WWW.EXFILE.COM, INC. -- 888-775-4789 -- MEDIS TECHNOLOGIES LTD. -- EXHIBIT 10.5 TO FORM 8-K


    EXHIBIT
10.5

     

     

    CONSULTING
AGREEMENT

     

    This
CONSULTING AGREEMENT
(this “Agreement”) made as of the 16th 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.

     

    2. Term.

     

     

    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”).

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    3. Duties.

     

     

    (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.

     

    4. Compensation.

     

     

    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”).

    
      
        
        

      

      
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    (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 not disclose to anyone, other
than in connection with the provision of the Services hereunder, any
Confidential Information, or utilize such Confidential Information for his own
benefit, or the benefit of any third parties, during the Term or at any time
thereafter.  Consultant agrees that all Confidential Information is,
and shall remain, the property of the Company and its subsidiaries and
affiliates and that he does not have, nor will have in the future, a proprietary
interest therein.  Consultant further agrees to protect the
Confidential Information of the Company and that of its subsidiaries and
affiliates now and into the future and not to use, disclose or access such
Confidential Information except in connection with the provision of the
Services.  Consultant shall immediately notify the Company in the
event he becomes aware of or discovers any unauthorized disclosure of
Confidential Information and shall use his best efforts to regain possession of
such Confidential Information and to prevent any further unauthorized
disclosure.

     

    (d) The term
“Confidential Information” does not include information which (i) is or becomes
generally available to the public other than as a result of a disclosure by the
Consultant, (ii) was or becomes available to the Consultant on a
non-confidential basis from a source other than the Company or its
representatives,  (iii) is independently developed by the Consultant
without violating his obligations hereunder, or (iv) is disclosed pursuant to
the order or requirement of a court, administrative agency, or other government
body.

     

    7. No
License or Rights.  Consultant hereby
acknowledges and confirms that by virtue of this Agreement he obtains no license
or right to any copyright, trademark, trade name, patent or similar intangible
or intellectual property rights owned or licensed by the Company, its affiliates
or subsidiaries, or by any of their respective customers or clients, and he
shall make no use whatsoever (including in publicity for himself) of any of them
without the Company’s prior written consent.

     

    8. Agreement
to Return Property.  Upon any termination or expiration of the
Term, for any reason whatsoever, or upon the Company’s request at anytime,
Consultant agrees that he will immediately return to the Company all
Confidential Information (or copies thereof), documents, records and other
materials in any medium, which relate in any way to the Company or any of its
affiliates, subsidiaries, customers or clients, including notebooks,
correspondence, memos, computer files and databases, graphics and formulas,
whether prepared by Consultant or by others, whether copies or
originals.

    
      
        
        

      

      
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    9. Remedy.  Inasmuch as a
breach by Consultant of or his failure to comply with the provisions of Sections
6, 8 or 10 will cause serious and substantial damage to the Company and/or the
Company’s subsidiaries or affiliates, the Company shall be entitled to an
injunction against the Consultant restraining him from any such breach or
failure.  All remedies expressly provided for herein are cumulative of
any and all other remedies now existing at law or in equity.  In
addition to the remedies provided for herein, the Company shall be entitled to
avail itself of all such other remedies as may now or hereafter exist at law or
in equity for compensation and for the specific enforcement of the covenants and
agreements set forth in Sections 6, 8, and 10 and this Section
9.  Resort to any remedy provided for herein or provided for by law
shall not preclude or bar the concurrent or subsequent employment of any other
appropriate remedy or remedies or preclude the recovery by the Company of
monetary damages and other compensation.  

     

    10. Non-Disparagement.  During
the Term of this Agreement and at all times thereafter, the parties hereto shall
not defame, disparage, make negative statements about or act in any manner that
is intended to or does damage to the goodwill or reputation of the other (or in
the case of the Company, any of its subsidiaries or affiliates or its or their
respective customers or clients).

     

    11. Resignation.  Concurrently
with the execution and delivery of this Agreement, Consultant hereby
acknowledges and agrees that he hereby resigns, effective immediately, from any
and all positions held with the Company, including as an employee, officer and
director of the Company.

     

    12. Underlying
Agreement.  The parties hereto acknowledge that (i) this
Agreement is intended to supersede and therefore, terminate the Underlying
Agreement, (ii) that, as of the date hereof, the Underlying Agreement and any
and all amendments or addenda thereto shall be of no further force or effect,
including any and all provisions therein intended to survive the termination of
such agreement and (iii) that neither the Company nor Consultant have any
further obligations pursuant to the Underlying Agreement and any and all
amendments or addenda thereto.  The Company acknowledges and agrees
that is shall pay Consultant in accordance with his current payment schedule
pursuant to the Underlying Agreement through the Effective Date.

