Amended and Restated Consulting Agreement
Exhibit
10.23
Amended and Restated Consulting Agreement
This
Amended and Restated Consulting Agreement (this “Agreement”) is entered into as
of this 1st day of May 2008, by and between Xx. Xxxx Xxxxx, M.D., residing
at
000 Xxx Xxxx, Xxxxxxxxx XX (“Consultant”), and Oramed Pharmaceuticals Inc., a
Nevada corporation (the “Company”).
WHEREAS,
the
Company, is in the process of performing clinical trials of its oral insulin
capsule; and
WHEREAS,
the
Company is in need of certain consulting services to aid it in the pursuit
of
approval by the U.S. Food and Drug Administration (the “FDA”) of its oral
insulin capsule; and
WHEREAS,
Consultant possesses significant knowledge of the FDA approval process;
and
WHEREAS,
the
Company is desirous of retaining Consultant as a consultant to perform certain
services described herein to assist the Company in the pursuit and attainment
of
FDA approval for its oral insulin capsule; and
WHEREAS,
in order
to effect the foregoing, the Company and Consultant entered into a Consulting
Agreement as of May 1, 2008 (the “Original Agreement”); and
WHEREAS,
Company
and Consultant desire to amend and restate the terms and conditions the Original
Agreement in its entirety, and to replace the Original Agreement with this
Agreement.
IT
IS, THEREFORE, AGREED BETWEEN
the
Company and the Consultant that the Company will engage the Consultant subject
to the following mutual terms and conditions:
1.
Engagement.
The
Company hereby engages Consultant and Consultant hereby agrees to render to
the
Company for a period of twelve (12) months from the date of the Original
Agreement (the “Term”) the following services (the “Services”): Consultant shall
use his skills and expertise to assist the Company with its efforts to complete
the FDA approval process for its oral insulin capsule, including without
limitation the inspection and evaluation of the Company’s clinical trials and
protocols, as applicable, and such other matters related to the business of
the
Company as shall be reasonably requested by the Company’s Chief Executive
Officer. Consultant shall perform the duties and responsibilities under this
Agreement to the best of his abilities in a diligent, trustworthy, businesslike
and efficient manner, and shall report to Xxxxx Xxxxxx, Chief Executive Officer
of the Company.
2.
Fees.
In
consideration of the Services the Company shall pay to Consultant a fee of
$8,333 per month, retroactive to the date of the Original
Agreement.
3.
Confidentiality.
Consultant hereby covenants and agrees that, during and after the Term of this
Agreement, he will not communicate, disclose or otherwise make available to
any
person or entity (other than the Company), or use for his own account or for
the
benefit of any other person or entity, any information or materials proprietary
to the Company that relate to the Company’s business or affairs which is of a
confidential nature, including, but not limited to, trade secrets, information
or materials relating to existing or proposed pharmaceutical products (in all
and various stages of development), “know-how”, marketing techniques and
materials, marketing and development plans, personnel information and financial
information (collectively, “Proprietary Information”). Proprietary Information
includes any and all such information and materials, whether or not obtained
by
Consultant with the knowledge and permission of the Company, whether or not
developed, devised or otherwise created in whole or in part by Consultant’s
efforts, and whether or not a matter of public knowledge unless as a result
of
authorized disclosure. Consultant further covenants and agrees that he will
retain such knowledge and information which he acquires and develops during
the
Term respecting such Proprietary Information in trust for the sole and exclusive
benefit of the Company and its successors and assigns.
Consultant
acknowledges that (a) the Proprietary Information was developed at great expense
to the Company and that the Proprietary Information is critical to the condition
(financial or otherwise) and competitive survival of the Company, and (b) a
violation of any of the provisions of this Section 3 could result in irreparable
injury to the Company; and, therefore, Consultant agrees that the Company shall
be entitled to equitable relief, including injunction and specific performance,
in the event of any breach of any of the provisions of this Section 3, in
addition to all other remedies available to the Company at law or in equity.
4.
Duties
and Outside Activities. The
Company and the Consultant acknowledge and agree that Consultant shall be acting
as an independent contractor only in performing the Services and not as an
employee, agent or joint venturer of or with the Company, and shall have no
authority to obligate or bind the Company. Consultant agrees not to expressly
or
impliedly represent himself as an officer, director, employee, agent or
representative of the Company with the power or authority to negotiate on behalf
of, or to obligate or bind, the Company. The parties acknowledge that, except
as
otherwise agreed to by Consultant and the Company, any taxes that may be due
and
owing with respect to the compensation to Consultant hereunder shall be the
sole
responsibility of Consultant.
Consultant
hereby represents and warrants to the Company that (a) this Agreement
constitutes Consultant’s legal and binding obligation, enforceable against him
in accordance with its terms, (b) his execution and performance of this
Agreement does not and will not breach any other agreement, arrangements,
understanding, obligation of confidentiality, employment relationship to which
he is a party or by which he is bound or any law, rule or regulation, and (c)
during the Term, he will not enter into any agreement, either written or oral,
in conflict with this Agreement or his obligations hereunder.
5. Amendment. No amendment to this Agreement shall be valid unless such amendment is written and is signed by authorized representatives of both parties to this Agreement.
6.
Termination.
This
Agreement may be terminated by either party upon giving thirty (30) days written
notice to the other party. Upon the termination of this Agreement for any
reason, the Company shall have no further obligations (payment or otherwise)
to
the Consultant. Notwithstanding any termination of Consultant’s consultancy for
any reason, Consultant will continue to be bound by the confidentiality
provisions contained herein.
7.
Severability.
In the
event that any of the provisions of this Agreement shall be held to be invalid,
illegal, or unenforceable in any circumstances, the remaining provisions shall
nevertheless remain in full force and effect and shall be construed as if the
unenforceable portion or portions were deleted.
8.
Assignment.
This
Agreement shall be binding upon and inure to the benefit of the parties and
their respective successors and permitted assigns. Neither this Agreement nor
any of the obligations of the parties hereunder may be directly or indirectly
assigned or delegated by any party hereto without the prior written consent
of
the other parties hereto. Any attempt by any party to assign or delegate any
rights, duties or obligations which may arise under this Agreement without
the
prior written consent of the other party shall be void.
9.
Disputes.
Any
unresolved disputes arising from this Agreement shall be settled by binding
arbitration in Essex County, New Jersey before a single arbitrator, mutually
agreed upon, pursuant to the Commercial Rules of the American Arbitration
Association, each side to bear one-half of the costs of
arbitration.
10. Governing
Law.
The
validity, interpretation and construction of this Agreement and each part
thereof shall be governed by the laws of the State of New Jersey.
11. Counterparts.
This
Agreement may be executed in any number of counterparts, each of which may
be
deemed an original and all of which constitute one and the same
instrument.
12. Authorization.
The
parties each agree, represent, and warrant that the undersigned signatories
have
read and understand the provisions set forth in this Agreement and have the
legal and binding authority to execute this Agreement.
13. Other
Representations, Warranties and Covenants.
Consultant represents, warrants and covenants to the Company that Xxxx Xxxxx
shall at all times be the individual that will perform in all material respects
all the obligations of Consultant hereunder unless the Company expressly
approves another individual to so perform such obligations.
[signature
page follows]
IN
WITNESS WHEREOF, the parties have executed this Amended and Restated Consulting
Agreement as of the date first above written.
By:
/s/
Xxxxx
Xxxxxx
Name/Title
Xxxxx Xxxxxx/CEO
Consultant
/s/
Xxxx
Xxxxx
Xxxx
Xxxxx, M.D.
