EX-10.12
15
ff12014ex10xii_biondvax.htm
ADDENDUM TO SERVICE AGREEMENT DATED AUGUST 31, 2014, BETWEEN BIONDVAX PHARMACEUTICALS LTD., CFO DIRECT AND URI BEN
Exhibit 10.12
ADDENDUM
TO SERVICES AGREEMENT
This
Amendment to the Services Agreement (the "Addendum") is entered into as of August 31, 2014 (the "Effective
Date"), by and between Biondvax Pharmaceuticals Ltd. (the "Company"), CFO Direct Ltd. (the "Contractor")
and Mr. Uri Ben Or. The Company and Contractor shall be referred to individually as a "Party" and collectively
as the "Parties".
WHEREAS,
the Parties entered into a services agreement, dated June 20, 2007 (the "Agreement");
WHEREAS,
the Parties wish to modify and restructure the manner in which the Services (defined below) pursuant to the Agreement are to be
provided to the Company and that the Service Provider (defined below) provide a certain portion of such Services directly to the
Company and be retained Company as an employee on a part time basis; and
WHEREAS,
on August 31, 2014, the board of directors of the Company approved the modification and restructuring of the manner in which the
Services are to be provided to the Company and the relationship with the Service Provider;
NOW,
THEREFORE, based on the representations contained herein and in consideration of the mutual promises and covenants set forth
herein, the Parties agree as follows:
| 1. | Appointment;
the Services |
| 1.1. | Commencing
as of the Effective Date, the Company retains contractor
to provide financial services (the "Services"), as an independent contractor. |
| 1.2. | The
Services shall be performed on behalf of the contractor
by Mr. Uri Ben Or (the "Service Provider") and/or other employees of
the Contractor as shall be designated by the Service Provide, from time to time. |
| 1.3. | The
Contractor shall devote such time and effort to the performance of the Services as shall
be requested by the Company from time to time. |
| 1.4. | Contractor
shall fulfill its obligations in good faith in the best interests of the Company. The
Company shall provide Contractor with the necessary assistance, cooperation and feedbacks
required by Contractor for the performance of the Services, including but not limited
to, any clarifications, answers, approvals and documents. The Contractor shall be subject
to and shall perform all and any directives relating to the Services issued by the Chief
Executive Officer and of the Company or any other person(s) designated by the Company,
and shall report to said persons. |
| 2.1. | In
consideration for the Services rendered by Contractor, the Company shall pay the Contractor
a monthly service fee in the amount of NIS 2,500 (Two Thousand Five Hundred New Israeli
Shekels) plus VAT (the "Service Fee"). Provided, however, that subject
to and contingent upon an initial public offering of the Company’s securities in
the U.S. (an "Initial Public Offering"), from the date of such Initial
Public Offering the monthly Services Fee shall be raised to NIS15,000 (Fifteen Thousand
New Israeli Shekels). |
| 2.2. | In
addition, the Contractor shall be entitled to receive a one-time bonus of up to and aggregate
amount of NIS 280,000 (two hundred eighty thousand New Israeli Shekels), in accordance
with the following milestones (the "Bonus"): |
| (a) | 48,125,
on September 1, 2014; |
| (b) | 48,125,
on October 1, 2014; |
| (c) | 48,125,
on November 1, 2014; |
| (d) | 48,125,
on December 1, 2014; and |
| (e) | 87,500,
subject to and contingent upon the Initial Public Offering. |
| 2.3. | At
the end of each calendar month during the term of this Addendum, the Contractor will
provide the Company with an invoice with respect to the Services rendered by the Contractor
during the previous calendar month. Payment of the Service Fee shall be made within 30
(Thirty) days following the end of each calendar month. |
| 2.4. | In
addition to the Services Fee, the Company shall reimburse Contractor for out-of-pocket
business expenses, reasonably incurred by it in the provision of the Services and approved
in writing and in advance by the Company (the "Expenses"). The Expenses
shall be included in the invoice issued by the Contractor and the Company shall reimburse
Contractor for the Expenses together with payment of the Services Fee. |
| 2.5. | Other
than the Service Fees, the Bonus and the approved Expenses above, the Contractor shall
not be entitled to any other payment, remuneration or consideration of any type from
the Company for the performance of the Services or under this Addendum. |
| 2.6. | The
Contractor shall be solely responsible for the payment of all taxes, levies, social benefits
and any other payments required by applicable law to be made in connection with this
Addendum (except for VAT in accordance with Section 2.1 above). |
| 2.7. | The
Company shall deduct withholding tax (if imposed on the Contractor) from the payments
referred to above, as prescribed by applicable law, unless the Contractor provides the
Company with evidence of an exemption from the payment of withholding tax. |
| 2.8. | The
Contractor hereby acknowledges that the Company is a public company whose securities
are traded on the Tel-Aviv Stock Exchange Ltd. and may be traded in the future on other
foreign Stock Exchanges. As a result, the Company may be required to file public reports
in connection with this Addendum. |
| 3. | Relationship
of the Parties |
The
Contractor hereby warrants and represents towards the Company as follows:
| 3.1. | The
Contractor and the Service Provider have the skills, expertise, experience, qualification,
knowledge and ability required to provide the Services. |
| 3.2. | The
Contractor and the Service Provider shall provide the Services at a high professional
standard, in good faith and avoid any situation of an actual or potential conflict of
