CONSULTING AGREEMENT
Exhibit
10.6
THIS
CONSULTING AGREEMENT
(this
“Agreement”)
is
made and entered into as of January 1, 2007 (the
“Effective Date”),
by and
between MODIGENE
INC.,
a
Delaware corporation (the “Company”)
and
Xx. Xxxxxxx Xxxxxx (the “Consultant”)
operating through his privately owned company Operon Consultants, Ltd.
(“Operon”)
through which the Consultant services to the Company will be
rendered.
RECITALS
WHEREAS,
the
Company desires the expertise the Consultant can provide in connection with
the
business of the Company and in connection with certain scientific areas;
and
WHEREAS,
the
Consultant has agreed to provide his services to the Company on the terms and
conditions hereinafter set forth; and
WHEREAS,
the
parties also desire to terminate certain prior agreements;
NOW,
THEREFORE,
the
parties hereby agree as follows:
AGREEMENTS
1. Engagement,
Period of Engagement.
(a) The
Company offers to engage the Consultant and the Consultant hereby accepts such
engagement, to provide services to the Company as a consultant for the period
established under this Section 1
(the
“Period
of Engagement”).
The
Period of Engagement commences on the Effective Date, and shall end on the
date
that is 12 months after the Effective Date. The Period of Engagement may be
extended for subsequent 12-month periods upon the written agreement of the
Consultant and the Company.
(b) Notwithstanding
anything contained herein to the contrary, the Period of Engagement shall end
upon any termination of this Agreement pursuant to Section 5.
2. Services.
During
the Period of Engagement, the Consultant shall provide the following
services:
(a) Serving
in the capacity as the Chief Executive Officer of the Company and, together
with
the President of the Company, supervising and controlling all of the business,
affairs and operations of the Company, subject to the direction and control
of
the Board of Directors of the Company;
(b) Performing
all duties incident to the office of Chief Executive Officer of the Company
and
such other duties as may be prescribed from time to time by the Board of
Directors of the Company;
(c)
design
strategic and operational plans for the Company, recruit and supervise
personnel; and
(d) make
such
presentations and reports to the Board of Directors of the Company (the
“Board”)
as and
when the Board may request.
(e) All
services listed in Section 2(b) - (d) will be provided by the Consultant on
part
time basis of 3.5 business days per week.
3. Compensation. In
consideration for any services to be provided under Section 2,
the
Company shall pay to the Consultant an annual consulting fee of Eighty Thousand
U.S. Dollars ($140,000.00) plus V.A.T (if applicable); payable in equal monthly
installments on the first of each month upon providing the Company with an
invoice. Payments will be in Israeli Shekels (IS) according to the official
IS-US$ exchange rate as published by the Bank of Israel on the date of payment
in (xxx.xxxxxxxxxx.xxx.xx). Consultant shall be eligible to receive an annual
cash bonus up 25% of the annual consulting fee, as determined by the Board,
payable within 30 days after the end of the fiscal year of Employer, which
shall
be based upon performance criteria established by the Board.
4. Expenses.
If
in
connection with the performance of services hereunder at the request of the
Company, the Consultant incurs reasonable out-of-pocket costs for expenses
for
travel, meals and lodging or other reasonable expenses of a type for which
other
providers of professional services to the Company would be reimbursed by the
Company, the Consultant shall be entitled to reimbursement therefor by the
Company in accordance with the reasonable standards and procedures established
by the Company and communicated to the Consultant.
5. Termination
of Agreement. This
Agreement and the Period of Engagement established hereunder shall terminate
immediately upon the occurrence of any of the following events: (i) the
Consultant’s death; (ii) the Consultant’s material breach of the Consultant’s
obligations under Section 2
and
subsequent failure to substantially cure such breach after notice of such
breach; (iii) the Consultant’s voluntary termination of this Agreement for any
reason, upon thirty (30) days written notice to the Company; or (iv) in the
event of no material breach of the Consultant’s obligations under Section 2 and
subsequent failure to cure the same, the Company’s voluntary termination of this
Agreement for any reason, upon thirty (30) days written notice to the
Consultant. In the event of a termination of this Agreement in accordance with
clause (iv) of the previous sentence, the Company shall pay to the Consultant
a
lump sum equal $40,000. Following the termination of this Agreement, the Company
shall have no further obligations hereunder, except as specified in the prior
sentence. The provisions of Sections 6,
7,
16 and
17 shall survive the termination of this Agreement.
6. Nonsolicitation. In
consideration of the compensation to be paid to the Consultant pursuant to
Section 3,
the
Consultant hereby covenants and agrees that for a period of twelve (12) months
following the termination of this Agreement for any reason, the Consultant
will
not directly or indirectly (including, without limitation, any action by any
corporation, partnership or other entity for which the Consultant acts as
officer, employer, or consultant or in which the Consultant directly or
indirectly holds a shareholder or other ownership position greater than five
percent (5%)) offer employment to, hire, engage or assist another in offering
employment to, hiring or engaging (without regard to whether it would be in
competition with the Company’s business) a person who is or was an employee or
who performed similar services of or for the Company at any time during the
then
preceding twelve (12) month period or undertake any business with or solicit
the
business of any person, firm or company who shall have been a customer of the
Company during the then preceding twelve (12) month period, in any such case
without the prior written consent of the Company.
2
7. Confidential
Information.
The
Consultant shall maintain Confidential Information (as defined below) in strict
confidence and secrecy and shall not at any time, directly or indirectly, use,
publish, make lists of, communicate, divulge or disclose to any person or
business entity or use for any purpose any Confidential Information or assist
any third parties in doing so, except on behalf of and for the benefit of the
Company. The Consultant agrees, upon demand by the Company, to promptly return
all Confidential Information (including any copies, extracts thereof or
materials reflecting any such information) which is in the Consultant’s
possession.
