Exhibit 10.22
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (this "Agreement") dated as of March 11, 1993, is
made by and between Osiris Therapeutics, Inc., a Delaware corporation (the
"Company"), and Xxxxxx X. Xxxxxxxx (the "Consultant").
RECITALS
A. The Company desires to retain the services of Consultant.
B. Consultant is willing to be retained by the Company on the terms and
conditions set forth in this Agreement.
AGREEMENTS
NOW, THEREFORE, the Company and the Consultant agree as follows:
l. Retention. The Company hereby retains the services of Consultant
for the term set forth in Section 2 below, with the duties and
responsibilities set forth in Section 3 below, and upon the other terms and
conditions hereinafter stated.
2. Term. The initial term of Consultant's consulting services to the
Company shall commence on the date of this Agreement and shall end on
December 31, 1995 unless sooner terminated pursuant to the terms of this
Agreement. Commencing on the third anniversary of the Commencement Date (as
defined below), unless the term of Consultant's consulting services has
otherwise been terminated pursuant to Section 7, the term of Consultant's
consulting services to the Company shall be automatically renewed for
successive two year terms unless the Company makes the election described in
Section 7(a), and each such renewal term shall be for two years unless sooner
terminated pursuant to the terms of this Agreement. The period described
above shall be the "Consulting period," and the "Commencement Date" shall be
January 1, 1993.
3. Duties and Responsibilities
(a) During the Consulting Period, Consultant shall be a consultant
to the Company and shall serve as the Chairman of the Company's Scientific
Advisory Board, reporting and responsible only to the President and Chief
Executive Officer of the Company. The consulting services to be provided by
Consultant to the Company are set forth on Exhibit A to this Agreement.
(b) Throughout the Consulting Period, Consultant shall devote his
time and attention exclusively to the business of the Company subject only to
his duties and responsibilities to Case Western Reserve University ("CWRU")
and University Hospitals ("UH") where Consultant shall continue to be an
employee and to the exceptions set forth in the following sentence. During
the Consulting Period, Consultant shall not provide consulting services to
any other corporation, partnership, organization or other entity or person,
except that Consultant (i) shall be permitted to provide consulting services
to the persons listed on Exhibit B to this Agreement, (ii) shall be permitted
to provide consulting services to any non-profit educational, research or
clinical organization, and (iii) shall be permitted to provide such
consulting services as the Company may approve in writing (such approval not
to be unreasonably withheld), provided that in each case such services do not
(A) interfere with the performance of his duties and responsibilities to the
Company or (B) otherwise violate Section 10 of this Agreement.
4. Base Compensation. Commencing on the date on which the Company has
sold shares of its capital stock (common or preferred) for an aggregate
purchase price of at least $3,000,000 (but retroactive to the Commencement
Date), and thereafter during the Consulting Period, Consultant shall receive
base compensation at an annual rate of not less than (a) $50,000 from the
Commencement Date until December 31, 1993, and (b) from and after December
31, 1993, an amount each calendar year which is equal to the sum of the
annual rate of base compensation for the preceding calendar year plus ten
percent of such amount. Such base compensation shall be paid in accordance
with the Company's procedures for compensating its employees, but not less
frequently than monthly. The first payment of base compensation made to
Consultant shall include base compensation from the Commencement Date.
5. Incentive Compensation. Consultant and the President of the Company
shall agree on annual performance goals and objectives for Consultant which
shall serve as the goals and objectives for Consultant under any merit bonus
plan (the "Plan") established by the Board of Directors for certain employees
of and consultants to the Company. Subject to the adoption of and amount of
funding provided to such Plan, Consultant may receive a cash bonus, based on
the achievement of such goals and objectives, during each fiscal year of the
Company during which Consultant serves as the Chairman of the Company's
Scientific Advisory Board. The bonus for any fiscal year shall not exceed
30% of Consultant's base compensation in effect at the end of such fiscal
year, and shall be paid to Consultant within 60 days following the end of
such fiscal year.
