AGREEMENT
Exhibit
10.1
AGREEMENT
THIS
AGREEMENT
(this
“Agreement”)
is
made and entered into as of March 5, 2008 (the“Effective
Date”),
by and
among MODIGENE
INC.,
a
Nevada corporation (the “Company”),
Xxxxx
& Xxxxxxxxx LLP, (“CS”)
and
Xxxxx
Xxxxxxxxx (the
“Consultant”).
RECITALS
WHEREAS,
the
Consultant is currently a principal of CS; and
WHEREAS,
the
Company desires the expertise the Consultant can provide in connection with
the
certain accounting and financial areas; and
WHEREAS,
the
Consultant and CS desire to provide his services to the Company;
and
NOW,
THEREFORE,
in
consideration of the mutual covenants contained herein and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereby agree as follows:
AGREEMENTS
1. Duration.
(a) During
the Agreement Period (as defined below), CS agrees to make the Consultant
available as needed to act as a consultant to the Company and to provide the
services set forth in Section 2 below. In accordance therewith, the Company
offers to engage CS and the Consultant, and CS and the Consultant hereby accept
such engagement, to provide services to the Company as a consultant for the
period established under this Section 1.
The
Agreement Period commences on the Effective Date, and shall end on the date
that
is 24 months after the Effective Date. The Agreement Period may be extended
for
subsequent 12-month periods upon the written agreement of the Consultant, the
Company and CS.
(b) Notwithstanding
anything contained herein to the contrary, the Agreement Period shall end upon
any termination of this Agreement pursuant to Section 5.
2. Services.
(a) During
the Agreement Period, CS and the Consultant shall provide the following services
(collectively, the “Services”):
the
Consultant serving as the Company’s designated “Principal Financial Officer,”
and “Chief Financial Officer,” creating
and maintaining sound accounting policies and procedures, managing books and
records, preparing and signing quarterly and annual financial statements,
preparing and reviewing certain of the Company’s quarterly and annual filings
with the Securities and Exchange Commission (the “SEC”),
including reviewing such financial statements and filings, as well as the
Company’s financial and disclosure controls and procedures are in compliance
with the Xxxxxxxx-Xxxxx Act of 2002 as promulgated by the SEC.
During
the Agreement Period, the Consultant shall render such financial and accounting
services to the Company and its subsidiaries as are consistent with the
Consultant’s position as Principal Financial Officer as the Company’s Board of
Directors may direct.
(b) During
the Agreement Period, the Consultant shall report to the President and shall
devote his best efforts to providing the Services. The Consultant shall perform
his duties, responsibilities and functions on behalf of the Company and its
subsidiaries hereunder to the best of his abilities in a diligent, trustworthy,
professional and efficient manner and shall comply with the Company’s and its
subsidiaries’ policies and procedures in all material respects. The Consultant
understands and will comply with the fiduciary duties imposed upon him in his
position of Principal Financial Officer and Chief
Financial Officer
of the
Company.
3. Compensation. In
consideration for the Services to be provided under Section 2(a),
the
Company agrees to pay to CS during the Agreement Period a quarterly consulting
fee (the “Consulting
Payment”)
of
Twelve Thousand U.S. Dollars ($12,000.00), which quarterly Consulting Payment
shall be payable within thirty (30) days following the end of each fiscal
quarter following CS’s provision of an invoice. Except as otherwise provided in
this Agreement, the Company shall not be required to compensate the Consultant
separately in any manner.
4. Expenses.
If,
in
connection with the performance of services hereunder at the request of the
Company, CS or the Consultant incurs reasonable out-of-pocket costs for expenses
for travel or other reasonable expenses of a type for which other providers
of
professional services to the Company would be reimbursed by the Company, CS
or
the Consultant (as may be applicable) shall be entitled to reimbursement
therefor by the Company in accordance with the reasonable standards and
procedures established by the Company and communicated to the
Consultant.
