SERVICES AGREEMENT
This
AGREEMENT (this “Agreement”)
is
dated as of October 15, 2008, by and among XTL Biopharmaceuticals Ltd., a public
company limited by shares organized under the laws of Israel (the “Company”),
Quogue Bioventures LLC, a limited liability company formed under the laws of
the
State of Delaware (“Quogue”),
and
Antecip Bioventures LLC, a limited liability company formed under the laws
of
the State of Delaware (“Antecip”,
with
each of Quogue and Antecip to be referred to collectively as “Finders”
and
each as a “Finder”).
This
Agreement is effective as of January 15, 2007 (the “Effective
Date”).
WHEREAS,
the Company engaged Xxxxx Xxxxxxxx and Xxxxxxx Xxxxxxxx to provide certain
business development activities for XTL Development, Inc., an indirect
subsidiary of the Company (“XTL
Development”);
WHEREAS,
as a result of the business development activities performed by Xxxxx Xxxxxxxx
and Xxxxxxx Xxxxxxxx, XXX Pharmaceuticals, Inc. (“DOV
Pharmaceuticals”)
and
XTL Development entered into an agreement, dated as of January 15, 2007, for
the
licensing, development and commercialization of bicifadine (the “License
Agreement”);
WHEREAS,
the Company, XTL Development, Xxxxx Xxxxxxxx and Xxxxxxx Xxxxxxxx entered into
that certain binding term sheet, dated as of January 15, 2007, setting forth
in
summary terms of the compensation payable by the Company to Xxxxx Xxxxxxxx
and
Xxxxxxx Xxxxxxxx, or their designees, for the services provided by them to
the
Company in connection with the License Agreement (the “Term
Sheet”);
WHEREAS,
the Company, and each of Quogue and Antecip, as designees of Xxxxx Xxxxxxxx
and
Xxxxxxx Xxxxxxxx, respectively, desire to more fully set forth the terms and
conditions of the aforementioned services and compensation;
NOW
THEREFORE, the parties to this Agreement, intending to be legally bound hereby,
agree as follows:
1. Services.
The
parties acknowledge and agree that the Finders successfully performed certain
business development and other related activities, on behalf of XTL Development,
for a licensing, development and/or commercialization arrangement with respect
to bicifadine, and XTL Development and DOV Pharmaceuticals subsequently entered
into the License Agreement.
2. Compensation.
(a) As
compensation to the Finders for their services, the Company hereby grants stock
appreciation rights to each Finder pursuant to a Stock Appreciation Rights
Agreement in the form of Attachment
A
hereto
(the “Stock
Appreciation Rights Agreements”),
and
corresponding registration rights pursuant to a Registration Rights Agreement
in
the form of Attachment
B
hereto
(the “Registration
Rights Agreements”).
(b) The
stock
appreciation rights granted to the Finders shall correspond to 27,665,742
ordinary shares of the Company (to be allocated in equal amounts to each
Finder). The grant shall be effective as of the Effective Date, with the per
share xxxxx xxxxx of $0.34.
3. Indemnification.
(a) The
Company shall, and shall cause XTL Development, to indemnify each Finder, and
such Finder’s affiliates, officers, directors, employees, membership interest
holders, agents and representatives (each of the foregoing, a “Finder
Indemnitee”)
against any claims, losses, damages, liabilities and costs (including attorneys
fees) (“Losses”)
incurred by such Finder (including in connection with any claim or action
brought by a third party) as a result of the stock appreciation rights, any
other transaction documents, the transactions contemplated hereunder (including,
but not limited to, the in-licensing of bicifadine or the development and/or
commercialization of bicifadine), including as a result of actions or omissions
by agents, representatives, or employees of the Company or XTL Development,
except to the extent any such Losses result from the gross negligence or willful
misconduct of the applicable Finder Indemnitee.
(b) Expenses
incurred by a Finder Indemnitee in defending a claim or proceeding covered
by
this Section 3 shall be paid by the Company to such Finder Indemnitee in advance
of the final disposition of such claim or proceeding provided such Finder
Indemnitee undertakes to repay such amounts if it is ultimately determined
that
such Finder Indemnitee was not entitled to be indemnified under this Section
3.
4. Right
of First Negotiation.
In
the
event XTL Development seeks to terminate the License Agreement, the Company
shall cause XTL Development to first offer to negotiate with the Finders an
assignment and transfer of XTL Development’s rights and obligations under the
License Agreement to the Finders. If the Finders so elect, the Company shall
cause XTL Development to exercise commercially reasonable efforts to negotiate
such an assignment and transfer with the Finders, and to cooperate reasonably
to
obtain any necessary consents therefore, including, without limitation, from
DOV
Pharmaceuticals.