     

    13. Notices.  Any notice that,
under the terms of this Agreement or under any statute, must be or may be given
by the parties hereto shall be in writing and shall be given by personal
delivery, telecopy, mailing the same by certified or registered mail, return
receipt requested, postage-prepaid, addressed or by reputable overnight courier
to the parties at their respective addresses set forth above.  Either
party may designate, by notice in writing to the other, a new or other address
to which notices shall thereafter be given.  Any notice, request or
other communication required or permitted hereunder shall be deemed to have been
duly given (a) when received, if personally delivered, (b) within five (5) days
after being deposited with the United States Postal Service, if sent by
registered or certified mail, return receipt requested and postage prepaid, (c)
twelve (12) hours after being sent by telecopy, with confirmed answer back or
(d) within two (2) business days  after being deposited with an
established overnight courier for priority delivery.

    
      
        
        

      

      
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    14. Amendments.
This Agreement may be amended only by a writing executed by each of the parties
hereto.

     

    15. Entire
Agreement.  This Agreement sets forth the entire understanding
of the parties hereto with respect to the subject matter hereof and supersedes
all prior contracts, agreements, arrangements, communications, discussions,
representations and warranties, whether oral or written, among the
parties.

     

    16. Severability;
Waiver.

     

    (a) The
invalidity of any portion hereof shall not affect the validity, force or effect
of the remaining portions hereof.

     

    (b) Except as
otherwise provided herein, either party hereto may waive in writing compliance
by the other party hereto (to the extent such compliance is for the benefit of
the party giving such waiver) with any of the terms, covenants or conditions
contained in this Agreement (except such as may be imposed by
law).  Any waiver by any party of any violation of, breach of or
default under any provision of this Agreement by the other party shall not
constitute or be construed as a continuing waiver of such provision or a waiver
of any other violation of, breach of or default under any other provision of
this Agreement.

     

    17. Assignment.  This Agreement
shall be binding upon and inure to the benefit of the successors and assigns of
each of the parties hereto, but no rights, obligations or liabilities hereunder
shall be assignable by either party without the prior written consent of the
other party.  Notwithstanding the foregoing, the Company may assign
its rights and obligations under this Agreement to an affiliate or subsidiary
and cause such affiliate or subsidiary to perform the obligations of the Company
under this Agreement; provided, however, that no such assignment shall otherwise
vary or diminish any of the Company’s rights or obligations under this
Agreement.

     

    18. Survival.  The
provisions of Sections 6 through 22 will survive the termination of this
Agreement.

     

    19. Governing
Law.  This Agreement
shall be governed by and construed in accordance with the laws of the State of
New York, without giving effect to the principles of conflict of law thereof
(other than Section 5-1401 of the General Obligations Law of the State of New
York).

     

    20. Jurisdiction.  Except
as otherwise set forth in this Agreement, any action, suit or proceeding seeking
to interpret or enforce any provision of, or based on, arising out of, or in any
way related to, any right, obligation or matter set forth in this Agreement may
be brought in the courts located in New York County, New York, and each of the
parties consents to the jurisdiction of such courts (and the appropriate
appellate courts) in any such action, suit or proceeding and waives any
objection to jurisdiction and venue laid therein.  Process in any
action, suit or proceeding referred to in this preceding sentence may be served
on any party anywhere in the world.  The parties agree that either
party may seek enforcement of the judgment so rendered by such court in any
court having jurisdiction thereof.

    
      
        
        

      

      
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    21. Representations and
Warranties.

     

     

    (a) This
Agreement has been duly executed and delivered by each of the Company and the
Consultant and constitutes the valid and binding agreement of each of the
Company and the Consultant, enforceable against each such party in accordance
with its terms, except as enforcement thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting the
enforcement of creditors’ rights in general.

     

     

    (b) The
Company hereby represents and warrants that the any actions taken or not taken
by Consultant during such time Consultant was an officer or director of the
Company shall continue to be subject to coverage provided pursuant to the terms
and conditions of the Company’s Directors and Officers liability insurance
policy.

     

    22. Headings.  The headings in
this Agreement are solely for convenience of reference and shall not be given
any effect in the construction or interpretation of this Agreement.

     

    23. Counterparts.  This Agreement
may be executed in separate counterparts, each of which is deemed an original
and all of which taken together shall constitute one and the same
agreement.

     

    24. Gender
and Number.  The masculine, feminine or neuter gender and the
singular or plural number shall each be deemed to include the other or others
whenever the context so indicates.

     

    


     

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    IN WITNESS WHEREOF, the
undersigned have caused this instrument to be executed upon the day and date
first above written.

     

     

    
      
        
          
            	 	MEDIS TECHNOLOGIES
      LTD.	 
	 	 	 	 
	
                     

                  	
                    By:

                  	/s/ Jose
    Mejia	 
	 	 	Name: Jose
      Mejia	 
	 	 	Title: President
      and CEO	 
	 	 	 	 
	 	 	/s/ Robert K.
      Lifton	 
	 	 	ROBERT K.
      LIFTON 	 


          

        

      

    

     

     

     

     

    
      
        
        

      

      
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