|
Exhibit 99.3
Execution Copy
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT dated as of May 4, 2007 (the
"Agreement"), is entered into by and between Ortho-Medical
Products, Inc. (the "Company"), a New York corporation and William
Tobin (the "Consultant").
RECITALS
WHEREAS, the Consultant has provided services to the Company for
several years; and
WHEREAS, the Company wishes to retain the services of Consultant
and Consultant desires to continue to render services to the
Company; and
WHEREAS, the Company and Consultant deem it to be in their
respective best interests to enter into an agreement providing for
the Company’s retainer of Consultant on the terms and
conditions set forth below.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants, representations, agreements, and promises set forth
herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as
follows:
AGREEMENT
1. Consulting .
1.1
Term . The Company agrees to retain the Consultant and the
Consultant agrees to accept such consulting position, for a period
of two (2) years commencing as of the date of this Agreement or for
such longer term as the Company and the Consultant may agree in
writing, but subject to the termination provisions of Section 3
hereof (the "Term").
1.2
Duties . During the Term, Consultant shall perform such
duties and functions as are reasonably assigned to him by the Board
of Directors of the Company (the "Board") and/or President of the
Company (the "President") that are consistent with
Consultant’s title, position and level of time commitment
that he has agreed to devote to the Company. Consultant shall
adhere in all material respects to all of the Company’s
policies and procedures applicable to someone holding his position,
except to the extent such policies or procedures may conflict with
the terms of this Agreement, in which case the provisions hereof
shall control, or applicable law.
1.3
Time Devoted to Consulting. Consultant agrees to devote such
amount of time per month to his duties as shall be mutually agreed
by him and the Company
from time to time during the Term hereof. In determining
the amount of time that Consultant shall devote to his duties
hereunder, the parties shall take into account, among other things,
the time that the Consultant is required to devote to his
responsibilities under his Financial Consulting Agreement with
Andover Medical Inc. and other professional commitments, endeavors
and investments of the Consultant. At all times that he is
working on behalf of the Company hereunder, Consultant agrees to
use his good faith efforts to promote the success of the
Company’s business and will cooperate with all reasonable
requests of the Board in order to advance the best interests of the
Company.
1.4
Location of Consulting. Consultant’s principal place
of consulting shall be at the Company’s principal office
located at 210 Jericho Turnpike, Mineola, New York 11501 or at
another office that may be mutually agreed by Consultant and the
Company.
2. Compensation and Related Matters .
2.1
Consulting Fee. As compensation for services rendered
hereunder, during the Term the Company shall pay the Consultant a
quarterly fee (the "Fee") equal to five percent (5%) of gross
revenue net of contractual allowances from sales of operating room
specialty products. The Fee shall be calculated at the end of
each fiscal quarter of the Company and shall be paid to Consultant
within 30 days of the end of each fiscal quarter.
2.2
Expense Reimbursement . Consultant shall be entitled
to reimbursement of reasonable and necessary business expenses
incurred by him in the course of providing services to the Company,
subject to appropriate documentation and in accordance with the
budgets and guidelines established by the Company from time to
time. Any travel required to be taken by the Consultant
hereunder shall be in economy class.
2.3
Indemnification of Consultant . Consultant shall be
entitled to be indemnified by the Company, to the fullest extent
permitted by applicable law and the organizational documents of the
Company, against any losses, damages, liabilities, claims, actions,
judgments, costs and expenses (including without limitation,
attorneys’ fees and expenses) that may be incurred by him in
the course of, or in connection with, the performance of his duties
hereunder.
2
2.4
Relationship Between Parties . The Consultant is
retained by the Company only for the purposes and to the extent set
forth in this Agreement, and his relation to the Company shall,
during the period or periods of his rendering services hereunder,
be that of an independent contractor. Thus, the Consultant
shall be at liberty to dispose of such portion of his time, energy,
and skill during regular business hours that he is not obligated to
devote to the Company pursuant to this Agreement, in such manner as
he sees fit, subject to the terms of any restrictive covenant which
binds the Consultant. The Consultant shall not be considered
under the provision of this Agreement or otherwise as having an
employee status or as being entitled to participate in any plans,
arrangements, or distributions by the Company pertaining to or in
connection with any benefits provided or offered to the
Company’s regular employees, including but not necessarily
limited to, any such plan, arrangement or distribution related to
medical, health, dental, disability, life insurance, pension, stock
bonus, profit sharing, or similar benefits.
3. Termination of Consulting .
3.1
Termination . The Consultant’s consulting hereunder
may be terminated prior to the end of the Term of this Agreement
under the following circumstances:
-
-
-
-
-
-
-
-
-
-
(a)
Death . The Consultant’s consulting
hereunder shall terminate upon his death.
(b)
Disability. If, as a result of the
incapacity of the Consultant due to physical or mental illness, the
Consultant shall have been wholly incapable of performing his
duties with the Company for a continuous period of not less than
six (6) months during any eighteen (18) month period, his
consulting may be terminated by the Company for "Disability" after
delivering a written Notice of Termination to the Consultant with
respect thereto.