5. Expenses.
The
Company agrees that, within thirty (30) days after its receipt of any applicable
invoices delivered by a Finder from time to time, the Company shall reimburse
such Finder for all legal fees reasonably incurred by it and set forth in such
invoice(s) in connection with the transactions contemplated hereunder,
including, without limitation, the drafting and negotiation of this Agreement,
the related stock appreciation rights agreements, the related registration
rights agreements, and the Term Sheet, provided, however, that the aggregate
of
reimbursements owed by the Company pursuant to this Section 5 shall not exceed
$100,000.
6. Confidentiality.
(a) During
the term of this Agreement and for a period of five (5) years thereafter, each
Finder will hold all Confidential Information in confidence, and will not
disclose, use, copy, publish, summarize, or remove from the premises of the
Company any Confidential Information, except as necessary to carry out its
responsibilities hereunder. “Confidential
Information”
means
all information related to any aspect of the business of the Company or any
of
its affiliates which is either information not known by actual or potential
competitors of the Company or any of its affiliates or is proprietary
information of the Company or any of its affiliates, whether of a technical
nature or otherwise. Confidential Information is to be broadly defined and
includes but is not limited to confidential information received from third
parties which is not in the public domain, products, inventions, innovations,
ideas, discoveries, disclosures, designs, methods, formulas, patterns,
compilations, software, databases, programs, trade secrets, works of authorship,
developmental or experimental work, systems, devices, processes, techniques,
improvements, know-how, licenses, data, reagents, gene sequences, cell lines,
assays, algorithms, data tests, patents, patent applications, trademarks,
intellectual properties, instruments, materials, products, patterns,
compilations, programs, techniques, sequences, designs, research or development
activities and plans, specifications, computer programs, models, results,
analyses, costs of production, prices, budgets, financial information and
forecasts, product plans, marketing plans and strategies, volume of sales,
promotional methods, agreements and lists of names or classes of customers
or
personnel, and lists of suppliers, business plans, business opportunities,
or
financial statements.
2
(b) Notwithstanding
the foregoing, with respect to each Finder, “Confidential
Information”
does
not include information that, as evidenced by written records: (i) is or later
becomes available to the public through no breach of this Agreement by such
Finder; (ii) is obtained by such Finder from a third party who had the legal
right to disclose the information to such Finder; (iii) is already in the
possession of such Finder on the date this Agreement becomes effective, as
evidenced by written records; or (iv) was developed by such Finder independently
of the performance of their services hereunder and without the use, directly
or
indirectly, of any Confidential Information.
(c) In
the
event a Finder is required by law, government regulation or court order to
disclose any Confidential Information, such Finder shall provide prompt written
notice to the Company in order to permit the Company and its affiliates the
maximum time to obtain protective or confidential treatment of the Confidential
Information prior to disclosure.
7. Independent
Contractor.
The
parties acknowledge and agree that each Finder has performed its services
hereunder as an independent contractor, and nothing in this Agreement will
in
any way be construed to constitute such Finder as an agent, partner, joint
venturer, employee or representative of the Company. No Finder, nor any agent
acting on behalf of any Finder, will enter into any agreement or incur any
obligations on the Company’s behalf or commit the Company in any manner or make
any representations, warranties or promises on the Company’s behalf or hold
itself (or allow itself to be held) as having any authority whatsoever to bind
the Company without the Company’s prior written consent, or attempt to do any of
the foregoing.
3
8. Assignment
and Transfers.
This
Agreement may not be assigned by the Company without the prior written consent
of the Finders, except to any Affiliate of the Company or in connection with
the
acquisition (whether by merger, consolidation, sale or otherwise) of the Company
or all or substantially all of the assets of the Company by a third party.
This
Agreement may not be assigned by any Finder without the prior written consent
of
the Company. For purposes of this Section 8, an “Affiliate” of the Company shall
mean a third-party that directly or indirectly controls, is controlled by,
or is
under common control with, the Company.
9. Amendments;
Waiver.
No
modification to any provision of this Agreement shall be binding unless in
writing and signed by the Company and the Finders. No waiver of any rights
under
this Agreement will be effective unless in writing signed by the party to be
charged.
10. Applicable
Law; Venue.
The
validity, construction, interpretation and effect of this Agreement shall be
governed by and construed in accordance with the laws of the State of New York,
USA, without giving effect to the conflicts of laws provisions thereof. The
Finders and the Company hereby irrevocably and unconditionally consent to submit
to the exclusive jurisdiction of the courts of the State of New York, USA and
of
the United States of America located in the State of New York, USA for any
actions, suits or proceedings arising out of or relating to this Agreement.
The
Finders and the Company hereby irrevocably and unconditionally waive any
objection to the laying of venue of any action, suit or proceeding arising
out
of this Agreement, in the courts of the State of New York, USA or the United
States of America located in the State of New York, USA and hereby further
irrevocably and unconditionally waive and agree not to plead or claim in any
such court that any such action, suit or proceeding brought in any such court
has been brought in an inconvenient forum. In the event of any legal proceedings
brought by the Company or any Finder in connection with the matters contemplated
under this Agreement, the non-prevailing party shall reimburse the prevailing
party for all legal fees reasonably incurred by such prevailing party in
connection with the relevant dispute(s) promptly after the issuance of any
final
judgment with respect to such dispute(s).
