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Exhibit 10.24
FORM OF
SCIENTIFIC ADVISORY BOARD AND CONSULTANT
AGREEMENT
This Scientific Advisory Board and Consultant Agreement (this "Agreement") is
entered into effective as of __________, 2000, by and between Keryx
Biopharmaceuticals, Inc., a Delaware corporation, with a mailing address at 216
Jaffa Road, Jerusalem 94383 Israel ("the Corporation") and Moshe Oren, Ph.D.,
with a mailing address of ____________________________________________________
(the "Advisor").
1. Services of the Advisor.
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(a) The Advisor agrees to perform scientific advisory services for the
Corporation as a member of its Scientific Advisory Board and shall provide
consultant services, devoting such time, attention, knowledge and skill as
reasonably requested by the Corporation's Board of Directors or their
designee, and as the interests, needs, business or opportunities of the
Corporation shall require, at such time and place as the Corporation's
Board of Directors or their designee shall reasonably request (the
"Services"), for a period of three (3) years, unless earlier terminated in
accordance with Section 3 (the "Services Period"). The Services Period
may be extended for additional one (1) year periods upon the written
agreement of the parties hereto.
(b) The Corporation acknowledges that the Advisor is an employee of the
Weizmann Institute (the "Institute") and is subject to the Institute's
policies, including policies concerning consulting, conflicts of interest,
and intellectual property.
(c) The scope of the Advisor's work as a consultant of the Corporation
shall be the modulation of protein kinase activity by short peptides or
derivatives thereof (the "Project"). To the best of the parties' knowledge,
the Project does not overlap or conflict with any work the Advisor is doing
at the Institute.
2. Compensation for Service Rendered.
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(a) Monthly Consulting Fee. The Corporation shall pay the Advisor in his
capacity as a consultant to the Corporation at a rate of two thousand
dollars ($2,000) per month, payable monthly in arrears upon presentation of
an invoice.
(b) Stock Options. Within twenty one (21) days of the execution of this
Agreement by the Advisor, the Board of Directors of the Corporation or a
duly formed committee thereof shall issue to the Advisor an option to
purchase one thousand (1,000) shares of the Corporation's Common Stock at a
price equal to offering price at the initial public offering of the
Corporation's Common Stock. Of these, five hundred (500) shall be deemed
vested as of the date of grant and the balance shall vest in two equal
annual installments, with the first occurring on the first anniversary of
the date of the grant, provided that on the each vesting date the Advisor
is still being retained pursuant to this or a similar agreement with the
Corporation. Such options shall be deemed to have been granted pursuant to,
and
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shall be governed by, the Corporation's stock option program applicable
to consultants to the Corporation. If this Agreement is terminated by the
Corporation or the Advisor for any reason prior to the expiration of its
term, the Corporation shall have the right to repurchase the vested portion
of such options (or the shares resulting from the exercise of such options
if such exercise has occurred) at the then-current fair market value of
such shares or options, as reasonably determined by the Board of Directors
of the Corporation. Such right shall be exercised by the Corporation and
payment made, if at all, within ninety (90) days after the effective date
of such termination.
3. Termination. The obligation of the Advisor to perform the Services may be
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terminated by the Corporation during the Services Period with respect to
the Advisor for any reason, with or without cause, upon the agreement of a
majority of the Corporation's Board of Directors.
The Advisor may voluntarily terminate his obligation to perform the
Services for the Corporation at any time and for any reason (a "Voluntary
Termination"). However, the Advisor agrees to provide thirty (30) days
advance notice prior to the effective date of termination.
4. Agreement Not to Compete. During the Services Period and for twelve (12)
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months thereafter, the Advisor agrees that he will not affiliate in any
material role, including affiliation as an employee, consultant agent, or
contractor, with any business enterprise which is in direct conflict or
competition with the Corporation in the modulation of protein kinases to
discover or develop pharmaceutical products (the "Field") nor will he
found, promote or become a shareholder, partner, or owner in any other
enterprise which competes with the Corporation in the Field other than as
stockholder of up to five percent (5%) of the outstanding stock of any
publicly traded corporation. Notwithstanding the foregoing, nothing in this
Section shall prevent or inhibit the Advisor from conducting academic
research in subjects related to the Field provided that the Advisor
complies with the confidentiality obligations set forth in Section 7,
below. In addition, the Corporation acknowledges and agrees that the
Advisor's activities in connection with his employment by the Institute
shall not be considered competitive and nothing in this Agreement shall
affect the Advisor's obligations to, or research on behalf of, the
Institute, including, without limitation, obligations or research of the
Advisor in connection with a transfer by the Institute of materials or
intellectual property developed in whole or in part by the Advisor, or in
connection with research collaborations.
