Exhibit 10.16
CONSULTING AGREEMENT
AGREEMENT made as of the 1st day of July, 1996 by and between MEDJET
INC., a Delaware corporation with its principal office at 0000 Xxxx Xxxxxxx
Xxxx Xx., Xxxxx 000, Xxxxxx, Xxx Xxxxxx 00000 ("MEDJET") and Ophthalmic
Research Associates, Inc., a Massachusetts corporation, with an address at
000 Xxxxxxxx Xxxxxx, Xxxxx Xxxxxxx, Xxxxxxxxxxxxx 00000 ("ORA").
W I T N E S S E T H :
WHEREAS, Xxxx X. Xxxxxxx, M.D. CM, FRCS ("Consultant") is a shareholder
and president of ORA; and
WHEREAS, MEDJET desires to retain the services of ORA, acting through the
Consultant, and ORA, acting through the Consultant, desires to provide such
services, upon the terms and subject to the conditions herein set forth;
NOW, THEREFORE, in consideration of the foregoing and the mutual
agreements hereinafter set forth, MEDJET and ORA agree as follows:
1. MEDJET hereby agrees to retain ORA to provide the Consulting
Services, as hereinafter defined, and ORA hereby accepts such retention upon
the terms and conditions hereinafter set forth. ORA agrees that all
Consulting Services to be provided by ORA shall be provided mainly by the
Consultant. Such agreement to provide the services of Consultant is deemed
to be material and MEDJET is entering this Agreement relying on such
agreement. ORA is engaged to provide the Consultant to (a) assist in the
preparation and presentation of Medjet's data relating to refractive surgery
and use of waterjet therefor to the Food and Drug Administration ("FDA") and
(b) recommend strategies to achieve FDA approval. ORA shall cause the
Consultant to use such time and effort as shall be reasonably necessary (but
unless otherwise agreed by the parties hereto, no less than two (2) full days
per month during the term of this Agreement) to provide the consulting
services contemplated hereby (the "Consulting Services"), which Consulting
Services may be provided at MEDJET's facilities or Consultant's facilities.
2. MEDJET shall pay Consultant or Consultant's written designee a fixed
fee for the Consulting Services of $10,000 per month, payable in arrears upon
presentation of a xxxx for such services on or after the last business day of
the month for which payment is requested. MEDJET shall reimburse Consultant
for such reasonable expenses actually and necessarily incurred by Consultant
in the performance of the Consulting Services hereunder upon the submission
to MEDJET not later than thirty (30) days following the end of the month in
which the expenses were incurred of MEDJET form expense vouchers covering
such expenses (and original receipts for any and all expenditures in excess
of $25.00), provided that such expenses shall have been approved in writing
by an authorized representative of MEDJET for reimbursement prior to the
incurrence of such expense.
3. Upon presentation of a xxxx for the Consulting Services contemplated
by Section 2, Consultant will also furnish MEDJET with a written report
summarizing the Consulting Services (and the status thereof) performed by
Consultant during the immediately preceding month, any developments in, and
such other information as MEDJET shall reasonably request.
4. This Agreement shall commence on the date hereof and shall remain in
effect until terminated by either party giving the other party written notice
of termination, at least thirty (30) days prior to the effective date of
termination.
5. Nothing in this Agreement shall be considered to create the
relationship of employer and employee between the parties hereto. Consultant
shall be deemed at all times to be an independent contractor and shall not be
entitled to any MEDJET employment rights or benefits, including, without
limitation, medical, retirement, life insurance, etc.
6. ORA acknowledges that in the course of performing the Consulting
Services for MEDJET, Consultant, ORA and other employees or consultants of
ORA involved in providing the Consulting Services will be exposed to
confidential and trade secret information of MEDJET, including but not
limited to information relating to MEDJET's business, its research or
engineering activities, its manufacturing processes, its trade secrets, its
sources of supply, and its plans or contemplated actions, and may be exposed
to information confidential to customers of MEDJET. Accordingly, Consultant,
ORA and other employees or consultants of ORA involved in providing the
Consulting Services (prior to rendering the Consulting Services) shall each
execute and be bound by MEDJET's form of Proprietary Information, Inventions
and Non-Solicitation Agreement, attached hereto as Exhibit A (the
"Proprietary Information Agreement").
7. Each of ORA and Consultant represents and warrants that ORA and
Consultant is under no obligation or restriction nor will Consultant assume
any such obligation or restriction, which would in any way interfere or be
inconsistent with the Consulting Services. Neither ORA nor Consultant shall,
during the term hereof, be engaged in any other business activity, which, in
the judgment of MEDJET, conflicts with the relationship of ORA and Consultant
to MEDJET hereunder (such that it does have or reasonably may be expected to
have an adverse effect on the business, operations or prospects of MEDJET)
whether such activity is pursued for gain, profit or pecuniary advantage.
