MASTER SERVICES AGREEMENT
Exhibit
10.6
This
Master Servicecs Agreement (this “Agreement”) is made and entered into effective
as of October 26, 2010, by and between InVivo Therapeutics Holdings Corp., a
Nevada corporation (the “Company”), and Xxxxxxx Xxxxx Ventures, Inc., a Delaware
corporation (the “Advisor”).
(1) The
Company hereby engages the Advisor and the Advisor hereby agrees to render
advisory and consultative services to the Company.
(2)
During the Term (as defined in Section 3 below) of this Agreement, the Advisor
shall provide advice to, and consult with, the Company concerning financial
planning, corporate organization and structure, marketing, collaborative
innovation, financial matters in connection with the operation of the business
of the Company, private and public equity and debt financing, acquisitions,
mergers and other similar business combinations, and other matters relating to
strategies to maximize shareholder value, and shall review and advise the
Company regarding its overall progress, needs and financial condition. The
Advisor is not obligated to devote any specific amount of time to providing
advice and consultation to the Company.
(3) This
Agreement shall remain in full force and effect for a period of
twenty-four (24) months after the date hereof (the
“Term”).
(4) The
Company shall compensate the Advisor by paying a monthly service fee
of $5,000, with the first payment to be made on the date hereof and
subsequent payments to be made on the last business day of each month of the
Term commencing with the month of November, 2010.
(5)
Advisor is an independent contractor and financial advisor and is not an
employee or agent of the Company and it shall have no authority to bind the
Company in any manner whatsoever.
(6) The
Advisor will not disclose to any other person, firm, or corporation, nor use for
its own benefit, during or after the term of this Agreement, any trade secret or
other information designated as confidential by the Company which is acquired by
the Advisor in the course of performing services hereunder (“Confidential
Information”). Confidential Information for purposes of this Agreement does not
include information which (i) is already in the Advisor’s possession without any
obligation of confidentiality, (ii) becomes generally available to the public
other than as a result of a disclosure by the Advisor or any of its employees,
agents or representatives or (iii) becomes available to the Advisor on a
non-confidential basis from a source other than the Company or its agents,
advisors or representatives when such source is, to the best of the
Advisor’s knowledge, entitled to make such disclosure.
(7) Any
advice rendered by the Advisor pursuant to this Agreement may not be disclosed
publicly in any manner, nor will any announcements or press releases be made
concerning this Agreement, without the prior written approval of the Advisor,
unless required by the Securities and Exchange Commission or FINRA rules and
regulations.
(8) The
Company agrees to indemnify and hold the Advisor, its affiliates, control
persons, officers, employees and agents (collectively, the “Indemnified
Persons”)
harmless from and against all losses, claims, damages, liabilities, costs or
expenses (including reasonable attorneys' and accountants’ fees) joint and
several, arising out of the performance of this Agreement, whether or not the
Advisor is a party to such dispute. This indemnity shall not apply, however,
where a court of competent jurisdiction has made a final determination that the
Advisor engaged in gross negligence or willful misconduct in the performance of
its services hereunder which gave rise to the loss, claim, damage, liability,
cost or expense sought to be recovered hereunder (but pending any such final
determination, the indemnification and reimbursement provision of this Agreement
shall apply and the Company shall perform its obligations hereunder to reimburse
the Advisor for its expenses). The provisions of this paragraph (8)
shall survive the Term of this Agreement for a period of one (1)
year.
(9) The
provisions of this Agreement shall be binding upon and shall inure to the
benefit of the parties hereto, their heirs, legal representatives, successors
and assigns. This Agreement may not be assigned and cannot be
modified or changed, nor can any of its provisions be waived, except by written
agreement signed by both parties. This Agreement constitutes the entire
agreement of the parties pertaining to the subject matter hereof, and the
parties have made no agreements, representations or warranties relating to the
subject matter of this Agreement that are not set forth herein. The
waiver by either party of compliance with any provision of this Agreement by the
other party shall not operate or be construed as a waiver of any other provision
of this Agreement, or of any other breach by such party of a provision of this
Agreement. This Agreement may be executed simultaneously in any
number of counterparts, each of which when so executed and delivered shall be
taken to be an original; but such counterparts shall together constitute but one
and the same document. The provisions of this Agreement shall be
deemed severable, so that if any provision hereof shall be declared unlawful or
unenforceable, the remaining provisions hereof shall not be affected thereby and
shall remain in full force and effect. A facsimile signature on this
Agreement shall be considered the same as an original.
(10) This
Agreement shall be governed by and construed in accordance with the laws of the
State of New York. Any controversy or claim arising out of, or relating to, this
Agreement, to the making, performance, or interpretation of it, shall be settled
by arbitration in New York City, New York unless otherwise mutually agreed upon
by the parties, under the commercial arbitration rules of the American
Arbitration Association then existing before a single arbitrator, and any
judgment on the arbitration award may be entered in any court having
jurisdiction over the subject matter of the controversy. If any legal
action or any arbitration or other proceeding is brought for the enforcement of
this Agreement, or because of an alleged dispute, breach, default, or
misrepresentation in connection with any of the provisions of this Agreement,
the successful or prevailing party or parties shall be entitled to recover
reasonable attorney's fees and other costs incurred in that action or
proceeding, in addition to any other relief to which it or they may be
entitled.
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(11) Any
notice hereunder shall be in writing and delivery thereof shall be complete if
delivered in person, by facsimile or mailed by overnight mail, or registered or
certified mail, postage prepaid to the following addresses (unless changed by
written notice):
|
Advisor:
|
Xxxxxxx
Xxxxx Ventures, Inc.
|
000 Xxxxxxx Xxx., 00xx
Xxxxx
Xxx Xxxx, XX 00000
Attention: President
|
Company:
|
Xxx
Xxxxxxxx, 00xx
Xxxxx
Xxxxxxxxx,
XX 00000
Attention:
Chief Executive Officer
IN WITNESS WHEREOF, this
Agreement has been executed by the parties hereto as of the date first above
written.
| INVIVO THERAPEUTICS HOLDINGS CORP. | XXXXXXX XXXXX VENTURES, INC. | ||||
| By: |
/s/
Xxxxx Xxxxxxxx
|
By: |
/s/ Xxxx
Xxxxxxxxxxx
|
||
| Xxxxx Xxxxxxxx | Xxxx Xxxxxxxxxxx | ||||
|
Chief
Executive Officer
|
President
|
||||
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