Exhibit 10.1
CONSULTING AGREEMENT (the "Agreement")
Between:
Lumenis Ltd., a company registered in and organized under the laws of the State
of Israel, having its usual place of business at: Yokneam Industrial Park,
P.O.B. 240, Yokneam 00000 Xxxxxx ("Company") and
Xxxxxx X. Xxxxx ("Consultant")
Whereas, the Company wishes to retain the services of Consultant for purposes of
assisting in strategic planning activities.
Now, therefore, in consideration of the premises contained herein the parties
agree as follows:
1. Consulting Services
1.1. During the term of this Agreement, the Consultant shall assist the Company
in strategic planning activities, as shall be requested by the Company from time
to time ("Consulting Services"). The parties agree that the Consulting Services
shall be performed or managed personally by Mr. Xxxxxx Xxxxx. Consultant shall
use his best efforts in, and shall devote his expertise and goodwill to the
rendering of the Consulting Services.
1.2. The parties agree that the Consultant is an independent contractor. This
Agreement is not intended by the parties to, and shall not, constitute or create
a joint venture, partnership or other business organization and Consultant shall
not be nor shall act as an agent or employee of the Company.
2. Compensation
2.1. For performance of all Consulting Services rendered pursuant to this
Agreement, Consultant shall receive an annual fee in the amount of $180,000 (One
Hundred and Eighty Thousand Dollars) to be paid in 12 equal monthly installments
(the "Consulting Fee").
2.2. Consultant shall invoice the Company at the end of each month during the
term of this Agreement for the pro rata portion of the Consulting Fee referred
to in Section 2.1. above. Payment shall be made to Consultant's designated
account within thirty days of receipt of invoice from Consultant by the Company
2.3 Consultant shall be entitled to a reimbursement of all reasonable
out-of-pocket expenses incurred in connection with the performance of the
Consulting Services. Reimbursement of out-of pocket expenses shall be made
against the presentation of receipts for such expenses and shall be in
accordance with the Company's policy from time to time.
All invoices should be sent to:
Xx. Xxxxx Xxxxxx
Lumenis Ltd.
X.X. Xxx 000
Xxxxxxx Xxxxxxxxxx Xxxx
Xxxxxxx, 00000 Israel
2.3. In the event that the Company has the legal obligation to deduct any
applicable taxes at the source from any of the payments due to Consultant from
the Company in accordance with this Agreement, Company shall do so.
3. Term
The term of this Agreement shall be for a period of one year commencing on
November 1, 2001 and terminating on October 31, 2002; provided, however, that
either party may terminate this Agreement at any time, by giving 30 days advance
written notice to the other party. The Agreement will be automatically renewed
for a successive one year term unless earlier terminated by either party. Notice
may be sent to either party by fax and will be deemed received on the day such
notice was sent by fax.
4. Nondisclosure and Non-use
4.1. Consultant agrees to maintain all information relating to the Company
and/or its systems, components, know-how, technology, applications, sales,
marketing, and expertise developed and/or designed and/or manufactured and/or
sold by the Company ("Confidential Information") in strict confidence and,
except for the purposes expressly authorized and agreed to by the Company,
pursuant to this Agreement, shall make no use, exploitation, publication,
duplication or disclosure to any other person, corporation, or legal entity.
Consultant acknowledges that all work produced as part of the Consulting
Services, shall belong to the Company and may not be used by Consultant without
the Company's prior written consent, which consent shall not unreasonably be
withheld.
Consultant agrees that Confidential Information shall be restricted to
those of its employees with a need to know in order to perform services
specifically requested by the Company in order to fulfill the purpose of this
Agreement. Consultant shall notify such employees of the proprietary nature of
the Confidential Information. Consultant shall assure that such employees are
subject to the same undertakings of confidentiality and non use to Company as
Consultant under this Agreement.
4.2. All Confidential Information appearing in documents, samples, devices,
drawings or other written and/or tangible material shall remain the property of
the Company and shall not be copied or reproduced without the Company's express
written permission. Upon termination of Consultant's services, or upon Company's
request at any time, Consultant will immediately return all such materials to
the Company.
4.3. Consultant's undertaking of confidentiality to the Company will not apply
to any Confidential Information which Consultant satisfactorily proves:
(A) was made available to the general public without restrictions, or,
(B) was lawfully acquired by Consultant from a third party without
restriction on disclosure.
4.4. Consultant acknowledges that a breach of its obligation under this Section
4 of this Agreement could cause irreparable harm to the Company which may be
difficult to either ascertain and/or remedy. Therefore, in the event of such
breach, Company shall be entitled to
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seek relief by way of injunction or specific performance or any other equitable
relief in addition to any other relief or remedy available by law.
4.5. Anything herein to the contrary notwithstanding, nothing in this Agreement
shall be construed as a license expressed or implied of any know-how comprised
in the Confidential Information or of any proprietary rights with respect to the
Confidential Information.
5. Warranty and Indemnification
The Consultant warrants that entering into this Agreement and the
performance of the Consulting Services contemplated herein, does not and shall
not violate (a) any provision of any contract the Consultant has entered into
with or any other obligation including the obligation of confidentiality to, any
third party, or (b) any applicable laws.
6. General Provisions
6.1. For purposes of this Agreement, the "Company" shall include all affiliated
and subsidiary companies of Lumenis Ltd.
6.2. The preamble of and exhibit(s) to this Agreement constitute an integral
part of his Agreement.
6.3. This Agreement constitutes the entire agreement between the parties hereto
relating to the subject matter hereof and supersedes all prior or
contemporaneous negotiations, representations, agreements and understandings of
the parties relating thereto. This Agreement may not be modified or amended
except in writing and signed by all parties.
6.4. This Agreement is considered a personal services contract and is not
assignable by Consultant.
6.5. If any one or more of the provisions contained in this Agreement shall for
any reason be held to be excessively broad with regard to time, duration,
geographic scope or activity, such provision shall be construed, by limiting
and/or reducing it, in a manner to enable it to be enforced to the extent
compatible with applicable law as then in effect.
6.6. This Agreement shall be governed by and construed in accordance with the
laws of the State of Israel.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the
date set forth below:
Xxxxxx X. Xxxxx Lumenis Ltd.
/s/ Xxxxx Xxxxxx
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By: /s/ Xxxxxx Xxxxx By: Xxxxx Xxxxxx
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Date: April 15, 2002 Date: April 18, 2002
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