engagement. CONSULTANT shall
serve the COMPANY as an independent contractor and shall not be considered an
employee of the COMPANY.


 


2.                                      DUTIES. CONSULTANT shall perform tasks as are set forth in the Statement of
Work attached hereto as Exhibit A (“Duties). CONSULTANT will diligently and
conscientiously perform his duties to the best of his ability. Services will be
performed under the direction of BRIAN BROCKWAY, the COMPANY’S President and
CEO, or his duly authorized representative.


 


3.                                       TIME COMMITMENT. CONSULTANT shall devote such time to
perform his Duties as the parties may mutually agree.


 


4.                                       EFFECTIVE DATE. This Agreement shall become effective on
the date set forth above.


 

















 


5.                                      TERMINATION. Subject to the respective continuing obligations of the COMPANY and
CONSULTANT under Sections 7, 8, and 9 below:


 


(a)                                 Either party may terminate this Agreement for
any reason upon thirty (30) calendar days’ written notice to the other party.


 


6.                                      COMPENSATION. In consideration for CONSULTANT’S services
under this Agreement, the COMPANY agrees to pay CONSULTANT a fee as mutually
agreed to in advance of the initiation of each new set of CONSULTANT’S activities
as may be requested from time to time by the COMPANY.


 


7.                                      INVENTIONS.


 


(a)                                 “Inventions,” as used in this Section 7,
means any inventions, discoveries, improvements and ideas that CONSULTANT first
conceives or first reduces to practice during the term of this Agreement (either
alone or with others) and that:


 


(i)                                    concern directly the COMPANY’S business or
the COMPANY’S present or demonstrably anticipated future research or
development; or


 


(ii)                                 result from any work CONSULTANT performs for
the COMPANY; or


 


(iii)                              uses the COMPANY’S equipment, supplies,
facilities, or trade secret information.


 


(b)                                CONSULTANT agrees that all Inventions made by
CONSULTANT during or within twelve (12) months after the term of this Agreement
which relate in any manner to the subject matter involved in CONSULTANT’S
duties as generally defined herein will be the COMPANY’S sole and exclusive
property. CONSULTANT will, with respect to any Invention:


 


(i)                                    keep current, accurate and complete records,
which will belong to the COMPANY and, upon the COMPANY’S request, be kept and
stored on the COMPANY’S premises;


 


(ii)                                 promptly and fully disclose the existence and
describe the nature of the Invention to the COMPANY in writing (and without
request);


 


(iii)                              assign (and CONSULTANT does hereby assign) to
the COMPANY all of CONSULTANT’S rights to the Invention, any applications
CONSULTANT makes for patents in any country and any patents granted to
CONSULTANT in any country; and


 


(iv)                             acknowledge and deliver promptly to the
COMPANY any written instruments, and perform any other acts necessary in the
COMPANY’S opinion to preserve property rights in the Invention against
forfeiture abandonment or loss and to obtain and maintain letters patent and/or



 

















 


copyrights on the Invention
and to vest the entire right and title to the Invention in the COMPANY.


 


(c)                                 CONSULTANT represents that, except as
previously disclosed to the COMPANY in writing, as of the date of this
Agreement, CONSULTANT has no rights under, and will make no claims against the
COMPANY with respect to, any inventions, discoveries, improvements, ideas which
would be Inventions if made, conceived or acquired by CONSULTANT during the
term of this Agreement.


 


(d)                                With respect to any obligations performed by
CONSULTANT under subsection 7(b) following termination of this Agreement, the
COMPANY will pay CONSULTANT a minimum of Three Hundred Seventy Five dollars
($375) per hour and will pay or reimburse all reasonable out-of-pocket
expenses.


 


8.                                      PUBLICATIONS. The COMPANY shall have the right to publish
the results of CONSULTANT’S work under this Agreement at any time the COMPANY
determines to be appropriate and desirable. CONSULTANT grants and agrees to
grant to the COMPANY the perpetual, irrevocable, nonexclusive, worldwide,
royalty-free right to copy, republish, reproduce, prepare derivative works,
perform, display, distribute and use, in whole or in part, any material
published by CONSULTANT, whether copyrighted or not, based on any information,
conclusions or developments resulting from work under this Agreement. Any works
of original authorship, including computer programs produced by CONSULTANT in
the performance of the work called for by this Agreement shall be considered as
“work made for hire” as that term is used in the Copyright Act.


 


9.             CONFIDENTIAL
INFORMATION.


 


(a)                                 “Confidential
Information,” as used in this Section 9, means information that is not generally
known and that is proprietary to the COMPANY or that the COMPANY is obligated
to treat as proprietary. Specifically, Confidential Information shall include
but not be limited to the COMPANY’S customer or prospect lists, marketing and selling tactics or
strategies planned or employed by the COMPANY, sales figures, market
projections, product designs, materials used in products and manufacturing
processes. CONSULTANT’S duties shall apply only to Confidential Information
that is: (i) disclosed by the COMPANY in writing and is marked to indicate it
is confidential at the time of disclosure; or that is (ii) disclosed by the
COMPANY in any other manner including oral disclosure and is indicated to be
confidential at the time of disclosure; or that is (iii) disclosed in the
form of tangible products or materials transmitted to the CONSULTANT with an
accompanying written memorandum.


