Contract
Exhibit 10.28
A. Xxxxx Xxxxxxxxxx, M.D.
Chief Executive Officer
September 2, 2004
Xxxxxxxxxx & Co., LLC
000 Xxxxxxxx Xxxxxxxxx
Xxxxx Xxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxxxxx
| Re: | Issuance of Common Stock to Xxxxxxxxxx & Co., LLC |
Reference is hereby made to the Engagement Agreement (the “Agreement”), dated January 15, 2004, by and between Xxxxxxxxxx & Co., LLC (“Xxxxxxxxxx”) and Corus Pharma, Inc., a Delaware corporation (“Corus”).
Pursuant to Section 4(b) of the Agreement, Corus agreed to issue Xxxxxxxxxx a warrant for a number of shares of common stock of Corus (“Common Stock”) to be calculated as set forth in Section 4(b) of the Agreement. Xxxxxxxxxx and Corus each desire to amend the terms of the Agreement to provide that Corus shall issue Common Stock directly to certain designees of Xxxxxxxxxx, each of which is an “accredited investor” within the meaning of the Securities Act of 1933, as amended, in the names and in the amounts set forth in Schedule A attached hereto, rather than issue Xxxxxxxxxx a warrant for such shares. The consideration for such shares shall be services provided by Xxxxxxxxxx to Corus pursuant to the Agreement. Xxxxxxxxxx and Corus agree that the aggregate number of shares of Common Stock to be issued to designees of Xxxxxxxxxx shall be 211,207.
In consideration of the foregoing and other good and valuable consideration, the receipt of which are hereby acknowledged, the parties agree as follows:
| 1. | The first paragraph of Section 4(b) of the Agreement is hereby amended to read in its entirety as follows: |
Financing Success Fee: Subject to the conditions provided below, Client shall pay XXXXXXXXXX a non-refundable cash fee (the “Financing Fee”) equal to the greater of (a) $750,000 or (b) an amount equal to five percent (5.0%) of the gross proceeds of any Financing, excluding 100% of the gross proceeds of any Financing provided by existing shareholders of Client (“Insider Participation”). In addition, subject to the conditions provided below, Client shall issue to certain designees of XXXXXXXXXX a number of shares of Client’s common stock as set forth beside each such designee’s name on Schedule A attached hereto.
| 2. | Except as expressly modified hereby, the Agreement shall continue in full force and effect. |
September 2, 2004
Page 2
To confirm the foregoing agreement between the parties, Xxxxxxxxxx and Corus should so indicate by signing below where provided.
Very truly yours,
CORUS PHARMA, INC.
By /s/ A. Xxxxx Xxxxxxxxxx MD
A. Xxxxx Xxxxxxxxxx
President and CEO
Acknowledged and Agreed,
XXXXXXXXXX & CO., LLC
By: /s/ Xxxxxx X. Xxxxxxxxxx
Name: Xxxxxx X. Xxxxxxxxxx
Title: Managing Director
September 2, 2004
Page 3
Schedule A
| Xxxxxxxxxx & Co., LLC |
105,603 | |
| Xxxxxx X. Xxxxxxxxxx |
52,802 | |
| Xxxxx X. Xxxxxxxx |
26,401 | |
| Xxxxx X. Xxxx |
26,401 |
