Consulting Agreement
This consulting agreement (the "Agreement") is entered into as of the 4th day of
November, 2004, by and among GammaCan Ltd., a company incorporated under the
laws of the State of Israel, with its principal office at 11 ▇▇▇ ▇▇▇▇▇▇ St.,
Givat ▇▇▇▇▇▇ (the "Company"), and the PBD Ltd. of ▇▇ ▇▇'▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇ (the "Consultant").
Whereas, the Company is engaged, inter alia, in the research
and development of intravenous immunoglobulin; and
Whereas, Consultant, a company under the control of ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇, a
major shareholder of the parent company of the Company, is a
company engaged in the provision of advisory services as
provided herein; and
Whereas, the Company desires to retain certain services from
Consultant, and Consultant desires to provide such services
to Company;
Now, therefore, in consideration of their respective undertakings herein
contained, and other consideration, the sufficiency of which is hereby
acknowledged, the parties hereto hereby agree as follows:
1. Term; Termination. This Agreement shall commence on the date hereof and
shall continue until the Services (as defined below) will be fully
provided to the Company (the "Consulting Term"). However, Company may
terminate this Agreement immediately without an advance notice and without
derogating from any other remedy to which Company may be entitled in the
event of: (i) the willful malfeasance or gross negligence in the
performance of Consultant's obligations under this Agreement; (ii) the
commission by Consultant of a felony or other criminal conduct involving
fraud, dishonesty, theft or misappropriation, or (iii) the material breach
of any applicable duty of loyalty to Company or unauthorized use or
disclosure, misappropriation, destruction or diversion of any material
tangible or intangible asset or corporate opportunity of Company, or other
material tortuous or unlawful conduct which is injurious to Company or an
affiliate thereof.
2. The Services.
2.1. Beginning on October 15, 2004 (the "Commencement Date"), Consultant
is engaged by Company to provide Company with certain advisory
services as set forth in Exhibit A hereto (the "Services").
2.2. The Services shall be provided by Consultant only through ▇▇. ▇▇▇▇▇
▇▇▇▇▇▇ (the "Individual"). Individual shall devote the required
working time, know-how, energy, expertise, talent, experience and
best efforts in order to provide the Services hereunder. Consultant
confirms that the Individual is available to provide such required
services, and Consultant agrees that should it wish to employ
Individual for other business or professional activities, this will
require the prior written agreements of the parties hereto.
2.3. Consultant shall utilize the highest professional skill, diligence,
ethics and care to ensure that all Services are performed to the
full satisfaction of Company and to provide the expertise required
in connection with such Services. Consultant shall furnish Company
with such reports concerning Consultant's activities as set forth in
Exhibit A and Company may request from time to time.
3. Compensation and Reimbursement
3.1. Company shall pay Consultant, as full compensation for the provision
of all Services hereunder, a total amount of $50,000 (the "Fee").
The Fee will be payable against a valid invoice furnished by
Consultant to Company. The Company shall add V.A.T. to all Fee
payments, as required under applicable law, against receipt of an
invoice. 50% of the Fee (totaling $25,000) will be payable to
Consultant on the date hereof. 25% of the Fee (totaling $12,500)
will be payable to Consultant after 45 days from the date hereof and
the remaining 25% of the Fee (totaling $12,500) will be payable to
Consultant upon submitting the Company with the final written report
summarizing the Services, in a form acceptable to the Company.
3.2. The Company shall reimburse Consultant for out of pocket expenses
incurred in connection with the performance of its duties under this
Agreement, only if the same has been approved in advance and in
writing by the Company. As a condition to reimbursement, Consultant
shall provide Company with all invoices, receipts and other evidence
of expenditure as may be reasonably required by Company from time to
time.
3.3. The Fee constitutes the full and final consideration for the
Services, and Consultant shall not be entitled to any additional
consideration, of any form, for the Services. Consultant alone shall
be responsible for any and all payments to the Individual, and
otherwise in connection with the engagement of the Individual or the
provision of any services by the Individual to the Company,
specifically including any payments which may be due in the context
of the employment of Individual, including any withholding taxes,
national insurance payments, social security payments, and the like.
By signing at the end of this Agreement, the Individual acknowledges
and agrees that as a service provider to Company she is not entitled
to receive from Company any social benefits (including without
limitation, paid vacation days, paid sick leave, severance payments,
pension funds, etc.), and that Consultant alone is solely
responsible and liable to pay her salary and any additional social
benefits to which he may be entitled under any applicable law.
