CONSULTING SERVICES AGREEMENT
EXHIBIT
10.32
This
agreement (“Agreement”) is entered into as of January 31st, 2008 Medgenics, Inc.
a corporation organized under the laws of Delaware (“Client”) and Biomondo
Consulting, Inc., a corporation organized under the laws of the State of
California (“Consultant”).
WHEREAS,
Client wishes Consultant to perform the services described in Schedule A hereto
(“Services”), which shall be performed in accordance therewith and in accordance
with the terms hereof, and
WHEREAS,
Consultant wishes to perform Services subject to the terms and conditions set
forth herein,
NOW,
THEREFORE, the parties hereto agree as follows:
ARTICLE
1
Basic
Obligations of the Parties
1.1 Services. Subject
to the terms and conditions provided for herein,
(a)
Consultant, in consideration of the Contract Price (as defined in Section 2.1),
agrees to perform Services, and
(b)
Client agrees to pay for Services as set forth in Section 2.1.
1.2 Employees/Subcontractors. All
personnel assigned by Consultant to perform Services will be either employees of
Consultant or subcontractors with which Consultant has contracted and which have
been approved in advance by Client (“Subcontractors”). Consultant will pay all
salaries, fees and expenses of its employees and Subcontractors, and all
federal, social security, federal and state unemployment taxes, and any other
payroll or withholding taxes relating to its employees. Consultant (and its
Subcontractors) will be considered, for all purposes, an independent contractor,
and it will not, directly or indirectly, act as an agent, servant or employee of
Client, or make any commitments or incur any liabilities on behalf of Client
without its prior written consent.
ARTICLE
2
Terms of
Payment and Volumes
2.1 Contract Price. In consideration for
performance of Services, Client shall make payment to Consultant for Services
rendered hereunder at the rates and in the amounts as in Schedule B hereto (the
“Contract Price”). The Contract Price includes all amounts to be paid by Client
under this Agreement, other than as specifically set forth herein, and shall be
payable as set forth in Schedule B hereto.
2.2 Indemnity. Consultant shall
indemnify and hold harmless Client from and against any liability and costs,
including attorney fees, arising out of any failure to make payment to its
employees and its Subcontractors for Services rendered pursuant to this
Agreement.
ARTICLE
3
Term of
Agreement
3.1 Term. This Agreement shall be
effective from the date hereof and shall terminate on completion of Phase 3, at
which time this Agreement shall terminate, unless otherwise renewed, extended,
or modified by a written agreement signed by both parties hereto; provided, however, that either party
shall have the right to terminate this Agreement prior to such date, at any time
upon not less than 30 days’ notice to the other party specifying the effective
date for termination.
3.2 Survival of Certain Articles.
Consultant agrees that notwithstanding the termination of this Agreement
pursuant to Section 3.1 hereof, Section 2.2 and Articles 6, 8, and 9 shall
survive any such termination and remain in full force and effect.
ARTICLE
4
Risk of
Loss; Laws
4.1 Risk. Consultant will provide for all
proper safeguards and shall assume all risks of loss to Consultant and its
employees and Subcontractors incurred in performing Services
hereunder.
4.2 Laws. Consultant, its
employees and Subcontractors shall comply with all federal, state and local laws
and regulations applicable to the Services, including but not limited to laws
governing payment of its employees assigned to perform Services.
ARTICLE
5
Performance
of Services
5.1 Conduct of Personnel. Without limiting
the responsibility of Consultant for the proper conduct of its personnel and
Subcontractors in the performance of Services, the conduct of the personnel
performing Services is to be guided by any rules and regulations as set forth in
a Schedule C hereto and any additional special written instructions as may be
agreed to by Client and Consultant.
5.2
Supervision. Consultant is responsible
for the direct management and supervision of its personnel and Subcontractors
through its designated representative, and such representative will, in turn, be
available at all reasonable times to report and confer with the designated
agents or representatives of Client with respect to Services being
rendered.
