AMENDMENT NO. 1 TO SERVICES AGREEMENT
EXHIBIT
10.1
AMENDMENT
NO. 1 TO
THIS
AMENDMENT NO. 1 TO SERVICES AGREEMENT (this “Amendment”) is entered as of August
12, 2010, by and between NILE THERAPEUTICS, INC., a Delaware corporation
(“Nile”) and TWO RIVER CONSULTING, LLC, a Delaware limited liability corporation
(“Consultant”), having a business address at 000 Xxxxx Xxxxxx, Xxx Xxxx, XX
00000.
RECITALS:
WHEREAS,
the parties previously entered into a Services Agreement dated June 24, 2009
(the “Agreement”), pursuant to which Nile engaged Consultant to perform certain
Services as described in the Agreement for a term of one year, subject to
extension upon the mutual agreement of the parties; and
WHEREAS,
Nile and Consultant each desire to continue to the engagement of Consultant by
Nile on a month-to-month basis, subject to a right of Nile to terminate the
Agreement upon 30 days’ notice, and to provide additional equity compensation to
Consultant (or its designees) in consideration therefor.
NOW,
THEREFORE, in consideration of the foregoing and the mutual agreements,
provisions and covenants contained herein, the parties hereby agree as
follows:
1.
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Term;
Termination. Section 3 of the Agreement shall be amended
and restated in its entirety, as
follows:
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“3.
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Term and
Termination.
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3.1
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Term. This
Agreement will commence on the Effective Date and continue for a period of
one (1) year from the Effective Date (the “Term”). Thereafter, the Term
shall automatically continue on a month-to-month basis until terminated
pursuant to the express terms of this Section Error!
Reference source not
found.
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3.2
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Termination for Breach.
If either party breaches in any material respect any of its material
obligations under this Agreement, in addition to any other right or
remedy, the non-breaching party may terminate this Agreement in the event
that the breach is not cured within 30 days after receipt by that party of
written notice of the breach.
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3.3
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Termination by
NILE. NILE may terminate this Agreement immediately at
any time upon written notice to CONSULTANT in the event of a breach of
this Agreement by CONSULTANT which cannot be cured (i.e. breach of the
confidentiality obligation).
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3.4
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Other
Termination. NILE may terminate this Agreement for any
reason upon not less than 30 days prior written notice to
CONSULTANT. CONSULTANT may terminate this Agreement for any
reason upon not less than 90 days prior written notice to
NILE.
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3.5
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Effect of
Termination. Upon termination, neither NILE nor
CONSULTANT will have any further obligations under this Agreement, except
the liabilities accrued through the date of termination. Upon
expiration or termination, and in any case upon NILE’s request, CONSULTANT
will return immediately to NILE all tangible Confidential Information,
including all copies and reproductions thereof, except for one (1) copy
which may be retained solely for archival purposes. In the
event this Agreement is terminated by NILE pursuant to Section 3.4 or by
CONSULTANT pursuant to Section 3.2, then all unvested portions of the
Options shall accelerate and be deemed vested as of the effective date of
such termination.”
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2. Compensation. In
addition to the compensation set forth in Sections 2.1 and 2.2 of the Agreement,
Nile will issue to Consultant and/or its designees five-year stock options (the
“Renewal Options”) to purchase an aggregate of Two Hundred Fifty Thousand
(250,000) shares of Common Stock at an exercise price equal to the closing sale
price of the Common Stock on the date of this Amendment. The Renewal
Options shall be fully vested and immediately exercisable. The
Renewal Options shall be issued pursuant to the Nile’s 2005 Stock
Option Plan, as amended.
3. Miscellaneous. All
capitalized terms used but not defined herein shall have the meanings ascribed
to such terms in the Agreement. Except as amended or modified by this
Amendment, the parties hereby confirm that all other terms and provisions of the
Agreement shall remain in full force and effect. This Amendment may
be executed in any number of counterparts, each of which shall constitute an
original, but all of which together shall constitute one and the same
instrument.
Signature
page follows.
IN
WITNESS WHEREOF, the undersigned have caused this Amendment No. 1 to Services
Agreement to be duly executed as of the date and year first above
written.
NILE
THERAPRUTICS, INC.
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By:
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/s/ Xxxxx Xxxxx | ||
Name: Xxxxx Xxxxx | |||
Title: Chief Financial Officer |
TWO RIVER CONSULTING, LLC | |||
By:
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/s/ Xxxxx X. Xxxxx | ||
Name: Xxxxx X. Xxxxx | |||
Title: VP of Managing Member |