EX-10.2






CONSULTING AGREEMENT




This Consulting Agreement (the “Agreement”) is entered into effective as of November 12, 2010
between SafeStitch LLC, a Virginia limited liability company (the “Company”) and Stewart B. Davis,
MD (the “Consultant”).



Recitals




A. Employer is a medical device company focused on the development of medical devices that
manipulate tissues for endoscopic and minimally invasive surgery for the treatment of obesity,
GERD, hernial defects, esophageal obstructions, Barrett’s Esophagus, upper gastrointestinal
bleeding and other intraperitoneal abnormalities. Employer’s products and product candidates
include, but are not limited to, the AMID Stapler®, SMART DilatorTM, bite blocks (standard and
airway), Intraluminal Gastroplasty Device for Obesity and GERD, Barrett’s Excision and Ablation
Device for Treatment and Diagnosis (Barrett’s Devices), T Fasteners for Upper GI Bleeding (T
Fastener Gun), Novel Devices for Natural Orifice Transluminal Endoscopic Surgery (NOTES), the sale
of mesh, as well as certain products under development which have not been publicly disclosed.;



B. The Consultant possesses specific knowledge regarding surgical procedures, medical device
development and clinical research methodologies; and



C. The Company desires to engage the Consultant and the Consultant desires to provide
consulting services to the Company, in accordance with the terms and conditions of this Agreement.



Agreement




In consideration of the Recitals and the mutual covenants contained in this Agreement the
Company and the Consultant agree as set forth below.



1. Definitions. In addition to terms defined elsewhere in this Agreement, when used
in this Agreement the terms set forth below shall have the meanings indicated.



"Affiliate” means any Person which controls, is controlled by or is under common
control with the Company, and for such purpose “control” shall mean the possession, direct or
indirect, of the power to direct or cause the direction of the management and policies of the
entity, whether through the ownership of voting securities, by contract or otherwise.



"Person” means any natural person, corporation, unincorporated organization,
partnership, association, joint stock company, joint venture, trust or government, or any agency or
political subdivision of any government, or any other entity.



"Products” means the products and devices of the Company or its Affiliates.



“Term” means the period during which this Agreement is in effect.



2. Engagement. The Company engages the Consultant to provide consulting services to
the Company, and the Consultant accepts such engagement, upon the terms and subject to the
conditions set forth in this Agreement.



3. Term. The term of the Consultant’s engagement pursuant to this Agreement shall
commence on the date hereof and continue until March 31, 2011 unless earlier terminated in
accordance with the provisions of Section 13. During the Term, the Consultant’s activities shall
constitute “Continuous Service” to the Company, as that term is defined in the SafeStitch Medical,
Inc. 2007 Incentive Compensation Plan, and the Consultant’s stock options listed on Exhibit
A will continue to vest pursuant to the terms of the underlying option agreements.



4. Duties. During the term of this Agreement, the Consultant shall consult with
representatives of the Company and its Affiliates concerning (a) preclinical and clinical
development and clinical trial design for the Products; (b) clinical trial evaluations; (c)
regulatory approval applications; and (d) such other matters as the Company shall from time to time
reasonably request consistent with the provisions hereof, including any matters set forth in an
approved Statement of Work which shall be appended to this Agreement.



The Consultant shall devote such time as is required to perform his or her duties under this
Agreement. The Consultant’s contact at the Company shall be the Company’s Chief Executive Officer
and such persons as the Chief Executive Officer may designate from time to time. In providing
services to the Company, the Consultant shall use his or her best efforts, skills and abilities to
promote the interests of the Company and to diligently and competently perform his or her duties
under this Agreement.



