Exhibit 10.2
Consultancy Agreement
This Consultancy Agreement (the "AGREEMENT") is entered into by and between:
▇▇▇▇▇▇▇▇ DALYO INC, a corporation incorporated and existing under the laws of
the state of New York, USA, whose address is: ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇
▇▇▇▇▇, ▇▇▇ (the "CONSULTANT"), via its principal and sole owner ▇▇. ▇▇▇ ▇▇▇▇▇▇▇▇
(the "PRINCIPAL"), and
Orgenesis Corporation EIN ▇▇-▇▇▇▇▇▇▇, (the Company").
WHEREAS the Company is engaged in development, manufacture, marketing,
licensing and other forms of commercialization of innovative
technologies, and methods in the Field, as defined below; and
WHEREAS the Company wishes to hire the Principal via the Consultant to
provide the Services (as defined below), and the Consultant agrees
to provide such Services to the Company solely via the Principal
under the terms and conditions of this Agreement.
NOW, THEREFORE, THE PARTIES HAVE AGREED AS FOLLOWS:
1. CONSULTANCY AGREEMENT
1.1 The preamble hereto and the appendices attached hereto form integral and
binding parts of this Agreement.
In this Agreement, the term "FIELD" means research, development,
production, marketing, , licensing and service of the bio-technology
industry for medical applications.
1.2 The parties confirm that as of February 2, 2012 (the "EFFECTIVE DATE"), the
Consultant shall provide the Company with the consulting services as set
out in APPENDIX A hereto (the "SERVICES"). The scope of Services shall be
mutually determined between the parties from time to time.
1.3 The Principal shall report directly to the Company's CEO (the "SUPERIOR").
1.4 The Consultant will provide the Services solely via the Principal, . The
Consultant agrees to cause the Principal to dedicate his time (to the
extent agreed upon between the parties), experience, talent, expertise and
knowledge to the Company, and to fulfill the Services in a loyal and
dedicated manner, and in accordance with the Company's policies and codes,
and the instructions of the Superior.
-2-
1.5 During the period of this Agreement, neither the Consultant nor the
Principal shall engage in any professional activity, commercial or
otherwise, which might intrude with the Services in terms of time schedule
or conflict of interest.
1.6 Neither the Consultant nor the Principal are allowed to obligate and/or
bind the Company and/or its affiliates and/or representatives in any way
and/or create any commitments on their behalf, except as expressly
authorized by the Company.
1.7 All reasonable procedures and directives of the Company applicable to
subjects of work behavior, discipline etc., will have a binding effect on
the Consultant and the Principal provided, however, that such policies have
been brought to the Consultant's and the Principal's attention in advance.
1.8 The amount and details of the Remuneration (as detailed below) and other
benefits will be publicly disclosed as required by SEC rules and in any
other case where the Company's attorneys consider it advisable.
1.9 The Consultant is an independent contractor. The parties do not intend, and
this Agreement and the performance hereunder shall not be construed to give
effect to employment, partnership, joint venture or agency relations
between the parties and/or between the Principal and the Company.
2.0 The Consultant and the Principal acknowledge and agree that as the Company
is a reporting issuer listed for trading in the United States and they will
fully comply with all regulatory and Company requirements, laws, policies
and rules respecting same.
2. REMUNERATION
In consideration of the provision of the Services, and all other obligations
of the Consultant and the Principal hereunder, the Company will pay to the
Consultant a gross monthly fee and additional remuneration as set forth
below:
2.1 Gross Monthly Fee: the gross monthly fee due to the Consultant for the
Services rendered will be US $3,000 per month (the "FEE"). The Fee will be
payable until the 10th of each month for the previous month.
The Consultant will bear and pay the Principal's salary and any and all
other payments, taxes, social security payments, social benefits and other
obligatory payments, according to applicable laws and regulations, which
arise as a result of the performance of the Services,.
The Company shall withhold taxes as required by applicable laws, if
required.
2.2 Expenses: The Consultant shall be reimbursed for reasonable out of pocket
expenditures incurred by it and/or by the Principal in connection with the
performance of the Services, subject to prior written approval of the
-3-
Company. Reimbursement shall be made upon submission of an expense report
accompanied by invoices.