5. Termination
of Agreement. This
Agreement and the Agreement Period established hereunder shall terminate
immediately upon the occurrence of any of the following events: (i) CS or the
Consultant’s material breach of the obligations under Section 2
and, if
such breach is curable, CS or the Consultant’s subsequent failure to
substantially cure such breach after notice of such breach within thirty (30)
days; (ii) the Consultant’s or CS’s voluntary termination of this Agreement for
any reason, upon thirty (30) days written notice to the Company; and (iii)
in
the event of no material breach of CS or the Consultant’s obligations under
Section 2 and subsequent failure to cure the same, the Company’s voluntary
termination of this Agreement for any reason, upon thirty (30) days written
notice to the Consultant and CS. In the event of a termination of this Agreement
in accordance with this Section 5, the Company shall have no further obligations
hereunder other than with respect to the payment of any consulting fees and
reimburseable expenses to which CS or the Consultant is entitled through the
effective date of such termination. The provisions of Section 6 shall survive
the termination of this Agreement.
6. Confidential
Information.
CS
and
the Consultant shall maintain Confidential Information (as defined below) in
strict confidence and secrecy and shall not at any time, directly or indirectly,
use, publish, make lists of, communicate, divulge or disclose to any person
or
business entity or use for any purpose any Confidential Information or assist
any third parties in doing so, except on behalf of and for the benefit of the
Company. The Consultant agrees, upon demand by the Company, to promptly return
all Confidential Information (including any copies, extracts thereof or
materials reflecting any such information) which is in CS’s or the Consultant’s
possession.
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For
purposes of this Agreement, “Confidential
Information”
shall
include, but not be limited to, materials, records, data or trade secrets
regarding the assets, condition, business, financial information, business
affairs, business matters or other matters related to the Company and to its
direct and indirect subsidiaries and affiliates which CS or the Consultant
has
knowledge of as a result of CS’s or the Consultant’s services for the Company.
Confidential Information shall not include information that becomes generally
available to the public other than as a result of disclosure by CS or the
Consultant. Nothing in this Agreement modifies or reduces CS’s or the
Consultant’s obligations to comply with applicable laws related to trade
secrets, confidential information or unfair competition.
7. No
Employment Relationship Created.
The
relationship between the Company, on the one hand, and CS and the Consultant,
on
the other hand, shall be that of client and independent contractor. The Company
shall not assume, and specifically disclaims, any obligations of an employer
to
an employee which may exist under applicable law. CS and the Consultant shall
each be treated as an independent contractor for all purposes of federal, state
and local income taxes and payroll taxes and the Company shall report on the
appropriate IRS Form 1099 all compensation paid to CS and the Consultant. CS
shall be responsible for payment of all taxes, including federal, state and
local taxes, arising out of CS’s or the Consultant’s activities in accordance
with this Agreement, including by way of illustration, but not limitation,
federal and state personal income tax and social security tax, all as may be
required by applicable law or regulation. Subject to Section 2(b), CS and the
Consultant shall have the full authority to select the means, manner and method
of performing the services to be performed under this Agreement. The Consultant
shall not be considered by reason of the provisions of this Agreement or
otherwise as being an employee of the Company. The Consultant shall not be
eligible to participate in any employee benefit plans offered by the Company
or
any of its subsidiaries to their respective employees.
8. Successors
and Assigns.
This
Agreement will inure to the benefit of and be binding upon CS and the
Consultant, and the Company, and their respective successors and assigns,
including, in the case of the Company, any successor by merger or consolidation
or a statutory receiver or any other person or firm or corporation to which
all
or substantially all of the respective assets and business of the Company may
be
sold or otherwise transferred. CS and the Consultant may not assign any of
the
rights under this Agreement without the prior written consent of the Company.
Except as expressly provided herein, nothing in this Agreement shall be
construed to give any person other than the parties to this Agreement any legal
or equitable right, remedy or claim under or with respect to this Agreement
or
any provision of this Agreement.
9. Waiver.
The
rights and remedies of the parties to this Agreement are cumulative and not
alternative. Neither the failure nor any delay by any party in exercising any
right, power or privilege under this Agreement or the documents referred to
in
this Agreement will operate as a waiver of such right, power or privilege,
and
no single or partial exercise of any such right, power or privilege will
preclude any other or further exercise of such right, power or privilege or
the
exercise of any other right, power or privilege.
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10. Modification.
This
Agreement may only be amended by a written agreement executed by both
parties.