11. Notices.
All
notices and other communications under this Agreement shall be in writing and
shall be given by personal or courier delivery, facsimile, electronic
transmission or certified mail, return receipt requested, and shall be deemed
to
have been duly given upon receipt if personally delivered or delivered by
courier, on the date of transmission if transmitted by facsimile or other
electronic means, or three days after mailing if mailed via first class mail,
to
the addresses of the Company and the Finders set forth below:
| (a) |
if
to the Company, to:
|
000
Xxxxxxxxx Xxxxxxxxx, Xxxxx X
Xxx
Xxxx,
XX 00000
Attention:
Xxx Xxxxxxx
Facsimile:
(000) 000-0000
4
with
a
copy to:
Xxxxxx
& Bird LLP
00
Xxxx
Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attn:
Xxxx X. XxXxxxxxx, Esq.
Facsimile:
(000) 000-0000
and:
Xxxxxx
& Co. – Law Offices
Xx
Xxxxx,
00xx
Xxxxx
00
Xxxx
Xxxxxx Silver Road
Ramat
Gan, Israel 52506
Attn:
Xxxxx Xxxxxx
Facsimile:
+ 972-3-6133372
| (b) |
if
to Quogue, to:
|
Quogue
Bioventures LLC
c/o
Quogue Capital LLC
1285
Avenue of the Xxxxxxxx, 00xx
Xxxxx
Xxx
Xxxx,
XX 00000
Attention:
Xxxxx Xxxxxxxx
Facsimile:
(000) 000-0000
with
a
copy to:
Xxxxxx,
Xxxxx & Xxxxxxx LLP
000
Xxxx
Xxxxxx
Xxx
Xxxx,
XX 00000
Attention:
Xxxx Wider, Esq.
Facsimile:
(000) 000-0000
| (c) |
if
to Antecip, to:
|
Antecip
Bioventures LLC
000
Xxxxx
Xxxxxx, Xxxxx 0000
Xxx
Xxxx,
XX 00000
Attention:
Xxxxxxx Xxxxxxxx
Facsimile:
(000) 000-0000
5
with
a
copy to:
Xxxxxx,
Xxxxx & Bockius LLP
000
Xxxx
Xxxxxx
Xxx
Xxxx,
XX 00000
Attention:
Xxxx Wider, Esq.
Facsimile:
(000) 000-0000
Any
party
may change such party’s address for notices by notice duly given pursuant to
this Section 11.
12. Validity.
If
any
provision of this Agreement is determined to be invalid in whole or in part
for
any reason, such unenforceable or invalid provision shall not affect the
legality, enforceability or validity of the rest of this Agreement. If any
provision is stricken in accordance with the previous sentence, then the
stricken provision shall be replaced with a legal, enforceable and valid
provision that is as similar in tenor to the stricken provision as is legally
possible. The provisions of this Agreement are intended solely for the benefit
of the Company and the Finders, and their respective permitted
assigns.
13. Further
Assurances.
The
parties shall execute and deliver all such further instruments and documents
and
take all such other actions as may reasonably be required to carry out the
transactions contemplated hereby and to evidence the fulfillment of the
agreements herein contained.
14. Entire
Agreement.
This
Agreement, together with the Stock Appreciation Rights Agreements and the
Registration Rights Agreements, constitutes and contains the entire agreement
and understanding between the parties with respect to the subject matter hereof
and supersedes any prior or contemporaneous oral or written arrangements or
understandings, including, without limitation, the Term Sheet. Each party
acknowledges and agrees that they have not made any representations, warranties
or agreements of any kind regarding the subject matter hereof, except as
expressly set forth in this Agreement, the Stock Appreciation Rights Agreements
or the Registration Rights Agreements.
[Signature
Page Follows]
6
IN
WITNESS WHEREOF, the parties have executed this Finders’ Agreement as of the
date first written above.
|
By:
|
/s/
Xxx Xxxxxxx
|
|
Xxx
Xxxxxxx
|
|
|
Chief
Executive Officer
|
|
|
XTL
DEVELOPMENT, INC.
|
|
|
By:
|
/s/
Xxx Xxxxxxx
|
|
Xxx
Xxxxxxx
|
|
|
President
|
|
|
QUOGUE
BIOVENTURES LLC
|
|
|
By:
|
/s/
Xxxxx Xxxxxxxx
|
|
Xxxxx
Xxxxxxxx
|
|
|
Manager
|
|
|
ANTECIP
BIOVENTURES LLC
|
|
|
By:
|
/s/
Xxxxxxx Tabuteau
|
|
Xxxxxxx
Xxxxxxxx
|
|
7
ATTACHMENT
A
FORM
OF STOCK APPRECIATION RIGHTS AGREEMENT
(see
attached)
ATTACHMENT
B
FORM
OF REGISTRATION RIGHTS AGREEMENT
(see
attached)