2.3 Options: the management shall recommend to the Board of Directors to grant
the Consultant Options representing 1.5% of the outstanding share capital
of the Company, to purchase ordinary shares of the Company par value of
$0.0001 each, at an exercise price per shares set at the time the option is
announced, subject to the terms of the then in effect Company's Option Plan
and the execution of an Option Agreement between the Consultant and the
Company.
The Options shall vest as to one quarter every six months, commencing six
months from the Effective Date.
2.4 Performance Bonus: the Consultant shall be eligible to receive the
Performance Bonus as set forth in the attached APPENDIX B.
2.5 The parties confirm that the Remuneration detailed in this Section 2 above
is the full and exclusive consideration due to the Consultant and/or the
Principal hereunder. Should the Consultant and/or the Principal, or any
other party on its/his behalf, present any other claim against the Company,
whether based upon allegation of employee-employer relations or otherwise,
each of the Consultant and the Principal undertakes to indemnify and hold
the Company harmless for and against such claims; and the Company may
offset any sum it may owe the Consultant or the Principal against such
claims.
3. SECRECY AND OTHER INTELLECTUAL PROPERTY ISSUES
Each of the Consultant and the Principal undertakes to execute and abide by
the terms and provisions of the Secrecy and Intellectual Property
Undertaking as attached hereto as APPENDIX C.
4. PERIOD OF THE AGREEMENT
4.1 This Agreement is made for an undefined term. Each Party may, at any time,
terminate this Agreement: (i) by a 30 days prior written notice to the
other Party; (ii) immediately if termination is made for cause.
The Company shall have the right to terminate the Agreement immediately,
provided however that it pays to the Consultant the entire Fee due for the
entire notice period due on the termination date.
-4-
4.2 The term "CAUSE" in this Agreement shall be defined as: (a) a material
breach of agreement which has not been remedied within 14 days of written
notice, (b) breach of confidence, loyalty or unauthorized disclosure or use
of the Company's or third parties intellectual properties, (c) serious and
continuing breach of work behavior rules by the Consultant and/or the
Principal, (d) continuing and unjustified refusal to carry out work
assignments, (e) self-dealing, embezzlement or misappropriation of the
Company's property or serious damage to the Company's property which is
intentionally caused, (f) gross negligence or misconduct, (g) criminal
behavior as determined by a court of law except as for traffic violations,
(h) .actions that in the judgement of the directors may cause material
reputational harm to the Company, or (i) breach of any regulatory rules,
laws or policies which affect the Company or its insiders.
4.3 The termination of this Agreement is without liability of the Company for
any claims or payments beyond those earned or accrued in the course of the
Services hereunder; and each of the Consultant and the Principal hereby
waives any and all such claims against the Company and any entity or
representative associated with them and any other third party.
5. GENERAL PROVISIONS
5.1 This Agreement forms the complete and exclusive agreement between the
parties as to its subject matter; and it cancels any prior verbal or
written agreement related thereto. Any change to this Agreement requires a
duly signed document.
5.2 Any notice sent by one party to the other by registered mail will be deemed
to have been received on the 3 business day after the day of mailing. Fax
and electronic messages will be deemed to have been received on the
business day following the day of transmission.
5.3 The failure or delay of either party to require the performance of any term
under this Agreement, or the waiver by either party of any breach under
this Agreement, shall not prevent subsequent enforcement of such terms, nor
be deemed a waiver of any subsequent or prolonged breach.
-5-
In Witness hereof, the parties sign and execute this Agreement as of the
Effective Date
/s/ /s/ ▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------ ------------------------------
Orgenesis ▇▇▇▇▇▇▇▇ Dalyo Inc
Confirmation:
I, the undersigned, being the above referenced Principal pursuant to the above
Agreement, hereby confirm and undertake towards the Company with respect to all
of the undertakings and representations of the Consultant and the Principal as
detailed in the above Agreement.
/s/ ▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------
▇▇▇ ▇▇▇▇▇▇▇▇
Date of signature as of the Effective Date
-6-
APPENDIX A
SERVICES DESCRIPTION
Pursuant to Section 2 to the Agreement, the Services provided by the Consultant
solely via the Principal shall include the principal serving as Company's Chief
Financial Officer ("CFO") and providing the Company with the following:
- Primary responsibility for all the financial and related filings of the
Company with all regulatory agency on a timely basis, including without
limitation the SEC and any stock exchange on which the Company's stock is listed
for trading;
- design, implementation, maintenance and supervision of management controls and
procedures for the disclosure of material information and financial controls and
procedures for the disclosure of the financial affairs of the Company in
compliance with US GAAP and the rules, laws and policies of the applicable
regulators, including the SEC.
