Exhibit 10.24
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (the "Agreement"), made this first day of
October, 2002, is entered into by Omrix Biopharmaceuticals, Inc., a Delaware
corporation (the "Company"), and Bemsol SA, a Belgian corporation represented
by Xxxxxxxx Xxxxxxxxx, with an address of 22, avenue des Pommiers at X-0000
Xxxxxxx (the "Consultant").
INTRODUCTION
The Company desires to retain the services of the Consultant and the
Consultant desires to perform certain services for the Company. In consideration
of the mutual covenants and promises contained herein and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged by the parties hereto, the parties agree as follows:
1. Services. The Consultant agrees to perform such consulting, advisory and
related services to and for the Company as requested by the Company, and as
specified on Schedule A to this Agreement. During the Consultation Period (as
defined below), the Consultant shall not engage in any activity that has a
conflict of interest with the Company, including any directly competitive
employment, business, or other activity, and he shall not assist any other
person or organization that directly competes with the Company.
2. Term. This Agreement shall commence on the date hereof and is concluded
for a period of one year (such period, as it may be extended, being referred to
as the "Consultation Period"), unless sooner terminated in accordance with the
provisions of Section 4.
3. Compensation and Benefits.
3.1 Compensation. In consideration for the consulting services
rendered by the Consultant the Consultant shall receive the compensation as
indicated on Exhibit A.
3.2 Reimbursement of Expenses. The Company shall reimburse the
Consultant for all reasonable and necessary expenses incurred or paid by the
Consultant in connection with, or related to, the performance of his services
under this Agreement. The Consultant shall submit to the Company itemized
monthly statements of such expenses incurred in the previous month. The Company
shall pay to the Consultant amounts shown on each such statement within 30 days
after receipt thereof.
3.3 Benefits. The Consultant shall not be entitled to any benefit
coverage or privilege, including, without limitation, social security,
unemployment, medical or pension payments, made available to employees of the
Company.
4. Termination. At its expiration, the Consultation Period may be renewed
by mutual agreement for an additional period of one year. Conversely, this
agreement can be ended prior to its normal end if both parties agree so and
settle any compensation and/or prejudice pending. Notwithstanding the foregoing,
the Company may terminate the Consultation Period, effective immediately upon
receipt of written notice, if the Consultant breaches or threatens to breach any
provision of Section 6.
5. Cooperation. The Consultant shall use his best efforts in the
performance of his obligations under this Agreement. The Company shall provide
such access to its information and property as may be reasonably required in
order to permit the Consultant to perform his obligations hereunder. The
Consultant shall cooperate with the Company's personnel, shall not interfere
with the conduct of the Company's business and shall observe all existing rules,
regulations and security requirements of the Company concerning the safety of
persons and property.
6. Inventions and Proprietary Information.
6.1 Inventions.
(a) All inventions, discoveries, computer programs, data,
technology, designs, innovations and improvements (whether or not patentable and
whether or not copyrightable) (Inventions") related to the business of the
Company, i.e. plasma products and surgical sealants, which are made, Conceived,
reduced to practice, created, written, designed or developed by the Consultant,
solely or jointly with others and whether during normal business hours or
otherwise, during the Consultation Period or thereafter if resulting or directly
derived from Proprietary Information (as defined below), shall be the sole
property of the Company. The Consultant hereby assigns to the Company all
Inventions and any and all related patents, copyrights, trademarks, trade names,
and other industrial and intellectual property rights and applications therefor,
in the United States and elsewhere and appoints any officer of the Company as
his duly authorized attorney to execute, file, prosecute and protect the same
before any government agency, court or authority. Upon the request of the
Company and at the Company's expense, the Consultant shall execute such further
assignments, documents and other instruments as may be necessary or desirable to
fully and completely assign all Inventions to the Company and to assist the
Company in applying for, obtaining and enforcing patents or copyrights or other
rights in the United States and in any foreign country with respect to any
Invention. The Consultant also hereby waives all claims to moral rights in any
Inventions.
(b) The Consultant shall promptly disclose to the Company all
Inventions and will maintain adequate and current written records (in the form
of notes, sketches, drawings and as may be specified by the Company) to document
the conception and/or fast actual reduction to practice of any Invention. Such
written records shall be available to and remain the sole property of the
Company at all times.
6.2 Proprietary Information.
(a) The Consultant acknowledges that his relationship with the
Company is one of high trust and confidence and that in the course of his
service to the Company he may have access to and contact with Proprietary
Information. The Consultant agrees that he will not during the Consultation
Period or at any time thereafter, disclose to others, or use for his benefit or
the benefit of others, any Proprietary Information or Invention.
(b) For purposes of this Agreement, Proprietary Information shall
mean, by way of illustration and not limitation, all information (whether or not
patentable and whether or not copyrightable) owned, possessed or used by the
Company, including, without limitation, any Invention, formula, vendor
information, customer information, apparatus, equipment, trade secret, process,
research, report, technical data, know-how, computer program, software, software
documentation, hardware design, technology, marketing or business plan, forecast
unpublished financial statement, budget, license, price, cost and employee list
that is communicated to, learned of, developed or otherwise acquired by the
Consultant in the course of his service as a consultant to the Company.