5. Noninterference With Employees. The Advisor agrees that for a period of
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twelve (12) months following the termination of the performance of the
Services for the Corporation by the Advisor, the Advisor will not interfere
with or attempt to impair the relationship between the Corporation and any
of its employees, consultants, and advisors, nor will the Advisor attempt
to solicit, to entice, to hire, or otherwise to induce any employee,
consultant, or advisor of the Corporation to terminate association with the
Corporation.
6. Remedies in the Event of Breach. The Corporation and the Advisor understand
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and agree that any breach or threatened breach by the Corporation or the
Advisor
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of any of the provisions set forth in Section 4 and 5, cannot be remedied
solely by the recovery of damages, and in the event of any such breach or
threatened breach, the Corporation and the Advisor, as the case may be,
shall be entitled to seek injunctive relief, restraining the Advisor or the
Corporation, as the case may be, and any business, firm, corporation,
individual, or other entity participating in such breach or attempted
breach from engaging in any activity which would constitute a breach. The
Corporation and the Advisor further agree that any dispute arising under
the terms of this Agreement, other than a dispute that would be remedied by
injunctive relief, shall be decided in accordance with the then current
rules of the American Arbitration Association, and any arbitration award
may be entered in a court of competent jurisdiction and enforced as a
judgment thereof. Any such arbitration shall be heard at an appropriate
location in the City of New York. Nothing herein, however, shall be
construed as prohibiting the Corporation or the Advisor from pursuing, in
conjunction with an injunction or otherwise, any other remedies available
in equity for any such breach or threatened breach, including the recovery
of damages.
7. Non-Disclosure and Developments.
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(a) Advisor shall not at any time, whether during or after the termination
of this Agreement, disclose to any person or entity any of the trade
secrets or confidential information concerning the organization, business
or finances of the Corporation or of any third party which the Corporation
is under an obligation to keep confidential (including but not limited to
trade secrets or confidential information respecting inventions, patent
applications, products, designs, methods, know-how, techniques systems,
processes, software programs, works of authorship customer lists, projects,
plans and proposals), except as may be required in the ordinary course of
performing the Advisor's duties on behalf of the Corporation, and the
Advisor shall keep secret all matters entrusted to the Advisor and shall
not use or attempt to use any such information in any manner which may
injure or cause loss or may be calculated to injure or cause loss whether
directly to the Corporation.
Further, the Advisor agrees that during the term of this Agreement, the
Advisor shall not make, use or permit to be used any notes, memoranda,
reports, lists, records, drawings, sketches, specifications, software
programs, data, documentation, or other materials of any nature arising out
of, or in connection with, this Agreement otherwise than for the benefit of
the Corporation. The Advisor further agrees that he shall not, after the
termination of this Agreement, use or permit to be used any such notes,
memoranda, reports, lists, records, drawings, sketches, specifications,
software programs, data, documentation or other materials, it is agreed
that all of the foregoing shall be and remain the sole and exclusive
property of the Corporation and that immediately upon the termination of
this Agreement, the Advisor shall deliver all of the foregoing, and all
copies thereof in his possession or under his control, to the Corporation,
at its main office.
Notwithstanding the foregoing, the Advisor may disclose information (i)
received from a third party (other than the Corporation) which is not
subject to any confidentiality restriction, (ii) required by law to be
disclosed, including,
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by way of example and not limitation, pursuant to a subpoena or other
discovery device or a court order, or (iii) already in the public domain.
(b) All products, concepts, ideas and other work product of the Advisor
relating to the Project and resulting from the Services the Advisor
provides to the Corporation pursuant to this Agreement (herein called
"Developments") , whether patentable or not, shall be deemed to be the
exclusive property of the Corporation. The Advisor shall promptly disclose
to the Corporation (or any persons designated by it) each such Development.