interest with the Company. |
| 3.3. | The
Contractor has all the requirements and provisions required by law in order to provide
the Services, including but not limited to all the permits, licenses and approvals required
by the law in order to perform its obligations accordance to this Addendum. |
| 3.4. | The
Contractor undertakes to perform and ensure that the Service Provider will perform all
the obligations related to the Contractor as provided herein. The Contractor represents
and warrants that all statements and obligations under this Addendum shall also apply
to the Service Provider. |
| 3.5. | The
Contractor is an independent contractor, according to its request, and is expected to
provide the Services to the Company as an independent contractor and shall not be considered
an agent or employee of the Company. Nothing in this Addendum shall be interpreted or
construed as creating or establishing an employer-employee relationship between the Company
and the Contractor or between the Company and Service Provider under this Addendum. The
Contractor acknowledges that the Contractor has read and fully understand the terms of
this structure of the relationship between the Parties as an independent contractor and
that the Contractor has consulted and received advice of counsel regarding same and has
had sufficient opportunity to do so. |
| 3.6. | For
the avoidance of any doubt, the Service Provider is not entitled to any consideration
whatsoever directly from the Company in respect to the Services or under this Addendum
and the Contractor shall be solely responsible for any consideration due to Service Provider
for his involvement in carrying out the Services, including but not limited to any salary,
social benefits or severance pay. |
| 3.7. | The
Parties hereby deny and waive any demand, claim and/or allegation that an employment
relationship of any kind has resulted from this Addendum or from the rendering of the
Services as of the Effective Date or rendering services prior to the Effective Date as
an officer of the Company. In addition, the Contractor and the Service Provider hereby
declare that they waive any demand, claim and/or allegation in accordance with the Employment
Agreement between the Services Provider and the Company dated August 31, 2014. |
| 3.8. | It
is agreed between the Parties that, if notwithstanding Section 3.5 above, in the event
that a duly authorized legal body or other authorized forum, orders the Company to grant
the Contractor the rights and privileges of an employee for the Services rendered in
accordance with this Addendum, the Contractor will not be entitled to the Service Fee
and the Bonus as provided in Sections 2.1 and 2.2 above, but rather to the Services Fee
and Bonus less any amount that the Company will have to pay following the decision of
said duly authorized legal body or other authorized forum as described at the beginning
of this Section 3.8. |
| 3.9. | In
the event the Company is demanded and/or obligated, to pay the Contractor, any amount,
or give the Contractor or any third party any right, deriving from the existence of employer-employee
relationship between the Contractor and the Company, the Contractor shall indemnify the
Company for any and all costs, liabilities and expenses it may have in connection with
such demand and/or obligation, including the economic value of such right and including
legal expenses. |
| 3.10. | With
respect to the circumstances as described in Sections 3.8 and 3.9 above, the Contractor
shall indemnify the Company any amount or fee that has been received by it exceeding
the Services Fee and Bonus to which it is entitled in accordance with Sections 2.1 and
2.2 above, with the linkage to the CPI and with interest rates under the Adjudication
of Interest and Linkage Law, 5721-1961. Interest and linkage differentials are calculated
according to the date on which any amount or fee has been received and until the date
in which the amount or fee will be refunded to the Company. |
| 3.11. | Without
derogating from the foregoing, Contractor hereby explicitly agrees to reimburse the Company
in respect of any cost or expense (including reasonable legal fees and expenses), imposed
on and when incurred, by the Company against decision by any competent judicial authority,
of the existence of an employment relationship between the Company, on the one hand,
and the Contractor and/or Service Provider on the other hand. |
| 3.12. | The
Contractor shall be responsible for the payments of all taxes applicable to it as an
independent contractor. |
| 3.13. | The
execution and delivery of this Addendum and the fulfillment of the terms hereof will
not (i) result in any violation of any statute, regulation or judicial decree; (ii) constitute
a default under or breach of any legal obligation and/or agreement and/or undertaking
and/or other instrument to which Contractor is a party, including, any confidentiality
or non competition agreement; and (iii) do not require the consent of any person or entity
which has not been obtained prior to the execution hereto, including, that of any former
or current employer. |
| 4. | Confidentiality
and Proprietary Rights |
| 4.1. | The
Contractor agrees to maintain in strict confidence and shall not disclose to any third
party (including in or by way of any presentation) without the written consent of the
Company, or use other than for the Services: (i) any information, materials and data
of a proprietary or confidential nature, whether in oral, written, graphic, machine-readable
form or in any other form, including, without limitation, technology, bio-technology,
trade secrets, patents, patent applications, copyrights, ideas, improvements and inventions
(whether or not patentable or registerable) and other works of authorship, formulas,