(c) The Consultant's obligations under this Section 6.2 shall not
apply to any information that (i) is or becomes known to the general public
under circumstances involving no breach by the Consultant or others of the terms
of this Section 6.2, (ii) is generally disclosed to third parties by the Company
without restriction on such third parties, or (iii) is approved for release by
written authorization of the Board of Directors of the Company.
(d) Upon termination of this Agreement or at any other time upon
request by the Company, the Consultant shall promptly deliver to the Company all
records, files, memoranda, notes, designs, data, reports, price lists, customer
lists, drawings, plans, computer programs, software, software documentation,
sketches, laboratory and research notebooks and other documents (and all copies
or reproductions of such materials) relating to the business of the Company.
(e) The Consultant represents that his retention as a consultant
with the Company and his performance under this Agreement does not, and shall
not, breach any agreement that obligates him to keep in confidence any trade
secrets or confidential or proprietary information of his or of any other party
or to refrain from competing, directly or indirectly, with the business of any
other party. The Consultant shall not disclose to the Company any trade secrets
or confidential or proprietary information of any other party.
(f) The Consultant acknowledges that the Company from time to
time may have agreements with other persons or with the United States
Government, or agencies thereof, that impose obligations or restrictions on the
Company regarding inventions made during the course of work under such
agreements or regarding the confidential nature of such work. The Consultant
agrees to be bound by all such obligations and restrictions that are known to
him.
6.3 Remedies. The Consultant acknowledges that any breach of the
provisions of this Section 6 shall result in serious and irreparable injury to
the Company for which the Company cannot be adequately compensated by monetary
damages alone. The Consultant agrees, therefore, that, in addition to any other
remedy it may have, the Company shall be entitled to enforce the specific
performance of this Agreement by the Consultant and to seek both temporary and
permanent injunctive relief (to the extent permitted by law) without the
necessity of proving actual damages.
7.1 Independent Contractor Status. The Consultant shall perform all
services under this Agreement as an "independent contractor" and not as an
employee or agent of the Company. The Consultant is not authorized to assume or
create any obligation or responsibility, express or implied, on behalf of, or in
the name of, the Company or to bind the Company in any manner.
7.2 Consent to use of Name. The Consultant hereby consents to the use of
his name by the Company, as required, in connection with any business plan or
marketing materials prepared for use by the Company and any registration
statement, prospectus or other document filed with the United States Securities
and Exchange Commission, the National Association of Securities Dealers, Inc.
and the Nasdaq Stock Market.
8. Notices. All notices required or permitted under this Agreement shall be
in writing and shall be deemed effective upon personal delivery or upon postal
deposit by registered or certified mail, postage prepaid, addressed to the other
party at the address shown above, or at such other address or addresses as
either party shall designate to the other in accordance with this Section 8.
9. Pronouns. Whenever the context may require, any pronouns used in this
Agreement shall include the corresponding masculine, feminine or neuter forms,
and the singular forms of nouns and pronouns shall include the plural, and vice
versa.
10. Entire Agreement. This Agreement constitutes the entire agreement
between the parties and supersedes all prior agreements and understandings,
whether written or oral, relating to the subject matter of this Agreement.
11. Amendment. This Agreement may be amended or modified only by a written
instrument executed by both the Company and the Consultant.
12. Governing Law. This Agreement shall be construed, interpreted and
enforced in accordance with the laws of the State of Delaware.
13. Successors and Assigns. This Agreement shall be binding upon, and inure
to the benefit of, both parties and their respective successors and assigns,
including any corporation with which, or into which, the Company may be merged
or which may succeed to its assets or business, provided, however, that the
obligations of the Consultant are personal and shall not be assigned by him.
14. Miscellaneous.
14.1 No delay or omission by the Company in exercising any right under
this Agreement shall operate as a waiver of that or any other right. A waiver or
consent given by the Company on any one occasion shall be effective only in that
instance and shall not be construed as a bar or waiver of any right on any other
occasion.
14.2 The captions of the sections of this Agreement are for
convenience of reference only and in no way define, limit or affect the scope or
substance of any section of this Agreement.
14.3 In the event that any provision of this Agreement shall be
invalid, illegal or otherwise unenforceable, the validity, legality and
enforceability of the remaining provisions shall in no way be affected or
impaired thereby.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year set forth above.
Omrix Biopharmaceuticals, INC.
By: /s/ Xxxxxx Xxxx
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Xxxxxx Xxxx
Title: Chief Executive Officer
Bemsol SA
By: /s/ Xxxxxxxx Xxxxxxxxx
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Xxxxxxxx Xxxxxxxxx
Title: Managing Director
SCHEDULE A
Services and Compensation
I. Services
a) Meetings/Phone Calls with Company Management, mostly Xxxxxx Xxxx and
Xxxx Xxxxxxxxx
b) Meetings/Phone Calls with industry contacts, if requested by
Management and determined appropriate by Consultant
c) Review and Comments on Drafts of Company Materials, Sections of
Business Plans, etc.
d) The service time is set to 60% of a standard full time schedule.
II. Compensation
a) Euro 22.500 Consulting fee per quarter
b) If services are performed in excess of 60% of a standard full time
schedule at the mutual agreement of the parties, Consultant will
receive additional cash consulting fees equal to Euro 700 per day.
