EXHIBIT
10.5
CONSULTING
AGREEMENT
This
CONSULTING AGREEMENT (this “ Agreement ”)
made as of the 16 th
day of
February, 2009 (the “ Effective Date ”), by and
between MEDIS TECHNOLOGIES LTD., a Delaware corporation,
having a principal place of business at 805 Third Avenue, New York,
New York 10022 (the “ Company ”) and
ROBERT K. LIFTON, an individual residing at 93 Black Brook
Road, Bedford Village, NY 10506 (the “
Consultant ”).
WHEREAS,
the
Company and the Consultant are parties to that certain Consultancy
Agreement, dated as of January 2, 2000 (the “ Underlying
Agreement ”); and
WHEREAS
, the
Company desires to continue to engage Consultant to render certain
consulting services in furtherance of the business of the Company
(the “ Business ”) and Consultant desires to
continue to perform such services; and
WHEREAS,
it is
deemed to be to the mutual advantage of the Company and the
Consultant to terminate the Underlying Agreement and to enter into
a consulting relationship pursuant to the terms and conditions of
this Agreement; and
WHEREAS
, the
Company and the Consultant are simultaneously entering into that
certain Severance Agreement, dated as of the date hereof (the
“ Severance Agreement ”).
NOW,
THEREFORE, in
consideration of the mutual covenants herein contained, and other
good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereof agree as
follows:
1.
Relationship
Between the Parties .
Consultant
is hereby retained by the Company only for the purpose and to the
extent set forth in this Agreement, and Consultant’s relation
to the Company and its subsidiaries and affiliates shall, during
the Term (as hereinafter defined), be that of an independent
contractor. It is expressly acknowledged and agreed by
the parties that nothing contained in this Agreement shall be
construed to create an employer/employee relationship. Consultant
shall not be considered, under the provisions of this Agreement, or
otherwise, as having an employee status or as being entitled to
participate in any plans, arrangements or distributions by the
Company or its affiliates pertaining to or in connection with any
pension, stock, option, bonus, profit sharing or similar benefits
for their regular employees. Consultant shall be liable
and responsible for the payment of all required federal, state and
local withholding and employment taxes. Consultant shall
not be covered for any state unemployment insurance for the
Services (as hereinafter defined) performed under this
Agreement.
The
initial term of this Agreement shall be for a six (6) month period
commencing on the Effective Date (the “ Initial Term
”). The Initial Term may be renewed upon the prior
written consent of the parties hereto at least thirty (30) days
prior to the expiration of the Initial Term, subject to any
additional terms and conditions as may be agreed upon the by the
parties hereto (the “ Renewal Term ” and
together with the Initial Term, the “ Term
”).
(a)
Duties of Consultant .
(i)
Consultant shall render services pertaining to government and
military affairs as they relate to the Business and shall endeavor
to secure funding from the United States government, or any of its
agencies, in an amount ranging between $30,000,000 to $50,000,000,
on such terms and conditions as may be acceptable to the Company
(the services set forth in this paragraph are hereinafter
collectively referred to as the “ Services
”). Nothing herein shall be construed
as a guaranty or an assurance by Consultant of his ability to
secure funding in any amount from the United States government or
any of its agencies.
(ii)
Consultant shall devote such time and effort to the Company as may
be reasonably required to render the Services. All
Services rendered by Consultant hereunder shall be conducted in
compliance with all applicable laws, statutes, ordinances, rules,
regulations and standards.
(iii)
Consultant may work any hours he chooses and may, but is not
required to, work out of the Company offices.
(iv)
Consultant
shall not sign the name of the Company to any contract or agreement
or bind the Company in any respect (whether by a written contact or
a verbal agreement), it being the express understanding that
Consultant shall have no authority to do so.
In
consideration of the Services to be rendered by Consultant during
the Term, the Company shall pay Consultant a monthly fee equal to
Sixteen Thousand Six Hundred Sixty Seven Dollars ($16,667), or a
pro rata portion thereof in respect of any partial month during the
Term (the “ Monthly Fee ”). The
Monthly Fee shall be payable in accordance with the Company’s
customary payroll practices. The Consultant is not
entitled to and shall not receive any other form of remuneration in
payment for the Services rendered pursuant to this Agreement,
except as expressly provided in the Severance Agreement.
5.
Reimbursement
of Expenses .
During
the Term, the Company shall reimburse Consultant for ordinary and
necessary business and travel expenses reasonably incurred in the
performance of the Services which have been approved in advance by
the Company. Consultant shall submit all necessary
documentation substantiating such expenses as may be required by
the Company.
6.
Confidential
Information .
(a)
In his
performance of the Services hereunder or otherwise, Consultant may
come into contact with, become aware of or develop information,
data and/or communications of a commercially sensitive, proprietary
nature which, if disclosed, could have an adverse effect on the
Company’s assets, liabilities, revenues, costs, profits,
standing in the community, its business reputation, operations or
competitive position or the assets, liabilities, revenues, costs,
profits, standing, business reputation, operations or competitive
position of any of the Company’s subsidiaries or affiliates
(“ Confidential Information ”).
(b)
As
used herein, Confidential Information includes, but is not limited
to, financial data; customer, vendor or shareholder or member lists
or data; business or marketing plans; projects or competitive
strategies; technical or strategic information about the Business
or strategies to market or distribute its services or products;
information relating to any Company product or service; technique
development plans; training plans and strategies; economic or
commercially sensitive information, policies, practices, procedures
or techniques; trade secrets; merchandising or sales strategies or
plans; educational strategies; terms of agreements with third
parties and third party trade secrets; information about the
Company’s and its affiliates’ and
subsidiaries’ employees, compensation or other
human resources policies, plans and procedures, or any other
nonpublic material or information relating to the Company’s
or its subsidiaries’ and affiliates’ business
activities, communications, ventures, operations, products,
services or strategies.
(c)
Consultant hereby acknowledges that the Confidential Information is
not readily available to the public and accordingly, Consultant
shall no