The Advisor hereby unconditionally assigns any rights (including, but not
limited to, any copyrights and trademarks) the Advisor may have or acquire
in the Developments and benefits and/or rights resulting therefrom to the
Corporation and its assigns without further compensation, as may be
necessary to ensure the Corporation's ownership of such Developments, and
shall communicate, without cost or delay, and without disclosing to others
the same, all available information relating thereto (with all necessary
plans and models) to the Corporation.
The Advisor shall during this Agreement, and at any time thereafter, at the
request and cost of the Corporation, promptly sign, execute make and do all
such deeds, documents, acts and things as the Corporation and its duly
authorized agents may reasonably require (iv) to apply for, obtain register
and vest in the name of the Corporation alone (unless the Corporation
otherwise directs) letters patents, copyrights, trademarks or other
analogous protection relating to the Developments in any country throughout
the world and when so obtained or vested to renew and restore the same; and
(v) to defend any judicial opposition or other proceedings in respect of
such applications and any judicial, opposition or other proceedings or
applications for revocation of such letters patent, copyright, trademark or
other analogous protection.
In the event the Corporation is unable, after reasonable effort, to secure
the Advisor's signature on any application for letters patent, copyright or
trademark registration or other documents regarding any legal protection
relating to the Developments, whether because of the Advisor's physical or
mental incapacity or for any other reason whatsoever, the Advisor hereby
irrevocably designated and appoints the Corporation and its duly authorized
officers and agents as his agent and attorney-in-fact, to act for and in
the Advisor's behalf and stead to execute and file any such application or
applications or other documents and to do all other lawfully permitted acts
to further the prosecution and issuance of letters patent, copyright or
trademarks registrations, or any other legal protection thereon with the
same legal force and effect as if executed by the Advisor.
It is understood that any intellectual property or Developments which the
Advisor has developed, or in the future may develop, which is or will be,
owned or licensed by his current employer or any other permitted employer
of his (other than the Corporation) shall not be subject to this Agreement.
It is further understood that in the event that there is reasonable
uncertainty whether certain information which Advisor has obtained is
required to be disclosed to the Corporation pursuant to this Subsection
(b), Advisor
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shall have a reasonable amount of time to consult with his current employer
or any other permitted employer of Advisor to whom such information may
belong before determining whether or not to disclose such information to
the Corporation.
(c) Advisor agrees that any breach of this Agreement by Advisor will cause
irreparable damage to the Corporation and that in the event of such breach
the Corporation shall have, in addition to any and all remedies of law, the
right to seek an injunction, specific performance or other equitable relief
to prevent the violation of the Advisor's obligations hereunder.
(d) The Advisor further represents that his performance of all of the terms
of this Agreement does not and will not breach any agreement to keep in
confidence proprietary information acquired by him in confidence or in
trust prior to his obligation to perform Services for the Corporation. The
Advisor has not entered into, and agrees that he shall not enter into, any
agreement either written or oral in conflict herewith.
8. Independent Contractor.
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(a) The Advisor agrees that in rendering the Services hereunder, the Advisor
and any person employed by, or subcontracting with, the Advisor to perform
the Services, shall act (and be considered for all purposes) as an
independent contractor of the Corporation, and not as an employee or agent
of the Corporation. In his capacity as an independent contractor, the
Advisor agrees and represents, and the Corporation agrees, that the
Advisor: (i) has the right to control and direct the means and methods of
performing the Services by himself, his employees, and his subcontractors;
(ii) will provide supervision of all his employees and subcontractors
assigned to perform the Services; (iii) will utilize and pay for the
Advisor's, and his employees' and subcontractors' own tools and equipment,
and will reimburse the Corporation for the use of the Corporation's
equipment and administrative services, facilities and other consideration
provided by the Corporation; (iv) shall receive compensation from the
Corporation only as set forth herein and will not participate in benefits
of any sort which the Corporation offers to its subcontractors; (v) shall,
to the extent practical, keep his equipment, materials, drawings, and the
like separate from any Corporation property, and will not remove any
Corporation property from the premises without prior written approval by an
authorized representative of the Corporation; (vi) maintain a place of
business at a location other than the premises of the Corporation; (vii)
will not require that he, his employees, or his subcontractors be trained
by the Corporation in the professional skills necessary to perform the
Services, though the Corporation may give general directions and
orientation instructions; (viii) shall be fully liable for the grossly
negligent or willful injurious acts or omissions of himself, his employees,
or his subcontractors, causing harm to persons or property, but shall not
be liable for consequential damages due to defects in performance; and (ix)
shall deal with the Advisor's employees' or subcontractors' trade or union
representatives, negotiate all employee and subcontractor disputes and
terminate or change all employee or subcontractor assignments as necessary.