- preparation and execution of the CFO certifications required to be filed with
the Company's quarterly and annual periodic reports with the SEC.
- Tax planning and interaction with the Company's current CPA firm and
book-keeper;banks and insurance companies
- Review and validation of the Company's valuation model;
- Preparation and presentation of the Company's financial information to be
included in any future PPM(s) should any additional financing be required;
- Negotiations with the Company's vendors and consultants in the USA and abroad;
- Introductions and negotiations with prospective investors (VC'S, Hedge Funds,
etc.);
- Introductions and negotiations with M&A firms congruent with the Company's
exit strategy.
The Consultant and the Principal shall report to the CEO of the Company and
shall work with other employees of the Company as shall be required.
The Company may mention verbally and in writing, the engagement of the
Consultant with the Company, and it may refer to the Consultant and/or the
Principal third parties who request its/his opinion with regard to the Company's
activities, its technology and products - subject to prior coordination and
within reasonable bounds.
-7-
APPENDIX B
PERFORMANCE BONUS:
1. During the period of this Agreement, whenever the Consultant locates a
potential investor, the Company will decide, at its sole discretion,
whether to pursue the contact with such potential investor. If the decision
of the Company is positive, and provided that such potential investor is
not a shareholder of the Company, its affiliates or any person/entity, that
the Company had any prior business contacts with, such investor will then
become a "RESERVED Contact".
2. The Company is not obligated to accept any investment from any Reserved
Contact, and non-acceptance will not be grounds for any claim or demand by
the Consultant or anybody on its behalf.
3. If within 12 months after a certain person/entity is designated a Reserved
Contact, the Company does not receive an actual investment of funds from
that Reserved Contact, he/it shall cease to be a Reserved Contact for the
purposes of this Agreement, and no performance bonus will be due to the
Consultant.
4. If the Company enters into a binding investment agreement with a Reserved
Contact, the Company will provide the Consultant a performance bonus of 2%
(two percent) from the total investment of such Reserved Contact, before
expenses of all sorts, payable pro-rata from any installment actually
received by the Company. Such performance bonus will become due and will be
paid within 30 days after the respective investment amount is received in
the bank account of the Company.
5. Without derogating from the generality of the aforementioned and for the
avoidance of any doubt, it is hereby clarified that the performance bonus
will be due to the Consultant from any investment actually received by the
Company from a Reserved Contact, during the period of this Agreement and
within 6 months after the termination of this Agreement; or later only with
respect to agreements executed during the period of this Agreement, if the
actual investment of any amount thereof is made after the lapse of 6 months
period.
-8-
APPENDIX C
SECRECY AND INTELLECTUAL PROPERTY UNDERTAKING
1. In this APPENDIX C below, the term "GROUP" shall mean the Company and its
subsidiaries and affiliates as now existing and as may exist in the future.
2. Any invention, technology, system, product, component, software, copyright,
process and the like related to the business of the Group (collectively
referred to as "KNOWHOW"), whether patentable or patented or not and
whether subject to any other legal protection or not, arising out of the
Services or others' work for the Group, shall be the exclusive property of
the Group. The Consultant and/or the Principal will promptly submit to the
Company full details related to the Knowhow; and will execute patent
applications and assignments as may be requested by the Company (whether
during or after the term of this Agreement) to confirm and register the
Group's ownership thereof. It is hereby clarified, that the Consultant's
and/or the Principal's obligations as specified in this section above shall
be valid only regarding Knowhow which has been created or discovered during
the term of provision of the Services to the Company.
3. Any and all information known to the Consultant and/or the Principal due to
the provision of the Services to the Company, which constitutes, or is
directly related to trade secrets, commercial relations, actual and
potential clients and suppliers, technology and products, and any other
information of a proprietary or confidential nature, of the Group, will
hereinafter be together referred to as "INFORMATION". Information may
include commercial, technical, marketing, financial, administrative and
management subjects. The Information and any part thereof are and shall be
the exclusive property of the Group.