(c)
Cause . Termination by the Company of the consulting of the
Consultant for "Cause" shall mean termination based upon the
Consultant’s (i) willful breach or willful and gross neglect
of his duties and responsibilities, (ii) criminal conviction of a
felony or a crime of moral turpitude or a plea of nolo contendere
to either of the foregoing, occurring on or after the execution of
this Agreement, (iii) material breach of this Agreement (iv) acts
of fraud, dishonesty, misappropriation or embezzlement, (v)
violation of any material Legal Requirement (as defined in Section
7.2 below), (vi) willful breach of his duty of loyalty or fiduciary
duties, or (vii) willful failure to comply with the Company’s
reasonable orders or directives or the Company’s reasonable
rules, regulations, policies, procedures or practices;
provided , however , that in the case of any act or
failure to act described in sub-sections (i), (iii), (v), (vi), or
(vii) above, such act or failure to act shall
3
-
-
-
-
-
-
-
-
-
-
not constitute Cause if, within ten (10) days after Notice of
Termination (containing a description of the behavior allegedly
constituting the "Cause") is given to the Consultant by the
Company, Consultant has corrected such act or failure to act, to
the reasonable satisfaction of the Board.
(d)
Good Reason . The Consultant may terminate
his consulting during the Term of this Agreement for "Good
Reason." Good Reason shall mean the Company’s material
breach of this Agreement, a material reduction in the
Consultant’s duties or authority or a requirement that
Consultant relocate to an area outside of a radius of 50 miles of
Mineola, New York, which breach shall not be cured by the Company
within ten (10) days after Notice of Termination is given by the
Consultant.
3.2
Date of Termination. "Date of Termination" shall mean (a)
the expiration of the Term, (b) if the Consultant’s
consulting is terminated due to his death, the date of his death,
(c) if the Consultant’s consulting is terminated due to
Consultant’s Disability, ten (10) days after Notice of
Termination is given to the Consultant, and (d) if the
Consultant’s consulting is otherwise terminated by the
Company or by Consultant, the date upon which the for Cause or Good
Reason event occurs or such other date set forth in the Notice of
Termination. Nothing in this Section shall be deemed to diminish
the Company’s right to cause the Consultant to cease
performing his duties and responsibilities as a consultant of the
Company at any time ("Termination Without Cause"), or to limit
either party’s right to give a Notice of Termination at any
time during the Term of this Agreement.
3.3
Notice of Termination. Any purported termination of the
Consultant’s consulting by the Company or by the Consultant
shall be communicated by written Notice of Termination to the other
party hereto in accordance with Paragraph 8.4 of this Agreement.
For purposes of this Agreement, a "Notice of Termination" shall
mean a written notice which shall indicate the specific termination
provision in this Agreement relied upon, and shall set forth in
reasonable detail the facts and circumstances claimed to provide a
basis for termination of the Consultant’s consulting under
the provision so indicated.
4
4. Compensation Upon Termination .
4.1
Disability . In the event the Consultant’s consulting
is terminated by reason of Disability, the Consultant shall be
compensated as follows: (a) all earned, but unpaid amounts of his
Fee to which the Consultant was entitled as of the Date of
Termination through and including the last date of the month
following Consultant’s Disability, and (b) all unreimbursed
business expenses incurred through the Date of Termination, shall
be paid in accordance with the terms of this Agreement to the
Consultant. Thereafter, the Company shall have no further
obligations to the Consultant under this Agreement, except pursuant
to Section 2.3.
4.2
Death. In the event the Consultant’s consulting is
terminated by reason of his death, the Consultant’s
beneficiary or estate shall be compensated as follows: (a) all
earned, but unpaid amounts of his Fee, to which the Consultant was
entitled as of the Date of Termination through and including the
last date of the month following Consultant’s death, and (b)
all unreimbursed business expenses incurred through the Date of
Termination, shall be paid in accordance with the terms of this
Agreement to the Consultant’s beneficiary, or, if no
beneficiary has been designated by the Consultant in a written
notice prior to his death, to the Consultant’s estate.
Thereafter, the Company shall have no further obligations to the
Consultant’s beneficiary or estate under this Agreement,
except pursuant to Section 2.3.
4.3
Cause; Termination by Consultant Without Good Reason . In
the event the Consultant’s consulting is terminated by the
Company for Cause or by the Consultant without Good Reason, the
Company shall pay the Consultant (a) all earned, but unpaid amounts
of his Fee, if any, to which the Consultant was entitled as of the
Date of Termination, and (b) all unreimbursed business expenses
incurred through the Date of Termination and the Company shall have
no further obligations to the Consultant under this Agreement,
except pursuant to Section 2.3.
4.4
Without Cause; Termination by Consultant for Good Reason. In
the event the Consultant’s consulting is terminated by the
Company without Cause or by the Consultant for Good Reason, the
Company shall pay the Consultant (a) the full amount of his Fee
that Consultant would have received through the remaining balance
of the Term of this Agreement had it not been terminated without
Cause or for Good Reason and (b) all unreimbursed business expenses
incurred through the Date of Termination. The amounts payable
by the Company hereunder shall be paid in the same manner as
set
|