4. Confidentiality; Non-Compete
By executing this Agreement, Consultant confirms and agrees to the
provisions of Company's Proprietary Information, Confidentiality and
Non-Competition Agreement attached in Exhibit B hereto (an "NDA").
Additionally and without derogating from the generality of the aforesaid,
each employee or agent of Consultant who may be involved in the provision
of the Services shall also be required to sign such an NDA, and Consultant
shall be responsible for full compliance of each such employee or agent
with all the terms of the NDA.
5. Independent Contractor.
5.1. Consultant agrees and acknowledges that it is performing the
Services hereunder as an independent contractor and that no
employer-employee relationship exists or will exist between
Consultant and Company.
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5.2. Consultant (by signing at the end of this Agreement) hereby fully
and irrevocably represent, warrant and undertake as follows:
5.2.1. Consultant was offered by Company the option to be employed
by Company in consideration of a monthly salary, with the
related social benefits, but Consultant declined and demanded
from Company that no employer-employee relations be
established between himself and Company, at his own initiative
and free will and based on Individual's considerations.
5.2.2. The Consulting Fee is the sole and exclusive consideration,
which Company shall be required to pay for all services
rendered to it.
5.2.3. Consultant is stopped from making any claim regarding the
existence of employer-employee relations between Consultant
and the Company.
5.2.4. If, despite the parties' express representations and
agreements hereunder, it shall, at any time, be determined by
a court of competent jurisdiction or by any other governmental
authority, that employer-employee relations exist between the
Company and Consultant, and as a result of such decision
Consultant shall become entitled to any rights and/or payments
resulting from the existence of such relations, and/or the
Company shall be required to bear any additional expenses or
costs (specifically including any taxes or obligatory payments
to the tax authorities, the National Insurance authorities,
etc.), the parties agree and undertake that the "salary" to
which Consulting is entitled for his services as employee of
Company hereunder shall be equal to 60% (sixty percent) of the
Consulting Fee, and Consultant undertakes in such event to
immediately repay and return to Company any amounts received
hereunder in excess of said 60% (sixty percent) throughout the
entire term of the Agreement. Consultant further undertakes to
indemnify Company for any loss, payment, expense or damage
caused to the Company as a result of such decision. The
Company shall be entitled to set off any payment or grant of
securities to which Consultant may become entitled under such
decision from any payment or grant of securities due to
Consultant under this Agreement (including the forfeiture,
repurchase for par value, conversion into deferred stock and
the like actions).
6. Representations by Consultant. Consultant represents and warrants to
Company that the execution and delivery of this Agreement and the
fulfillment of the terms hereof (i) will not constitute a default under or
conflict with any agreement or other instrument to which he is a party or
by which he is bound; (ii) will not result in a breach of any
confidentiality undertaking to any third party, and (iii) do not require
the consent of any person or entity.
7. Miscellaneous. This Agreement constitutes the entire understanding between
the parties with respect to the matters referred to herein. This Agreement
shall be governed by the laws of the State of Israel, excluding its
conflict of law rules, and the courts of Tel-Aviv-Jaffa shall have
exclusive jurisdiction over the parties. This Agreement may not be
assigned by Consultant. This Agreement may not be amended or modified,
except by the written consent of both parties hereto. No failure or delay
on the part of any party hereto in exercising any right, power or remedy
hereunder shall operate as a waiver thereof. Headings to Sections herein
are for the convenience of the parties only, and are not intended to be or
to affect the meaning or interpretation of this Agreement. In the event
that any covenant, condition or other provision contained in this
Agreement is held to be invalid, void or illegal by any court of competent
jurisdiction, the same shall be deemed severable from the remainder
thereof, and shall in no way affect, impair or invalidate any other
covenant, condition or other provision therein contained. All notices
required to be delivered under this Agreement shall be effective only if
in writing and shall be deemed given when received by the party to whom
notice is required to be given and shall be delivered personally, by
registered mail, by fax or by means of electronic communication.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
/s/ ▇▇▇ ▇. ▇▇▇▇▇▇ /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
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GammaCan Ltd. Consultant
I, the undersigned, ▇▇▇▇▇ ▇▇▇▇▇▇, hereby represent, warrant, and undertake that
I fully agree to all the provisions of the above Agreement, and in particular -
to the provisions of Exhibit B thereto, all - as if made and undertaken by
myself.