For
purposes of this Agreement, “Confidential
Information”
shall
include, but not be limited to, materials, records, data or trade secrets
regarding the assets, condition, business, financial information, business
affairs, business matters or other matters related to the Company and to its
direct and indirect subsidiaries and affiliates which the Consultant has
knowledge of as a result of the Consultant’s services for the Company.
Confidential Information shall not include information that becomes generally
available to the public other than as a result of disclosure by the Consultant.
Nothing in this Agreement modifies or reduces the Consultant’s obligations to
comply with applicable laws related to trade secrets, confidential information
or unfair competition.
8. No
Employment Relationship Created.
The
relationship between the Company and the Consultant shall be that of client
and
independent contractor. The Company shall not assume, and specifically
disclaims, any obligations of an employer to an employee which may exist under
applicable law. The Consultant shall be treated as an independent contractor
for
all purposes of federal, state and local income taxes and payroll taxes and
the
Company shall report on the appropriate IRS Form 1099 all compensation paid
to
the Consultant. The Consultant shall be responsible for payment of all taxes,
including federal, state and local taxes, arising out of the Consultant’s
activities in accordance with this Agreement, including by way of illustration,
but not limitation, federal and state personal income tax and social security
tax, all as may be required by applicable law or regulation. The Consultant
shall have the full authority to select the means, manner and method of
performing the services to be performed under this Agreement. The Consultant
shall not be considered by reason of the provisions of this Agreement or
otherwise as being an employee of the Company. The Consultant shall not be
eligible to participate in any employee benefit plans offered by the Company
or
any of its subsidiaries to their respective employees.
9. Successors
and Assigns.
This
Agreement will inure to the benefit of and be binding upon the Consultant,
the
Consultant’s legal representatives and testate or intestate distributees, and
the Company, and its successors and assigns, including, in the case of the
Company, any successor by merger or consolidation or a statutory receiver or
any
other person or firm or corporation to which all or substantially all of the
respective assets and business of the Company may be sold or otherwise
transferred. The Consultant may not assign any of his rights under this
Agreement without the prior written consent of the Company. Except as expressly
provided herein, nothing in this Agreement shall be construed to give any person
other than the parties to this Agreement any legal or equitable right, remedy
or
claim under or with respect to this Agreement or any provision of this
Agreement.
3
10. Waiver.
The
rights and remedies of the parties to this Agreement are cumulative and not
alternative. Neither the failure nor any delay by any party in exercising any
right, power or privilege under this Agreement or the documents referred to
in
this Agreement will operate as a waiver of such right, power or privilege,
and
no single or partial exercise of any such right, power or privilege will
preclude any other or further exercise of such right, power or privilege or
the
exercise of any other right, power or privilege.
11. Modification.
This
Agreement may only be amended by a written agreement executed by both
parties.
12. Notices.
All
notices and other communications under this Agreement must be in writing and
will be deemed to have been duly given if delivered by hand or by nationally
recognized overnight delivery service (receipt requested) or mailed by certified
mail (return receipt requested) with first class postage prepaid:
| (a) |
if
to the Company, to:
|
0000
Xxxxxx Xxxxxxxx Xxxxx
Xxxxx
0000
Xxxxxx,
Xxxxxxxx 00000
Attention:
President
with
a
copy to:
Xxxxxxxx
Xxxx Xxxxx, Esq.
Barack
Xxxxxxxxxx Xxxxxxxxxx Xxxxxxx & Xxxxxxxxx LLP
000
X.
Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx,
Xxxxxxxx 00000
| (b) |
if
to Consultant, to:
|
_______________
_______________
_______________
or
to
such other person or place as either party shall furnish to the other in
writing. Except as otherwise provided herein, all such notices and other
communications shall be effective: (x) if delivered by hand, when
delivered; (y) if mailed in the manner provided in this Section, five (5)
business days after deposit with the United States Postal Service; or
(z) if delivered by overnight express delivery service, on the next
business day after deposit with such service.
4
13. Entire
Agreement.
This
Agreement and any documents executed by the parties pursuant to this Agreement
and referred to herein constitute a complete and exclusive statement of the
entire understanding and agreement of the parties hereto with respect to their
subject matter and supersede all other prior agreements and understandings,
written or oral, relating to such subject matter between the parties.
14. Severability.
Whenever
possible, each provision of this Agreement shall be interpreted in such manner
as to be effective and valid under applicable law, but if any provision of
this
Agreement is held to be prohibited by or invalid under applicable law, such
provision will be ineffective only to the extent of such prohibition or
invalidity, without invalidating the remainder of such provision or the
remaining provisions of this Agreement. Without limiting the generality of
the
foregoing, if the scope of any provision contained in this Agreement is too
broad to permit enforcement to its full extent, but may be made enforceable
by
limitations thereon, such provision shall be enforced to the maximum extent
permitted by law, and the Consultant hereby agrees that such scope may be
judicially modified accordingly.
15. Counterparts.
This
Agreement and any amendments hereto may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same agreement.
16. Termination
of Prior Agreements.
The
parties agree that as of the Effective Date the Consulting Agreement dated
December 15, 2006 between the Consultant, Operon and Modigene shall terminate
and no party shall have any rights, liabilities or obligations thereunder,
except that sections 6,7, 8, and 16 of such agreement shall survive such
termination.
IN
WITNESS WHEREOF, each
of
the parties hereto has caused this Agreement to be executed, all as of the
day
and year first above written.
|
By:
|
|||
|
Its:
|
|
OPERON
CONSULTANTS, LTD.
|
|||
|
By:
|
|||
|
Its:
|
|||
|
Xx. Xxxxxxx Xxxxxx |
5
