Exhibit 10.21
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. Xxxxxx (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 a ate 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 Chief
Scientific Officer of the Company, 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") 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 (the
"Financing Closing 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) $75,000 from the Commencement Date until December 31,
1993, (b) $87,500 from January 1, 1994 until December 31, 1994,
(c) $100,000 from January 1, 1995 until December 31, 1995 and (d)
from and after December 31, 1995, 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. (a) 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 Chief Scientific Officer of the Company.
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.
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(b) Consultant shall be entitled to a cash bonus of
$12,500 if the Company enters into a Corporate Partnership (as
defined below) before March 31, 1994. A Corporate Partnership
shall mean a research and development partnership or similar
arrangement with a corporation pursuant to which the Company will
receive not less than $500,000 of funding per year for research
and development projects for a minimum period of two years. Such
bonus shall be paid to Consultant within ten days after the
Company enters into the Corporate Partnership.
6. Benefits, Perquisites and Expenses. During the
Consulting Period, Consultant shall be entitled to the following
benefits and perquisites:
(a) Participation in the employee benefit plans of the
Company, as they may be modified or added to from time to
time, including, without limitation, plans providing retirement
benefits, medical insurance, life insurance, disability insurance,
and accidental death or dismemberment insurance, but only to the
extent such benefits are not available to Consultant from his then
current employer.
(b) 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 $14,005.00 of reasonable and
documented expenses incurred by him in connection with his activities
on behalf of the Company and Skeletech Incorporated prior to the
Commencement Date.
(c) 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.
(d) Commencing on the Financing Closing Date, life insurance on the
life of Consultant in a face amount of $1,000,000 naming the
Consultant or his designee(s) as the beneficiary of the proceeds of
such policy. Consultant shall cooperate with the Company as may be
necessary in connection with any application for such life insurance
or any life insurance on the life of the Consultant naming the Company
or its designees as the beneficiary.
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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 notice 90 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 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
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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 Chief Scientific Officer
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
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
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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 consulting
services 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 (b) 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
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 (b) 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;
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(ii) the Company shall (A) 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 (1) the
period of time the Consulting Period would have continued but for such
termination (excluding any subsequent renewal term) and (2)
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) and (B) continue to provide Consultant and, if
applicable, his dependents with the benefits provided under the benefit
plans (pursuant to the terms thereof) described in Section 6(a) hereof, to
the same extent that such benefits were provided to Consultant on the
date of termination of his consulting services to the Company, for a period
of time equal to the period of time used to determine the amount of the
lump sum payment to Consultant under (A) above; 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 and benefits under this clause (ii) are 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
(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.
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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 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 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
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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) solicit, 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
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
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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 subsequently 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
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.
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(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
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.
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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. Xxxxxx
0000 Xxxxxxxx Xxxxx
Xxxxxxxxx Xxxxxxx, Xxxx 00000
with a copy to:
Xxxxx & Berne
Bond Court Building
0000 Xxxx Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, Xxxx 00000-0000
Attention: Xxxxxx X. Xxxxx
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.
(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).
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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, at law or 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
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
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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.
14
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: President
/s/ Xxxxxx X Xxxxxx
--------------------------------
XXXXXX X. XXXXXX
15
EXHIBIT A
Xxxxxx X. Xxxxxx, Ph.D.
Consulting Duties and Responsibilities
l. Conceptualize, recommend and supervise the transition of
basic mesenchymal stem cell science from CWRU to the Company
in consultation with the CEO and V.P. Research &
Development. Participate in Scientific Advisory Board
meetings and assist the Scientific Advisory Board Chairman
in setting the agenda.
2. Directly manage research projects conducted in the Skeletal
Research Center which are funded by the Company and/or its
affiliates.
3. Identify, evaluate and recommend external scientific
collaborations, sponsored research and/or technology
licenses of complementary technology in the tissue
regeneration field.
4. Assist in identifying and recruiting key research and
clinical employees/advisors for the Company or
Company-sponsored research programs.
5. Participate in presenting the Company's basic and clinical
science to prospective corporate partners and major
investors.
6. Prepare patent disclosures arising from mesenchymal stem
cell technology and related research. Assist company
attorneys in the filing and prosecution of patent
applications based on disclosures submitted by the
Consultant, other scientists from CWRU and/or the Company.
