December 7, 2007
EXHIBIT
10.1
December
7, 2007
The
Board
of Directors
Matritech,
Inc.
000
Xxxxxx Xxxxxx
Newton,
MA 02460
Re: Matritech
Liquidation
Dear
Sirs:
This
letter will serve as the agreement between Matritech, Inc. (the “Company”) and
Xxxxxxxxx & Xxxxx, P.C. (the “Firm”) as to the terms and condition of the
Firm’s retention.
The
Firm’s services will include assisting the Company in preparing for and
executing the wind-down of the Company. The Firm and the Company
acknowledge that the purpose of the wind-down is to cause all of the Company’s
liabilities to be paid and to distribute any and all remaining funds to common
stockholders in accordance with Delaware law. Retention of the Firm
will be on the following terms and conditions:
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1.
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The
Company hereby retains the Firm to assist the Company in planning
for the
efficient and cost-effective wind-down of the Company and, after
(i)
stockholder approval of the sale of assets to Inverness, (ii) closing
of
the asset sale and (iii) stockholder approval of the dissolution,
to
perform all services necessary or convenient in connection with the
wind-down including, but not limited to: payment of the Company’s
obligations and distribution of all remaining funds to common
stockholders, including addressing personnel issues such as payroll,
benefits and COBRA implementation; identifying and causing the Company
to
pay federal, state and local tax obligations; personal property
liquidation; receivable postings; payables payments; records retention;
telephone inquiries from vendors, customers and stockholders; and
mail
receipt and review. The Firm shall also perform all accounting
services, including the preparation and filing of tax
returns. All services will be performed by the Firm under and
subject to the direction of the Board of Directors of the Company
(the
“Board”) or its designee. Unless otherwise terminated pursuant
to Paragraph 11 below, the Firm’s services shall terminate as of the later
to occur of (a) the date on which the final distribution of proceeds
is
made to common stockholders of record of the Company as of the Final
Record Date (as defined in the Company’s Plan of Complete Liquidation and
Dissolution) or (b) the date set by the Court of Chancery as the
final
dissolution date of the Company.
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The Board of Directors
December 7, 2007
Page 2
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2.
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At
such time as the asset sale closes and the employment of Messrs.
Chubb and
Xxxxxx is terminated by the Board, the Board shall elect Xxxxx X.
Xxxxxxx
(“Xxxxxxx”) as President of the Company, with full authority and
discretion to take such actions as are necessary or convenient to
effectuate the wind-down of the Company, subject to oversight and
direction of the Board. The Firm acknowledges that Xxxxxxx is
its employee and agent and the Firm assumes full responsibility for
Xxxxxxx’x performance of services to the Company as an officer or in any
other capacity. The Board anticipates that it will require
bi-weekly reports from Xxxxxxx (which may be oral, written or in
person,
at the discretion of the Board) until such time as the Court of Chancery
approves an initial distribution to the Company’s common
stockholders. The Board anticipates that it will thereafter
require reports from Xxxxxxx not less frequently than
quarterly. All such reports shall set forth in reasonable
detail and be substantiated by documentation, where appropriate,
the
actions taken, amounts paid on behalf of the Company, including to
third
parties for legal, accounting, consulting and other services rendered
to
the Firm in connection with the performance of its services pursuant
to
this Agreement, charges billed by and paid to the Firm for work performed
during such period, all court filings and actions and all other matters
relevant to the wind-down. Xxxxxxx shall be available to attend
meetings or otherwise communicate with the Board as it directs upon
reasonable prior notice.
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3.
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At
such time as the employment of Xx. Xxxxxxxx is terminated by the
Board,
the Board shall elect Xxxxxxx as Treasurer of the Company. At
such time as the employment of Xx. Xxxxxxx is terminated by the Board,
the
Board shall elect Xxxxxxx as Secretary of the
Company.
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4.
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If
the Board determines that the dissolution process should be effected
through a liquidating trust or an assignment for the benefit of creditors,
the Board will authorize Xxxxxxx and/or the Firm to act as liquidation
agent under the liquidating trust or assignee under an assignment
for the
benefit of creditors. The Board may authorize the Firm to act
in some other similar position as appropriate to wind down the
Company.
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5.
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At
such time as the asset sale closes, the Firm shall institute, at
the
Company’s expense, a link between the Company’s web site, if any, and an
email address at the Firm, in order, among other things, to streamline
responsiveness to customer, vendor and stockholder inquiries. A
similar link between the Company’s primary phone number, if any, and the
Firm will also be instituted. Subject to the direction and
approval of the Board, the Firm may cause the Company to engage any
persons, including former employees of the Company, on an hourly,
daily,
part-time or other basis to the extent that, in the Firm’s judgment, their
services will contribute to an efficient and cost-effective wind-down
of
the Company.