computer programs, databases, developments, technical drawings, designs, algorithms,
circuits, layouts, biological and other materials, schematics, forecasts, products (actual
or planned), marketing, sales, strategies, prices, customers, distributors, suppliers,
operators, names and expertise of employees and consultants, performance, costs, know-how,
research, technique and process information, records and results, clinical protocols
and patient information, any other proprietary and/or confidential business, financial,
technical, pre-clinical, clinical and scientific information, and all record bearing
media containing or disclosing such information and techniques, disclosed and/or made
available by the Company to Contractor or otherwise acquired by the Contractor as a result
of or in connection with this Addendum and/or the Parties' discussions (whether prior
to the execution hereof or thereafter (ii) the Proprietary Data and IP (as defined in
Section 4.4 below) and (iii) the terms of this Addendum (all of the foregoing, collectively,
the "Confidential Information"). The Contractor shall safeguard the
Confidential Information with the same degree of care that the Contractor maintains or
protects his own confidential information, but in any event, no less than a reasonable
degree of care. |
| 4.2. | For
the purposes of this Addendum, Confidential Information shall not include any information
that the Contractor can document: (i) was lawfully in the Contractor 's possession prior
to receipt from the Company; or (ii) is already in the public domain through no breach
of this Addendum or any other obligation of confidentiality applicable to the Contractor;
or (iii) is approved for release by Contractor by advance written authorization of the
Company. |
| 4.3. | The
Contractor acknowledges and agrees that all Confidential Information is and shall remain
the sole property of the Company and that no patent, copyright, trademark or other proprietary
right or other right or license is granted by this Addendum. |
| 4.4. | All
inventions, data, information, work product, presentations designs, technology, reports
or other results conceived of, created, written, designed, developed, reduced to practice,
authored or made by or on behalf of the Contractor, alone or together with others (i)
during and/or arising from the performance of the Services hereunder, and/or (ii) relating
to the Confidential Information and all related, copyrights, know-how, trademarks, and
other intellectual property (including applications therefor) (collectively, the "Proprietary
Data and IP") shall be the sole and exclusive property of the Company and shall
be deemed "works made for hire". |
| 4.5. | The
Contractor hereby acknowledges that he is aware of the fact that the Company is a Public
Company (as defined in the Companies Law, 5759-1999), and that any unauthorized discloser
of information regarding the Company may be considered, in these circumstances, a criminal
offence and a civil cause of action. |
| 4.6. | Upon
the termination of this Addendum for any reason, or at the earlier request of the Company,
the Contractor shall promptly return to the Company all Confidential Information and
all copies or other manifestations of Confidential Information in the possession or control
of the Contractor. |
| 5.1. | The
term of this Addendum shall commence as of the Effective Date and shall continue in full
force and effect for a period of 5 (Five) years unless earlier terminated in accordance
with Sections 5.2 or 5.3 below. |
| 5.2. | Either
Party may terminate this Addendum by providing the other Party with 60 (Sixty) days prior
written notice. |
| 5.3. | Notwithstanding
anything to the contrary herein, the Company may terminate this Addendum at any time,
effective immediately, without need for prior written notice, and without derogating
from any other remedy to which the Company may be entitled, for Cause. |
| 5.4. | For
the purposes of this Addendum, the term "Cause" shall mean: (i) If the
Contractor is convicted of a felony or is held liable by a court of competent jurisdiction
for fraud against the Company; (ii) The Contractor’s embezzlement of the Company's
funds; (iii) Any conduct which has a material adverse effect or is materially detrimental
to the Company, including but not limited to a material breach of this Addendum, which
shall include, for avoidance of doubt, a breach of Section 4 above; (iv) A claim by the
Contractor or any one on his behalf or connected thereto, that the Contractor and/or
the Service Provider is an employee of the Company. |
| 5.5. | Upon
termination of this Addendum for any reason other than for Cause, the Company shall promptly
pay Contractor the Service Fees, and Bonus due and payable to Contractor for Services
rendered and Expenses incurred by Contractor, during the term of this Addendum, against
an invoice issued to the Company, all in accordance with Section 2 above. |
| 5.6. | The
provisions of Sections 3.7-3.11 (inclusive), 4, 5, 6, 7, 8, and 9.4 shall survive termination
or expiration of this Addendum. |
| 6. | Limitation
of Liability. |
Without
derogating from Contractor 's right to receive the Services Fees, Bonus and reimbursement for the Expenses and save for any liability
for breach of Sections 4 and 5 the indemnification obligations under Section 3, no Party hereunder shall be liable to the other
Party for any consequential, incidental, indirect, punitive, exemplary or special damages of any nature whatsoever, arising from
or related to this Addendum, or for any damages arising from or related to the loss of data, loss of profit, interruption of service
or loss of business or anticipatory profits, even if a Party has been apprised of the likelihood of such damages occurring, regardless
of the type of claim.