11. Notices.
All
notices and other communications under this Agreement must be in writing and
will be deemed to have been duly given if delivered by hand or by nationally
recognized overnight delivery service (receipt requested) or mailed by certified
mail (return receipt requested) with first class postage prepaid:
| (a) |
if
to the Company, to:
|
0
Xxxxx
Xxxxxx
Weizmann
Science Park
Nes-Ziona
Israel
74140
Attention:
President
with
a
copy to:
Xxxxxxxx
Xxxx Xxxxx, Esq.
Barack
Xxxxxxxxxx Xxxxxxxxxx & Xxxxxxxxx LLP
000
X.
Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx,
Xxxxxxxx 00000
| (b) |
if
to Consultant, to:
|
Xxxxx
Xxxxxxxxx
Xxxxx
& Xxxxxxxxx
000
Xxxxxxxxx Xxxxxx Xxxxx 0000
Xxx
Xxxx,
XX 00000
| (c) |
if
to CS, to:
|
Xxxxx
& Xxxxxxxxx
000
Xxxxxxxxx Xxxxxx Xxxxx 0000
Xxx
Xxxx,
XX 00000
or
to
such other person or place as either party shall furnish to the other in
writing. Except as otherwise provided herein, all such notices and other
communications shall be effective: (x) if delivered by hand, when delivered
(or, if delivery is refused by the recipient, upon such refusal); (y) if
mailed in the manner provided in this Section, upon confirmed receipt or
confirmed refusal of the recipient to accept delivery; or (z) if delivered
by overnight express delivery service, upon confirmation of such delivery or
upon a confirmed refusal of the recipient to accept such delivery.
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12. Entire
Agreement.
This
Agreement and any documents executed by the parties pursuant to this Agreement
and referred to herein constitute a complete and exclusive statement of the
entire understanding and agreement of the parties hereto with respect to their
subject matter and supersede all other prior agreements and understandings,
written or oral, relating to such subject matter between the parties.
13. Severability.
Whenever
possible, each provision of this Agreement shall be interpreted in such manner
as to be effective and valid under applicable law, but if any provision of
this
Agreement is held to be prohibited by or invalid under applicable law, such
provision will be ineffective only to the extent of such prohibition or
invalidity, without invalidating the remainder of such provision or the
remaining provisions of this Agreement. Without limiting the generality of
the
foregoing, if the scope of any provision contained in this Agreement is too
broad to permit enforcement to its full extent, but may be made enforceable
by
limitations thereon, such provision shall be enforced to the maximum extent
permitted by law, and the Consultant hereby agrees that such scope may be
judicially modified accordingly.
14. Counterparts.
This
Agreement and any amendments hereto may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same agreement.
15. Compliance
with Internal Revenue Code Section 409A.
To
the
extent applicable, this Agreement is intended to comply in all respects with
Internal Revenue Code Section 409A.
16. Governing
Law; Venue.
All
questions concerning the construction, validity and interpretation of this
Agreement, and the performance of the obligations imposed by this Agreement
shall be governed by the internal laws of the State of New York applicable
to
contracts made and wholly to be performed in such state without regard to
conflicts of laws. The parties: (x) agree that any suit, action or legal
proceeding relating to this Agreement may be brought in any federal court
located in the State of New York, if federal jurisdiction is available, and,
otherwise, in any local court located in the State of New York; (y) consent
to
the jurisdiction of each such court in any such suit, action or proceeding;
and
(z) waive any objection which they may have to the laying of venue in any such
suit, action or proceeding in either such court.
17. Construction.
The
subject matter and language of this Agreement have been the subject of
negotiations between the parties and their respective counsel, and this
Agreement has been jointly prepared by their respective counsel. Accordingly,
this Agreement shall not be construed against either party on the basis that
this Agreement was drafted by such party or its counsel.
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IN
WITNESS WHEREOF, each
of
the parties hereto has caused this Agreement to be executed, all as of the
day
and year first above written.
|
By:
|
_______________________
|
|
Its:
|
_______________________
|
XXXXX
& XXXXXXXXX
|
By:
|
_______________________
|
|
Its:
|
_______________________
|
_____________________________
XXXXX
XXXXXXXXX
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