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.
Xxxxxxx X. Xxxx ("XXXX").
Whereas, Xxxx 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 Xxxx was issued 1,350,000 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have rescinded the First Agreement, Xxxx has surrendered the Shares to the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. Xxxx 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. Xxxx 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 Xxxx to
the Company under this Agreement, the Company shall issue Xxxx a Warrant to
purchase up to 1,350,000 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 Xxxx
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 Xxxx
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 Xxxx, 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
Xxxx that Xxxx is not a licensed securities broker-dealer and therefore Xxxx 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 Xxxx 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 Xxxx is
not based on a specified percentage of any actual or proposed funds raised. The
Company acknowledges that Xxxx has informed it that neither Xxxx nor any of its
members or employees provides any legal advice or counsel.
8. INDEPENDENT CONTRACTOR. Xxxx is an independent contractor and may engage in
other business activities. Since Xxxx is an independent contractor, nothing in
this Agreement shall be interpreted to constitute that Xxxx 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 Xxxx but such responsibility shall be solely that
of Xxxx.
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 Xxxx.
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/ Xxxxxxx Xxxx
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Xxxxxxx X. Xxxx
By: /s/ Xxxxx Xxxx
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Name: Xx. Xxxxx Xxxx
Title: President & CEO
