CONSULTING AGREEMENT
AGREEMENT, made as of this 1st day of September, 1997, by and
between BIOCORAL, INC., a Delaware corporation having its principal place of
business c/x Xxxxx Xxxx Xxxxxx & Xxxxxx LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx, XX
00000 ("Company") and Xxxxxx Xxxxxxx, residing at 000 xxx Xxxxx Xxxxxx,
Xxxxxxxxx - Xxxxxx XXXXXX ("Executive").
W I T N E S S E T H:
WHEREAS, Executive possesses significant experience in international
business and financial affairs; and
WHEREAS, Company desires to engage the services of Executive and to
appoint Executive as its President and Chairman, and Executive desires to accept
such engagement upon the terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the foregoing and on the mutual
agreements and covenants hereinafter contained, the parties hereto agree as
follows:
1. Engagement. Company agrees to engage Executive as a consultant and
independent contractor to Company, to serve as its Chairman and President, and
Executive agrees to accept such engagement, all upon the terms and conditions
hereinafter set forth.
2. Term of Engagement. The term of engagement of Executive under this
Agreement shall be for a period of three (3) years commencing on the date
hereof.
3. Duties. Executive shall, during the term of his engagement, devote his
such amount of his business time and attention and shall apply his skill and
knowledge to the business of Company as shall be necessary to discharge his
obligations as Chairman and President. All such services shall
be rendered outside the United States. Executive further agrees to perform such
other duties and render such other services consistent with his position as may
from time to time be reasonably required by the Board of Directors of Company.
Furthermore, Executive shall, during the term his engagement, keep all such
records of his work for Company as Company directs and in the manner as Company
directs, all such records and data so recorded to be the sole and absolute
property of Company, and will, at Company's request, and in any event, at the
termination of engagement (regardless of the reason therefor) surrender to
Company any and all memoranda, books, papers, notebooks, reports, customer lists
and activity reports, and any and all other data and information and any and all
copies or abstracts thereof whether made by Executive, Company or by third
parties that Executive has concerning Company's business or Company's
"Intangible Property" (as defined herein).
4. Compensation.
(a) As compensation for his services hereunder, Company shall pay to
Executive during the term of this Agreement, and Executive agrees to accept as
compensation for the services to be rendered by him, annual base compensation in
the amount of $150,000 payable in monthly installments. Executive shall also be
entitled to reimbursement of all his out-of-pocket expenses relating to the
affairs of Company against presentation of vouchers therefor.
(b) In the event that, at any time during the term hereof, Company
shall attempt to terminate this Agreement, or in the event that at any time
during the term hereof, there shall occur a "Change in Control" of Company,
then, in either event, lump sum compensation in an amount of $300,000 shall
become immediately due and payable to Executive. For purposes of this Agreement,
the term "Change in Control" shall mean any one of the following: (i) the
transfer of 25% or more of the outstanding voting shares of the Company; (ii)
the purchase of all or substantially all of the Company's assets (whether in a
single transaction or in a series of transactions); (iii) the merger or
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consolidation of the Company with any other entity the result of which is that
the other entity or its equityholders owns 25% or more of the Company's
outstanding equity; or (iv) a change in more than 40% of the seats of the Board
of Directors of the Company.
5. Restrictive Covenant.
(a) During the term of this Agreement and for a period of six (6)
months thereafter, Executive shall not, directly or indirectly, engage or
participate in, or be in any manner connection with, any other business which is
similar to or competes with any business operations or activities of Company or
act as a director, officer, partner, consultant, or Executive for or make any
financial investment in any other firm, corporation or other such enterprise
anywhere in the United States, without the expressed written approval of
Company. Nothing contained herein, however, shall restrict Executive from making
any investments in any business or enterprise whose securities are listed on a
national securities exchange or actively traded in the over-the-counter market,
which business or enterprise is or might be, directly or indirectly, in
competition with the business operations of the Company; provided, however, that
such investment does not give Executive the right to control or influence the
policy decisions of such business.
(b) During the term of this Agreement and at all times thereafter,
Executive will not divulge, furnish or make accessible to anyone (other than in
the regular course of business of Company or at the request of Company) any
knowledge or information with respect to confidential or secret methods, data,
ideas, creations, plans, materials and processes (including improvements and
enhancements thereof) of Company including, without limitation, any customer or
client lists, telephone leads, prospect lists, advertising and sales promotion
materials, forms or literature and manufacturing processes (collectively,
"Intangible Property").
(c) Executive agrees that any Intangible Property that he may
conceive, make,
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invent, develop or suggest during the term of this Agreement (whether
individually or jointly with any other person or persons), relating in any way
to the business or activities of Company shall be the sole, exclusive and
absolute property of Company. Executive will immediately disclose any Intangible
Property to Company, except where the same is lawfully protected from disclosure
as the trade secret of a third party or by any other lawful bar to such
disclosure. Executive further agrees that without further remuneration (except
out-of-pocket expenses) and whether or not Executive is still engaged by
Company, he will, at Company's request, execute and deliver any documents and
give reasonable assistance which may be essential or desirable to secure to,
assign, and vest in Company the sole and exclusive right, title and interest in
and to such Intangible Property including, in those instances where Company
determines in its sole discretion, to apply for letters patent of the United
States of America and/or foreign countries, patent applications, copyright
applications, assignments, affidavits, priority claims and other documents now
or hereafter essential or desirable in the opinion of Company in obtaining,
maintaining and/or defending such patents, copyrights or other proprietary
rights and in securing to and vesting in Company the sole and exclusive right,
title and interest in and to such rights.