6. Benefits, Perquisites and Expenses. During the Consulting Period,
Consultant shall be entitled to the following benefits and perquisites:
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(a) Reimbursement for all reasonable and documented expenses
incurred by Consultant in connection with the performance of his duties
hereunder, in accordance with the Company policy with respect to-such
reimbursement. In addition to the foregoing, within 30 days after the
Company has sold shares of its capital stock (common or preferred) for an
aggregate purchase price of at least $3,000,000, the Company shall reimburse
Consultant for up to $7,041.75 of reasonable and documented legal expenses
incurred by him in connection with his activities on behalf of Skeletech
Incorporated prior to the Commencement Date.
(b) Within 15 days after the Company has sold shares of its capital
stock (common or preferred) for an aggregate purchase price of at least
$500,000, reimbursement of up to $2,500 of reasonable and documented legal
fees incurred by Consultant in connection with the negotiation of this
Agreement with the Company.
7. Termination of Consulting Period
(a) The Company may elect not to renew the Consulting Period for any
reason, such election to be effective as of either the third anniversary of
the Commencement Date or the end of a renewal term (as described in Section 2
hereof), upon giving Consultant written notice at least 180 days in advance
of such election.
(b) Consultant may terminate his consulting services to the Company
at any time upon giving the Company written notice90 days in advance of the
proposed date of termination.
(c) Consultant's consulting services to the Company shall terminate
automatically upon the death of Consultant.
(d) At any time after Consultant suffers a "Disability" (as defined
below), the Company may terminate Consultant's consulting services to the
Company upon giving Consultant written notice from the Board of Directors of
the Company, accompanied by a certified copy of a resolution to that effect
duly adopted by the Board of Directors, at least 60 days in advance of the
date on which such termination is to become effective. For the purposes of
this Agreement "Disability" shall have the same meaning as any similar term
under any long term disability insurance policy or long term disability plan
maintained by the Company from time to time. In the event the Company shall
not be maintaining any such policy or plan, Consultant shall be considered to
have a Disability if he is receiving disability income payments under the
Social Security system, or if any life insurance carrier has agreed to waive
premiums due under any life insurance policy maintained by the Company on
Consultant's life under a disability waiver provision set forth in such
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policy. In addition, Consultant shall be considered to have a Disability if
the Company receives, from a physician reasonably acceptable to it, written
certification that (i) Consultant is unable to provide services to the
Company of a quality and nature consistent with past practice because of a
mental or physical impairment, and (ii) there is no reasonable prospect that
Consultant will be able to render services of such quality and nature within
the longer of (x) six months, or (y) the period of disability required in
order for Consultant to be eligible to receive disability income payments
under any long term disability insurance policy or long term disability plan
maintained by the Company at such time, from the date of such certificate.
(e) The Company may terminate Consultant's consulting services to
the Company without cause at any time and for any reason by giving Consultant
written notice from the Board of Directors of the Company at least 90 days in
advance of the date on which the termination is to become effective.
Consultant's consulting services to the Company shall be considered to have
been constructively terminated without cause by the Company if Consultant
resigns because:
(i) his resignation as Chairman of the Scientific Advisory
Board of the Company is requested by the Board of Directors; or
(ii) the Company breaches any provision of this Agreement and
fails to remedy such breach within 30 days after receiving written
notice from Consultant requesting that the Company remedy such
breach.
(f) The Company may terminate Consultant's consulting services to
the Company at any time for cause by delivering to Consultant a certified
copy of a resolution of the Board of Directors of the Company finding that
Consultant committed an act or omission constituting cause hereunder and
specifying the particulars thereof in detail, adopted at a meeting called and
held for that purpose and of which Consultant was provided not less than
seven days' advance written notice, including notice of the agenda of such
meeting. As used herein, the term "cause" shall mean:
(i) conviction of a felony involving the Company;
(ii) intentionally acting in a manner which is materially
detrimental or materially damaging to the Company's reputation or
business operations other than actions which involve Consultant's
bad judgment or a decision which was taken in good faith, provided
that Consultant shall have failed to remedy such action within 30
days after the date of the meeting at which the Board of Directors
adopts a resolution requesting
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that he terminate such action after having given written
notice to Consultant of its position with respect to such
actions and of the agenda of the Board meeting setting forth
such resolution as a matter to be acted on at such meeting
and allowing Consultant an opportunity to be heard at
such meeting; or
(iii) committing any material breach of this Agreement which
results in material damage to the Company, provided that Consultant
shall have failed to take reasonable steps to remedy such alleged
breach within 30 days after his receipt of written notice from the
Board of Directors of the Company pursuant to a resolution duly
adopted by the Board of Directors of the Company requesting that he
remedy such alleged breach after notice to Consultant and an
opportunity for Consultant to be heard at a meeting of the Board of
Directors, or, if such breach is incapable of being remedied within
such 30 day period but is capable of being remedied within a
reasonable period of time, Consultant shall have failed to use his
best efforts to remedy such breach promptly after such meeting.
