CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT is entered into as of December 23, 2004 (the
"EFFECTIVE DATE"), by and between BRAINSTORM CELL THERAPEUTICS INC., a company
incorporated under the laws of the State of Washington (the "COMPANY") and Xx.
Xxxxxx Xxxxxx ("XXXXXX").
Whereas, Xxxxxx and the Company (the "PARTIES") entered into a Consulting
Agreement dated August 10, 2004 (the "FIRST AGREEMENT") pursuant to which in
consideration for services rendered Xxxxxx was issued 450,000 shares of the
Common Stock of the Company (the "SHARES");
Whereas, due to a discrepancy in the valuation of the Shares, the Parties
have rescinded the First Agreement, Xxxxxx has surrendered the Shares to the
Company for cancellation, and the Parties have agreed to enter into this new
Consulting Agreement;
NOW, THEREFORE, in consideration of the mutual promises and covenants set forth
herein, the receipt and sufficiency of which are hereby acknowledged, the
Parties hereto agree as follows:
1. SERVICES. Xxxxxx shall use its best efforts to perform the following services
in a timely manner: to become familiar with the business and operations of the
Company so that he (i) may introduce the company to entities or individuals that
would enhance and accelerate the commercialization of the Company's technology
and business objectives and (ii) work with the Company, if needed, on capital
structure, management, reorganization and related corporate issues.
2. TERM. This Agreement shall be in effect for twelve months from August 10,
2004. Xxxxxx shall not be required to be available at any specific time for
consultation; shall not be required to appear at the offices of the Company and
may perform such service telephonically, by e-mail or in any other reasonable
manner.
3. CONSIDERATION. For the valuable advice and services to be provided by Xxxxxx
to the Company under this Agreement, the Company shall issue Xxxxxx a Warrant to
purchase up to 450,000 shares of the Company's common stock at a per share
purchase price of $0.00005. The Warrant shall be fully vested as of the date of
issuance, exercisable at any time for a period of 10 years from such date and
fully issued upon delivery thereof.
4. REPRESENTATIONS AND WARRANTIES. The Company represents and warrants to Xxxxxx
that the statements contained in paragraph 4 are correct and complete as of the
Effective Date: (a) The Company is a corporation duly organized, validly
existing and active under the laws of its state of incorporation. (b) The
Company has full corporate power and authority to (i) conduct its business as
now conducted and as proposed to be conducted and to own, use, license, and
lease its assets and properties and (ii) enter into this Agreement and to
consummate the transactions contemplated herein.
5. INDEMNITY. The Company agrees to indemnify, defend, and hold harmless Xxxxxx
and his affiliates, counsel, employees, agents, successors, and assigns. (each,
an "Indemnified Party") from and against any and all losses, claims, damages,
costs, expenses, and liabilities (including any investigatory, legal, and other
expenses incurred as they are incurred by an Indemnified Party in connection
with preparing for or defending any action, claim, or proceeding, whether or not
resulting in any liability) (collectively, "Indemnifiable Losses") to which any
Indemnified Party may become subject or liable relating to or arising out of (a)
the services to be performed under the Agreement, (b) any inaccuracy in or
breach in the representations and warranties of the Company contained in this
Agreement, and (c) any failure of the Company to perform its obligations under
this Agreement, provided that the Company shall not be liable to an Indemnified
Party in any such case to the extent that any such Indemnifiable Loss is found
in a final, nonappealable judgment by a court of competent jurisdiction to have
resulted as a direct and proximate cause from the willful misconduct or gross
negligence of an Indemnified Party. No Indemnified Party shall be liable,
responsible, or accountable in damages and costs and expenses (including
attorneys' fees) under this Agreement except for any liability for losses,
claims, damages, or liabilities finally judicially determined to have resulted
solely and exclusively from actions taken or omitted to be taken as a direct
result of such Indemnified Party's gross negligence or willful misconduct. If
for any reason, except as specifically provided herein, the foregoing indemnity
for Indemnifiable Losses is unavailable to an Indemnified Party or insufficient
to fully hold any Indemnified Party harmless, then the Company agrees to
contribute to the amount paid or payable by such Indemnified Party as a result
of such Indemnifiable Losses in such proportion as is appropriate to reflect the
relative benefits received by and fault of the Company, on the one hand, and the
relative benefits received by and fault of Xxxxxx, on the other hand.
6. LEGAL MATTERS. This Agreement shall be interpreted under and governed by the
laws of the State of New York. Any controversy, dispute, or claim between the
parties relating to this Agreement shall be resolved by binding arbitration in
accordance with the rules of the American Arbitration Association.
7. REPRESENTATION. The Company acknowledges that it has been given notice by
Xxxxxx that Xxxxxx is not a licensed securities broker-dealer and therefore
Xxxxxx is not required under this Agreement or any side agreement, whether
verbally or in writing, to sell securities on behalf of the Company or any
issuer affiliated with the Company. Moreover, the Company acknowledges that
Xxxxxx does not intend to negotiate raising of capital transactions, does not
intend to directly solicit purchasers of the Company's common stock, will not
hold any funds or securities in a capital raising transaction, and the
compensation due to Xxxxxx is not based on a specified percentage of any actual
or proposed funds raised. The Company acknowledges that Xxxxxx has informed it
that neither Xxxxxx nor any of its members or employees provides any legal
advice or counsel.
8. INDEPENDENT CONTRACTOR. Xxxxxx is an independent contractor and may engage in
other business activities. Since Xxxxxx is an independent contractor, nothing in
this Agreement shall be interpreted to constitute that Xxxxxx is an agent,
employee, or partner of the Company, nor shall either party have any authority
to bind the other. In furtherance of, but without limiting the foregoing,
Company shall not be responsible for payment of workers' compensation,
disability benefits, unemployment insurance and for withholding or paying income
taxes and social security for Xxxxxx but such responsibility shall be solely
that of Xxxxxx.
9. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement between the
parties pertaining to the subject matter hereof and supersedes and cancels any
prior communications, representations, understandings, and agreements between
the parties. No modifications of or changes to this Agreement shall be binding,
nor can any of its provisions be waived, unless agreed to in writing by the
parties. There are no side agreements, whether verbally or in writing, between
the Company and Xxxxxx.
10. CONFIDENTIALITY. The parties agree that the terms and all of the
encompassing components of this Agreement shall be kept confidential, unless
this information is required to be disclosed pursuant to any inquiries by
federal, state, or local law enforcement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and
year first above written.
By: /s/ Ernext Xxxxxx
--------------------
Xxxxxx Xxxxxx
By: /s/ Xxxxx Xxxx
-------------------
Name: Xx. Xxxxx Xxxx
Title: President & CEO