| 7. | Insurance
and Indemnification |
The
Service Provider shall continue to be covered under the Company's current Directors and Officers insurance coverage, to cover
Service Provider's liability as an officer of the Company.
All
notices and other communications required or permitted to be given or sent hereunder shall be given in writing and shall be deemed
to have been sufficiently given or delivered for all purposes if mailed by registered mail, sent by fax, delivered by hand or
sent by electronic mail to the respective addresses set forth herein until otherwise directed. All notices shall be deemed to
have been received: (i) within five (5) business days following the date upon which it was deposit for registered mail; (ii) within
one (1) business day after it was transmitted by fax or electronic mail; and confirmation of transmission has been obtained and
(iii) at the time of actual receipt, if delivered by hand.
| | If
to the Company:
BiondVax
Pharmaceuticals Ltd.
Science Park, 00 Xxxxxxxx Xxxxxx
XX Xxx 0000
Xxxx Xxxxx, 00000
Xxxxxxxxx:
000-0-0000000
Email:
xxxxxxxx@xxxxxxxx.xxx
Attn.:
Dr. Xxx Babecoff , CEO
| | If
to the Contractor and Service Provider:
CFO
Direct Ltd.
00
xxxxxxxxxx xxxxxx
Xxxxx
Xxxxxxxx, 0xx xxxxx
Xxxx
Xxxx 44201,Israel
Facsimile:000-0-0000000
Email:xxxxx@xxxxxxxx.xxx
Attn.:
Mr. Uri Ben Or
|
| 9.1. | This
Addendum, including all appendices attached thereto, is the entire agreement between
the Parties with respect to the subject matter hereof and thereof, and supersedes all
prior understandings, agreements and discussions between them, oral or written, with
respect to the subject matter hereof and thereof. |
| 9.2. | No
provision of this Addendum may be amended or modified unless agreed to in writing and
signed by both Parties. The observance of any term hereof may be waived (either prospectively
or retroactively and either generally or in a particular instance) only with the written
consent of the Party against such waiver is sought. No waiver by either Party at any
time to act with respect to any breach or default by the other Party of, or compliance
with, any condition or provision of this Addendum to be performed by such other Party
shall be deemed a waiver of similar or dissimilar provisions or conditions at the same
or at any prior or subsequent time. |
| 9.3. | This
Addendum shall be governed by and construed and enforced in accordance with the laws
of the State of Israel, without giving effect to the rules with respect to conflicts-of-law.
Any dispute arising out of, or relating to this Addendum, its interpretation or performance
hereunder shall be resolved exclusively by the competent court of the city of Tel Aviv-Jaffa,
and each of the Parties hereby submits exclusively and irrevocably to the jurisdiction
of such court. |
| 9.4. | The
provisions of this Addendum shall be deemed severable and the invalidity or unenforceability
of any provision shall not affect the validity or enforceability of the other provisions
hereof. If any part of this Addendum is determined to be invalid, illegal or unenforceable,
such determined shall not affect the validity, legality or enforceability of any other
part of this Addendum; and the remaining parts shall be enforced as if such invalid,
illegal, or unenforceable part were not contained herein, provided, however, that in
such event this Addendum shall be interpreted so as to give effect, to the greatest extent
consistent with and permitted by applicable law, to the meaning and intention of the
excluded provision as determined by such court of competent jurisdiction. |
[Signature
Page Follows]
IN
WITNESS WHEREOF, the Parties hereto have executed this Addendum to the services agreement as of the date first above-mentioned.
| /s/ Uri Ben Or | | /s/ Xxx Babecoff |
| CFO
Direct Ltd. | | BiondVax
Pharmaceuticals Ltd. |
| | | |
| Name: Mr.Uri Ben Or , CEO | | Name: Dr. Xxx Babecoff , CEO |
I,
the undersigned, hereby undertake to act as the Service Provider as stipulated in the Addendum and to be bound by all the Contractor's
obligations and undertakings, jointly and severally with the Contractor.
/s/
Uri Ben Or
8