8. Certain Payments and Obligations.
(a) Upon any termination of Consultant's services consulting to the
Company under paragraph (b) or (f) of Section 7:
(i) the Company shall pay Consultant in a lump sum within ten
days following such termination an amount equal to the base
compensation and any incentive or bonus compensation Consultant was
entitled to receive up to the time of termination, plus the amount
of any expenses that are reimbursable under paragraph (a) of
Section 6; provided, however, that Consultant shall not be entitled
to any severance payment under the Company's then existing
severance pay policy or plan (if any); and
(ii) Consultant shall have no further obligation to the Company
under this Agreement except that he shall continue to be bound by
the provisions of Sections 9, 10 and 11 hereof to the extent
applicable to the period following the Consulting Period.
(b) Upon any termination of Consultant's consulting services to the
Company under paragraph (c) of Section 7, the Company shall pay Consultant's
estate the same amounts as are provided in paragraph (c) of this Section 8,
except that the period of time on which the lump sum payment under clause
(ii) is based shall be 12 months; provided, however, that in the event that
at the time of Consultant's death the Company is maintaining life insurance
on Consultant naming Consultant and/or his heirs as beneficiaries, the amount
of the insurance paid or payable to
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Consultant's estate and/or heirs shall reduce, on a dollar for dollar basis,
the payment to Consultant's estate under this paragraph (b).
(c) Upon any termination of Consultant's consulting services to the
Company under paragraph (e) of Section 7 with or without the required notice:
(i) the Company shall pay Employee in a lump sum within ten
days following such termination an amount equal to the base
compensation and any incentive or bonus compensation Consultant
was entitled to receive up to the time of termination, plus the
amount of any expenses that are reimbursable under paragraph (a)
of Section 6; provided however, that Consultant shall not be
entitled to any severance payment under the Company's then existing
severance pay policy or plan;
(ii) the Company shall pay Consultant in a lump sum payment
within ten days following such termination an amount equal to the
present value (based on a discount rate equal to the then prime
rate of Society National Bank of Cleveland, Ohio or its successor)
of the aggregate cash compensation Consultant would have received
under this Agreement if the Consulting Period had continued for a
period of time equal to the greater of (A) the period of time the
Consulting Period would have continued but for such termination
(excluding any subsequent renewal term) and (B) the Noncompetition
Period (as defined in Section 10 hereof), based on the rate of
Consultant's annual total cash compensation (base plus bonus and
incentive compensation) for the year prior to the year in which
such termination occurs (or, if such termination occurs during
the first year of the Consulting Period, the rate of compensation
in effect during such year); provided, however, that the Company
may elect to reduce the Noncompetition Period by up to 12 months
and thereby reduce the period of time on which Consultant's lump
sum payment under this clause (ii) is based; and
(iii) Consultant shall have no further obligation to the
Company under this Agreement except that he shall continue to be
bound by the provisions of Sections 9, 10 and 11 hereof to the
extent applicable to the period following the Consulting Period.
(d) Upon any termination of Consultant's consulting services to the
Company under paragraph (a) or (d) of Section 7:
(i) the Company shall pay Consultant the same amounts as are
provided in paragraph (c) of this Section 8, except that the period
of time on which the lump sum payment under clause (ii) is based
shall be 12 months; and
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(ii) Consultant shall have no further obligation to the Company
under this Agreement except that he shall continue to be bound by
the provisions of Sections 9, 10 and 11 hereof to the extent
applicable to the period following the Consulting Period.