5.3
Qualifications and Removal. Consultant
agrees that Services to be provided will be performed by qualified, careful and
efficient employees or Subcontractors in strict conformity with the best
practices and highest applicable standards. Consultant further agrees that upon
request of Client it will remove from the performance of Services hereunder any
of its employees or Subcontractors who, in the reasonable opinion of Client, are
guilty of improper conduct or are not qualified to perform assigned
work.
ARTICLE
6
Confidential
Information
6.1 Restriction. Consultant agrees not to
use or disclose to anyone, other than such disclosure to employees or
Subcontractors of Consultant as may be necessary to provide the Services, any
Confidential Information (as hereinafter defined). If requested by Client,
Consultant shall require its employees and Subcontractors performing Services
hereunder to execute confidentiality agreements prohibiting use or disclosure of
Confidential Information. For purposes of this Agreement, “Confidential
Information” is (a) information contained in any materials delivered to
Consultant pursuant to this Agreement and (b) information which relates to
Client’s technology, financial or business affairs, product development and
business plans and prospects or that of any of its customers or affiliates.
Consultant acknowledges that money damages would be both incalculable and an
insufficient remedy for any breach of this Article 6 by Consultant, its
employees or its Subcontractors and that any such breach would cause Client
irreparable harm. Accordingly, Consultant agrees that in the event of any breach
or threatened breach of this Article 6, Client shall be entitled, without the
requirement of posting a bond or other security, to equitable relief, including
injunctive relief and specific performance. Such remedy shall not be the
exclusive remedy for any breach of this letter agreement, but shall be in
addition to all other remedies available at law or equity to
Client.
6.2 Delivery. Upon termination pursuant to
Article 3, Consultant shall deliver or cause to be delivered to Client all
Confidential Information and other material which has been prepared by
Consultant or its Subcontractors in connection with the performance of the
Services or in which Client has exclusive rights.
ARTICLE
7
Excuse
for Nonperformance
7.1 Delays. Consultant’s obligation to
perform Services hereunder shall be excused without liability when prevented by
strike, act of God, governmental action, accident or any other condition beyond
its reasonable control. Consultant agrees to resume performance of Services as
soon as practicable following cessation of such condition.
ARTICLE
8
Disclaimer
of Consequential Damages
8.1
Except in connection with a breach of the obligations under Article 6, neither
party shall not in any action or proceeding, or otherwise, assert any claim for
consequential, special or punitive damages against the other party (or the
party’s employees or agents) on account of any loss, cost, damage or expense
which the first party may suffer or incur because of any act or omission of the
second party.
ARTICLE
9
Hiring of
Employees/Subcontractors
9.1 Client
agrees that, during the term of this Agreement and for one hundred eighty (180)
days immediately following the termination of this Agreement, it shall not,
directly or indirectly, hire any employees of Consultant or Subcontractors who
were employed by Consultant or provided Services at any time during the term of
this Agreement.
9.2 Consultant
agrees that, during the term of this Agreement and for one hundred eighty (180)
days immediately following the termination of this Agreement, it shall not,
directly or indirectly, hire any employees of Client.
ARTICLE
10
General
10.1 Assignment. This Agreement may not be
assigned by either party without the prior written consent of the other
party.
10.2 Governing Law. This Agreement will be
governed in all respects by the law of the State of California.
10.3 Amendment. This Agreement, including
the Schedules hereto, may be amended only by an instrument in writing executed
by the parties or their permitted assignees.
10.4
Section Headings.
Section and Article headings are for reference purposes only and shall not
affect the interpretation or meaning of this Agreement.
10.5 Notices. All notices pursuant
to this Agreement shall be in writing, except as provided herein. Notices in
writing shall be sufficient if hand delivered or mailed by first class mail,
postage prepaid, or sent by telecommunications to the attention of the person
listed below and to the party intended as the recipient thereof at the address
of such party set forth below, or at such other address or to the attention of
such other person as such party shall have designated for such purpose in a
written notice complying as to delivery with the terms of this
Section.
