Advisory Board Agreement dated February 3, 2020 between Marpai Health, Inc. and Ronnie Brown
ADVISORY BOARD AGREEMENT
This Advisory Board Agreement (the “Agreement”) is entered into between Marpai Health, Inc. (“Company”) and Ronnie Brown (“Advisor”) as of February 3, 2020 (“Effective Date”). Company and Advisor agree as follows:
1. Services. Advisor agrees to serve as a member of the Company’s Advisory Board. Advisor agrees to consult with and advise Company from time to time, at Company’s request and at times that are convenient for Advisor, including with respect to product strategy, industry dynamics, and general business strategy (the “Services”). Advisor will maintain an open line of communication with the Company, orally or in writing, as is appropriate under the circumstances, and shall issue formal, written reports to the Company if requested by the Company. As part of the Services, Advisor agrees to attend all Advisory Board meetings (in person or by teleconference). The Company expects the Advisory Board to meet quarterly on a day and time mutually agreed by the Advisory Board members.
2. Consideration. As the only consideration due Advisor for the Services, the Company shall pay Advisor $150.00 per hour (the “Consideration”), with a retainer of $900.00 per month made in advance of hours consumed. If the Company consumes more hours than that paid by the retainer, the Advisor shall bill the Company for those excess hours. Advisor will also be entitled to reimbursement for reasonable, documented expenses for which Advisor receives prior approval from Company.
3. Confidentiality and Intellectual Property Assignment. Advisor acknowledges that Advisor will be exposed to confidential information related to the Company in connection with the Services and this Agreement. Therefore, upon execution of this Agreement, Advisor shall execute the Confidentiality and Intellectual Property Assignment Agreement in the form attached as Exhibit A (the “Confidentiality Agreement”).
4. Term; Termination.
(a) This Agreement shall commence and enter into effect on the Effective Date and shall continue to be in full force until terminated as set forth in this Section 4 (the “Term”).
(b) Each Party may terminate this Agreement at any time upon thirty (30) days’ advance written notice to the other Party.
(c) Notwithstanding anything to the contrary, the Company shall be entitled to terminate this Agreement for Cause immediately upon written notice to Advisor. The term “Cause” shall mean (a) Advisor’s commission of any act of fraud, embezzlement or dishonesty; (b) Advisor’s breach of the Confidentiality Agreement; (c) Advisor’s conviction or plea of nolo contendere of a felony or of any crime involving moral turpitude, fraud or misrepresentation (whether or not related to the Company); or (d) Advisor’s gross negligence or willful misconduct resulting in any damage to the business or reputation of the Company or its affiliated companies, which remains uncured seven (7) days after delivery of written notice from the Company; or (e) Advisor’s intentional misconduct which has a material adverse effect on the business or reputation of the Company or its affiliated companies; or (f) any material breach of this Agreement, the RSA, or any other agreement between the Advisor and the Company which remains uncured seven (7) days after delivery of written notice from the Company. The foregoing definition shall not be deemed to be inclusive of all the acts or omissions which the Company (or its affiliated companies) may consider as grounds for Cause.
(d) Upon termination of this Agreement for any reason whatsoever, and before the final month’s options vest, Advisor undertakes: (i) to return to the Company all documents, drawings, magnetic media, letters, reports and all other documents belonging to the Company and/or related to the Company’s activities and/or to the Services; and to return any equipment and/or other property of the Company; (ii) to erase all information relating to the Company or its activities that exists in the Advisor’s personal computer(s); and (iii) if applicable, to assist in the transferring of the position, matters and documents under Advisor’s supervision to whomever the Company shall determine.
(e) Sections 2 through 8 will survive any termination or expiration of this Agreement.
5. Relationship of the Parties; Promotional Rights. Notwithstanding any provision hereof, for all purposes of this Agreement, each party will be and act as an independent contractor and not as a partner, joint venturer, agent or employee of the other and will not bind nor attempt to bind the other to any contract. Advisor will not be eligible to participate in any of Company’s employee benefit plans, fringe benefit programs, group insurance arrangements or similar programs. On the basis of his/her status as an independent contractor, Advisor will file and be liable for his own tax reports including all income, social security, capital gain and other taxes, whether federal, state, municipal or other, due and owing on any consideration received by him/her under this Agreement, and undertakes to pay all such taxes and duties on time. Company may use and authorize the use of Advisor’s name, likeness and biographical information in promotional materials, websites and the like.