9. Confidentiality.
Consultant acknowledges that by reason of his duties as a consultant to
the Company he has or will have access to and become informed of confidential
and secret information which is a competitive asset of the Company
(collectively "Confidential Information") including, without limitation, (a)
information concerning concepts for products and services and products and
services data, (b) corporate planning data, (c) the Company's financial
results and business condition, and (d) any other information which
constitutes a "trade secret" under the Uniform Trade Secrets Act. Consultant
agrees to keep in strict confidence and not, either directly or indirectly,
to make known, divulge, reveal, furnish, make available or use any
Confidential Information, except for use in Consultant's regular authorized
duties on behalf of the Company. Consultant acknowledges that all documents
and other property including or reflecting Confidential Information furnished
to Consultant by the Company or otherwise acquired or developed by the
Company shall at all times be the property of the Company. Consultant agrees
that upon termination of Consultant's consulting services to the Company, for
any reason, Consultant shall return to the Company any such documents or
other property (including copies, summaries or analyses of the foregoing)
containing Confidential Information which are in his or her possession,
custody or control. Consultant further agrees that Consultant's obligations
of confidentiality hereunder shall survive any termination of Consultant's
consulting services to the Company. For the purposes of this Section 9,
Confidential Information shall not include information which has become,
through no fault of Consultant, generally known to the public, and
Consultant, if required by law to make disclosure of Confidential Information
to a court of competent jurisdiction, may make such disclosure after
providing the Company with reasonable notice and an opportunity to contest
such requirement. The obligations of Consultant under this Section 9 are in
addition to, and not in limitation of or preemption of, all other obligations
of confidentiality which he may have to the Company under general legal and
equitable principles.
10. Noncompetition.
Consultant acknowledges that his access to and knowledge of the
Confidential Information would be valuable to a competitor of the Company.
Consultant further acknowledges that it would be inherent in the performance
of his duties as a director, officer, employee, agent, consultant,
shareholder or partner of any
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corporation, partnership or other entity which competes with the Company, or
which intends to or may compete with the Company, to disclose or use such
knowledge to or for the benefit of such corporation, partnership or other
entity. To protect these vital interests of the Company, Consultant agrees
that from the date of this Agreement through the second anniversary of the
date on which his consulting services to the Company terminate for any reason
(the "Noncompetition Period"), he shall not, directly or indirectly, whether
as a director, officer, employee, agent or consultant or otherwise: (a)
invest in or become employed by or affiliated with, in any capacity, any
corporation, partnership or other entity which is engaged in a business which
is competitive with the business of the Company on the date of such
termination (except that Consultant may purchase up to two percent of the
outstanding capital stock of a company that has common stock quoted on a
national stock exchange or the over-the-counter market); (b) solicit sales
of, or sell or deliver, any product or service of the kind and character sold
or distributed by the Company; (c) solicit1 attempt to solicit or seek to
divert from the Company the business or patronage of any person, corporation,
partnership or other entity with whom the Company has had business relations;
or (d) engage, suggest or assist in or influence the engagement of hiring by
any competitor of the Company of any employee of the Company, or otherwise
cause or encourage any person, corporation, partnership or other entity
having a business or employment relationship with the Company to sever such
relationship with or commit any act harmful to the Company. Consultant's
obligations and covenants under this Section 10 shall be limited to North
America, Europe, Japan, Taiwan, Singapore and Australia. For the purposes of
this Section 10, the business of the Company shall mean the research,
development and commercialization of products based on human mesenchymal stem
cells and other lineage cells, including without limitation the research,
development and commercialization of cellular transplants and cell-matrix
products utilizing mesenchymal stem cells and other lineage cells.