(d) Executive agrees that during the term of this Agreement, or any
renewals or extensions hereof and for a period of six (6) months thereafter, he
will not:
(i) Directly or indirectly solicit, raid, entice or induce any
employee of Company to be engaged by any other person, firm or corporation; or
(ii) Directly or indirectly approach any such employee for
such purposes; or
(iii) Authorize or knowingly approve the taking of such
actions by other
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persons on behalf of any such person, firm or corporation or assist any such
person, firm or corporation in taking such action.
(e) Executive agrees that during the term of this Agreement he will
not enter into on behalf of Company or cause Company to enter into, directly or
indirectly, any transaction with any business organization in which he or any
member of his immediate family may be interested as a partner, trustee,
director, officer, Executive, shareholder, other equity holder, lender of money
or guarantor, unless the material facts as to his interest and as to the
transaction are disclosed or are known to Company.
(f) Executive acknowledges that the services to be rendered by him
hereunder are of a special, unique and extraordinary character and that it would
be difficult if not impossible to replace such services, and further that
irreparable injury would be sustained by Company in the event of a violation by
Executive of any of the provisions of this Agreement, and by reason thereof,
Executive consents and agrees that if he violates any of the provisions of this
Agreement, Company shall be entitled to an injunction to be issued by any court
of competent jurisdiction restraining him from committing or continuing any
violation of this Agreement, in addition to all other remedies available to
Company under this Agreement or otherwise. The existence of any claim or cause
of action of the Executive against Company, whether predicated on this Agreement
or otherwise shall not constitute a defense to the enforcement by the Company of
these restrictions.
(g) In the event of a judicial determination of the unreasonableness
of these covenants with regard to time, geographical limitations or prohibited
activities, it is agreed by the parties that their intention is that this
Agreement should be considered to be effective within judicially determined
reasonable limits, time and prohibited activities.
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8. Termination.
(a) Company shall have the right to terminate this Agreement if
Executive shall commit any material act of malfeasance, disloyalty or breach of
trust against Company. Company's sole right under such circumstances shall be to
prohibit Executive from utilizing Company facilities, and shall be without
prejudice to Company's obligations to pay Executive compensation pursuant to
subparagraph 4 (c).
(b) In the event Company elects to terminate this Agreement as set
forth above, Company shall provide notice of termination to Executive in
accordance with the notice provisions of paragraph 10 hereof and this Agreement
shall terminate without further act ten (10) days after the giving of such
notice. Such termination shall not abrogate or annul any provisions of this
Agreement which are intended to survive said termination including, without
limitation, the provisions of subparagraph 4 (c) hereof.
6. Representation and Warranty of Executive. Executive represents and
warrants that he is not a party to any agreement, contract or understanding,
whether written or oral and whether of employment or otherwise, which would in
any way restrict or prohibit him from undertaking or performing in accordance
with the terms and conditions of this Agreement.
7. Complete Understanding. This Agreement constitutes the complete
understanding of the parties hereto and may not be altered, modified, amended or
rescinded except in a writing signed by the parties hereto.
8. Titles. The titles set forth in this Agreement are for convenience of
reference only and shall not be considered as part of this Agreement in any
respect nor shall they in any way affect the substance of any provision
contained in this Agreement.
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9. Severability. If any covenant or other provision of this Agreement is
finally judicially determined to be invalid, unlawful or incapable of being
enforced by reason of any rule of law or public policy, all other conditions and
provisions of this Agreement which can be given effect without the invalid,
unlawful or unenforceable provision shall, nevertheless, remain in full force
and effect, and no covenant or provision shall be deemed dependent upon any
other covenant or provision unless so expressed herein.
10. Notices. All notices which are required or which may be given under
the provisions of this Agreement shall be conclusively deemed to have been given
if delivered personally or sent by certified mail, return receipt requested,
with postage prepaid, to each of the parties hereto at the respective addresses
set forth above, or to such other address or addresses as either party may
hereinafter designate in writing as his or its address for this purpose in the
manner herein provided for giving notices. The date of giving of such notice
shall be conclusively deemed to be the date of receipt, if delivered personally,
or the date of postmark, if mailed.
11. Successors and Assigns. This Agreement shall inure to the benefit of
and be binding upon the heirs, executors, administrators, and personal
representatives of Executive and the successors and permitted assigns of
Company.
12. Prior Agreements. Any and all prior agreements or memoranda of
understanding with respect to any matters herein contained, whether written or
oral, are herewith canceled and shall be of no further force or effect.
13. Construction. Whenever the sense of this Agreement so requires, the
masculine gender shall be deemed to include the feminine and/or neuter gender,
and the plural, the singular and vice versa.
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14. Governing Law. This Agreement, its performance and the rights,
obligations and remedies of the parties hereto, shall be construed and governed
by the laws of the State of New York without regard to its principles of
conflict of laws.
IN WITNESS WHEREOF, the parties hereto have set their hands as of
the day and year first above written.
BIOCORAL, INC.
By: /s/ Xxxxxx Xxxxxxx
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Xxxxxx Xxxxxxx, Chairman
/s/ Xxxxxx Xxxxxxx
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Xxxxxx Xxxxxxx, Executive
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