6. No Conflicts. Advisor represents and warrants that neither this Agreement nor the performance thereof will conflict with or violate any obligation of Advisor or right of any third party. Advisor further represents and warrants Advisor is not currently, nor will he/she, by entering into or performing this Agreement or any provisions hereto, be deemed to be, violating any rights of any former or current employer or any obligations he may have to any former or current employer, including non-disclosure and non-compete obligations.
7. Indemnification and Limitation of Liability. Advisor agrees to indemnify and hold harmless the Company and its affiliates and their directors, officers and employees from and against all taxes, losses, damages, liabilities, costs and expenses, including attorneys’ fees and other legal expenses (“Losses”), arising directly or indirectly from or in connection with (i) any negligent, reckless or intentionally wrongful act of Advisor, (ii) any failure of Advisor to perform the Services in accordance with all applicable laws, rules and regulations, or (iii) any violation or claimed violation of a third party’s rights resulting in whole or in part from the Company’s use of the intellectual property or other deliverables of Advisor under this Agreement. Company agrees to indemnify Advisor to the extent provided in its organizational documents. Should the Company procure and maintain policies of directors’ and officers’ liability insurance, Company will ensure that such insurance covers Advisor.
IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES OF ANY KIND IN CONNECTION WITH THIS AGREEMENT, EVEN IF THE COMPANY HAS BEEN INFORMED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL COMPANY’S LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT EXCEED THE AMOUNT OF $100.00, EXCEPTING THE COMPANY’S INDEMNIFICATION OBLIGATIONS UNDER THIS SECTION 7.
8. Miscellaneous. This Agreement and the Services performed hereunder are personal to Advisor and Advisor will not have the right or ability to assign, transfer or subcontract any obligations under this Agreement without the written consent of Company. Any attempt to do so will be void. Company will be free to transfer any of its rights under this Agreement to a third party. Any breach of Sections 3 will cause irreparable harm to Company for which damages would not be an adequate remedy, and therefore, Company will be entitled to injunctive relief with respect thereto in addition to any other remedies. This Agreement, together with the Confidentiality Agreement and the RSA, constitutes the entire agreement between the parties with respect to the subject matter hereof and no changes or modifications or waivers to this Agreement will be effective unless in writing and signed by both parties. This Agreement may be executed in two counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument. Counterparts may be delivered via facsimile, electronic mail (including pdf or any electronic signature complying with the U.S. federal ESIGN Act of 2000, Uniform Electronic Transactions Act or other applicable law) or other transmission method and any counterpart so delivered will be deemed to have been duly and validly delivered and be valid and effective for all purposes. In the event that any provision of this Agreement is determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is governed by and construed in accordance with the laws of the State of New York without regard to the conflicts of law provisions thereof. To the extent that any lawsuit is permitted under this Agreement, the Parties hereby expressly consent to the personal and exclusive jurisdiction and venue of the state and federal courts located in New York. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. Any notice will be given in writing by first class mail, fax or electronic mail and addressed to the party to be notified at the address below, or at such other address, fax number or e-mail address as the party may designate by 10 days’ advance written notice to the other party.
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The undersigned have executed this Advisor Agreement as of the Effective Date.
|Marpai Health, Inc.|
|By:||/s/ Edmundo Gonzalez|
|Address:||1185 Avenue of the Americas Suite 301|
|New York, NY 10036|
With a copy to (which shall not constitute notice)
Pearl Cohen Zedek Latzer Baratz LLP
50 Congress Street, Suite 1040
Boston, MA 02109
Attn: Oded Kadosh, Esq.
|/s/ Ronnie Brown|
|Name (Please Print)|
CONFIDENTIALITY AND INTELLECTUAL PROPERTY ASSIGNMENT AGREEMENT
This Confidentiality and Intellectual Property Assignment Agreement (this “Agreement”) is effective as of January 30, 2020, by and between Marpai Health, Inc., a Delaware corporation (the “Company”) and/or its present and future parent companies, subsidiaries and affiliates and successors (collectively, the “Company’s Entities”), and Ronnie Brown (the “Recipient”).
|1.||Consideration and Acknowledgments.|
The parties acknowledge and agree that the provisions and covenants contained in this Agreement are ancillary and material to, and in consideration of, the engagement of the Recipient by the Company and the Restricted Stock Agreement of even date herewith. Any capitalized terms not defined herein shall have the meaning as set forth in the Restricted Stock Agreement.