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6.
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The
basis for the Firm’s charges will be the time spent by the Firm’s
professionals, including Xxxxxxx’x services as President, Treasurer and
Secretary of the Company, as well as the Firm’s managers, staff,
bookkeepers and clerical staff, multiplied by their respective hourly
rates in effect at the time.
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The Board of Directors
December 7, 2007
Page 3
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The
Firm’s rates, which may be changed from time to time but no more
frequently than annually, are set forth in Exhibit A, attached
hereto. There is a minimum charge of one-tenth of an hour for
each item billed, and the Company will be charged for all professional
time devoted to this matter, including telephone calls, intra-firm
conferences and travel. The Firm agrees that it shall not
increase its rates on this project prior to September 1,
2008.
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7.
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The
Firm’s charges to the Company will include expenses reasonably incurred
in
connection with the services rendered pursuant to this
Agreement. These expenses include copying, communication,
travel; storage, tax computer charges, and office and storage supplies,
and any other out-of-pocket expenses directly related to services
rendered. The Firm will charge the exact amount of expenses
incurred from any outside vendor, without any mark-up or administrative
charge. When services are supplied by the Firm (for example, photocopying
and telefacsimile transmission), the Firm will charge its standard
rate
applicable at the particular time.
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8.
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Within
ten days of the sale of Inverness stock received as consideration
in the
asset sale, the Board will pay the Firm a retainer of $100,000 for
services to be rendered pursuant to this Agreement. The Firm
will render bills on a monthly or quarterly basis, and immediately
pay
them from the retainer account. Xxxxxxx, as President and
Treasurer of the Company, will be authorized to remit to the Firm
the
amount of each of its bills promptly in order to replenish the
retainer. The Firm will supply a copy of each invoice to the
Board at the time such invoice is rendered. It is the intention
of the parties that the Firm shall have the cushion of this retainer
until
termination of the Firm’s services by the Board, which shall occur no
later than contemporaneously with the final distribution to the common
stockholders of the Company. Upon termination of the Firm’s
services hereunder, any amount remaining in the retainer account
shall be
refunded to the Company.
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9.
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For
the period of the Firm’s retention, the Company shall maintain such
director and officer liability insurance as the Board deems appropriate
(taking into consideration the cost, risk profile, insurance market
and
other factors the Board deems relevant). The Company shall also
purchase coverage for such tail period after its final dissolution,
as it
deems appropriate. In his capacity as President, Treasurer and
Secretary of the Company, Xxxxx X. Xxxxxxx shall be indemnified by
the
Company to the full extent provided to Company officers in the charter,
by-laws and Board resolutions of the Company. The Company and
the Firm may enter into a separate Indemnification
Agreement.
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10.
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Subject
to the direction and approval of the Board, the Firm shall have the
authority to engage, and to cause the Company to compensate, legal
counsel, including Xxxxxx Xxxx & Xxxxxxx and/or other firms, or
individual attorneys, to represent the Company and to provide legal
advice
and assistance concerning the wind-down of the Company and the performance
of the Firm’s services pursuant to this
Agreement.
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The Board of Directors
December 7, 2007
Page 4
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11.
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This
Agreement may be terminated at any time, with or without cause, by
either
party. In the event of termination by the Company, the Company
shall provide the Firm with 30 days prior written notice of
termination. In the event of termination by the Firm, the Firm
shall provide the Board of Directors with 60 days prior written notice
of
termination. The Firm shall ensure that Xxxxxxx shall tender
his resignation as President, Treasurer and Secretary contemporaneously
with termination of the Firm’s services. Termination of this
Agreement shall not terminate the Company’s obligation to insure and
indemnify Xxxxxxx and to indemnify the Firm for claims incurred during
the
period prior to termination.
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12.
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This
Agreement shall take effect upon execution by the Firm and the Chairman
of
the Board on behalf of the Company.
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In
order
to accept these terms and arrangements, please have an authorized officer of
the
Company sign this agreement on behalf of the Company in the space provided
below
and return a copy to me.
| Very truly yours, | |||
| Xxxxxxxxx & Xxxxx, P.C. | |||
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By:
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/s/ Xxxxx X. Xxxxxxx | |
| Xxxxx X. Xxxxxxx, XXXX, a duly- | |||
| authorized representative of the Firm | |||
Agreed
on
behalf of the Company and with the
Approval
of its Board of Directors:
Matritech,
Inc.
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By:
/s/
Xxxxxxx X. Xxxxx 12/11/07
Chairman
of the Board of Directors
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