Exhibit
10.2
THIS AGREEMENT
("Agreement") is made this 15h day of June, 2009,
by and between Entest BioMedical, Inc., whose address is 4700
Spring Street, Suite 203 La Mesa California , 91914 hereinafter
referred to as "Entest", and Bio-Matrix Scientific Group, Inc. ,
whose principal place of business is 8885 Rehco Road, San Diego,
California 92121, hereinafter referred to as "Company".
WHEREAS, the
Company has entered into that agreement with Dr. Brian Koos
(“Consultant”) dated April 8, 2009 (“Koos
Agreement”)(Exhibit A).
WHEREAS, the
Koos Agreement permits the Company to assign its rights to the
services of the Consultant pursuant to the Koos Agreement to
Entest ,
WHEREAS, Entest
is desirous of having the Company to assign its rights to the
services of the Consultant pursuant to the Koos Agreement to
Entest
THEREFORE, it
is agreed as follows:
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Assignment. The
Company shall assign its rights to the services of the Consultant
pursuant to the Koos Agreement to Entest
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Liability. The
Company shall not be liable to Entest, or to anyone who may claim
any right due to any relationship with Entest, for any acts or
omissions in the performance of services on the part of the
Consultant except when said acts or omissions of the Consultant are
due to willful misconduct or gross negligence. Entest
shall indemnify, defend and hold the Company free and
harmless from and against any and all liabilities, costs and
expenses (including reasonable attorneys’ fees) arising out
of or in connection with the services rendered to Entest by
Consultant pursuant to the terms of this Agreement
except to the extent that the same shall result from the willful
misconduct or gross negligence of the Consultant or the
Company as determined by a court or arbitrator of
competent jurisdiction.
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Company shall
be compensated in accordance with the following
schedule:
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$10,000
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Binding Effect
and Assignment. This Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective permitted
successors and assigns.
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Entire
Agreement. This Agreement represents the full and complete
agreement between the parties with respect to the subject matter
hereof and supersedes all previous agreements between the parties
with respect to the subject matter hereof. Any supplemental
amendments to this Agreement shall not be binding upon either party
unless executed in writing by the parties hereto
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Governing
Law. This Agreement will be governed by and construed in
accordance with the laws of the State of California excluding that
body of law pertaining to conflict of laws.
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Invalid by
Operation of Law. If any section or part of this
Agreement is held to be invalid by operation of law or by any
tribunal of competent jurisdiction, or if compliance with or
enforcement of any section or part should be restrained by such
tribunal, the remainder of the Agreement shall not be affected
thereby and the parties shall enter into immediate negotiations for
the purpose of arriving at a mutually satisfactory replacement for
such section or part.
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Arbitration. Any controversy or claim
arising out of or relating to this contract, or the breach thereof,
shall be settled by arbitration in accordance of the rules of the
American Arbitration Association, and judgment upon the award
rendered by the arbitrator(s) shall be entered in any court having
jurisdiction thereof. For that purpose, the parties
hereto consent to the non-exclusive jurisdiction and venue of an
appropriate court located in San Diego County, State of
California. In the event that litigation results from or
arises out of this Agreement or the performance thereof, the
parties agree to reimburse the prevailing party's reasonable
attorney's fees, court costs, and all other expenses, whether or
not taxable by the court as costs, in addition to any other relief
to which the prevailing party may be entitled.
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IN WITNESS
WHEREOF, the parties have hereunto executed this Agreement as of
the date first set forth above.
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Bio-Matrix
Scientific Group Inc.
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Entest
BioMedical, Inc.
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By:
/s/David R. Koos
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By: /s/David R.
Koos
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David R.
Koos
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David R.
Koos
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Its:
CEO
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Its:
CEO
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Exhibit
A
CONSULTING
AGREEMENT
THIS CONSULTING
AGREEMENT ("Agreement") is made this 8th day
of April, 2009, by and between Brian Koos,
whose address is 27-139 CHS, 10833 Le Conte Avenue, Los Angeles,
CA 90025-1740, hereinafter referred to as "CONSULTANT",
and Bio-Matrix Scientific Group, Inc. , whose principal place of
business is 8885 Rehco Road, San Diego, California 92121,
hereinafter referred to as "Company".
WHEREAS, the
Company desires to engage CONSULTANT, as an independent contractor
and not as an employee, to provide services to the Company in
accordance with the terms and conditions of this
Agreement
WHEREAS,
CONSULTANT desires to provide services to the Company in accordance
with the terms and conditions of this Agreement
THEREFORE, it
is agreed as follows:
1.