5. Compensation. During the term of this Agreement, as compensation for the
performance of services under this Agreement and the Consultant’s observance and performance of all
of the provisions of this Agreement, the Company shall pay to the Consultant, and the Consultant
shall accept from the Company, cash compensation as follows:



	 	 	 	 	 
	November 12, 2010 – November 30, 2010

	 	$	 6,500.00	 
	 

	 	 	 	 
	December 1, 2010 – December 31, 2010

	 	$	13,000.00	 
	 

	 	 	 	 
	January 1, 2011 – January 31, 2011

	 	$	13,000.00	 
	 

	 	 	 	 
	February 1, 2011 – February 28, 2011

	 	$	13,000.00	 
	 

	 	 	 	 
	March 1, 2011 – March 31, 2011

	 	$	13,000.00	 
	 

	 	 	 	 







Payment for the services shall be paid on the last day of each month during the Term.



6. Reimbursement of Expenses. Upon submission of proper supporting documentation and
in specific accordance with such guidelines as may be established from time to time by the Company,
the Consultant shall be reimbursed by the Company for all reasonable expenses actually and
necessarily incurred by Consultant on behalf of the Company in connection with the performance of
services under this Agreement, provided that the incurrence of such expenses is either requested or
authorized in advance by the Company.



7. Representation of Consultant. The Consultant represents and warrants that:
Consultant is not a party to, or bound by, any agreement or commitment, or subject to any
restriction, including but not limited to agreements related to existing or previous employment
containing confidentiality or noncompete covenants, which in the now or in the future could
interfere with the performance by the Consultant of his or her services under this Agreement or may
have a possibility of adversely affecting the business of the Company.



8. Confidentiality.



(a) Confidential Information. The Consultant acknowledges that (1) as a result of (i)
Consultant’s engagement under this Agreement and (ii) Consultant’s previous employment as an
officer of the Company, the Consultant has and will obtain knowledge of, and access to, proprietary
and confidential information of the Company, its Affiliates and third parties in which information
was received by Consultant through a confidentiality agreement between the Company and such third
party, including, without limitation, inventions, discoveries, trade secrets, know-how, technical
information, systems, processes, methods, designs, manufacturing practices, specifications, models,
formulae, prototypes, samples, laboratory and clinical testing results, financial and marketing
information, business plans, the identity of customers and suppliers, and the identity of products
under development, (collectively, the “Confidential Information”), (2) such information, even
though it may be contributed, developed or acquired by the Consultant, constitutes valuable,
special and unique assets of the Company developed at significant expense which are the exclusive
property of the Company, (3) the restrictions on disclosure and use of Confidential Information set
forth below are reasonable and necessary to protect the Company and its Affiliates and is not
unreasonably restrictive of any personal rights, and (4) the Company would not enter into this
Agreement without the assurance that all Confidential Information will be used for the exclusive
benefit of the Company. Accordingly, the Consultant shall not, at any time, either during or
subsequent to the Term (A) use the Confidential Information, except in the performance of services
under this Agreement, and (B) disclose to any Person, any of the Confidential Information without
the prior written consent of the Company, except to responsible officers and employees of the
Company and its Affiliates and other responsible persons who are in a contractual or fiduciary
relationship with the Company and who have a need for such information for purposes in the best
interests of the Company; provided that the foregoing restrictions on use and disclosure shall not
apply to any Confidential Information which: (i) at the time of disclosure can be demonstrated to
be already known to Consultant prior to Consultant’s previous employment with the Company or
subsequent to his separation from the Company (unless such information was obtained by the
Consultant in his duties as a Company consultant) as evidenced by written documents in the
Consultant’s possession, unless such Confidential Information is the subject of another
confidentiality agreement or provision with or other obligation of secrecy to the Company or
another Person for which the Consultant or the Company is also bound; (ii) at the time of
disclosure or subsequent thereto is generally available to the public other than by an act or
omission on the part of Consultant; (iii) is acquired from or made available by a third Person that
is not bound by a confidentiality agreement with or other obligation of secrecy to the Company or
another Person; or (iv) is required to be disclosed pursuant to an order of a court or governmental
authority, provided that the Consultant gives the Company prompt written notice of any such
requirement so that the Company may seek a protective order or other appropriate remedy and
Consultant cooperates with the Company is obtaining such an order or other appropriate remedy.