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(b) Inasmuch as the Advisor and the Corporation are contractors independent
of one another, neither has the authority to bind the other to any third
person or otherwise to act in any way as the representative of the other,
unless otherwise expressly agreed to in writing signed by both parties
hereto. The Advisor agrees not to represent himself as the Corporation's
agent for any purpose to any party unless specifically authorized, in
advance and in writing, to do so, and then only for the limited
purposes(s) stated in such authorization. This prohibition includes the
use by the Advisor of the Corporation's stationery and forms; all
contracts with third parties shall be made on the Advisor's own
stationery and in the Advisor's own name, as appropriate. The Advisor
agrees to assume full liability for any contracts or agreements the
Advisor, his employees, or his subcontractors, if any, enter into on
behalf of the Corporation without the express knowledge and written
consent of the Corporation.
(c) The Corporation shall indemnify and hold blameless the Advisor against
any claims, losses, expenses, costs, obligations, and liabilities arising
out of, or in connection with, the performance of the Services by the
Advisor, except for (i) such claims, losses expenses, costs, obligations,
and liabilities as arise out of the gross negligence or willful injurious
acts or omissions of the Advisor and (ii) such claims, losses, expenses,
costs, obligations, and liabilities as the Advisor may be answerable to
the Corporation for.
9. Taxes. The Advisor shall be responsible for the withholding, and payment,
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as required by law, of all federal, state, and local taxes imposed on the
Advisor because of the performance of the Services hereunder. Further, the
Advisor shall comply with all federal, state, and local benefits laws
applicable to the Advisor, including making deductions and contributions
for social security and unemployment taxes. Each party to this Agreement
shall otherwise be responsible for the payment of any other taxes imposed
upon it or him in connection with, or as a result of, this Agreement.
10. Site of Services. The Advisor will perform the Services at a location
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other than the premises of the Corporation if possible, or if the Services
are such that the Services must be performed on the Corporation's premises,
the Corporation shall provide the Advisor with office space and facilities
commensurate with that provided to its own employees to the extent
necessary to perform the Services specified by this Agreement. The Advisor
will restrict the performance of the Services to a separate assigned work
area as much as is feasible.
11. Travel Expenses. The Corporation will reimburse the Advisor for all
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reasonable travel expenses, approved in advance by the Corporation, upon
receipt of supporting documentation.
12. Inventions. The Corporation shall compensate the Advisor on a case-by-case
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basis for any third party inventions licensed, assigned, or otherwise
acquired by the Corporation through the efforts of the Advisor or conceived
and reduced to practice by the Advisor and not otherwise the property of
the Corporation in whole or in part.
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13. Non-Exclusive Right. The Corporation may contract with individuals other
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than the Advisor for the Services. The Advisor does not have an exclusive
right to provide the Services to the Corporation.
14. Waiver. Any waiver by the Corporation of a breach of any provision of
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this Agreement shall not operate or be construed as a waiver of any
subsequent breach of such provision or any other provision hereof.
15. Severability. If for any reason any clause or provision of this Agreement,
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or the application of any such clause or provision in a particular context
or to a particular situation, circumstance or person, should be held
unenforceable, invalid or in violation of law by any court or other
tribunal, then the application of such clause or provision in contexts or
to situations, circumstances or persons other than that in or to which it
is held unenforceable, invalid or in violation of law shall not be affected
thereby, and the remaining clauses and provisions hereof shall,
nevertheless, remain in full force and effect.
16. Governing Law. This Agreement shall be governed by, and construed in
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accordance with, the laws of the State of New York.
IN WITNESS WHEREOF, the Corporation has caused this Agreement to be
executed, and the Advisor has executed this Agreement, as of the date first
set forth above.
KERYX BIOPHARMACEUTICALS, INC. ADVISOR
By:__________________________ By:_________________________
Name: _______________________
Title: ______________________
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