Term. The term of this Agreement shall be for a period of
five years commencing on the date hereof (“Contract
Period”) and thereafter shall be renewable only by mutual
written agreement of the parties.
2.
Liability. The CONSULTANT shall not be liable to the Company, or to
anyone who may claim any right due to any relationship with the
Company, for any acts or omissions in the performance of services
on the part of the CONSULTANT except when said acts or omissions of
the CONSULTANT are due to willful misconduct or gross
negligence. The Company shall indemnify, defend and hold the
CONSULTANT free and harmless from and against any and all
liabilities, costs and expenses (including reasonable
attorneys’ fees) arising out of or in connection with the
services rendered to the Company by CONSULTANT (whether pursuant to
the terms of this Agreement or otherwise) or in any way relating to
the Company's operation of its business, except to the extent that
the same shall result from the willful misconduct or gross
negligence of the CONSULTANT as determined by a court or arbitrator
of competent jurisdiction. The CONSULTANT shall promptly notify the
Company in writing of any such third party claim or suit and the
Company shall have the right to fully control the defense and
settlement thereof provided that any settlement shall include a
general release of the CONSULTANT and shall not include any
admission of liability by the CONSULTANT. The Company
agrees that during the Contract Period and for a period of five
years thereafter, it will maintain clinical trials insurance (if
the Company directly or indirectly conducts clinical trials
involving the Technology, as defined below) and other liability
insurance in amounts consistent with best practices in the industry
and will list the CONSULTANT as an additional insured on all such
insurance policies. The Company shall furnish the
CONSULTANT with certificates of insurance evidencing such coverage
upon the CONSULTANT'S request.
IN NO EVENT
WILL CONSULTANT BE LIABLE TO COMPANY FOR ANY SPECIAL, INCIDENTAL,
INDIRECT, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND
IN CONNECTION WITH THIS AGREEMENT, EVEN IF CONSULTANT HAS BEEN
INFORMED IN ADVANCE OF THE POSSIBILITY OF SUCH
DAMAGES. WITHOUT LIMITING THE GENERALITY OF THE
FOREGOING, IN NO EVENT SHALL CONSULTANT’S LIABILITY TO
COMPANY WITH RESPECT TO ANY SERVICES PERFORMED UNDER THIS AGREEMENT
EXCEED THE AMOUNT OF ALL CONSULTING FEES OR OTHER COMPENSATION PAID
TO CONSULTANT BY COMPANY IN CONNECTION WITH SUCH SERVICES, AND
CONSULTANT SHALL HAVE THE RIGHT, IN HIS SOLE DISCRETION, TO OFFSET
ANY SUCH LIABILITY BY RETURNING ANY STOCK COMPENSATION ISSUED
HEREUNDER, AT ITS FAIR MARKET VALUE MEASURED AS OF THE DATE OF
GRANT.
3.
Representations and Warranties
(a) Company
hereby represents and warrants to CONSULTANT as follows:
(i) Corporate
Existence of Company. Company (a) is a corporation duly formed,
validly existing and in good standing under the laws of the State
of Delaware and (b) has all requisite power and
authority, and has all governmental licenses, authorizations,
consents and approvals necessary to execute and deliver this
Agreement and to consummate the transactions contemplated by this
Agreement.
(ii) No
Conflicts. None of the execution, delivery and performance of this
Agreement by Company, nor the consummation of the transactions
contemplated hereby (a) constitutes or will constitute a violation
of the organizational documents of Company, (b) constitutes or will
constitute a breach or violation of, or a default (or an event
which, with notice or lapse of time or both, would constitute such
a default) under, any indenture, mortgage, deed of trust, loan
agreement, lease or other agreement or instrument to which Company
is a party or by which Company or any of its properties may be
bound, (c) violates or will violate any statute, law or regulation
or any order, judgment, decree or injunction of any court or
governmental authority directed to Company or any of its properties
in a proceeding to which its property is or was a party.
(b) CONSULTANT
hereby represents and warrant to Company as follows:
(i) No
Conflicts. Subject to Section 7 of this Agreement, none of the
execution, delivery and performance of this Agreement by
CONSULTANT, or the consummation of the transactions contemplated
hereby and thereby (a) constitutes or will constitute a breach or
violation of, or a default (or an event which, with notice or lapse
of time or both, would constitute such a default) under, any
indenture, mortgage, deed of trust, loan
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