CONSULTING AGREEMENT
EXHIBIT 10.37
THIS CONSULTING AGREEMENT
(this “Agreement”) is made and entered into as of June
1, 2010 (the “Effective Date”),
by and between MEDGENICS, INC.,
a Delaware corporation (the “Company”), and THE NYBOR GROUP, INC. (“NGI”).
RECITALS
WHEREAS, the Company desires
the expertise that NGI can provide in organizing efforts to secure financing and
provide advice regarding financing and investment issues; and
WHEREAS, NGI has agreed to provide services to
the Company on the terms and conditions hereinafter set forth;
NOW, THEREFORE, the Company
and NGI hereby agree as follows:
AGREEMENTS
1. Engagement,
Period of Engagement. The Company offers to
engage NGI, and NGI hereby accepts such engagement, to provide services to the
Company as a consultant for a period commencing as of the Effective Date and
ending December 31, 2010 (the “Term”).
2. Services. During the Term, NGI shall assist and advise the Company’s
management in connection with the Company’s efforts to secure financing and will
provide advice and consultantion with respect to financing and investment issues
and concerns raised by the Company. NGI
shall also make itself available to advise the Chief Executive Officer (the
“CEO”) as to other matters relating to
the Company.
3. Compensation. In consideration for the
services to be provided under Section 2, the Company agrees to issue to NGI (and
its permitted assigns), subject to compliance with all applicable securities and
other laws, an aggregate 150,000 unregistered restricted shares of the Company’s
common stock (the “Shares”). In
connection with the issuance of the Shares, NGI (and its permitted assigns)
hereby makes the representations and warranties set forth on Exhibit A attached
hereto.
4. Confidential
Information. NGI 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. NGI 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 NGI’s possession.
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 NGI has knowledge
of as a result of NGI’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 NGI. Nothing in this Agreement modifies or
reduces NGl’s obligations to comply with applicable laws related to trade
secrets, confidential information or unfair competition.
5. Successors
and Assigns. This Agreement will inure to the benefit of
and be binding upon NGI and the Company, and their respective successors and
assigns, including, 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 such party may be
sold or otherwise transferred. NGI may not assign any of its rights under this
Agreement without the prior written consent of the Company, except that, by
written notice to the Company, NGI may direct the issuance of all or a portion
of the Shares to its employees, members or other representatives provided such
assignee makes the representations set forth on Exhibit A for the
benefit 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.
6. 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.
7. Modification. This Agreement may only be
amended by a written agreement executed by both parties.
8. 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:
0000
Xxxxxx Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxx,
Xxxxxxxx 00000
Attention:
Xxxxxx Xxxxxxxx, CEO
(b) if to NGI, to:
The Nybor
Group, Inc.
00
Xxxxxxx Xxxx
Xxxxxx
Xxxxxxx 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; (y) if mailed in the manner provided in this Section,
five (5) business days after deposit with the United States Postal Service;
or (z) if
delivered by overnight
express delivery service, on the next business
day after deposit with
such service.
9. 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.
10. 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 maybe judicially modified accordingly.
11. 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.
IN WITNESS WHEREOF, each of
the Company and NGI has caused this Agreement to be executed as of the day and
year first above written.
| MEDGENICS, INC. | THE NYBOR GROUP, INC. | ||||
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By:
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/s/
Xxxxxx Xxxxxxxx
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By:
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/s/
Xxxxxx Xxxxxxxxx
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Xxxxxx
Xxxxxxxx
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Xxxxxx
Xxxxxxxxx
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Its:
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Chief
Executive Officer
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Its:
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President
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Exhibit
A
Investment
Representations
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Investment Experience;
Acknowledgment of Risk. The recipient acknowledges that the
recipient can bear the economic risk and complete loss of its investment
in the Shares and has such knowledge and experience in financial or
business matters that the recipient is capable of evaluating the merits
and risks of the investment contemplated hereby. The recipient understands
that investment in the Shares involves a significant degree of
risk.
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Disclosure of
Information. The recipient has conducted the recipient’s own due
diligence examination of the Company’s business, financial condition,
results of operations, and prospects, and has had an opportunity to
receive all information related to the Company and the Shares requested by
the recipient and to ask questions of and receive answers from the Company
regarding the Company, its business, finances and operations and the terms
and conditions of the Shares.
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Restricted
Securities. The recipient understands that the Shares are
characterized as “restricted securities” under the U.S. federal securities
laws inasmuch as they are being acquired from the Company in a transaction
not involving a public offering and that under such laws and applicable
regulations such securities may be resold without registration under the
1933 Act. The recipient understands that the Shares are being offered and
sold to it in reliance upon specific exemptions from the registration
requirements of United States and state securities laws and that the
Company is relying upon the truth and accuracy of, and the recipient’s
compliance with, the representations, warranties, agreements,
acknowledgments and understandings of the recipient set forth herein in
order to determine the availability of such exemption and the eligibility
of the recipient to acquire the
Shares.
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Legends. It is
understood that, except as provided below, certificates evidencing the
Shares may bear the following or any similar
legend:
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(a)
“THE SECURITIES REPRESENTED BY
THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE “ACT”), OR THE SECURITIES LAWS OF ANY STATE AND HAVE BEEN ISSUED IN
RELIANCE UPON EXEMPTIONS
AFFORDED UNDER
APPLICABLE LAWS. THE SECURITIES REPRESENTED BY THIS CERTIFICATE MAY NOT BE
OFFERED, SOLD, HYPOTHECATED, TRANSFERRED OR OTHERWISE ASSIGNED IN THE ABSENCE OF
AN EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES UNDER THE ACT AND
APPLICABLE STATE SECURITIES LAWS, OR AN APPLICABLE EXEMPTION (AS TO WHICH THE
ISSUER SHALL BE REASONABLY SATISFIED, INCLUDING RECEIPT OF AN ACCEPTABLE LEGAL
OPINION) FROM THE REGISTRATION REQUIREMENTS OF SUCH LAWS.”
(b) If
required by the authorities of any state in connection with the issuance of sale
of the Shares, the legend required by such state authority.
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Accredited
Investor. The recipient is an accredited investor as defined in
Rule 501(a) of Regulation D, as amended, under the 1933 Act. The recipient
understands that no United States federal or state agency or any other
government or governmental agency has passed upon or made any
recommendation or endorsement of the
Shares.
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No General
Solicitation. The recipient did not learn of the investment in the
Shares as a result of any public advertising or general
solicitation.
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