Exhibit 10.28
OSIRIS THERAPEUTICS, INC.
Consulting Agreement
November, 1995
Gentlemen:
This letter confirms our agreement between Osiris Therapeutics, Inc.
("the Company") and Xxxxxxx Corporate Finance AG ("Xxxxxxx") in connection
with the investments by Xxxxxxx in the Company and to provide financial
consulting services pursuant to the following procedures, terms and conditions:
1. Term
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The Company hereby retains Xxxxxxx, and Xxxxxxx hereby accepts such
engagement, for a term commencing on November 1, 1995 and terminating
on November 1, 2002, or such earlier date upon which this Agreement or
specific duties under this Agreement shall terminate.
2. The Company's Obligation
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(a) At Xxxxxxx'x request, the Company will furnish written quarterly
status reports to Xxxxxxx describing both, positive and negative
events, until such time as the Company becomes public.
(b) At Xxxxxxx'x request, the Company at its own expenses will make
presentations to investors in Switzerland and Luxembourg.
3. First Right of Refusal
----------------------
The Company grants Xxxxxxx the first right of refusal of any new equity or
debt financing with thirty (30) days written notice to Xxxxxxx.
4. Proxy and other Shareholder Material
------------------------------------
The Company agrees to mail proxy and any other shareholder material for
any ordinary or extraordinary shareholder meeting to the Xxxxxxx investors
at least thirty (30) days in advance.
5. IPO Allocation
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The Company agrees to provide a preemptive right to Xxxxxxx to allocate
10% of the offering in case of an IPO.
6. Expenditure Veto Right
----------------------
The Company agrees, that Xxxxxxx has the veto right on any single capital
expenditure or single contact of US$500,000 or more until a new equity
investment of $5,000,000 or more is completed after the closing of the
Series D Preferred Stock financing.
7. Duties and Representations of Xxxxxxx
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(a) Xxxxxxx shall provide services to the Company in the form of
consultation, advice and assistance upon the reasonable request of
the Company and at such times as are convenient to Xxxxxxx in its
reasonable discretion. Such services may include, but are not limited
to, (i) providing general business, financial and investment advice
to the Company during the term of this Agreement, and (ii) serving as
a liaison between Xxxxxxx clients/investors and the Company by
disseminating information, including proxy and other shareholder
material, to such investors on behalf of the Company.
(b) Xxxxxxx agrees to use its best efforts in performing the foregoing
services.
8. Compensation
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(a) In consideration of the services to be provided by Xxxxxxx hereunder,
the Company shall pay Xxxxxxx US$4,000 per month upon the instructions
of Xxxxx Xxxxxxx.
(b) The Company will also pay Xxxxxxx upon request up to US$ 15,000 per
year for expenses such as traveling, etc.
9. Status of Consultant
--------------------
Xxxxxxx agrees to render services to the Company as an independent
contractor to, and not as an employee, of the Company. Xxxxxxx
acknowledges and agrees, that it will be an independent contractor
for all purposes including, but not limited to, payroll and tax purposes,
and that Xxxxxxx shall not represent itself to be an employee or officer
of the Company.
10. Termination
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This agreement may be terminated by the Company or Xxxxxxx upon thirty
(30) days prior written notice to the other party. If terminated by the
Company, the full balance through November 1, 2002 of the consulting
fee will be immediately due.
11. Confidentiality
---------------
Except as the Company may otherwise consent for Company's benefit, Xxxxxxx
agrees to keep confidential and not to disclose or make any use of at any
time either during or subsequent to the term of this Agreement, any
inventions, trade secrets, confidential information, knowledge, data
or other information of the Company relating to products, processes,
know-how, designs, formulas, test data, customer lists, business plans,
marketing plans and strategies, pricing strategies, or other information
pertaining to the Company or any of its affiliates.
12. Assignment
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The terms of this Agreement shall inure to the benefit of the respective
successors and permitted assigns of the parties hereto, and the
obligations and liabilities assumed in this Agreement by the parties
hereto shall be binding upon their respective successors and permitted
assigns. This Agreement may not be assigned by the Company or Xxxxxxx
without the prior written consent of the other part hereto.
13. Governing Law
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This Agreement shall be governed by the laws of the State of Maryland
without giving effect to principles of conflicts of law.
14. Counterparts
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This Agreement may be executed in any number of counterparts, each of
which shall be deemed to be an original and all of which together shall
be deemed to be the same agreement.
If the foregoing is in accord with your understanding of our agreement, please
sign in the space provided below and return a signed copy of this letter to
the Company.
Sincerely,
OSIRIS THERAPEUTICS, INC.
By: /s/ Xxxxx X. Xxxxx
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Xxxxx X. Xxxxx, President & CEO
Accepted and agreed:
XXXXXXX CORPORATE FINANCE AG
By: /s/ Xxxxx Xxxxxxx
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Xxxxx Xxxxxxx
