EXHIBIT 10.1
CONSULTING
AGREEMENT
This
Collaboration Agreement (“ Agreement ”) is
entered into as of April 1 st , 2005 (“
Effective Date ”) by and between Pluristem Ltd. of
MATAM Advanced Technology Park, Bldg. No. 20, Haifa 31905, Israel
(“ Company ”) and Biological Industries ltd.
with a principal place of business at Kibbutz Bet-HaEmek, MP Oshrat
25105 (“ BI ”). Company and BI are collectively
referred to herein as the “ Parties ”
Whereas , Company is in the business of developing and
producing certain stem cell products and services; and
Whereas , BI is in the business of developing and
producing, inter alia , certain biological culture media and
testing formulas; and
Whereas , subject to the terms and conditions set herein
the parties wish to cooperate and desire to enter into a joint
commercial cooperation agreement for the purpose of developing, a
serum free medium for the maintenance, growth and expansion of
hematopoietic stem cell co-cultured with stroma cells, as defined
below, through joint commercial efforts (the “ Project
”);
Therefore , the parties agree as follows:
This Agreement will commence on the
Effective Date and continue for a period of 6 months thereafter
(the “ Initial Term ”), unless earlier
terminated in accordance with the provisions hereof. After the
Initial Period this Agreement will automatically renew for
additional consecutive 1 (one) months periods (the “
Renewal Periods ”) (the Initial Period together with
the renewal Periods shall be referred to as the “ Term
”), unless either party provides the other party, at least 21
days in advance, with a written notice of its wish to terminate
this Agreement.
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2.
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Contractual
Relationship
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2.1.
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It is hereby mutually declared and
agreed that BI shall at all time remain an independent contractor,
and that nothing in this Agreement is to be construed as creating
any agency, partnership, joint venture, or employer/employee
relationship (whether between the Company and BI).
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2.2.
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BI shall indemnify and hold the
Company, its officers, directors, shareholders or employees
harmless against any claim or cause of action initiated by BI or on
its behalf in contradiction to the representation made in this
Section 2.
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2.3.
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Either Party shall not have the
power or authority to bind the other Party, contractually or
otherwise, without receiving such Party’s prior written
approval.
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3.
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Obligations, Representations
& Warranties of the Parties
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3.1.
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Each of the Parties hereby
represents and warrants to the other Party that:
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3.1.1.
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It has full corporate power and
authority to execute this Agreement and to perform its obligations
hereunder; and all corporate action on its part necessary for the
authorization, execution, delivery and performance of this
Agreement by it have been taken.
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3.1.2.
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This Agreement, when executed and
delivered by it, will constitute a valid and legally binding
obligation on its part, enforceable in accordance with its
terms.
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3.1.3.
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The execution, delivery and
performance of this Agreement will not result in the breach or
violation of any law or regulation applicable to it or any contract
or commitment by which it is bound.
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3.1.4.
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Each party has obtained any permit,
authorization, license or consent from any person in connection
with the execution and delivery of this Agreement or the
consummation or performance of any of the transactions contemplated
hereunder.
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3.2.
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Representations &
Warranties of BI
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During the Term BI shall provide the
Company with the following services (collectivly the “
Services ”):
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3.2.1.
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Consulting
Services
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3.2.1.1.
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BI’s R&D Manager, Mr David
Fiorentini (the “ Consultant ”), will provide
the Company consulting services regarding to all aspects of the
Project, including without limitation disclosure of any of
BI’s propiertary intellectual property relating to the
Project, subject to the confidentiality undertaking set forth
herein (the “ Consulting Services ”);
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3.2.1.2.
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The scope of Consulting Services to
be provided by the Consultant, shall consist of at least: (i) one
whole (8 hours) working day per each month of the Agreement; or
(ii) two half working days per month but in no event less than an
agregate of 8 monthly hours.
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3.2.1.3.
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In addition, the Consultant
undertakes to be reasonably available to assist Company in the
performance of the Project via telecommunication as may be required
according to the Company’s needs;
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3.2.1.4.
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The Consulting Services shall be
granted at Company’s premises unless mutually agreed
otherwise.
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3.2.2.
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Production of Experimental
Formulations
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3.2.2.1.
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BI shall produce and deliver to
Company all the required propiertary BI experimental formulations,
as may requested by the Company (the “ Formulations
”);
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3.2.2.2.
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BI shall deliver to the Company the
applicable serum free Formulation(s) within 21 days from the date
of Company’s written request. Up to a total of 12 different
and independent formulations will be prepared during the first six
months of this agreement with extra 2 formulations prepared at each
additional month this agreement is in power. Each formulation will
include 5 liters of medium.
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3.2.2.3.
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BI further agrees that upon
Company’s request it will disclose to the Company all the
relevant information regarding each apllicable
Formulation.
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3.3.
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BI undertakes to perform its duties
and obligations under this Agreement with the highest degree of
professionalism and to the full satisfaction of the
Company.
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4.
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Consideration;
Expenses
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4.1.
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Monthly payment to BI for the
Services shall include retainer fee of 1500 USD payed on the 9
th day of the following month.
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4.2.
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BI shall provide written reports on
a bi-monthly basis or at Company’s request. Such reports will
outline the status of tasks relating to the Services, such report
will identify significant accomplishments, activities performed
during the period, change control summary, problems, concerns,
recommendations and other items of importance.
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4.3.
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It is hereby agreed that all taxes,
levies, national security, social benefits and other mandatory
payments and costs (collectively, the “ Taxes
”), imposed on the engagement of the BI hereunder, shall be
borne and paid solely by BI and BI shall indemnify Company,
immediately upon Company’s first demand for any damage, cost
or payment incurred by Company in connection with the payment or
non-payment of the Taxes.
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5.1.
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Subject to the terms and conditions
of this Agreement, BI will have marketing rights for an unlimited
time. BI is hereby appointed as a non-exclusive worldwide
distributor of the Joint Project Products (as defined below).
Pursuant to such appointment, subject only to compliance by BI with
the terms and conditions of this Agreement, BI is granted a
non-exclusive license, to sell, lease, market or otherwise dispose
Joint Project Products under its private label of the Buyer to
customers in the field of non for profit R&D life sciences
only.
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5.2.
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BI undertakes to pay the Company a
commission equal to 5% of FOB sales of Joint Project Products under
section 5.1 for a period of seven years commencing on the date of
the first sale of a Joint Project Product to the R&D market
(the “ Sale Commission ”). The payment terms of
the Sale Commission shall be due once in every six
months.
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5.3.
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BI shall not be entitled to disclose
any Intellectual Property Rights regarding the Joint Project
Product, including chemical formulations, to any of its customers
or collaborators.
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5.4.
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Any other disposition in the Joint
Project Product by BI shall require the prior written consent of
the Company, including an agreement regarding the applicable
commissi
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