Signed on November 4, 2004
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇
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▇▇▇▇▇ ▇▇▇▇▇▇
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Exhibit A
The Services
Summary of pre-clinical data and collection of historical research data
Establish relevant database including the preclinical results generated in the
past by ARP Biomed Ltd.
Oncologists survey for cancer indication
Establish contact and in-depth interviews with oncologist to establish the
optimal clinical path for the development of IVIg as an anti-cancer drug.
Preparation of clinical trial
Outline protocol for clinical trials as decided in collaboration with the
oncologists.
Survey of complementary technologies
Define a strategy for in-licensing of complementary IVIg technologies, including
manufacturing techniques and additional uses for IVIg.
Survey of potential IVIg collaborators
Coordinate and execute a survey of the IVIg market, market sizes, competitors,
and potential collaborators. This work may involve use of specialized market
researches as approved by the Company and at its own expense.
Initiation of contacts with potential partners
Start contact with potential collaborators including arranging presentations and
proposing frameworks for collaborations.
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Exhibit B
This Proprietary Information, Confidentiality and Non-Competition Agreement is
attached as Exhibit B to that --------- certain Services Agreement by and
between GammaCan Ltd. (the "Company") and PBD Ltd. ("Consultant") (the
"Agreement").
All the capitalized terms herein shall have the meanings ascribed to them in the
Agreement. For purposes hereof, the term "Company" shall mean and include
Company any subsidiaries and affiliates of Company.
Consultant's obligations and representations and Company's rights under this
Exhibit shall apply as of the time it first became engaged with Company,
regardless of the date of execution of the Agreement.
Confidentiality; Proprietary Information
1. "Proprietary Information" means confidential and proprietary information
concerning the business and financial activities of Company, including
patents, patent applications, trademarks, copyrights and other
intellectual property, and information relating to the same, technologies
and products (actual or planned), know how, inventions, research and
development activities, inventions, trade secrets and industrial secrets,
and also confidential commercial information such as investments,
investors, employees, customers, suppliers, marketing plans, etc., all the
above - whether documentary, written, oral or computer generated.
Proprietary Information shall also include information of the same nature
which Company may obtain or receive from third parties.
2. Proprietary Information shall be deemed to include any and all proprietary
information disclosed by or on behalf of Company and irrespective of form
but excluding information that (i) was known to Consultant prior to
Consultant's association with Company and can be so proven; (ii) is or
shall become part of the public knowledge except as a result of the breach
of the Agreement or this Exhibit by Consultant; (iii) reflects general
skills and experience gained during Consultant's engagement by Company; or
(iv) reflects information and data generally known in the industries or
trades in which Company operates.
3. Consultant recognizes that Company received and will receive confidential
or proprietary information from third parties, subject to a duty on
Company's part to maintain the confidentiality of such information and to
use it only for certain limited purposes. In connection with such duties,
such information shall be deemed Proprietary Information hereunder,
mutatis mutandis.
4. Consultant agrees that all Proprietary Information, and patents,
trademarks, copyrights and other intellectual property and ownership
rights in connection therewith shall be the sole property of Company its
subsidiaries and their assigns. At all times, both during the term of
Consultant's engagement with Company (the "Term") and after the
termination of the engagement between the parties, Consultant will keep in
confidence and trust all Proprietary Information, and Consultant will not
use or disclose any Proprietary Information or anything relating to it
without the written consent of Company or its subsidiaries, except as may
be necessary in the ordinary course of performing Consultant's duties
under the Agreement.
5. Upon termination of Consultant's engagement with Company, Consultant will
promptly deliver to Company all documents and materials of any nature
pertaining to Consultant's engagement with Company, and will not take with
his any documents or materials or copies thereof containing any
Proprietary Information.
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6. Consultant's undertakings set forth in Section 1 through Section 6 of this
Exhibit shall remain in full force and effect after termination of the
Agreement or any renewal thereof.