11. Inventions.
Consultant hereby assigns and agrees to assign to the Company, its
successors, assigns or nominees, all of his rights to any discoveries,
inventions and improvements, whether patentable or not, made, conceived or
suggested, either solely or jointly with others, by Consultant while
providing consulting services to the Company, whether in the course of his
providing consulting services with the use of the Company's time, material or
facilities or that is in any way within or related to the existing or
contemplated scope of the Company's business. Any discovery, invention or
improvement relating to any subject matter with which the Company was
concerned during the Consulting Period and made, conceived or suggested by
Consultant, either solely or jointly with others, within one year following
termination of Consultant's consulting services to the Company
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shall be irrebuttably presumed to have been so made, conceived or suggested
in the course of such consulting services with the use of the Company's time,
materials or facilities. Upon request by the Company with respect to any
such discoveries, inventions or improvements, Consultant will execute and
deliver to the Company, at any time during or after the Consulting Period,
all appropriate documents for use in applying for, obtaining and maintaining
such domestic and foreign patents as the Company may desire, and all proper
assignments therefor, when so requested by and at the expense of the Company,
but without further or additional consideration. Notwithstanding any other
provision of this Section 11, the Company's rights with respect to any
discoveries, inventions or improvements shall be subject to the rights of
CWRU under any license agreement between it and the Company entered into
subsequent to the date of this Agreement.
12. Issuance of Shares.
(a) In order to provide Consultant with additional incentive to
further the interests of the Company, the Company hereby issues and sells to
Consultant 1,280 shares of the Company's common stock, par value $.01 per
share (the "Common Stock"), for a price per share of $.15. Of such 1,280
shares of Common Stock (the "Shares"), 320 Shares are issued and sold to
Consultant without restriction other than as provided in clause (ii) of
paragraph (b) below, and 960 Shares (the "Restricted Shares") are subject to
the restrictions and risk of forfeiture set forth in paragraphs (b) and (c)
of this Section 12.
(b) Restrictions on Transfer of Shares. The Shares subject to this
Agreement may not be transferred, sold, pledged, exchanged, assigned or
otherwise encumbered or disposed of by the Consultant, except to the Company,
unless and until (i) in the case of the Restricted Shares, such Shares have
become nonforfeitable in accordance with paragraph (c) of this Section 12,
and (ii) in the case of all the Shares, the transfer of such Shares has been
made in compliance with Section 3 of the Stockholders Agreement dated as of
March 11, 1993 by and among the Company, Consultant and the Company's other
stockholders. Any purported transfer, encumbrance or other disposition of the
Shares that is in violation of this Section 12 shall be null and void, and
the other party to any such purported transfer, encumbrance or other
disposition shall not obtain any rights to or interest in such Shares. The
certificate(s) evidencing the Shares shall bear a legend in a form
satisfactory to the Company reflecting the restrictions described above.
(c) Vesting of Restricted Shares. Three hundred twenty of the
Restricted Shares shall become nonforfeitable upon each of the first, second
and third anniversary of the Commencement Date if Consultant's consulting
services to the Company have not been terminated prior to such anniversary
pursuant to Section 7 of this Agreement. Notwithstanding the
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foregoing, in the event of (i) a termination of Consultant's consulting
services to the Company pursuant to Section 7(e) of this Agreement or (ii) a
merger of the Company into another corporation in which the Company is not
the surviving corporation or a sale of all or substantially all of the assets
of the Company, all of the Restricted Shares shall immediately become
nonforfeitable.
(d) Forfeiture of Restricted Shares. Any of the Restricted Shares
that have not become nonforfeitable in accordance with paragraph (c) hereof
on the date on which Consultant's consulting services to the Company are
terminated pursuant to Section 7 of this Agreement shall be forfeited by the
Consultant. In the event of a forfeiture, the certificate(s) representing all
of the Restricted Shares that have not become nonforfeitable in accordance
with paragraph (c) hereof shall be canceled and the Consultant shall have no
further interest in or rights with respect to such Restricted Shares.
(e) Dividend. Voting and Other Rights Consultant shall have all of
the rights of a stockholder with respect to the Restricted Shares, including
the right to vote the Restricted Shares and receive any dividends that may be
paid thereon; provided, however, that any additional shares of Common Stock
or other securities that Consultant may become entitled to receive pursuant
to a stock split or dividend with respect to the Common Stock or a merger or
reorganization in which the Company is the surviving corporation or any other
change in the capital structure of the Company shall be subject to the same
restrictions and risk of forfeiture as the Restricted Shares with respect to
which such additional shares of Common Stock or other securities were
received by Consultant.