 


(b)                                Except
as specifically authorized by an authorized officer of the COMPANY or by
written COMPANY policies, CONSULTANT will not use or disclose Confidential
Information to any person who is not an employee of the COMPANY. Upon
termination of this Agreement, CONSULTANT will promptly deliver to the COMPANY
all records and any compositions, articles, devices,


 

















 


apparatus and other items that disclose, describe or
embody Confidential Information or any Invention, including all copies,
reproductions and specimens of the Confidential Information in CONSULTANT’S
possession, regardless of who prepared them, and will promptly deliver any
other property of the COMPANY in CONSULTANT’S possession, whether or not
Confidential Information.


 


(c)                                 This
Agreement imposes no obligation upon CONSULTANT with respect to Confidential
Information that: (i) was in the CONSULTANT’S possession before receipt from
the COMPANY; (ii) is or becomes available to the public through no fault of the
CONSULTANT; (iii) is received in good faith by the CONSULTANT from a third party who had the right to provide it
and is not subject to an obligation of confidentiality owed to the third party;
or (iv) is independently developed by the CONSULTANT without reference to
Confidential Information received hereunder.


 


(d)                                CONSULTANT’S
duties with respect to Confidential
Information under this Section 9 shall continue for five (5) years or until the
information becomes publicly available to persons outside of the COMPANY, whichever
occurs first.


 


(e)                                 CONSULTANT shall protect Confidential
Information by using the same degree of care, but no less than a reasonable
degree of care, to prevent the unauthorized disclosure of Confidential
Information, as the CONSULTANT uses to protect his own confidential information
of a like nature.


 


(f)                                   In
the event that CONSULTANT is required by judicial or administrative process to
disclose Confidential Information, CONSULTANT shall promptly notify the COMPANY
and allow the COMPANY a reasonable time to oppose such process. If required
under force of law, CONSULTANT must use best efforts to maintain the
confidentiality of the Confidential Information by providing such Confidential
Information under seal, protective order or under equivalent procedure.


 


10.           NON-COMPETE


 


(a)                                 “Conflicting
Product,” as used in this Section 10, means any product, method or process,
system or service of any person or organization other than the COMPANY, in
existence or under development, which is the same as or similar to or competes
with or has a usage allied to, a product, method or process, system or service
upon which CONSULTANT works (in either a sales or non-sales capacity) during the last three years of his
employment by the COMPANY, or about which CONSULTANT acquires Confidential
Information.


 


(b)                                “Conflicting Organization” means any person
or organization which is engaged in or about to become engaged in the
development, production,
marketing, leasing, selling or servicing of a Conflicting Product.


 


(c)                                 CONSULTANT agrees that for a period of twelve
(12) months after the termination of the Agreement, CONSULTANT will not render
services, directly 


 

















 


or indirectly, in the United
States, or in any other country, that assist any Conflicting Organization with
the commercialization of a Conflicting Product.


 


11.                                EXPENSES. The COMPANY will reimburse CONSULTANT for all usual, reasonable and
necessary expenses paid or incurred by CONSULTANT in the performance of
CONSULTANT’S duties, provided that (i) the COMPANY shall have given its prior
approval for such expenses, (ii) such expenses shall be incurred in accordance
with all applicable COMPANY policies and (iii) CONSULTANT shall have submitted
all receipts and other documentation required by such policies.


 


12.                                CONSULTANT BENEFITS. CONSULTANT shall not be entitled to
participate in or receive any benefits applicable to employees of the COMPANY.


 


13.                                NO ADEOUATE REMEDY. CONSULTANT understands that if
CONSULTANT fails to fulfill CONSULTANT’S obligations under this Agreement, the
damages to the COMPANY might be difficult to determine. Therefore, in addition
to any other rights or remedies available to the COMPANY at law, in equity, or
by statute, CONSULTANT hereby consents to the specific enforcement of this
Agreement by the COMPANY through an injunction or restraining order issued by an
appropriate court.


 


14.           MISCELLANEOUS.


 


(a)                                 No Conflicts. CONSULTANT represents and warrants to the
COMPANY that neither entering into of this Agreement nor the performance of any
of CONSULTANT’S obligations hereunder will conflict with or constitute a breach
under any obligation or CONSULTANT under any agreement or contract to which CONSULTANT
is a party or any other obligation by which CONSULTANT is bound. Without
limiting the foregoing, CONSULTANT agrees that at no time will CONSULTANT
utilize any trade secrets or other intellectual property of any third party
while performing services hereunder.