Disclosure and Assignment of Inventions
7. "Inventions" means any and all inventions, improvements, designs,
concepts, techniques, methods, systems, processes, know how, computer
software programs, databases, mask works and trade secrets, whether or not
patentable, copyrightable or protectible as trade secrets; "Company
Inventions" means any Inventions that are made or conceived or first
reduced to practice or created by Consultant, whether alone or jointly
with others, during the period of Consultant's engagement with Company,
and which are: (i) developed using equipment, supplies, facilities or
Proprietary Information of Company, (ii) result from work performed by
Consultant for Company, or (iii) related to the field of business of
Company, or to current or anticipated research and development.
8. Consultant undertakes and covenants he will promptly disclose in
confidence to Company all Inventions deemed as Company Inventions.
9. Consultant hereby irrevocably transfers and assigns to Company all
worldwide patents, patent applications, copyrights, mask works, trade
secrets and other intellectual property rights in any Company Invention,
and any and all moral rights that he may have in or with respect to any
Company Invention.
10. Consultant agrees to assist Company, at Company's expense, in every proper
way to obtain for Company and enforce patents, copyrights, mask work
rights, and other legal protections for Company Inventions in any and all
countries. Consultant will execute any documents that Company may
reasonably request for use in obtaining or enforcing such patents,
copyrights, mask work rights, trade secrets and other legal protections.
Such obligation shall continue beyond the termination of Consultant's
engagement with Company. Consultant hereby irrevocably designates and
appoints Company and its authorized officers and agents as Consultant's
agent and attorney in fact, coupled with an interest to act for and on
Consultant's behalf and in Consultant's stead to execute and file any
document needed to apply for or prosecute any patent, copyright,
trademark, trade secret, any applications regarding same or any other
right or protection relating to any Proprietary Information (including
Company Inventions), and to do all other lawfully permitted acts to
further the prosecution and issuance of patents, copyrights, trademarks,
trade secrets or any other right or protection relating to any Proprietary
Information (including Company Inventions), with the same legal force and
effect as if executed by Consultant himself.
Non-Competition
11. Consultant agrees and undertakes that he will not, so long as the
Agreement is in effect and for a period of twelve (12) months following
termination of the Agreement, for any reason whatsoever, directly or
indirectly, in any capacity whatsoever, engage in, become financially
interested in, be employed by, or have any connection with any business or
venture that is engaged in any activities competing with the activities of
Company.
12. Consultant agrees and undertakes that during the Term and for a period of
twelve (12) months following termination of his engagement for whatever
reason, Consultant will not, directly or indirectly, including personally
or in any business in which Consultant may be an officer, director or
shareholder, solicit for employment any person who is employed by Company,
or any person retained by Company as a consultant, advisor or the like who
is subject to an undertaking towards Company to refrain from engagement in
activities competing with the activities of Company, or was retained as an
employee or a consultant, advisor or the like during the six months
preceding termination of the Term.
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Reasonableness of Protective Covenants
13. Insofar as the protective covenants set forth in this Exhibit are
concerned, Consultant specifically acknowledges, stipulates and agrees as
follows: (i) the protective covenants are reasonable and necessary to
protect the goodwill, property and Proprietary Information of Company, and
the operations and business of Company; and (ii) the time duration of the
protective covenants is reasonable and necessary to protect the goodwill
and the operations and business of Company, and does not impose a greater
restrain than is necessary to protect the goodwill or other business
interests of Company. Nevertheless, if any of the restrictions set forth
in this Exhibit is found by a court having jurisdiction to be unreasonable
or overly-broad as to geographic area, scope or time or to be otherwise
unenforceable, the parties hereto intend for the restrictions set forth in
this Exhibit to be reformed, modified and redefined by such court so as to
be reasonable and enforceable and, as so modified by such court, to be
fully enforced.
Remedies for Breach
14. Consultant acknowledges that the legal remedies for breach of the
provisions of this Exhibit may be found inadequate and therefore agrees
that, in addition to all of the remedies available to Company in the event
of a breach or a threatened breach of any of such provisions, Company may
also, in addition to any other remedies which may be available under
applicable law, obtain temporary, preliminary and permanent injunctions
against any and all such actions.
Intent of Parties
15. Consultant recognizes and agrees: (i) that this Exhibit is necessary and
essential to protect the business of Company and to realize and derive all
the benefits, rights and expectations of conducting Company's business;
(ii) that the area and duration of the protective covenants contained
herein are in all things reasonable; and (iii) that good and valuable
consideration exists under the Agreement, for Consultant's agreement to be
bound by the provisions of this Exhibit.
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