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EXHIBIT
10.28
CONSULTING
AGREEMENT
THIS CONSULTING
AGREEMENT (hereinafter “ Agreement ”) is
entered into this 15th day of April, 2007, (“ Effective
Date ”), by and between MiMedx, Inc., a corporation under
the laws of the State of Florida, USA (hereinafter the “
Company ”) and Joseph L. Story, M.D., an individual,
residing under the laws of the State of Florida, with a place of
business located at 710 Peaks Point Dr., Gulf Breeze, FL 32561
(hereinafter the “ Consultant ”) (collectively,
the “ Parties ”).
WITNESSETH:
WHEREAS, The
Company desires to retain the Consultant to render services to the
Company from time to time as a Consultant, and the Consultant
desires to perform the services set forth herein for the Company,
all on the terms and conditions herein set forth.
NOW,
THEREFORE, for and in consideration of the premises, the mutual
covenants herein contained, and other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto do hereby agree as
follows:
1.
Services . The Company hereby retains the Consultant
who shall serve as a Advisor to senior management on technology
priorities, developmental efforts and device to market strategies
as an Independent Contractor to perform certain services for the
Company as more fully set forth on Exhibit A hereto, as well as
other services reasonably requested by the Company from time to
time (collectively the “Services”), and the Consultant
hereby agrees to perform such Services for the Company. Although
the Company will not dictate the time, manner or method for the
performance of the Services, the Consultant agrees to devote its
skills and best efforts to the performance of the Services in a
professional manner, using as high a degree of skill and care as is
necessary in the Consultant’s discretion under the
circumstances.
2.
Compensation . The Company shall pay Consultant as
full compensation for the Services the amount of $75,000 per year
(the “Compensation”), which amount shall be paid in
arrears on a quarterly basis and an option grant to purchase
100,000 shares of the Company’s Common Stock having an
exercise price of $1.00 per share, which the Board of Directors has
determined to be the fair market value of the stock as of this day.
Such option shall vest equally 1/3 upon the first anniversary of
the effective date of this Agreement and 1/3 on each of the
subsequent two anniversaries of the effective date of this
Agreement. The Consultant shall also be reimbursed for all
reasonable and necessary business expenses incurred by Consultant
in connection with the performance of the Services hereunder in
accordance with the normal Company travel policies as established
in advance by the Company. The Compensation shall not be subject to
withholdings pursuant to applicable law or other employee-related
deductions by the Company, except for such deductions as are
expressly provided for herein. Consultant shall be responsible for
and shall indemnify and hold the Company harmless from and against
any income or other taxes payable by Consultant arising from the
Compensation.
3. Company
Property . All property and materials furnished to the
Consultant by the Company or prepared, compiled or acquired by the
Consultant while performing Services for the Company, are the sole
property of the Company. The Consultant shall at any time
upon
request of the Company, and
in any event without request promptly on termination of this
Agreement, transfer and deliver over all such tangible materials to
the Company.
4. Term;
Termination . This Agreement shall continue in full force
commencing April 1, 2007 and effect for three years unless
terminated, with or without cause, by either party by giving thirty
(30) days written notice to the other of its intention to so
terminate it. It is anticipated that this agreement will be
reviewed after three months to determine the reasonableness of the
Compensation and the Services being performed. Such notice or any
notice required under this Agreement may be given to either party
by delivery at the last known business or residence address of the
other. Except for agreements and covenants herein specifically
provided to be performed or to remain in force following
termination hereof, and except for payment of any compensation
which might be owed to the Consultant for Services performed prior
to termination, neither party hereto shall, after termination
hereof, be under any further obligation to the other.
5.
Covenants .
(a)
Non-Solicitation of Customers . During the term of this
Agreement and for a period of two (2) years thereafter (the
“Protected Period”), Consultant agrees not to, directly
or indirectly, contact, solicit, divert, appropriate, or call upon
with the intent of doing business with, any one or more of the
customers or clients of the Company with whom Consultant has had
material contact during the twelve (12) month period prior to
the termination of this Agreement (including prospects of the
Company with whom Consultant had such contact during said period)
if the purpose of such activity is either (1) to solicit these
customers or clients or prospective customers or clients for a
Competitive Business as herein defined (including but not limited
to any Competitive Business started by Consultant) or (2) to
otherwise encourage any such customer or client to discontinue,
reduce, or adversely alter the amount of its business with the
Company. Consultant acknowledges that due to his relationship with
the Company, Consultant will develop special contacts and
relationships with the Company’s clients and prospects, and
that it would be unfair and harmful to the Company if Consultant
took advantage of these relationships in a Competitive
Business.
A
“Competitive Business” is an enterprise that engages in
the activity of orthopedic replacement products and collagen based
products and services which products and/or services are
substantially similar or identical to those offered by the Company
during the twelve (12) month period prior to the termination
of this Agreement.
(b) Non-Piracy
of Employees . During the Protected Period, Consultant
covenants and agrees that he shall not, directly or indirectly:
(a) solicit, recruit, or hire (or attempt to solicit, recruit,
or hire) or otherwise assist anyone in soliciting, recruiting, or
hiring, any employee of the Company who performed work for the
Company within the twelve month period prior to the termination of
this Agreement or (b) otherwise encourage, solicit, or support
any such employee(s) to leave their employment with the Company,
until such employee’s employment with the Company has been
voluntarily or involuntarily terminated or separated for at least
six (6) months.
(c) Confidential
Information and Trade Secrets . Consultant acknowledges that
during the term of this Agreement, the Company may disclose to
Consultant for use in his provision of Services, and that
Consultant may be provided access to and otherwise provided use of,
certain valuable, confidential, proprietary, and secret information
of the Company (whether tangible or intangible and whether or not
electronically kept or stored), including financial statements,
drawings, designs, manuals, business plans, products and
prospective products, processes, procedures, formulas, inventions,
pricing policies, customer and prospect lists and contacts,
contracts, sources and identity of vendors and Consultants,
financial information of customers and the Company, and other
proprietary documents, materials, or information indigenous to the
Company, its businesses and activities, or the manner in which the
Company does business, which is valuable to the Company in
conducting its business because the information is kept
confidential and is not generally known to the Company’s
competitors or to the general public (“Confidential
Information”). Confidential Information does not include
information generally known or easily obtained from public sources
or public records (unless Consultant causes said Confidential
Information to become generally known or easily obtained
therefrom).
To the extent that
the Confidential Information constitutes a trade secret under
applicable law, then Consultant shall, for as long as such
Confidential Information rem
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