CONSULTING AGREEMENT
This consulting agreement (the "AGREEMENT") is entered into as of the 5 day of
February, 2006 (the "EFFECTIVE DATE") by and among SAFETEK INTERNATIONAL INC..,
a company incorporated under the laws of the State of Delaware, with its
principal office at 00 Xxxxxxxx Xx., Xxx Xxxx (the "COMPANY"), and XXXX. XXXXX
XXXXXX of Newton, MA, USA (the "CONSULTANT").
WHEREAS Consultant is engaged in the provision of advisory services as
provided herein, and is a member of the Board of Directors of the
Parent Company (as defined below); and
WHEREAS the Company desires to retain certain services from Consultant, and
Consultant desires to provide such services to Company;
Now, therefore, in consideration of their respective undertakings herein
contained, and other considerations, the sufficiency of which is hereby
acknowledged, the parties hereto hereby agree as follows:
1. Term; Termination. This Agreement shall commence on the Effective Date and
continue until terminated by either party, for or without any reason
whatsoever, by providing 30 days' written notice to the other party, and
in such event Company shall compensate Consultant for Services actually
performed prior to termination.
2. The Services
2.1. Consultant shall provide the Company and its parent company, SafeTek
International Inc. (the "PARENT COMPANY"), with advisory services on
a non-exclusive basis as shall be requested by the CEO of the
Company from time to time (the "SERVICES
2.2. Consultant shall use all required know-how, energy, expertise,
talent, experience and best efforts in order to provide the Services
hereunder. Consultant confirms that he is available to provide such
required services. Company confirms that subject to the provisions
of this Agreement (including, without limitation, the provisions of
Exhibit A hereto concerning proprietary information, confidentiality
and non-competition), Consultant is and may be employed for other
business or professional activities.
2.3. Consultant shall utilize the highest professional skill, diligence,
ethics and care to ensure that all Services are performed to the
full satisfaction of Company and to provide the expertise required
in connection with such Services.
3. Compensation and Reimbursement
3.1. Company shall pay Consultant, as compensation for the provision of
all Services hereunder, a gross amount equal to US$ 250 per hour of
consultation (the "FEE"). The Fee will be payable against a valid
monthly invoice, furnished by Consultant to Company and detailing
the number of hours and services provided by Consultant..
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3.2. Subject to the execution of an option grant agreement between
Consultant and the Parent Company, in a standard form used by the
Parent Company (the "OPTION AGREEMENT"), Consultant shall be
entitled to participate in the Employee Stock Option Plan adopted by
the Parent Company (the "ESOP"), under the following terms and
conditions:
4. Consultant shall receive options to purchase 300,694 shares of Common
Stock of the Parent Company, par value US$ 0.0001 each, at an exercise
price per share equal to 90% of the last transaction price quoted for such
date by the NASDAQ system or the NASDAQ National Market, as of the Stock
Option Agreement date, according to the company
Employees/Consultants/Directors Stock Compensation Plan; (the "Options").
4.1.1. The vesting of the Options shall occur in 12 equal quarterly
installments of the Common Stock to which the Options pertain,
over a period of 36 months, on the last date of each calendar
quarter from and after the first quarter after agreement date
and so long as this Agreement remains in effect. If this
Agreement is terminated prior to the full vesting of the
Options, for any reason whatsoever, the unvested portion of
the Options shall be cancelled. Vested Options will be
exercisable for a period of 3 months after termination of this
Agreement.
4.1.2. For the avoidance of doubt, the terms set forth in this
section are in addition to terms and conditions set forth in
the ESOP and in the Option Agreement, as determined by the
Board of Directors of the Parent Company, in its sole
discretion, and the grant of the Options shall be subject to
the Consultant's execution of the Option Agreement and all
ancillary documents.
4.2. The Company shall reimburse Consultant for out of pocket expenses
incurred in connection with the performance of his duties under this
Agreement, only if the same has been approved in advance and in
writing by the Company. As a condition to reimbursement, Consultant
shall provide Company with all invoices, receipts and other evidence
of expenditure as may be reasonably required by Company from time to
time.
4.3. The Fee and the Options constitute the full and final consideration
for the Services, and Consultant shall not be entitled to any
additional consideration, of any form, for the Services. By signing
at the end of this Agreement, the Consultant acknowledges and agrees
that as a service provider to Company he is not entitled to receive
from Company any social benefits (including, without limitation,
paid vacation days, paid sick leave, severance payments, pension
funds, etc.) to which he may be entitled under any applicable law.
5. Confidentiality; Non-Competition. By executing this Agreement, Consultant
confirms and agrees to the provisions of Company's Proprietary
Information, Confidentiality and Non-Competition Agreement attached in
EXHIBIT A hereto (an "NDA").
6. Independent Contractor. Consultant agrees and acknowledges that he is
performing the Services hereunder as an independent contractor, and that
no employer-employee relationship exists or will exist between Consultant
and Company.
