Spencer Trask Ventures, Inc.
Exhibit
10.3
Xxxxxxx Xxxxx Ventures, Inc.
000
Xxxxxxx Xxx 00xx Xxxxx
Xxx Xxxx,
XX 00000
August
18, 2010
InVivo
Therapeutics Corporation
Xxx
Xxxxxxxx, 00xx Xxxxx
Xxxxxxxxx,
Xx. 00000
Attention: Xxxxx
Xxxxxxxx, Chief Executive Officer
Dear Xx.
Xxxxxxxx:
This will
confirm our agreement that InVivo Therapeutics Corporation, a Delaware
corporation (the “Company”) has engaged Xxxxxxx Xxxxx Ventures, Inc. (“Xxxxxxx
Xxxxx”) to act as a non-exclusive finder for the Company with respect to
locating investors to participate in a bridge financing transaction of up to
$500,000 of 6% Convertible Promissory Notes (the “Notes”), together with warrant
coverage (the “Bridge Financing”).
In that regard, Xxxxxxx Xxxxx may
introduce the Company to accredited investors, which may include, high net worth
individuals, corporations, partnerships, mutual funds, hedge
funds, investment partnerships, securities firms, lending and other institutions
and entities for the purposes of participating in the Bridge
Financing. Upon each closing of the Bridge Financing, Xxxxxxx Xxxxx
will be paid a finder’s fee equal to 20% warrant coverage, based on the number
of shares of Common Stock underlying the warrants included in the Units sold in
the Bridge Financing, which warrants will be exercisable for a five-year period
into shares of the Company’s common stock at the same price as paid by investors
in the Bridge Financing and, upon conversion of the Notes in connection with a
“Qualified Next Round Financing”, as defined in the Notes, the same cash and
warrant compensation and expense allowance with respect to the Notes so
converted as is paid to the placement agent in connection with the Next
Round.
For the benefit of Xxxxxxx Xxxxx, the
Company hereby incorporates by reference all of its representations and
warranties as set forth in Section 2 of the Securities Purchase Agreement being
entered into between the Company and prospective Investors, with the same force
and effect as if specifically set forth herein.
The
Company shall indemnify and hold Xxxxxxx Xxxxx and its affiliates and their
respective directors, officers, employees, agents and controlling persons
harmless from and against all losses, claims, damages, judgments, assessments,
costs, expenses and other liabilities (“Liabilities”), including legal fees,
arising from or in any way related to: (A) actions or alleged actions taken or
omitted to be taken (including any untrue statements or alleged untrue
statements made or any statements omitted to be made in the offering materials
that are disseminated in connection with the Bridge Financing) by the Company or
(B) are otherwise related to or arise out of Xxxxxxx Xxxxx’x activities on the
Company’s behalf or the advice or services rendered or to be rendered by Xxxxxxx
Xxxxx hereunder; provided, however, the Company shall not be responsible for any
Liabilities pursuant to clause (B) or this sentence which are determined by a
court of competent jurisdiction in a final judgment which is no longer subject
to appeal or further review to have resulted solely from the gross negligence or
willful misconduct of Xxxxxxx Xxxxx.
InVivo
Therapeutics Corporation
August
18, 2010
Page 2 of 3
This
Agreement shall be deemed to have been made and delivered in New York City and
shall be governed as to validity, interpretation, construction, affect and in
all other respects by the internal laws of the State of New York. The
parties agree that any dispute, claim or controversy directly or indirectly
relating to or arising out of this Agreement, the termination or validity
hereof, any alleged breach of this Agreement or the engagement contemplated
hereby (any of the foregoing, a “Claim”) shall be submitted to the Judicial Arbitration and Mediation Services,
Inc.
(JAMS), or its successor, in New York, for final and binding arbitration
in front of a panel of three arbitrators with JAMS in New York, New York under
the JAMS Comprehensive Arbitration Rules and Procedures (with each of Xxxxxxx
Xxxxx and the Company choosing one arbitrator, and the chosen arbitrators
choosing the third arbitrator). The arbitrators shall, in their award,
allocate all of the costs of the arbitration, including the fees of the
arbitrators and the reasonable attorneys’ fees of the prevailing party, against
the party who did not prevail. The award in the arbitration shall be
final and binding. The arbitration shall be governed by the Federal
Arbitration Act, 9 U.S.C. Sec.1-16, and the judgment upon the award rendered by
the arbitrators may be entered by any court having jurisdiction thereof.
The Company and Xxxxxxx Xxxxx agree and consent to personal jurisdiction,
service of process and venue in any federal or state court within the State and
County of New York in connection with any action brought to enforce an award in
arbitration.
The
Company represents that (i) it has the corporate power and authority to enter
into and perform its obligations under this Agreement and all corporate action
necessary for the authorization, execution, delivery and performance of this
Agreement has been taken. This letter agreement (i) may not be
assigned by either party without prior written consent of the other party, (ii)
may not by modified or amended except in writing, (iii) may be executed in
counterparts each of which shall be deemed to be an original and all of which
shall constitute one agreement and (iv) shall be binding upon and inure to the
benefit of the parties and their respective permitted successors, assigns and
legal representatives.
[SIGNATURE
PAGE FOLLOWS]
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InVivo
Therapeutics Corporation
August
18, 2010
Page 3 of 3
If the foregoing accurately reflects
our understanding, please so indicate by signing in the space provided
below.
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Sincerely,
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XXXXXXX
XXXXX VENTURES, INC.
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By:
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/s/ Xxxx Xxxxxxxxxxx
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Name: Xxxx Xxxxxxxxxxx
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Title:
President
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Agreed to
and Accepted
As of
date set forth above
INVIVO
THERAPEUTICS CORPORATION
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By:
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/s/ Xxxxx Xxxxxxxx
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Name:
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Xxxxx
Xxxxxxxx
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Title:
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Chief
Executive Officer
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