Exhibit
10.1
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 agreement,
lease or other agreement or instrument to
which CONSULTANT is a party or by
which CONSULTANT may be bound, or (b) violates or will
violate any statute, law or regulation or any order, judgment,
decree or injunction of any court or governmental authority
directed to CONSULTANT
4. Scope of Services. CONSULTANT shall perform
the following tasks, as directed by the Company’s Chief
Executive Officer (“CEO”) and /or Board of Directors
(“Board”):
(i) Advise the
Company in determining specific studies and time-lines that are
needed (a) to establish the clinical usefulness of a Screening Test
for Gestational Diabetes (licensed by the Company from the Regents
of the University of California pursuant to that certain license
agreement dated September 26, 2008 (the "Screening Test") and (b)
to create a new rapid analysis method for screening large
populations (collectively, the "Technology").
(ii) Serve on the
Company’s Medical Advisory Board ("MAB") in order to provide
advice to the Company regarding the Technology and other related
technologies or approaches as the Company may from time to time
reasonably request. The Company anticipates that
the MAB shall meet at least four (4) times each year, at times and
locations to be determined by the Company in consultation with MAB
members.
(iii)
Advise the Company in:
(a) the design and completion of the specific
studies that demonstrate the clinical usefulness of the Screening
Test. The parties anticipate that this will require the Company,
with the CONSULTANT'S advice, to 1) determine the screening values
for normal pregnant women in the first 20 weeks of pregnancy and
establish the potential usefulness of the Technology to detect
gestational diabetes in early pregnancy, and 2) complete a large
prospective study that determines the value of the Technology in
identifying gestational diabetes in subpopulations that include
race/ethnicity, age, and gestational age; and
(b) establishing
and validating a new method for rapid screening of large
populations.
Notwithstanding anything to the contrary set
forth in this Agreement, the parties hereby acknowledge and agree
that (a) the CONSULTANT is subject to certain limitations on the
time he may devote to consulting pursuant to the relevant polices
and guidelines of the University of California, (b) the CONSULTANT
shall not be required to devote more than 100 hours per year to the
rendering of services to the Company under this Agreement or
otherwise and (c) CONSULTANT is being engaged on a non-exclusive
basis and