(b) Return of Confidential Information. Upon the termination of Consultant’s
engagement by the Company, the Consultant shall promptly deliver to the Company all drawings,
manuals, letters, notes, notebooks, reports and copies thereof and all other materials relating to
the Company’s business, including without limitation any materials incorporating Confidential
Information, which are in the Consultant’s possession or control.



9. Intentionally Omitted



10. New Discoveries. Any and all inventions, discoveries and technical data (whether
patentable or not), or the use or preparation thereof (i) resulting from or arising in connection
with Consultant’s services for the Company hereunder, and (ii) conceived, reduced to practice, or
advanced by Consultant during the term of this Agreement, and which relate to Products upon which
Consultant has rendered services to the Company or its Affiliates hereunder or under any research
or other agreement, whether performed by or on behalf of Consultant or the Company, shall be the
sole and exclusive property of the Company. Consultant shall promptly disclose to the Company any
and all of such inventions, discoveries and technical data becoming known to Consultant as a result
of or related to the performance of his or her duties hereunder and shall furnish to the Company in
writing all relevant information with respect thereto. At the request of the Company, Consultant
shall (i) execute, without charge to the Company, irrevocable assignments to the Company or its
nominees, of Consultant’s entire right, title and interest in and to such inventions, discoveries
and technical data throughout the world, including, without limitation, all patent applications and
patents relating thereto and all right to file, obtain and maintain such applications and patents,
(ii) execute, without charge to the Company, any and all other documents necessary or desirable to
permit the Company to file and maintain such patent applications and patents, and (iii) assist the
Company in securing, defending and enforcing such rights. Consultant hereby binds not only himself
or herself but also his or her heirs, executors, administrators and legal representatives to
execute all such documents and instruments and to do all acts which may be necessary or required by
the Company, in order to carry into full force and effect the provisions of this section of the
Agreement and to perfect title to said inventions, discoveries and patents in the Company, its
successors and assigns. The provisions of this section shall survive the expiration or earlier
termination of this Agreement.



11. Remedies. The restrictions set forth in Sections 8 and 10 are considered by the
parties to be reasonable for the purposes of protecting the value of the business of the Company.
The Consultant acknowledges that compliance by Consultant with the restrictions set forth in
Sections 8 and 10 will not prevent Consultant from earning a livelihood. The Consultant
acknowledges that the Company would be irreparably harmed and that monetary damages would not
provide an adequate remedy in the event of a breach of the provisions of Sections 8 or 10.
Accordingly, the Consultant agrees that, in addition to any other remedies available to the
Company, the Company shall be entitled to injunctive and other equitable relief to secure the
enforcement of these provisions, and shall be entitled to receive reimbursement from the Consultant
for all attorneys’ fees and expenses incurred by the Company in enforcing these provisions, should
the Company prevail. It is the desire and intent of the parties that the provisions of Sections 8
and 10 be enforced to the fullest extent permissible under the laws and public policies of each
jurisdiction in which enforcement is sought. If any provisions of Sections 8 or 10 are adjudicated
to be invalid or unenforceable, the invalid or unenforceable provisions shall be deemed amended
(with respect only to the jurisdiction in which such adjudication is made) in such manner as to
render them enforceable and to effectuate as nearly as possible the original intentions and
agreement of the parties.



12. Conflicts of Interest. The Consultant covenants and agrees that during the term
of this Agreement, he or she will not have any relationship with any Person which could create a
conflict of interest between the Consultant on the one hand and the Company or any of its
Affiliates on the other.



13. Termination. This Agreement may be terminated upon the occurrence of any of the
events set forth in, and subject to the terms of, this Section 13.



(a) Upon Notice. This Agreement may be terminated by either party upon 30 days notice
to the other party. In the event that the Company terminates the Agreement, Consultant is entitled
to the full compensation under Section 5 hereunder and all stock options that would have vested
during the Term of this Agreement shall be accelerated and vested prior to the termination date,
subject to approval by the Company’s Compensation Committee.



