Exhibit 10.1
AGREEMENT made this 18
th day of August, 2009, by and between Therinject LLC,
whose principal place of business is 10439 Roselle St Ste E
hereinafter referred to as "Therinject", Steven Josephs, whose
address is 1129 Rising Hill Way, Escondido, CA 92029 hereinafter
referred to as “Josephs” and Bio-Matrix Scientific
Group, Inc., whose principal place of business is 8885 Rehco Road,
San Diego, California 92121, hereinafter referred to as "Company".
Collectively, the Company, Therinject and Josephs may be referred
to as the “Parties” or, singularly as
“Party”
WHEREAS, the Company desires
to:
(a) Engage in the acquisition,
manufacture and sale of medical devices utilized for the
therapeutic delivery of cells, proteins and/or amino acids
(“Medical Delivery Devices”):
(b) Engage in the operation of a
tumor banking facility
(c) Engage in the development and
marketing of a therapeutic cancer vaccine utilizing the medical
device of (a) for initial use in veterinary applications
(“Cancer Vaccine”).
WHEREAS,
Therinject and Josephs desire to
assist the Company in the above-mentioned objectives in accordance
with the Terms and Conditions of this Agreement
THEREFORE, It is Agreed as
follows
1. Representations and
Warranties
(a) Company hereby represents and
warrants to Therinject and Josephs 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,
or the consummation of the transactions contemplated hereby and
thereby (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) Therinject and Josephs hereby
represent and warrant to Company as follows:
(i) Therinject (a) is a Limited
Liability Company duly formed, validly existing and in good
standing under the laws of the State of California 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.
(i) No Conflicts. None of the
execution, delivery and performance of this Agreement by Therinject
and/or Josephs , or the consummation of the transactions
contemplated hereby and thereby (a) constitutes or will constitute
a violation of the organizational documents of Therinject, (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 Therinject and/or Josephs is a party or by
which Therinject and/or Josephs may be bound, (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 Therinject and/or Josephs.
2. Consulting Fee. Josephs, as an
independent consultant and not as an employee of Bio-Matrix, shall
receive a consulting fee (Exhibit A) to be paid by the Company for
a period of one year from September 1, 2009.
3. Consideration to
Therinject. As consideration for services to be rendered
by Therinject pursuant to this Agreement, Therinject shall receive
from the Company
(a) royalty payments from
the Company in accordance with Exhibit B
(b) 2.5 million common shares of
the company in accordance with Exhibit C.
4. Indemnification.
|
(a)
|
The Company hereby agrees to indemnify and hold
harmless the other Parties against any and all liability, claims,
suits, losses, costs and legal fees caused by, arising out of, or
resulting from any negligent act or omission of the Company in the
performance and/or failure to perform the Company’s duties
pursuant to this Agreement.
|
|
(b)
|
Therinject hereby agrees to indemnify and hold
harmless the other Parties against any and all liability, claims,
suits, losses, costs and legal fees caused by, arising out of, or
resulting from any negligent act or omission of Therinject in the
performance and/or failure to perform Therinject’s duties
pursuant to this Agreement.
|
|
(c)
|
Josephs hereby agrees to indemnify and hold
harmless the other Parties against any and all liability, claims,
suits, losses, costs and legal fees caused by, arising out of, or
resulting from any negligent act or omission of Josephs in the
performance and/or failure to perform Joseph’s duties
pursuant to this Agreement.
|
5. Intellectual
Property.
|
(a)
|
Any and all intellectual property (i) resulting
from the efforts of the Parties pursuant to this agreement and (b)
comprising or materially related to the Cancer Vaccine shall become
the property of Entest BioMedical, Inc., a Nevada corporation which
is a majority owned subsidiary of the Company.
|
|
(b)
|
Any and all intellectual property (i) resulting
from the efforts of the Parties pursuant to this agreement and (b)
not comprising or materially related to the Cancer Vaccine shall be
owned 50% by Therinject and 50% by Entest.
|
|
(c)
|
The Company shall have the right of first refusal
in regards to any sale or other assignment by any Party of any
intellectual property described in 5(b)
|
|
(d)
|
Execution of this Agreement shall bestow upon the
Company an exclusive worldwide license, not subject to any
expiration, to develop, manufacture, market and sublicense products
or services based on the intellectual property described in
5(b)
|
6. Expenses. Each Party to this
Agreement shall be responsible for their own expenses explained in
Exhibit D which may be incurred in connection with this Agreement
and the perf