8. Medjet represents and warrants that it is under no obligation or
restriction which would in any way interfere or be inconsistent with the
Consulting Services.
9. Medjet shall indemnify and hold harmless ORA and Consultant from and
against all demands, claims, actions, losses, damages and liabilities, costs
and expenses, including but not limited to attorneys' fees and expenses
(collectively, "Damages") asserted against, imposed upon or incurred by ORA
or Consultant resulting from or relating to any third party litigation or
claim arising out of ORA's performance of its obligations under this
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Agreement, whether or not any such Damage shall or may arise by virtue of
anything done or omitted to be done by ORA, other than ORA's or Consultant's
gross negligence or willful misconduct. ORA and Consultant shall jointly and
severally indemnify and hold harmless Medjet and any parent, subsidiary or
affiliate thereof and all directors, officers, employees, agents and
consultants of each of the foregoing (the "Medjet Group") from and against
all Damages asserted against, imposed upon or incurred by Medjet which shall
or may arise by virtue of anything done or omitted to be done by ORA or
Consultant outside the scope of, or in breach of the terms of, this
Agreement, whereby Medjet or any member of the Medjet Group is or may be
subject to any liability, obligation or commitment.
Each party entitled to indemnification hereunder (the "indemnified
party") shall give notice to the party required to provide indemnification
(the "indemnifying party') promptly after such indemnified party has actual
knowledge of any claim as to which indemnity may be sought, and shall permit
the indemnifying party (at its expense) to assume the defense of any claim or
any litigation resulting therefrom, provided that counsel for the
indemnifying party, who shall conduct the defense of such claim or
litigation, shall be satisfactory to the indemnified party, and the
indemnified party may participate in such defense at such party's expense,
and provided, further, that the omission by any indemnified party to give
notice as provided herein shall not relieve the indemnifying party of its
obligations under this Section 9 except to the extent that the omission
results in a failure of actual notice to the indemnifying party and such
indemnifying party is damaged solely as a result of the failure to give
notice. No indemnifying party, in the defense of any such claim or
litigation, shall, except with the consent of each indemnified party, consent
to entry of any judgment or enter into any settlement which does not include
as an unconditional term thereof the giving by the claimant or plaintiff to
such indemnified party of a release from all liability in respect to such
claim or litigation.
The reimbursement required by this Section 9 shall be made by
periodic payments during the course of the investigation or defense, as and
when bills are received or expenses incurred.
10. The rights and obligations of Sections 6 through 9, inclusive, shall
survive the termination or expiration of this Agreement. In addition, ORA
shall be entitled to receive all amounts payable under Section 2 up to the
date of termination of this Agreement.
11. (a) All notices required to be given hereunder shall be in writing,
and shall be duly given if delivered to the other party personally, or sent
to the other party by registered or certified mail (return receipt
requested), addressed to the other party at the address first set forth above
or to such other address as any party may designate by a similar notice, and
deposited in the U.S. mail and shall be deemed to have been given as of the
third day after the date so mailed.
(b) This Agreement shall be binding upon and inure to the benefit
of the parties hereto, the executors, administrators and legal
representatives of Consultant and the
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successors and assigns of MEDJET. The provisions of this Agreement shall not
be construed as conferring and are not intended to confer any rights on any
other persons. Neither this Agreement nor any rights or obligations
hereunder may be assigned or delegated by either party without the written
consent of the other party, and any such assignment or delegation shall be
null and void.
(c) In the event that any provision of this Agreement shall for any
reason be held to be invalid, illegal or unenforceable in any respect, such
invalidity, illegality or unenforceability shall not affect any other
provision of this Agreement.
(d) This Agreement, together with the Proprietary Information
Agreements, constitutes the entire agreement and understanding of the parties
relating to the subject matter hereof, and may not be modified or amended
except by a writing signed by the party sought to be charged therewith. No
waiver of any breach of this Agreement shall be binding unless made by
writing assigned by the party making the waiver, and no waiver of any breach
of this Agreement by either party hereto shall be deemed a waiver by such
party of any prior or subsequent breach of this Agreement, whether known or
unknown.
(e) This Agreement shall be governed by and construed and enforced
in accordance with the laws of the State of New Jersey.
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IN WITNESS WHEREOF, the parties, intending to be legally bound hereby,
have duly executed this Agreement as of the date first above written.
MEDJET INC.
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------
Xxxxxx X. Xxxxxx, Chairman
and President
CONSULTANT
OPHTHALMIC RESEARCH ASSOCIATES,
INC.
By: /s/ Xxxx X. Xxxxxxx
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Xxxx X. Xxxxxxx