(f) Retention of Stock Certificate(s) by the Company. The
certificate(s) representing the Restricted Shares covered by this Agreement
shall be held in custody by the Company, together with a stock power with
respect thereto endorsed in blank by Consultant, until those Restricted
Shares have become nonforfeitable in accordance with paragraph (c) this
Section 12.
(g) Withholding Taxes If the Company shall be required to withhold
any federal, state, local or foreign tax in connection with any issuance of
the Shares or other securities pursuant to this Section 12, Consultant shall
pay the tax or make provisions that are satisfactory to the Company for the
payment thereof.
(h) Other. No provision of this Section 12 shall limit in any way
whatsoever any right that the Company may otherwise have to terminate the
consulting services of Consultant at any time. Any economic or other benefit
to Consultant under this Section 12 shall not be taken into account in
determining any benefits to which Consultant may be entitled under any
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profit-sharing, retirement or other benefit or compensation plan maintained
by the Company and shall not affect the amount of any life insurance coverage
available to any beneficiary under any life insurance plan covering employees
and consultants of the Company.
13. Miscellaneous.
(a) All notices required to be given under this Agreement shall be
in writing and delivered personally or sent by registered mail or certified
mail, postage prepaid, return receipt requested, addressed as follows:
If to the Company:
Osiris Therapeutics, Inc.
0000 Xxxxxxxx Xxxx
Xxxxxxxxx, Xxxx 00000
with a copy to:
Xxxxx, Day, Xxxxxx & Xxxxx
North Point
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
Attention: Xxxx X. XxXxxxxxxx
If to Consultant:
Xxxxxx X. Xxxxxxxx
0000 Xxxxxxxxxx Xxxx
Xxxxxxxxx Xxxxxxx, Xxxx 00000
with a copy to:
Xxxx, Xxxxxx & Parks
0000 XX Xxxxxxx Xxxxxxxx
000 Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000-0000
Attention: Xxxxxx X. Xxxx, Esq.
Notice shall be deemed delivered at the time received in the case of personal
delivery, or five business days after it is mailed in the case of mailing.
(b) This Agreement shall be subject to and governed by the internal
laws of the State of Ohio (without regard to conflicts of law principles).
(c) The headings or titles to sections in this Agreement are
intended solely for convenience and no provision of this Agreement is to be
construed by reference to the heading or title of any section.
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(d) No provision of this Agreement may be amended, modified or
waived unless such amendment, modification or waiver is authorized by the
Board of Directors of the Company and is agreed to in a writing signed by
Consultant and by a duly authorized officer of the Company (other than
Consultant). Except as otherwise specifically provided in this Agreement, no
waiver by any party hereto of any breach by any other party hereto of any
condition or provision of this Agreement to be performed by such other party
shall be deemed a waiver of a subsequent breach of such condition or
provision or a waiver of a similar or dissimilar provision or condition at
the same or at any prior or subsequent time; nor shall the receipt or
acceptance of compensation or other benefits following any termination of
Consultant's employment be deemed a waiver of any condition or provision
hereof.
(e) Consultant shall not assign, pledge or encumber any interest in
this Agreement or any part thereof without the express written consent of the
Company, this Agreement being personal to Consultant. This Agreement shall,
however, inure to the benefit of Consultant's estate, dependents,
beneficiaries and legal representatives. This Agreement shall not be
assignable by the Company without the written consent of Consultant, but if
the Company shall merge or consolidate with or into, or transfer all or
substantially all of its assets to, another corporation or other form of
business organization, then this Agreement shall inure to the benefit of and
be binding upon the successor of the Company resulting from such merger,
consolidation or transfer. No such merger, consolidation or transfer,
however, shall relieve the Company from liability and responsibility for the
performance of its duties and obligations hereunder.
(f) Each provision of this Agreement constitutes a separate and
distinct undertaking, covenant and/or provision hereof. In the event that
any provision of this Agreement shall finally be determined to be unlawful,
such provision shall be deemed severed from this Agreement, but every other
provision of this Agreement shall remain in full force and effect, and in
substitution for any such provision held unlawful, there shall be substituted
a provision of similar import reflecting the original intent of the parties
hereto to the extent permissible under law.
