SCIENTIFIC ADVISORY BOARD AGREEMENT
EXHIBIT 10.17
THIS
AGREEMENT (the “Agreement”) dated
as of May 1 2006 (“Effective Date”) is
made by and between Medgenics, Inc. located at
of 0000
Xxxxxx Xxxxxxxx Xxxxx, Xxxxx 0000, Xxxxxx, XX, 00000.
USA
(the “Company”); and
Xxxxx Xxxxxxxxx, MD of Los Angeles,
California USA (the “Advisor”).
The
Company wishes to retain the Advisor as a member of the Company’s Scientific
Advisory Board; and the Advisor desires to perform such consulting services.
Accordingly, the parties agree as follows:
1.
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Services.
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a.
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The
Advisor will advise, consult for and on behalf of the Company's
management, employees and agents, at reasonable times, as requested by the
Company for the Services set forth on Exhibit 1 (the “Description of Services”).
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b.
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Advisor
will participate in 3-4 SAB meetings per year by phone. Additionally,
Consultation of up to 2 hours per month on average may be sought by the
Company by telephone, written correspondence or in person at the Advisor’s
office and will involve reviewing activities and developments in the
Company’s field of
activity.
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2.
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The
Advisor’s compensation will comprise 20,000 options for common shares
exercisable for 5 years at the restart round price ($1.516/share) These
options shall vest over a 3 year period starting from the Effective Date
of this Agreement however, vesting will be accelerated in case of a change
of ownership. The Advisor will be paid $1,500 per day for in-person
meetings. Reasonable expenses of the Advisor incurred at the request of
the Company (including phone and other expenses incurred in the normal
course of business on behalf of the Company and travel expenses incurred
in connection with Company related business in accordance with the
Company’s travel policy) will be reimbursed promptly by the Company,
subject to customary verification and prior written approval.
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3.
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Term. The term of this
Agreement will begin on the Effective Date of this Agreement and will end
on the third anniversary of this Agreement or upon earlier termination as
provided below (the “Term”); provided that the Term may
be renewed for successive one-year periods. This Agreement may be
terminated at any time upon written notice by either
party.
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SAB
Advisory Agreement Page 1 of 8
4.
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Confidentiality.
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a.
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The
Advisor acknowledges that, during the course of performing his services
hereunder, the Company will be disclosing information to the Advisor (“Confidential Information”) which is owned by the
Company. The Advisor acknowledges that the Company’s business is extremely
competitive, dependent in part upon the maintenance of secrecy, and that
any disclosure of the Confidential Information would likely result in
serious harm to the Company.
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b.
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The
Advisor agrees that the Confidential Information will be used by the
Advisor only in connection with consulting activities hereunder, and will
not be used for any other purpose.
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c.
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The
Advisor agrees not to disclose, directly or indirectly, the Confidential
Information to any third person or entity, other than representatives or
agents of the Company. The Advisor agrees not to use the Confidential
Information for any purposes other than explicitly permitted under this
Agreement. The Advisor will treat all such information as confidential and
proprietary property of the
Company.
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d.
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The
Advisor may disclose any Confidential Information that is required to be
disclosed by law, government regulation or court order. If disclosure is
required, the Advisor will give the Company advance notice so that the
Company may seek a protective order or take other action reasonable in
light of the circumstances.
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5.
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Intellectual
Property
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a.
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The
Advisor recognizes that the Company is engaged in a continuous program of
research, development, and production respecting its business. The Company
possesses or has rights to information that has been created, discovered,
developed or otherwise become known to the Company (including information
developed by, discovered by or created by Advisor which arises out of the
consulting relationship with the Company) that has commercial value in its
business (“Proprietary Information”). For example, Proprietary Information
includes without limitation inventions (whether or not patentable), patent
applications trade secrets, discoveries, experiments, research concepts
ideas, techniques, methods, processes, testing procedures, formulas,
compositions, data, know-how, computer programs, computer code,
improvements in the foregoing, as well as names and expertise of
employees, consultants, customers and prospects, and technical, business,
financial, marketing customer and product development plans, forecasts,
strategies and any other information relating to the Company’s business
and/or fields of interest.
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SAB
Advisory Agreement Page 2 of 8
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b.
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The
Advisor understands that its advisory relationship creates a relationship
of confidence and trust between Advisor and the Company with respect to
any (i) Proprietary Information or (ii) confidential information
applicable to the business of any customer of the Company or other entity
with which the Company does business and that it learns in connection with
the advisory relationship. At all times, both during the consulting
relationship with the Company and after its termination, Advisor will keep
in confidence and trust all such information, and Advisor will not use or
disclose any such information without the written consent of the Company,
except as may be necessary in the ordinary course of performing its duties
to the Company. This obligation shall end whenever such information enters
the public domain and is no longer confidential or
proprietary,
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c.
