Exhibit 10.1
Finder's Agreement
The purpose of this Agreement is to set forth Immtech International Inc.'s
("Immtech") arrangements for doing business with Xx. Xxxxxx Ming Tak ("Finder")
on a "finder's fee" basis.
1 Finder has and will act as the Immtech's non-exclusive agent in China to
develop and qualify potential strategic partners ("Qualified Leads") and has
and will, among other things, render the following services to Immtech.
A. Identify and negotiate with Qualified Leads in China;
B. Assist in the arrangement for testing and/or the commercialization
of new products developed by Immtech with Qualified Leads in China;
and
C. Develop the pharmaceutical market in China for Immtech's products.
2 Upon the execution of this Agreement, Immtech will pay the Finder, in the
Company's sole discretion, either (i) US $750,000 or (ii) 150,000 shares
of Immtech's common stock, $0.01 par value ("Shares"), as compensation for
Finder's services. In the event Immtech pays the Finder in Shares, Immtech
will use commercially reasonable means to register the Shares for resale
on Form S-3 under the Securities Act of 1933, as amended ("Securities
Act").
3 Finder promises that it has not and will nor enter into any similar
arrangement with any third party without the prior written consent of
Immtech. Finder further understands that the "finder's fee" arrangement
set forth herein is considered to provide Immtech an advantage over its
competition. Therefore, Finder agrees to maintain all information
pertaining to this Agreement in the strictest of confidence and agrees not
to disclose it, in whole or in part or in any manner to third party.
4 In connection with the providing of services as set forth in this
Agreement, Immtech has and may provide the Finder with information
concerning Immtech which Immtech deems confidential (the "Confidential
Information"). The Finder understands and agrees that any Confidential
Information is secret, proprietary and of great value to Immtech, which
value may be impaired if the secrecy of such information is not
maintained. The Finder further agrees that he has and will take reasonable
security measures to preserve and protect the secrecy of such Confidential
Information and to hold such information in confidence and not to disclose
such information, either directly or indirectly to any person or entity
during the term of this agreement or any time following the expiration or
termination hereof; provided, however, that the Finder may disclose the
Confidential Information to an assistant to whom disclosure is necessary
for the providing of services under this agreement.
5 Immtech hereby represents and warrants to the Finder that as of the date
hereof:
A. Authorization of Agreement. Immtech has taken all actions and obtain
all consents or approvals necessary to authorize it to enter into
this Agreement.
B. Authorization and Validity of Shares. The Shares, when issued, will
be duly authorized and validly issued, fully paid and non-assessable
and free of any preemptive rights or to any lien, pledge, security
interest or other encumbrance.
6 Indemnification.
A. Immtech shall indemnity the Finder from and against any and all
expenses (including attorneys' fees), judgments, fines, claims,
cause of action, liabilities and other amounts paid (whether in
settlement or otherwise actually and reasonably incurred) by the
Finder in connection with such action, suit or proceeding if (i) the
Finder was made a party to any action, suit or proceeding by reason
of the fact that the Finder rendered advice or services pursuant to
this Agreement, and (ii) the Finder acted in good faith and in a
manner reasonably believed by the Finder to be in or not opposed to
the interests of Immtech, and with respect to any criminal action or
proceeding, had no reasonable cause or believe his conduct was
unlawful.
B. The Finder shall indemnify Immtech from and against any and all
expenses (including attorneys' fees), judgments, fines, claims,
causes of action, liabilities and other amounts paid (whether in
settlement or otherwise actually and reasonably incurred) by Immtech
in connection with such action, suit or proceeding if (i) Immtech
was made a party to any action, suit or proceeding by reason of the
fact that the Finder rendered advice or services pursuant to this
Agreement, and (ii) the Finder did not act in good faith and in a
manner reasonably believed by Immtech to be in or not opposed to the
interests of Immtech, and with respect to any criminal action or
proceeding, did not reasonably believe his conduct was lawful.
