EXHIBIT 10.16
CONSULTANCY AGREEMENT
THIS CONSULTANCY AGREEMENT ("Agreement") is made as of the 2nd day of
January, 2000 between Medis Technologies Ltd. (the "Company") and Xxxxxx
Xxxxxxxx (the "Consultant"), (together with the Company, the "Parties", and each
individually a "Party").
W I T N E S S E T H :
WHEREAS, the Company had previously retained and now desires again to
engage the services of the Consultant to advise the Company on management,
financial and business development of the Company;
WHEREAS, the Consultant is willing and able to undertake engagement with
the Company subject to the terms and conditions stated herein.
NOW, THEREFORE, the Company and the Consultant agree as follows:
1. Services.
(a) The services to be provided by the Consultant hereunder (the
"Services") shall be:
(i) to advise and assist the company on management and accounting
policy and issues; and
(ii) to advise and assist the company in the area of financing and
capital raising, as well as to assist the company in maintaining its
relationships with its investors and with the NASDAQ; and
(iii) to advise and assist the company in managing its relationship
with legal, financial and business advisers; and
(iv) to provide such additional services relating to the management
of the company as the Company may request from time to time, (the
"Additional Services"), as mutually agreed between the Company and
the Consultant.
(b) It is expressly understood that the Company is not engaging the
Consultant to provide legal advice or perform legal services and that the
Consultant shall not serve as the Company's legal advisor or attorney in
any capacity.
2. Term. This Agreement shall have an initial term (the "Base Term") of two
(2) years, commencing on the date first written above. The Base Term shall be
automatically extended from year to year thereafter for additional one-year
periods under the same terms and conditions, except that the retainer shall be
subject to review by mutual agreement of the Parties thirty (30) days prior to
the beginning of the renewal term of this Agreement. The Base Term and any
renewal terms are collectively referred to herein as the "Term". The Term may be
terminated earlier, but solely in accordance with this Agreement.
3. Compensation. During the Term, the Company shall pay the Consultant in
accordance with the following:
(a) Retainer. The Company shall pay to the Consultant an annual retainer
equal to Xxx Xxxxxxx xxx Xxxxx Xxxx Xxxxxxxx Xxxxxx Xxxxxx Dollars
(US$145,000) (the "Retainer"). The amount of the Retainer shall be paid
monthly prorated for any partial calendar month of the Term. Payment of
the Retainer to the Consultant shall be made on the date of this
Agreement, and on the first day of each subsequent calendar month during
the Term in US Dollars.
(b) Expenses: The Company will pay for any business expenses incurred by
the Consultant n the performance of his Consulting services hereunder.
4. Termination on Death or Disability. The Term shall automatically terminate
on the death of the Consultant or his becoming "disabled." The Consultant shall
be deemed to have become "disabled" if the Consultant fails to perform
substantially all of its duties under this Agreement for a continuous period in
excess of ninety (90) days because of a disabling illness or injury to the
Consultant.
5. Termination by the Consultant. In the event of the failure in any material
way of the Company to fulfill any of its material obligations under this
Agreement (hereinafter "Breach"), the Consultant, after furnishing the Company
with thirty (30) days prior written notice and the opportunity to cure, shall be
entitled to terminate this Agreement (and thus terminate the Term) in the
absence of any cure by the Company and to receive the balance of the Retainer
for the then year term of this Agreement.
6. Termination by the Company.
During the Term or an extended term, the Company shall be entitled, by
thirty days notice in writing, to terminate this Agreement for a material
breach by the Consultant of one or more of the terms of this Agreement, or
for any act in contravention of the fiduciary responsibility of the
Consultant to the Company. Unless the breach is cured to the satisfaction
of the Company within the period of the thirty day notice above, then this
Agreement shall terminate thereafter immediately and the Company shall no
longer be obligated to make further payments to the Consultant.
7. Company Matters, Restrictive Covenants.
(a) Non-Compete. The Consultant hereby acknowledges and recognizes that
the services the Consultant is to render are of a special character with a
unique value to the Company, the loss of which cannot adequately be
compensated by damages in an action at law. In light of the foregoing, and
because of the proprietary or confidential information to be obtained by
or disclosed to the Consultant, the Consultant covenants and agrees that
during the term of this Agreement and for two years thereafter, he shall
not engage in or assist others to engage in any activity which is
competitive with the business of the Company.
(b) Confidentiality. The Consultant and the Company shall not disclose to
any other Party the terms of this Agreement, without the prior written
consent of the Company or as otherwise required by law.
8. Miscellaneous.
(a) Independent Contractor. It is agreed by the Parties that the
Consultant is acting as an independent contractor under this Agreement and
is not an employee of the Company.
(b) Entire Agreement, Binding Effect. This Agreement sets forth the
entire understanding between the Parties as to the subject matter of this
Agreement and merges and supersedes all prior agreements, commitments,
representations, writings and discussions between them; and neither of the
Parties shall be bound by any obligations, conditions, warranties or
representations with respect to the subject matter of this Agreement,
other than as expressly provided in this Agreement or as duly set forth on
or subsequent to the date hereof in writing and signed by the proper and
duly authorized representative of the Party to be bound hereby. This
Agreement is binding on the Consultant and on the Company and their
respective successors and assigns (whether by assignment, by operation of
law or otherwise).
(c) Severability. The Parties hereby agree that if any particular
provision or section of this Agreement is adjudicated to be invalid or
unenforceable, the remainder of the provisions and sections of this
Agreement shall not thereby be affected and shall be given full effect,
without regard to the invalid or unenforceable provisions.
(d) Notices. All notices, approvals, consents, requests or demands
required or permitted to be given under this Agreement shall be in writing
and shall be deemed sufficiently given three business days after being
deposited in the mail, registered or certified, postage prepaid, on
receipt if hand delivered or sent by facsimile (answer-back received) or
one business day after being given to a reputable overnight courier and
addressed to the Party entitled to receive such notice at the following
address (or other such addresses as the Parties may subsequently
designate):
Company: Medis Technologies Ltd.
000 0xx Xxxxxx
X.X., X.X. 00000
Facsimile: 000 000 0000
Consultant: Xxxxxx Xxxxxxxx
00 Xxxxxxxx Xxxx
Xxx Xxxxxxxx, X.X. 00000
Facsimile: (000) 000 0000
If notice is given by any other written method, it shall be deemed
effective when actually received.
(e) Waivers. No Party shall be deemed to have waived any right, power or
privilege under this Agreement or any provisions hereof unless such waiver
shall have been duly executed in writing and acknowledged by the Party to
be charged with such waiver. The failure of a Party at any time to insist
on performance of any of the provisions of this Agreement shall in no way
be construed to be a waiver of such provisions, nor in any way to affect
the validity of this Agreement or any part hereof. No waiver of any breach
of this Agreement shall be held to be a waiver of any other subsequent
breach.
(f) Governing Law; Jurisdiction. This Agreement shall be governed by, and
construed and enforced in accordance with, the laws of the State of New
York, USA, without giving effect to the conflict or choice of law
provisions thereof.
(g) Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall be deemed to be an original, and all
such counterparts shall constitute but one instrument
IN WITNESS WHEREOF, the Parties have duly executed this Agreement on
the date first written above.
Medis Technologies Ltd.
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Chairman and Chief Executive Officer
Xxxxxx Xxxxxxxx
/s/ Xxxxxx Xxxxxxxx
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