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In
addition, the Advisor hereby
agrees:
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i.
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All
Proprietary Information shall be the sole property of the Company and its
assigns, and the Company and its assigns shall be the sole owner of all
patents, copyrights, trade secrets and other proprietary rights in
connection therewith. Advisor hereby assigns to the Company any rights it
may have or acquire in such Proprietary Information, Advisor specifically
agrees that the foregoing assignment shall include any and all rights it
may have, had, acquire, or acquired in the Proprietary Information of
Medgenics, Inc., and a Delaware corporation, if applicable. Additionally,
Advisor agrees to perform all reasonable acts requested by the Company or
its representatives to perfect and enforce such
rights.
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b.
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All
documents or other media, records apparatus, equipment and other physical
property whether or not pertaining to Proprietary Information, furnished
to the advisor by the Company or produced by Advisor or others in
connection with the consulting relationship shall be and remain the sole
property of the Company. Advisor shall return and deliver all such
property of the Company immediately as and when requested by the Company.
The advisor shall return and deliver all such property (including any
copies thereof) upon request and, even without any request, upon
termination of the consulting
relationship.
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c.
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During
the advisory relationship with the Company, the advisor will not engage in
providing advisory services to other entities in the field of ex
vivo genetic modification of autologous
tissue.
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d.
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Advisor
will promptly disclose to the Company all improvements, inventions. works
of authorship, trade secrets, computer programs, designs, formulas, mask
works, ideas, processes, techniques, know-how and data, whether or not
patentable (“Inventions”) that relate to the subject matter of my advising
and that are conceived, developed or learned by the Advisor, either alone
or jointly with others, during the term of the advisory
relationship.
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SAB
Advisory Agreement Page 3 of 8
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e.
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During
the term of the advising and for twelve (12) months thereafter, the
Advisor will not solicit any employee of the Company to leave the Company
for any reason or to devote less than all of any such employee’s efforts
to the affairs of the Company.
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f.
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All
inventions that Advisor conceives, develops or learns (in whole or in
part, either alone or jointly with others) in connection with performance of its
advising for the Company or that uses the Company’s Proprietary
Information shall be the sole property of the Company and its assigns (and
to the extent
permitted by law shall be works made for
hire).The Company and its assigns shall be the sole owner of all trade
secret rights, patents, copyrights and other proprietary rights anywhere
in the world in connection therewith, and Advisor hereby assigns to the
Company any rights it may have or acquire in such Inventions. Advisor
specifically agrees that the foregoing assignment
shall include any and all rights, title and interest Advisor may have,
had, acquired or acquire in Inventions made conceived, developed, acquired
or first reduced to practice by Advisor (in whole or in part, either alone
or jointly with others) while Advisor was rendering services to Medgenics,
Inc. a Delaware corporation, if
applicable.
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g.
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With
regard to Inventions described in (f) above, Advisor will assist the
Company or its assigns in every proper way (but at the Company’s expense)
to obtain and from time to time enforce patents, copyrights on the
Inventions in any and all countries, and to that end Advisor
will execute all
appropriate documents. This obligation shall continue beyond the
termination of the consulting relationship, but the Company shall then
compensate Advisor at a reasonable rate for time spent. If the Company is
unable for any reason whatsoever to secure signature to any such document
(including renewals, extensions, continuations, divisions or continuations
in part), Advisor hereby irrevocably designates and appoints the Company
and its duly authorized officers and agents, as its agents and
attorneys-in-fact to act for and in my behalf and instead of Advisor,
but only for the
purpose of
executing and filing such documents and doing all other lawful permitted
acts to
accomplish the foregoing with the same legal force and effect as if
done by Advisor.
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h.
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As
a matter or record Advisor attaches hereto (as Exhibit 2) a list of
existing inventions or improvements relevant to the subject matter of the
advisory relationship with the Company that have been made or conceived or first reduced to
practice by Advisor alone, or jointly with others, prior to rendering
services as an advisor to the Company that Advisor desires to remove from
the operation of the Agreement, and Advisor covenants that such list is
complete.
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SAB
Advisory Agreement Page 4 of 8
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i.
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Advisor
represents that execution of the Agreement, the advisory
relationship with the Company and my performance of the Services will not
violate any obligations it may have to any person or entity, including the
obligation to keep confidential any proprietary information of that person
or entity. Advisor has not entered into any agreement in conflict wit this
Agreement or the advisory relationship with the Company. Advisor
represents that it will not disclose to the Company or induce the Company
to use any confidential or proprietary information or material belonging
to any previous employers, clients, or
others
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6.