(b) Cause. This Agreement may be terminated at the Company’s option, immediately upon
notice to the Consultant, upon: (i) breach by the Consultant of any material provision of this
Agreement; (ii) breach by the Consultant of Sections 5, 6, 8, 10, 11, 12, and 13 of the
Confidential General Release of All Claims entered into by the Consultant and the Company effective
November 12, 2010; (iii) negligence or willful misconduct of the Consultant in connection with the
performance of his or her duties under this Agreement; (iv) fraud, criminal conduct (as evidenced
by the filing of any criminal action against the Consultant) or embezzlement by the Consultant; or
(v) Consultant’s misappropriation for personal use of assets or business opportunities of the
Company.



(d) Effect of Termination. In the event of any termination under this Section 13, the
Company shall have no further obligation under this Agreement, other than as described in Section
13(a), to make any payments to, or bestow any benefits on, the Consultant from and after the date
of the termination, other than payments or benefits accrued and due and payable to him or her prior
to the date of the termination.



14. Miscellaneous.



(a) Survival. The provisions of Sections 8, 10, 11, 12, 13 and 14 shall survive the
termination of this Agreement.



(b) Entire Agreement. This Agreement sets forth the entire understanding of the
parties and merges and supersedes any prior or contemporaneous agreements between the parties
pertaining to the subject matter hereof.



(c) Modification. This Agreement may not be modified or terminated orally, and no
modification, termination or attempted waiver of any of the provisions hereof shall be binding
unless in writing and signed by the party against whom the same is sought to be enforced.



(d) Waiver. Failure of a party to enforce one or more of the provisions of this
Agreement or to require at any time performance of any of the obligations hereof shall not be
construed to be a waiver of such provisions by such party nor to in any way affect the validity of
this Agreement or such party’s right thereafter to enforce any provision of this Agreement, nor to
preclude such party from taking any other action at any time which it would legally be entitled to
take.



(e) Successors and Assigns. Neither party shall have the right to assign this
personal Agreement, or any rights or obligations hereunder, without the consent of the other party;
provided, however, that upon the sale of all or substantially all of the assets, business and
goodwill of the Company to another company, or upon the merger or consolidation of the Company with
another company, this Agreement shall inure to the benefit of, and be binding upon, both Consultant
and the company purchasing such assets, business and goodwill, or surviving such merger or
consolidation, as the case may be, in the same manner and to the same extent as though such other
company were the Company. Subject to the foregoing, this Agreement shall inure to the benefit of,
and be binding upon, the parties hereto and their legal representatives, heirs, successors and
assigns.



(f) Additional Acts. The Consultant and the Company each agrees to execute,
acknowledge and deliver and file, or cause to be executed, acknowledged and delivered and filed,
any and all further instruments, agreements or documents as may be necessary or expedient in order
to consummate the transactions provided for in this Agreement and do any and all further acts and
things as may be necessary or expedient in order to carry out the purpose and intent of this
Agreement.



(g) Communications. All notices, requests, demands and other communications under
this Agreement shall be in writing and shall be deemed to have been given at the time personally
delivered or when mailed in any United States post office enclosed in a registered or certified
postage prepaid envelope and addressed to the addresses set forth below, or to such other address
as any party may specify by notice to the other party; provided, however, that any notice of change
of address shall be effective only upon receipt.



	 	 	 
	To the Company:
	 	SafeStitch LLC

4400 Biscayne Blvd

Miami, Florida 33137

Attn: Jeffrey Spragens

Facsimile: (305) 575-4130

	With a copy to:
	 	Joshua Weingard

4400 Biscayne Blvd

Miami, Florida 33137

Facsimile: (305) 575-4130

	To the Consultant:
	 	Stewart B. Davis, MD

Facsimile:

	 	 	Email: sbdavis1@gmail.com

	 	 	 







(h) Severability. If any provision of this Agreement is held to be invalid or
unenforceable by a court of competent jurisdiction, such invalidity or unenforceability shall not
affect the validity and enforceability of the other provisions of this Agreement and the provision
held to be invalid or unenforceable shall be enforced as nearly as possible according to its
original terms and intent to eliminate such invalidity or unenforceability.