|2.1.||The Recipient will regard and retain as confidential and will not divulge to any third party, or use for any unauthorized purposes either during or after the term of the Recipient’s service with the Company, any Confidential Information (as defined below), that the Recipient has acquired during his service or in connection with his service or contacts with the Company or the Company’s Entities, without the written consent of an authorized representative of the Company.|
|2.2.||The Recipient will not disseminate or in any way disclose the Confidential Information to any third party, without the Company’s prior written consent. The Recipient will not use the Company’s Confidential Information for any purpose whatsoever other than the performance of the services on behalf of the Company. Without limiting the scope of this duty, the Recipient shall only use the Confidential Information for the benefit of the Company, and only to the extent required for the performance of the services and may not disclose the Confidential Information to any other third party. Without limiting the scope of this duty, the Recipient shall not design or manufacture or develop any products, which incorporate any Confidential Information.|
|2.3.||The Recipient undertakes to treat all Confidential Information of the Company with at least the same degree of care as the Recipient accords to his own confidential information, but in no case less than reasonable care.|
|2.4.||All Confidential Information remains the property of the Company and no license or other rights in the Confidential Information is granted hereby.|
|2.5.||Notwithstanding the foregoing confidentiality obligations, the Recipient hereby understands and acknowledges that pursuant to the Defend Trade Secrets Act of 2016, the Recipient shall not be criminally or civilly liable under any federal or state trade secrets for the disclosure of a trade secret that is made (i) in confidence to a federal, state or local government official, either directly or indirectly, or to any attorney, and solely for the purpose of reporting or investigating a suspected violation of law; or (ii) in a complaint or other document filed in a lawsuit or other proceeding only if such filing is made under seal. The Recipient hereby further understands and acknowledges that in the event the Recipient files a lawsuit for retaliation by the Company for reporting a suspected violation of the law, the Recipient may disclose the trade secret to his attorney and use the trade secret information in the court proceeding only if (i) any documents the Recipient files containing such trade secrets are filed under seal and (ii) the Recipient does not disclose the trade secret except pursuant to a court order. For the sake of clarity, the exceptions set forth in this paragraph shall only apply to trade secrets of the Company and shall not affect, or apply to, any other Confidential Information of the Company and shall not derogate from the Recipient’s confidentiality obligations set forth herein.|
|3.1.||“Confidential Information” shall include, but will not be limited to, information regarding research and development related to actual or anticipated products, inventions, whether patentable or non-patentable, discoveries, innovations, designs, drawings, sketches, diagrams, formulas, computer files, computer programs, hardware, software or other products, product definitions, product research, manuals, selection processes, data, methods of manufacture, planning processes, trade secrets, business secrets, business plans, copyrights, proprietary information, customer lists, names of clients, list of suppliers, marketing plans, strategies, forecasts, business forecasts, processes, finances, costing, sales, prices, terms of payment, formulae, know-how, improvements and techniques and any other data related to the business or affairs of the Company or the Company’s Entities, its clients, including clients with whom the Company is negotiating. Confidential Information will include information in written, oral and/or any other form of communication.|
|3.2.||Confidential Information shall not include information that (i) has become part of public knowledge other than as a result of a breach of this undertaking; (ii) was already in the Recipient’s possession at the time of disclosure, as shown by the Recipient’s written documents dated prior to the disclosure; (iii) is rightfully received by the Recipient from a third party without a duty of confidentiality, as shown by the Recipient in written documents; or (iv) any Confidential Information which the Recipient is required to disclose pursuant to any court or regulatory order, in such case, the Recipient will promptly notify the Company in writing of the existence, terms and circumstances surrounding such disclosure so that the Company may seek a protective order or other appropriate remedy from the proper authority. The Recipient agrees to cooperate with the Company in seeking such order or remedy. The Recipient further agrees that if the Recipient is required to disclose Confidential Information, the Recipient will furnish only that portion of Confidential Information that is legally required and will exercise all reasonable efforts to obtain reliable, written assurances that confidential treatment will be accorded the Confidential Information. The Recipient shall have the burden of proof establishing that any or more of these exceptions applies.|
|3.3.||The Recipient undertakes to notify, disclose and bring to the Company’s knowledge any information coming to his knowledge in any way, including information being the product of any idea or development of mine.|
|4.||Return of Confidential Information|
All materials including, but not limited to, devices, records, data, notes, reports, proposals, lists, correspondence, specifications, drawings, blueprints, sketches, materials, equipment, other documents or property, or reproductions of any aforementioned items, and any other material of any kind and in any form, coming into the Recipient’s possession or prepared by the Recipient in connection with his service, are the exclusive property of the Company (the “Documents”). The Recipient agrees to return to the Company all such Documents upon termination of the Recipient’s service or upon the Company’s first written request.