7 It is expressly understood and agreed that this is a consulting agreement
only and does not constitute an employer-employee relationship.
8 All notices provided by this Agreement shall be in writing and shall be
given by facsimile transmission, overnight courier, by registered mail or
by personal delivery, by one party to the other, addressed to such other
parry at the applicable address set forth below, or to such other address
as may be given for such purpose by such other party by notice duly given
hereunder. Notice shall be deemed properly given on the date of the
delivery.
If to Finder: If to Immtech:
Xx. Xxxxxx Ming Tak Immtech International Inc.
19 A, Dragon View Garden 000 Xxxxxxx Xxxxx, Xxxxx 000
00 Xxx Xxx Xxxxxx Xxxx Xxxxxx Xxxxx, Xxxxxxxx 00000 XXX
Hong Kong Attention: T. Xxxxxxx Xxxxxxxx
9 Miscellaneous.
A. Waiver. The waiver by Company or the Finder of any action, right or
condition in this Agreement, or of any breach of a provision of this
Agreement shall not constitute a waiver of any other occurrences of
the same event.
B. Entire Agreement; Amendments. This Agreement contains the entire
agreement between the parties hereto, and supersedes all prior
agreements, written or oral, with respect to the subject matter
hereof. Any variation to this Agreement must be made in writing and
signed by both parties.
C. Governing Law. This Agreement shall be construed and interpreted in
accordance with the laws of the State of New York, without regard to
its laws regarding conflict of laws other than G.O.L. Section
5-1401.
D. Binding Effect. This Agreement shall bind and inure to the benefit
of the parties hereto and their respective heirs, executors,
administrators, successors and assigns.
E. Construction. The captions and headings construed herein are
inserted for convenient reference only, are not a part hereof and
the same shall not limit or construe the provisions to which they
apply.
F. Expenses. Each party shall pay and be responsible for the cost and
expenses, including, without limitations, attorneys' fees, incurred
by such party in connection with negotiation, preparation and
execution of this Agreement and the transactions contemplated
hereby.
G. Assignment. No party hereto may assign any of its rights or delegate
any of its obligations under this Agreement without the express
written consent of the other party hereto.
H. Counterparts. This Agreement may be executed simultaneously in two
counterparts, each of which shall be deemed an original, but both of
which together shall constitute one and the same agreement, binding
upon both parties hereto, notwithstanding that both parties are not
signatories to the original or the same counterpart.
I. Consent to Arbitration. The parties hereto agree to try to settle
any disputes, controversies, differences or claims that may arise
between us in respect of this Agreement amicably through mutual
consultation. Failing such mutual settlement, a dispute,
controversy, difference or claim shall exclusively and finally be
settled by confidential arbitration to be held in New York City, in
accordance with the rules of the American Arbitration Association
then in effect, except as discussed below in the section, "Enforcing
the Non-Compete Provision." There shall be three arbitrators, one
selected by Finder, one selected by Immtech and the third selected
by the two so selected. The arbitrators shall have no authority to
amend the terms of this Agreement directly or indirectly. Any award
of the arbitrators may be entered as a judgment in any court having
jurisdiction.
J. Enforcing the Non-Compete Provision. Nothing in the foregoing
section, "Consent to Arbitration," will limit the right of the
Company to seek injunctive relief from any court of competent
jurisdiction in order to enforce the confidentiality provision
above.
K. Headings. The section headings in this Agreement are for reference
purposes only and shall not be deemed to be a part of this Agreement
or to affect the meaning or interpretation of this Agreement.
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be
executed on its behalf by a duly authorized signatory, in each case as of June
28, 2002.
Immtech International, Inc.
/s/ Xxxxxx Xxxx Tak By: /s/ T. Xxxxxxx Xxxxxxxx
--------------------------------- -------------------------------------
Xxxxxx Xxxx Tak T. Xxxxxxx Xxxxxxxx
President and Chief Executive Officer