(i) Governing Law. This Agreement shall be governed by the laws of the State of
Florida, without regard to the conflicts of law principles thereof.



(j) Jurisdiction; Venue. This Agreement shall be subject to the exclusive
jurisdiction of the courts of Miami-Dade County, Florida. Any breach of any provision of this
Agreement shall be deemed to be a breach occurring in the State of Florida by virtue of a failure
to perform an act required to be performed in the State of Florida, and the parties irrevocably and
expressly agree to submit to the jurisdiction of the courts of Miami-Dade County, Florida for the
purpose of resolving any disputes among them relating to this Agreement or the transactions
contemplated by this Agreement. The parties irrevocably waive, to the fullest extent permitted by
law, any objection which they may now or hereafter have to the laying of venue of any suit, action
or proceeding arising out of or relating to this Agreement, or any judgment entered by any court in
respect hereof brought in Miami-Dade County, Florida, and further irrevocably waive any claim that
any suit, action or proceeding brought in Miami-Dade County, Florida has been brought in an
inconvenient forum.



(k) Independent Contractor. The parties intend that the relationship of the
Consultant to the Company be that of an independent contractor. Accordingly, except as otherwise
required by law, payments to the Consultant shall be made free of withholding for federal, state
and local taxes, including without limitation social security taxes, income taxes and unemployment
compensation taxes. The Consultant shall be responsible for all federal, state and local taxes
relating to amounts received by him under this Agreement. Consultant shall have no right or
authorization, express or implied, to assume or create any obligation on behalf of the Company.



(l) Publication. Consultant agrees that he or she will not publish any manuscript or
other written document based upon information or data resulting from his or her performance of
services hereunder for the Company, without the prior written consent of the Company.



(m) Indemnification. Consultant hereby agrees to indemnify and hold harmless Company
and its directors, officers, employees and agents from, against and in respect of, the full amount
established in a final judgment issued by a court of competent jurisdiction (and which is not the
subject of a pending appeal) of all liabilities, damages, claims, deficiencies, fines,
assessments, losses, taxes, penalties, interest, costs and expenses, including, without limitation,
reasonable fees and disbursements of counsel, arising from, in connection with, or incident to any
breach or violation of any of the representations, warranties, covenants or agreements of
Consultant contained in this Agreement; and (ii) any and all actions, suits, proceedings, demands,
assessments or judgments, costs and expenses incidental to any of the foregoing.



(n) Acknowledgement and Attorney Review. CONSULTANT FURTHER STATES THAT HE OR SHE HAS
CAREFULLY READ THIS AGREEMENT, IT HAS BEEN FULLY EXPLAINED TO HIM, THAT HE OR SHE HAS HAD THE
OPPORTUNITY TO, HAS BEEN URGED BY THE COMPANY TO, AND HAS HAD THE AGREEMENT REVIEWED BY AN
ATTORNEY, THAT HE OR SHE FULLY UNDERSTANDS ITS FINAL AND BINDING EFFECT, THAT THE ONLY PROMISES
MADE TO HIM TO SIGN THE AGREEMENT ARE THOSE STATED IN THE AGREEMENT, AND THAT HE OR SHE IS SIGNING
THIS AGREEMENT VOLUNTARILY.



IN WITNESS WHEREOF, each of the parties hereto has duly executed this Agreement as of the date
set forth above.



	 	 	 
	SAFESTITCH LLC	 	STEWART B. DAVIS, MD
	By: Adam S. Jackson

	 	By: Stewart B. Davis, MD
	 

	 	 
	Its: CFO

	 	Its:






1




Exhibit A





2