|5.||Work Product and the Recipient Inventions|
|5.1.||Ownership. Without limiting the foregoing, the Work Product (as defined below) and all rights, title and interest, including intellectual property rights in and to the Work Products are and will be the sole property of the Company. “Work Product” means the results, deliveries and outcomes in any format and other work products created, developed, conceived or made as a result of, during or in connection with this Agreement and any engagement of the Recipient by the Company or the Company’s Entities, including, without limitations, source and object code, inventions and documentation.|
|5.2.||Assignment of the Recipient Inventions. The Recipient warrants, represents and undertakes that the Recipient will promptly make full written disclosure to the Company, will hold in trust for the sole right and benefit of the Company, and hereby assigns and will assign to the Company, or its designee, any and all rights, title, and interests in and to any and all Work Products and inventions, original works of authorship, developments, concepts, improvements, designs, discoveries, ideas, trademarks or trade secrets, whether or not patentable or registerable under copyright or similar laws, which the Recipient may, solely or jointly with others, conceive or develop or cause to be conceived or developed or reduced to practice, or have conceived or developed or reduced to practice, during the period of time the Recipient was engaged by the Company or the Company’s Entities and within the scope of that engagement (collectively referred to as the “Inventions”). The Recipient further acknowledges that all original works of authorship which are made by him (solely or jointly with others) within the scope of and during the period of his engagement by the Company in connection with the any engagement of the Recipient by the Company and which are protectable by copyright are “works made for hire,” as such term is defined in the United States Copyright Act.|
|5.3.||Patent and Copyright Registrations. The Recipient warrants, represents and undertakes that the Recipient will assist the Company, or its designee, at the Company’s expense, in every proper way to secure the Company’s rights in the inventions and any copyrights, patents, mask work rights or other intellectual property rights relating thereto. If the Recipient is unable because of his mental or physical incapacity or for any other reason to secure his signature to apply for or to pursue any application for any United States or foreign patents or copyright registrations covering The Inventions or original works of authorship assigned to the Company as above, then the Recipient hereby irrevocably designates and appoints the Company and its duly authorized officers and agents as his agent and attorney in fact, to act for and in his behalf and stead to execute and file any such applications and to do all other lawfully permitted acts to further the prosecution and issuance of letters patent or copyright registrations thereon with the same legal force and effect as if executed by him. The Recipient agrees to perform this obligation during and after his service with the Company.|
|6.1.||During the term of his service with the Company and thereafter for a period of 12 months, the Recipient will not solicit or encourage or cause others to solicit or encourage any employees of the Company or the Company’s Entities to terminate their employment with the Company or the Company’s Entities, and the Recipient will not assist any employees of the Company or the Company’s Entities to engage with any Competing Entities.|
|6.2.||During the term of his service with the Company and thereafter for a period of 12 months, the Recipient will not, either directly or indirectly, either as an individual on the Recipient’s own account or as a partner, employee, consultant, director, advisor, agent, contractor, trustee, committee member, officer or shareholder (or in a similar capacity or function): (i) seek, solicit, accept or provide from, render services to, interfere with, otherwise be engaged or employed by, or divert away from the Company or the Company’s Entities any person/entity who is/was a vendor of the Company; (ii) seek, solicit, accept or provide from or to any person/entity who the Recipient knew, or should have known, to be a potential client/customer of the Company or the Company Entities prior to termination of the Recipient’s services with the Company; or (iii) seek to persuade any vendor of the Company or the Company’s Entities not to conduct or renew any services or business with the Company or the Company’s Entities or to terminate such business.|
The Recipient shall not make, or cause to be made during the term of his service with the Company and indefinitely thereafter, the Recipient shall not make any statements, whether verbally or in writing (including in electronic communications) that are professionally or personally disparaging of, or adverse to the interest of, the Company, the Company’s Entities or any affiliates, stockholders, officers, directors, managers, employees, advisors, consultants or agents thereof. This includes, but is not limited to, any statements that disparage the products, services, finances, financial condition, capability or any other aspect of the business of the Company, the Company’s Entities or any affiliates. The Recipient further agrees not to engage in any conduct which is intended to harm, professionally or personally, the reputation of the Company, the Company’s Entities or its affiliates, officers, directors, managers, consultants or employees. For purposes of this Agreement, the term “affiliate” of the Company means and includes, without limitation, any and all persons and entities directly or indirectly controlling, controlled by or under common control with the Company, including subsidiaries, and such affiliate’s directors, officers, employees, agents, successors and assigns.