 


(b)                                Successors
and Assigns. This Agreement is binding on and inures to the benefit of the
COMPANY’S successors and assigns; provided, however, that the COMPANY may
assign this Agreement only in connection with a merger, consolidation,
assignment, sale or other disposition of substantially all of its assets or
business. This Agreement is also binding on CONSULTANT’S heirs, successors,
assigns and legal representatives.


 


(c)                                 Modification.
This Agreement may be modified or amended only by a writing signed by both the COMPANY
and CONSULTANT.


 


(d)                                Governing
Law. The laws of Minnesota will govern
the validity, construction and performance of this Agreement. Any legal proceeding
related to this Agreement will be brought in an appropriate Minnesota court,
and both the COMPANY and CONSULTANT hereby consent to the exclusive
jurisdiction of that court for this purpose.


 

















 


(e)                                 Construction. Wherever possible, each provision of this
Agreement will be interpreted so that it is valid under the applicable law. If
any provision of this Agreement will be interpreted so that it is valid by a
court of competent jurisdiction under the applicable law, that provision will remain effective to the extent
not declared invalid. The remainder of this Agreement also will continue to be
valid, and the entire Agreement will continue to be valid in other
jurisdictions.


 


(f)                                   Waivers. No failure or delay by either the COMPANY or CONSULTANT in exercising
any right or remedy under this Agreement will waive any provision of the Agreement. No single or
partial exercise by either the COMPANY or CONSULTANT of any right or
remedy under this Agreement will preclude either of them from otherwise or
further exercising these rights or remedies, or any other rights or remedies granted
by law or any related document.


 


(g)                                Captions.
The headings in this Agreement are for
convenience only and do not affect this Agreement’s interpretation.


 


(h)                                Entire Agreement. This Agreement supersedes all previous and
contemporaneous oral negotiations, commitments, writing and understanding
between the parties concerning the matters in this Agreement, including without
limitation, any policy or personnel manuals of the COMPANY.


 


(i)                                    Notices.
All notices and other communications required or permitted under this Agreement
shall be in writing and either sent by certified First-Class mail, postage
prepaid, or delivered in person, and shall be effective five (5) working days
after mailing or on the next business work day if delivered in person, to the
addresses stated at the beginning of this Agreement. These addresses may be
changed at any time by like notice or delivery in person.


 


IN WITNESS WHEREOF, the COMPANY and CONSULTANT have executed
this Agreement as of the date first above shown.


 


	
  FOR:

  	
  DATA SCIENCES INTERNATIONAL, INC.

  	
   

  	
  FOR: CONSULTANT

  
	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ Brian P. Brockway

  	
   

  	
   

  	
  By:

  	
  /s/ Michael Berman   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Its: President & CEO

  	
   

  	
  Its:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Date: July 28, 2001

  	
   

  	
  Date: 8/3/01

  
	
   

  	
   

  	
   

  	
   

  
	
  Brian P. Brockway

  	
   

  	
   

  	
  Michael Berman

  	
   

  
	
  (Printed Name)

  	
   

  	
  (Printed Name)

  
										



 

















 


CONSULTING AGREEMENT

DATA SCIENCES INTERNATIONAL, INC.


 


EXHIBIT A


 


STATEMENT OF WORK


 


(“Duties”)


 


CONSULTANT’S work under this Agreement shall include the following:


 


•                  Provide strategic insight and
experience and establish partnerships that will lead to a highly successful
commercialization of DSI technology for use in human beings and subsequently to
a liquidity event that will allow existing shareholders to diversify a
significant portion of their assets prior to 2005.


 


•                  To
make introductions to individuals with access to the expertise and capital
needed to achieve DSI corporate goals.


 

















 


TRANSOMA MEDICAL


 


April 8, 2004


 


Mr. Mike Berman

10727 Genevieve Lane

Minnetonka, MN 55305


 


Dear Mike:


 


After reviewing consulting agreements on file, it has come to my
attention that your rate change was never officially recorded and filed. The
new rate retroactive to your joining Transoma Medical’s Board of Directors on
August 10, 2001 is $1,500 per day, post 2nd option grant. Everything
else remains the same.


 


Please acknowledge this change by signing below and returning in the
envelope provided. A fully executed copy will be sent to you.


 


 


Best regards,


 


	
  /s/ Brian P. Brockway

  	
   

  
	
   

  
	
  Brian P. Brockway

  
	
  President & CEO

  



 


BPB:jmf


 


 


	
  FOR: TRANSOMA MEDICAL, INC.

  	
  FOR: CONSULTANT

  
	
   

  	
   

  
	
  By 

  	
  /s/ Brian P. Brockway

  	
   

  	
  By 

  	
  /s/ Mike Berman

  	
   

  
	
   

  	
   

  
	
  Its: President and CEO

  	
  Its:

  	
   

  	
   

  
	
   

  	
   

  
	
  Date: 4/13/04

  	
  Date:

  
	
   

  	
   

  
	
  Brian P. Brockway

  	
   

  	
  Mike Berman

  	
   

  
	
  (Printed Name)

  	
  (Printed Name)