7. Representations by Consultant. Consultant represents and warrants to
Company that the execution and delivery of this Agreement and the
fulfillment of the terms hereof (i) will not constitute a default under or
conflict with any agreement or other instrument to which he is a party or
by which he is bound; (ii) will not result in a breach of any
confidentiality undertaking to any third party; and (iii) do not require
the consent of any person or entity.
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8. Miscellaneous. This Agreement constitutes the entire understanding between
the parties with respect to the matters referred to herein. This Agreement
shall be governed by the laws of the State of Israel, excluding its
conflict of law rules, and the courts of Tel-Aviv shall have exclusive
jurisdiction over the parties. This Agreement may not be assigned by
Consultant. This Agreement may not be amended or modified, except by the
written consent of both parties hereto. No failure or delay on the part of
any party hereto in exercising any right, power or remedy hereunder shall
operate as a waiver thereof. Headings to sections herein are for the
convenience of the parties only, and are not intended to be or to affect
the meaning or interpretation of this Agreement. In the event that any
covenant, condition or other provision contained in this Agreement is held
to be invalid, void or illegal by any court of competent jurisdiction, the
same shall be deemed severable from the remainder thereof, and shall in no
way affect, impair or invalidate any other covenant, condition or other
provision therein contained. All notices required to be delivered under
this Agreement shall be effective only if in writing and shall be deemed
given when received by the party to whom notice is required to be given
and shall be delivered personally, by registered mail, by fax or by means
of electronic communication.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
/s/ Xxxxx Xxxxxxx /s/ Xxxxx Xxxxxx
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Oriens Life Sciences (Israel), Ltd. Xxxx. Xxxxx Xxxxxx
(Company) (Consultant)
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EXHIBIT A
This Proprietary Information, Confidentiality and Non-Competition Agreement is
attached as Exhibit A to that certain Services Agreement (the "AGREEMENT")
executed by and between ORIENS LIFE SCIENCES (ISRAEL), LTD. (the "COMPANY") and
XXXX. XXXXX XXXXXX ("CONSULTANT").
All the capitalized terms herein shall have the meanings ascribed to them in the
Agreement. For purposes hereof, the term "Company" shall mean and include the
Company, its parent company SafeTek International Inc., and any of their
subsidiaries and affiliates.
Consultant's obligations and representations and Company's rights under this
Exhibit shall apply as of the time he first became engaged with Company,
regardless of the date of execution of the Agreement.
CONFIDENTIALITY; PROPRIETARY INFORMATION
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1. "PROPRIETARY INFORMATION" means confidential and proprietary information
concerning the business and financial activities of Company, including
patents, patent applications, trademarks, copyrights and other
intellectual property, and information relating to the same, technologies
and products (actual or planned), know how, inventions, research and
development activities, inventions, trade secrets and industrial secrets,
and also confidential commercial information such as investments,
investors, employees, customers, suppliers, marketing plans, etc., all the
above - whether documentary, written, oral or computer generated.
Proprietary Information shall also include information of the same nature
which Company may obtain or receive from third parties.
2. Proprietary Information shall be deemed to include any and all proprietary
information disclosed by or on behalf of Company and irrespective of form
but excluding information that (i) was known to Consultant prior to
Consultant's association with Company and can be so proven; (ii) is or
shall become part of the public knowledge except as a result of the breach
of the Agreement or this Exhibit by Consultant; (iii) reflects general
skills and experience gained during Consultant's engagement by Company; or
(iv) reflects information and data generally known in the industries or
trades in which Company operates.
3. Consultant recognizes that Company received and will receive confidential
or proprietary information from third parties, subject to a duty on
Company's part to maintain the confidentiality of such information and to
use it only for certain limited purposes. In connection with such duties,
such information shall be deemed Proprietary Information hereunder,
mutatis mutandis.
4. Consultant agrees that all Proprietary Information, and patents,
trademarks, copyrights and other intellectual property and ownership
rights in connection therewith shall be the sole property of Company its
subsidiaries and their assigns. At all times, both during and after the
Consulting Term, Consultant will keep in confidence and trust all
Proprietary Information, and Consultant will not use or disclose any
Proprietary Information or anything relating to it without the written
consent of Company or its subsidiaries, except as may be necessary in the
ordinary course of performing Consultant's duties under the Agreement.
5. Upon termination of Consultant's engagement with Company, Consultant will
promptly deliver to Company all documents and materials of any nature
pertaining to Consultant's engagement with Company, and will not take with
his any documents or materials or copies thereof containing any
Proprietary Information.