|8.||No Conflicting Obligations|
The Recipient will not disclose to the Company any proprietary or confidential information belonging to any third party, including any prior or current employer or contractor, unless the Recipient has first received the written approval of that third party and present it to the Company. The Recipient undertakes not to perform any activity related to the Recipient’s service with the Company on the premises of any third party, or while using any equipment or materials that belong to any such third party, unless instructed to do so by the Company.
|9.||Third Party Information|
The Recipient recognizes that the Company has received and will in the future receive from third parties their confidential or proprietary information, subject to a duty on the Company’s part to maintain the confidentiality of such information and to use it only for certain limited purposes. The Recipient agrees to hold all such confidential or proprietary information in the strictest confidence and not to disclose it to any person or entity or to use it except as necessary in carrying out the Recipient’s services for the Company, consistent with the Company’s agreement with such third party.
|10.||Acknowledgment and Enforcement.|
The Recipient acknowledges and agrees that (i) because of the nature of the business in which the Company is engaged and because of the nature of the Confidential Information to which the Recipient has access, the Recipient is aware that a breach of any of the obligations under this Agreement will cause the Company or the Company’s Entities serious and irreparable harm, to which monetary compensation may not be an appropriate remedy; and (ii) if such a breach occurs, the Company shall be entitled, without prejudice, to take all legal means necessary, including any injunctive relief, to restrain any continuation or further breach of this Agreement, without any objection from the Recipient.
This Agreement may be assigned by the Company. The Recipient may not assign or delegate his obligations under this Agreement, without the Company’s prior written approval.
This Agreement shall be construed under the laws of the State of New York, without reference to conflict of laws principles. The competent court in New York County in the State of New York shall have exclusive jurisdiction over any matter arising out of, or in connection with, this Agreement.
The Parties further consent and confirm that this Agreement was provided by Pearl Cohen Zedek Latzer Baratz, LLP (“Pearl Cohen”), counsel for the Corporation and for Purchaser, at the request of the Corporation and the Purchaser. Under applicable rules of professional conduct, a law firm owes each of its clients a duty of loyalty, which would normally preclude any attorney within the firm from undertaking a representation adverse to any client of the firm without the affected client’s informed consent. Other rules generally prohibit a firm from undertaking any representation involving an actual or potential conflict of interest without the informed consent of all affected parties. Such a situation exists whenever a firm represents two clients simultaneously in a situation in which their interests are actually or potentially adverse. The conflict of interest, and the need for informed consent, exist no matter how cordial the business relationship between the two parties currently is or is anticipated to be, and no matter how non-controversial the transactions contemplated hereunder are anticipated to be. The conflict of interest, and the need for informed consent, exist even where different “client teams” within the firm act on behalf of each client and an “ethical screen” is erected between the client teams that prohibits the sharing of either client’s confidences with the members of the other client’s team. By giving the consent requested herein, the Parties are, in effect, waiving that kind of zealous representation of the Parties’ individual and conflicting interests with respect to the transactions contemplated hereby. The Parties hereby agree that each Party has been advised to obtain independent legal counsel with respect to this Agreement and the transactions related thereto. Each Party hereby irrevocably, unconditionally, completely, fully and forever disclaims, forfeits, waives, discharges and releases any and all legal or equitable right, claim or interest against any claim against the Corporation, Pearl Cohen, and each of its affiliates, subsidiaries, officers, directors, partners and employees, and agree not to sue, or otherwise cause to be instituted any legal or administrative proceedings concerning any claim (including any conflict of interest claim), obligation, right, compensation, liability, contract, promise, damage, or cause of action of any kind at law or in equity relating to any matters arising out of or related to this Agreement or the transactions contemplated thereby.
Unless specifically limited under the provisions in this Agreement, the Recipient’s obligations under this Agreement shall remain in full force during his service with the Company and following the termination, for any reason, of his service with the Company.
IN WITNESS WHEREOF, the duly authorized representative of the Company and the Recipient have executed this Agreement as of the date stated below.
|Marpai Health, Inc.|
|By:||/s/ Edmundo Gonzalez|
|/s/ Ronnie Brown|
[Marpai Health - Confidentiality and IP Assignment Agreement]