4. Neither the Consultant nor the Principal will use any part of the
Information, nor disclose or make it available to others, unless in the
line of the provision of the Services to the Company or if required by
judicial or governmental authority. The Consultant and the Principal shall
be obligated to notify the Company of the requirement to so disclose such
Information as soon as such demand is made upon either of them.
-9-
5. Each of the Consultant and the Principal recognizes that the Company
received and will receive confidential or proprietary information from
third parties subject to a duty on the Company's part to maintain the
confidentiality of such information and to use it only for certain limited
purposes. At all times, both during the term of provision of the Services
to the Company and after its termination, each of the Consultant and the
Principal undertakes to keep and hold all such information in strict
confidence and trust, and will not use or disclose any of such information
without the prior written consent of the Company, except as may be
necessary to perform the Service and consistent with the Company's
agreement with such third party. Upon termination of this Agreement, each
of the Consultant and the Principal shall act with respect to such
information as set forth in Section 7 hereunder.
6. The foregoing provisions will survive the termination of this Agreement.
However, these provisions shall not apply to Information which is in the
public domain or becomes in the public domain through no wrongful doing of
either the Consultant and/or the Principal, which may have been lawfully
received from a third party not bound by confidentiality to the Company, or
has already been known to the Consultant and/or the Principal not due to
their Services provided to the Company.
7. Upon termination of the Services hereunder, each of the Consultant and the
Principal shall immediately return to the Group all materials of any kind
(whether in written or electronic form, computer files or otherwise)
concerning the Information, including all copies thereof, and shall delete,
permanently erase and not retain any copies of such materials in any
format.
8. Without prejudice to the generality of the foregoing, each of the
Consultant and the Principal agrees that during the period of this
Agreement plus a period of 12 moths after the termination - for any reason
- of the Services it/he will not, directly or indirectly, for its/his own
account or for the account of others (including without limitation as a
stockholder, director, officer, investor, partner, employee, sole
proprietor, independent contractor or consultant), do or participate or
assist or allow to do any of the following:
(a) engage in any business in direct competition with the business of the
Company (engaging in the same business of the subsidiaries or
affiliates of the Company or other entities of the Group, in which the
Consultant was not involved, and to which the Consultant was not
exposed in any way due to the Services in the Company, is permitted,
and shall not be deemed to constitute a direct competition).
(b) Request or advise any past, present or future business associate of
the Group to decrease or cancel their business with the Group.
-10-
(c) Cause any employee of the Group to terminate the employee's employment
with the Group or to work for the Consultant and/or the Principal or
for any party associated with either of them.
The parties confirm that during the term of Services hereunder, either the
Consultant or the Principal are more than likely to be exposed to the
Information of the Group; and that any activity as forbidden under
subsections (a), (b) and (c) above is bound to breach the rights of the
Company in connection with such Information; and therefore the parties
agree that the above period is intended to ensure such rights of the Group.
9. The Consultant and the Principal confirm that they do not bring and were
not required to bring to the Group any proprietary materials of third
parties, and that the they are under no restrictions relevant to the
fulfillment and provision of the Services to the Company, whether by virtue
of former employment, business dealings or otherwise.
10. Each of the Consultant and the Principal recognizes and agrees that it/he
has no expectation of privacy with respect to the Group's networks,
telecommunications systems or information processing systems (including,
without limitation, stored computer files, electronic mail messages and
voice messages), and that their activity and any files or messages on or
using any of those systems may be monitored at any time by the Group
without notice.
11. Each of the Consultant and the Principal acknowledges and agrees that a
breach of any material provision of this APPENDIX C might cause the Group
substantial and irreparable harm.
In Witness hereof the parties sign and execute this Appendix C as of the
Effective Date
/s/ /s/ ▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------ ------------------------------
Orgenesis ▇▇▇▇▇▇▇▇ Dalyo Inc
Confirmation:
I, the undersigned, being the above referenced Principal pursuant to the above
Agreement, hereby confirm and undertake towards the Company with respect to all
of the undertakings and representations of the Consultant and the Principal as
detailed in the above Appendix C.
/s/ ▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------
▇▇▇ ▇▇▇▇▇▇▇▇
Date of signature as of the Effective Date