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Consultant:
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000
Xxxxx Xxxxx Xxxx Xxxxxxxx
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Xxxx,
Xx 00000
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Attn:
Xxx Xxxx, PhD
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Client:
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00
Xxxxxxxx Xx, X.X. Xxx 0000
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Xxxxxxx,
Xxxxxx 21653
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Attn:
Xxxxxx Xxxxxxxx, MD
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10.6 No Waiver of Performance.
Failure by either party at any time to require performance by the other
party or to claim a breach of any provision of this Agreement will not be
construed as a waiver of any right accruing under this Agreement, nor affect any
subsequent breach, nor affect the effectiveness of this Agreement or any part
hereof, nor prejudice either party as regards any subsequent
action.
10.7 Entire Agreement; Conflicting
Provisions. This Agreement together with the Schedules hereto constitutes
the entire agreement between Client and Consultant with respect to the subject
matter hereof and no representation or statement not contained in the main body
of this Agreement or such Schedules shall be binding upon Consultant or Client
as a warranty or otherwise. In the event of any conflict between the terms of
the main body of this Agreement and any of the Schedules hereto, the terms of
the main body of this Agreement shall govern.
IN
WITNESS WHEREOF, the parties hereto have respectively caused this Agreement to
be executed by their duly authorized officers as of the day and year first
written above.
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CONSULTANT
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By
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/s/
Xxx Xxxx
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XXX
XXXX
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Title:
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PRESIDENT
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CLIENT
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By
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/s/
Xxxxxx Xxxxxxxx
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Title:
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CEO
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SCHEDULE
A Services
Phase 1
Deliverable:
A
PowerPoint Presentation (approximately 20 slides). A draft would be sent to you
in advance and then edits/refinement can be made subsequent to final
delivery.
Purpose/Rationale:
The
presentation will serve as a frame of reference and working document for
internal strategic discussions. It will incorporate existing company information
blended with addition strategic perspectives for consideration or dismissal. In
essence, it will allow the Board to align around a strategy, or strategies, and
proactively manipulate the choices the company will have to make in order to
maximize the chances for success. The successful future will be all about
simultaneous prediction and feedback.
Phase 1.
There will be 4 components for the content to develop corporate strategy and the
strategic choices.
Opportunity:
1. List
of companies who may be interested in a platform technology including
rationale
2. List
of companies and/or product(s) where Medgenics bio-pump technology may be ideal
for life cycle management. Regional Markets will be factored in as
appropriate.
3. Medgenics
as a commercial entity. The US nephrology market will be used as the potential
example using Epodure. What would it take to be a serious commercial
player.
Promise:
1. What
Medgenics could deliver - therapeutically and by value.
2. Conversely,
how Medgenics may be perceived by Pharma companies, particularly from a Business
Development perspective. This is to be a mini “pressure test” on your
assumptions and proof of concept from a business and NOT a scientific
perspective.
Proof:
1. A list
of the Medgenics’ assets from the perspective of an outsider, namely me. This in
turn will form the basis of the company storyboard for future business
development opportunities
Conviction
and/or Exit Strategy:
1.
What is the end in mind? What would be a successful outcome?
The
presentation would be summarized with a series of action steps and
recommendations.
SCHEDULE
B Contract Price
Phase
1: $20,000 (the “Phase 1 Fee”), plus reasonable
out-of-pocket expenses; provided, however, that all expenses in excess of $_____
individually, and $_____ in the aggregate, shall be approved in advance in
writing by Client. The Phase 1 Fee shall be payable only after delivery of the
PowerPoint Presentation described on Schedule A.
Phase
2: To be mutually agreed between Client and
Consultant
Phase
3: To be mutually agreed between Client and
Consultant
Invoices
to be paid within 30 days of invoice date.
SCHEDULE
C Rules of Engagement
[Spell
out any special rules of conduct (e.g. compliance with security requirements of
Client’s customers)]