(g) This Agreement and the agreements referred to herein comprise
the entire understanding between the Company and Consultant as to the subject
matter hereof and supersedes all prior agreements relating thereto.
(h) In the event of a breach by Consultant of any of the provisions
of Sections 9, 10 or 11 of this Agreement, the Company shall have the right
to institute and prosecute proceedings, in equity, in any court of competent
jurisdiction, to obtain an injunction during or after the term of this
Agreement to enforce the provisions of such Sections and to
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pursue any other remedy to which the Company may be entitled. Consultant
acknowledges that the Company's remedy at law for any of Consultant's
obligations under such Sections will be inadequate, and Consultant agrees and
consents that temporary and permanent injunctive relief may be granted in any
proceeding which may be brought to enforce any provision thereof, without the
necessity of proof of actual damage.
(i) Any controversy or claim arising under this Agreement, except
for any controversy or claim which involves a claim by the Company for
equitable or injunctive relief with respect to Section 9, 10 and/or 11 of
this Agreement, shall be settled by arbitration in Cleveland, Ohio in
accordance with the Rules of the American Arbitration Association then in
effect. The controversy or claim shall be submitted to three arbitrators, one
of whom shall be chosen by the Company, one of whom shall be chosen by
Consultant, and the third of whom shall be chosen by the two arbitrators so
selected. The party desiring arbitration shall give written notice to the
other party of its desire to arbitrate the particular matter in question
naming the arbitrator selected by it. If the other party shall fail, within
a period of 15 days after such notice shall have been given, to reply in
writing naming the arbitrator selected by it, then the other party may apply
to the American Arbitration Association for the appointment of an arbitrator
to serve as the arbitrator chosen by the other party. The decision of any
two of the arbitrators shall be final and binding upon the parties hereto and
shall be delivered in writing signed in triplicate, by the concurring
arbitrators to each of the parties hereto. Judgment upon the award rendered
by the arbitrators may be entered in any court having jurisdiction thereof.
In addition, the prevailing party in such an arbitration proceeding shall be
entitled to recover his or its reasonable attorney's fees and all reasonable
out-of-pocket costs and disbursements, as well as any and all charges which
may be made for the cost of the arbitration and the fees of the arbitrators.
In the event a claim or controversy arising under this Agreement involves a
claim by the Company for equitable or injunctive relief with respect to
Section 9, 10 and/or 11 of this Agreement, the parties may, but shall not be
obligated to, submit all or a portion of such controversy or claim to the
foregoing arbitration proceedings.
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IN WITNESS WHEREOF, Consultant and the Company, by a duly authorized
officer of the Company pursuant to the authority of its Board of Directors,
have executed this Consulting Agreement at Cleveland, Ohio, as of the day and
year first written above.
OSIRIS THERAPEUTICS, INC.
By:/s/ Xxxxx X. Xxxxx
----------------------------------
Name:
Title: Pres. & CEO
/s/ Xxxxxx X. Xxxxxxxx
----------------------------------
XXXXXX X. XXXXXXXX
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EXHIBIT A
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Xxxxxx X. Xxxxxxxx, M.D.
Consulting Duties and Responsibilities
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l. Prepare agendas and arrange for outside speakers at SAB meetings, in
consultation with the Chief Scientific Officer and the Company's Vice
President Research & Development.
2. Chair Scientific Advisory Board meetings.
3. Assist Company management in identifying and evaluating technology,
clinical procedures and/or products which contribute to the Company's
business in bio-orthopaedic products.
4. Assist in identifying and recruiting key research and clinical
employees/advisors for the Company.
5. Participate in presenting the Company's basic and clinical science to
prospective corporate partners and major investors in the Company.
6. Assist Company attorneys in the disclosure, filing and prosecution of
patent applications based on disclosures submitted by scientists from CWRU
and the Company.
EXHIBIT B
Permitted Consulting Services
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Consultant shall be permitted to provide consulting services to companies
in connection with the design and development of orthopaedic implants.
Consultant currently provides such consulting services to "Xxxxxx".