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DISCLOSURE AND ASSIGNMENT OF INVENTIONS
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6. "INVENTIONS" means any and all inventions, improvements, designs,
concepts, techniques, methods, systems, processes, know how, computer
software programs, databases, mask works and trade secrets, whether or not
patentable, copyrightable or protectible as trade secrets; "COMPANY
INVENTIONS" means any Inventions that are made or conceived or first
reduced to practice or created by Consultant, whether alone or jointly
with others, during the period of Consultant's engagement with Company,
and which are: (i) developed using equipment, supplies, facilities or
Proprietary Information of Company, (ii) result from work performed by
Consultant for Company, or (iii) related to the field of business of
Company, or to current or anticipated research and development.
7. Consultant undertakes and covenants he will promptly disclose in
confidence to Company all Inventions deemed as Company Inventions.
8. Consultant hereby irrevocably transfers and assigns to Company all
worldwide patents, patent applications, copyrights, mask works, trade
secrets and other intellectual property rights in any Company Invention,
and any and all moral rights that he may have in or with respect to any
Company Invention.
9. Consultant agrees to assist Company, at Company's expense, in every proper
way to obtain for Company and enforce patents, copyrights, mask work
rights, and other legal protections for Company Inventions in any and all
countries. Consultant will execute any documents that Company may
reasonably request for use in obtaining or enforcing such patents,
copyrights, mask work rights, trade secrets and other legal protections.
Such obligation shall continue beyond the termination of Consultant's
engagement with Company. Consultant hereby irrevocably designates and
appoints Company and its authorized officers and agents as Consultant's
agent and attorney in fact, coupled with an interest to act for and on
Consultant's behalf and in Consultant's stead to execute and file any
document needed to apply for or prosecute any patent, copyright,
trademark, trade secret, any applications regarding same or any other
right or protection relating to any Proprietary Information (including
Company Inventions), and to do all other lawfully permitted acts to
further the prosecution and issuance of patents, copyrights, trademarks,
trade secrets or any other right or protection relating to any Proprietary
Information (including Company Inventions), with the same legal force and
effect as if executed by Consultant himself.
NON-COMPETITION
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10. Consultant agrees and undertakes that he will not, so long as the
Agreement is in effect and for a period of twelve (12) months following
termination of the Agreement, for any reason whatsoever, directly or
indirectly, in any capacity whatsoever, engage in, become financially
interested in, be employed by, or have any connection with any business or
venture that is, or will be during the Consulting Term, engaged in any
activities competing with the activities of Company at such time.
11. Consultant agrees and undertakes that during the Term and for a period of
twelve (12) months following termination of his engagement for whatever
reason, Consultant will not, directly or indirectly, including personally
or in any business in which Consultant may be an officer, director or
shareholder, solicit for employment any person who is employed by Company,
or any person retained by Company as a consultant, advisor or the like who
is subject to an undertaking towards Company to refrain from engagement in
activities competing with the activities of Company, or was retained as an
employee or a consultant, advisor or the like during the six months
preceding termination of the Term.
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TRADE OF PARENT COMPANY SECURITIES
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12. Consultant acknowledges that the Company is a wholly-owned subsidiary of
the Parent Company, which is a publicly traded company. Therefore,
Consultant agrees not to use any proprietary Information in connection
with the purchase or sale of the securities of the Parent Company.
Consultant further acknowledges that any such use would constitute a
violation of securities laws.
REASONABLENESS OF PROTECTIVE COVENANTS; INTENT OF PARTIES
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13. Insofar as the protective covenants set forth in this Exhibit are
concerned, Consultant specifically acknowledges, stipulates and agrees as
follows: (i) the protective covenants are reasonable and necessary to
protect the goodwill, property and Proprietary Information of Company, and
the operations and business of Company; and (ii) the time duration of the
protective covenants is reasonable and necessary to protect the goodwill
and the operations and business of Company, and does not impose a greater
restrain than is necessary to protect the goodwill or other business
interests of Company. Nevertheless, if any of the restrictions set forth
in this Exhibit is found by a court having jurisdiction to be unreasonable
or overly-broad as to geographic area, scope or time or to be otherwise
unenforceable, the parties hereto intend for the restrictions set forth in
this Exhibit to be reformed, modified and redefined by such court so as to
be reasonable and enforceable and, as so modified by such court, to be
fully enforced.
14. Consultant acknowledges that the legal remedies for breach of the
provisions of this Exhibit may be found inadequate and therefore agrees
that, in addition to all of the remedies available to Company in the event
of a breach or a threatened breach of any of such provisions, Company may
also, in addition to any other remedies which may be available under
applicable law, obtain temporary, preliminary and permanent injunctions
against any and all such actions.
15. Consultant recognizes and agrees: (i) that this Exhibit is necessary and
essential to protect the business of Company and to realize and derive all
the benefits, rights and expectations of conducting Company's business;
(ii) that the area and duration of the protective covenants contained
herein are in all things reasonable; and (iii) that good and valuable
consideration exists under the Agreement, for Consultant's agreement to be
bound by the provisions of this Exhibit.
16. Consultant's undertakings set forth in this Exhibit shall remain in full
force and effect after termination of the Agreement or any renewal
thereof.