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Use of Name. It
is understood that the name of the Advisor and Advisor’s affiliation with
the Institution will appear in disclosure documents required by securities
laws, and in other regulatory and administrative filings; and in the
ordinary course of the Company’s
business.
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7.
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No Conflict; Valid and
Binding.The Advisor represents that neither the execution of this
Agreement nor the performance of the Advisor’s obligations under this
Agreement will result in a violation or breach of any other agreement by
which the Advisor is bound. The Company represents that this Agreement has
been duly authorized and executed and is a valid and legally binding
obligation of the Company, subject to no conflicting
agreements.
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8.
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Notices. Any notice provided under this Agreement
shall be in writing and shall be deemed to have been
effectively given (i) upon receipt when delivered personally, (ii)
one day after sending when sent by private express mail service (such as
Federal Express), or (iii) 5 days after sending when sent by regular mail
to the following address:
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In the
case of the Company:
___________________________
___________________________
Office
______________________
Fax
________________________
Attention:
Xx. Xxxxxx X. Xxxxxxxx
Chief
Executive Officer
With a
copy to:
Xxxxx
Xxxxx Zedek Xxxxxx, LLP
0000
Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx,
XX 00000
Tel:
000-000-0000
Fax:
000-000-0000
Attention:
Xxxx X. Xxxxx
SAB
Advisory Agreement Page 5 of 8
In the
case of the Advisor:
___________________________
___________________________
___________________________
or to
other such address as may have been designated by the Company or the Advisor by
notice to the other given as provided herein.
9. Independent
Contractor, Withholding. The Advisor will at all times be an independent
contractor, and as such will not have authority to bind the Company. Advisor
will not act as an agent nor shall he be deemed to be an employee of the Company
for the purposes of any employee benefit program, unemployment benefits, or
otherwise. The Advisor recognizes that no amount will be withheld from his
compensation for payment of any federal, state, or local taxes and that the
Advisor has sole responsibility to pay such taxes, if any, and file such returns
as shall be required by applicable laws and regulations. Advisor shall not enter
into any agreements or incur any obligations on behalf of the
Company.
10. Assignment. Due to the personal nature of the services to
be rendered by the Advisor. the Advisor may not assign this Agreement. The
Company may assign all rights and liabilities under this Agreement to a
subsidiary or an affiliate or to a successor to all or a substantial part of its
business and assets without the consent of the Advisor. Subject to the
foregoing, this Agreement will inure to the benefit of and be binding upon each
of the heirs, assigns and successors of the respective parties.
11. Severability. If any provision of this Agreement shall be
declared invalid, illegal or unenforceable, such provision shall be severed and
the remaining provisions shall continue in full force and effect.
12. Remedies. The Advisor acknowledges that the Company would
have no adequate remedy at law to enforce. In the event of a violation by the
Advisor of such Sections, the Company shall have the right to obtain injunctive
or other similar relief, as well as any other relevant damages, without the
requirement of posting bond or other similar measures.
13. Governing Law; Entire
Agreement; Amendment. This Agreement shall be governed by the substantive
laws of New York and under the exclusive jurisdiction of the New York
courts.
SAB Advisory
Agreement Page 6 of 8
IN
WITNESS WHEREOF, the parties have executed this Agreement as of the date first
written above.
ADVISOR:
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By:
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/s/
Xxxxxx X. Xxxxxxxx
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By:
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/s/
Xxxxx X. Xxxxxxxxx
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Name:
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Xxxxxx
X. Xxxxxxxx
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Name:
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Xxxxx
X. Xxxxxxxxx
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Title:
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Chief
Executive Officer
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Title:
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PROF.
MD
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9/12/06
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SAB Advisory Agreement Page 7 of 8
EXHIBIT
1
Description
of Services
Advising
the company including:
1)
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Participating
as a member of the Scientific Advisory
Board
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2)
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Guiding
the general scientific, business, laboratory, and medical direction of the
company;
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3)
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Reviewing
the goals and plans of the Company and developing strategies for achieving
them;
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4)
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Identifying
and developing relationships with potential strategic
partners;
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5)
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Interacting
with potential investors, stockholders, and strategic or corporate
partners;
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6)
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Identifying
and reviewing promising scientific developments and intellectual property;
and
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7)
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Providing
advice and guidance in the Company’s scientific research and product
development activities.
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SAB
Advisory Agreement Page 8 of 8