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Exhibit 10.20
XXXXXXX-XXXXXX ASSOCIATES, L.P.
00 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
September , 1998
Anthra Pharmaceuticals, Inc.
000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx, President
Gentlemen:
This letter, when executed by the parties hereto, will constitute an
agreement between Anthra Pharmaceuticals, Inc. (the "Company") and
Xxxxxxx-Xxxxxx Associates, L.P. ("JMA") pursuant to which the Company agrees to
retain JMA and JMA agrees to be retained by the Company under the terms and
conditions set forth below.
1. The Company hereby retains JMA to perform consulting services
related to corporate finance and other financial services matters, and JMA
hereby accepts such retention. In this regard, subject to the terms set forth
below, JMA shall furnish to the Company advice and recommendations with respect
to such aspects of the business and affairs of the Company as the Company shall,
from time to time, reasonably request upon reasonable notice. In addition, JMA
shall hold itself ready to assist the Company in evaluating and negotiating
particular contracts or transactions, if requested to do so by the Company, upon
reasonable notice.
2. As compensation for the services described in paragraph 1 above,
the Company shall pay to JMA a fee of $99,972, for the full term of 36 months,
payable in 36 equal monthly installments. In addition to the compensation
payable in this Section 2, the Company will reimburse JMA for any and all
reasonable expenses incurred by JMA in the performance of its duties under
paragraphs 3 or 4 hereunder, and JMA shall account for such expenses to the
Company. Such reimbursement shall accumulate and be paid monthly. No expenses in
excess of $1,000 shall be incurred or reimbursed without the prior consent of
the Company. Nothing contained herein shall prohibit JMA from receiving any
additional compensation under paragraphs 3 and 4 herein or otherwise.
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3. In addition, JMA shall hold itself ready to assist the Company in
evaluating and negotiating particular contracts or transactions, if requested to
do so by the Company, upon reasonable notice, and will undertake such
evaluations and negotiations upon prior written agreement as to additional
compensation to be paid by the Company to JMA with respect to such evaluations
and negotiations.
4. The Company and JMA further acknowledge and agree that JMA may
act as a finder or financial consultant in various business transactions in
which the Company may be involved, such as mergers, acquisitions or joint
ventures. The Company hereby agrees that if in the event JMA shall first
introduce to the Company another party or entity, and that as a result of such
introduction, a transaction is consummated, the Company shall pay to JMA a fee
equal to five percent (5%) of the amount up to $5 million and two and one half
percent (2-1/2%) of the excess, of the consideration received by the Company
from parties introduced to the Company by JMA in any transaction (including
mergers, acquisitions, joint ventures and other business transactions)
consummated by the Company with a party introduced to the Company by JMA. Such
fee shall be paid in cash at the closing of the transaction to which it relates
or at such time as the consideration is received or paid by the Company, and
shall be payable whether or not the transaction involves stock, or a combination
of stock and cash, or is made on the installment sale basis. Notwithstanding
Section 2 of this Agreement above, this Section 4 shall remain in effect for a
term of 60 months.
5. All obligations of JMA contained herein shall be subject to JMA's
reasonable availability for such performance, in view of the nature of the
requested service and the amount of notice received. JMA shall devote such time
and effort to the performance of its duties hereunder as JMA shall determine is
reasonably necessary for such performance. JMA may look to such others for such
factual information, investment recommendations, economic advice and/or
research, upon which to base its advice to the Company hereunder, as it shall
deem appropriate. The Company shall furnish to JMA all information relevant to
the performance by JMA of its obligations under this Agreement, or particular
projects as to which JMA is acting as advisor, which will permit JMA to know all
facts material to the advice to be rendered, and all material or information
reasonably requested by JMA. In the event that the Company fails or refuses to
furnish any such material or information reasonably requested by JMA, and thus
prevents or impedes JMA's performance hereunder, any inability of JMA to perform
shall not be a breach of its obligations hereunder.
6. Nothing contained in this Agreement shall limit or restrict the
right of JMA or of any partner, employee, agent or representative of JMA, to be
a partner, director, officer,
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employee, agent or representative of, or to engage in, any other business,
whether of a similar nature or not, nor to limit or restrict the right of JMA to
render services of any kind to any other corporation, firm, individual or
association.
7. JMA will hold in confidence any confidential information which
the Company provides to JMA pursuant to this Agreement unless the Company gives
JMA permission in writing to disclose such confidential information to a
specific third party. In addition, all confidential information which the
Company provided to JMA in connection with its initial public offering shall be
considered confidential information for purposes of this Agreement.
Notwithstanding the foregoing, JMA shall not be required to maintain
confidentiality with respect to information (i) which is or becomes part of the
public domain through no fault of JMA; (ii) of which it had independent
knowledge prior to disclosure; (iii) which comes into the possession of JMA in
the normal and routine course of its own business from and through independent
non-confidential sources; or (iv) which is required to be disclosed by JMA by
governmental requirements. If JMA is requested or required (by oral questions,
interrogatories, requests for information or document subpoenas, civil
investigative demands, or similar process) to disclose any confidential
information supplied to it by the Company, or the existence of other
negotiations in the course of its dealings with the Company or its
representatives, JMA shall, unless prohibited by law, promptly notify the
Company of such request(s) so that the Company may seek an appropriate
protective order.
8. Each of the Company and JMA agrees to indemnify and hold harmless
each other, and their respective partners, employees, agents, representatives
and controlling persons (and the officers, directors, employees, agents,
representatives and controlling persons of each of them) from and against any
and all losses, claims, damages, liabilities, costs and expenses (and all
actions, suits, proceedings or claims in respect thereof) and any legal or other
expenses in giving testimony or furnishing documents in response to a subpoena
or otherwise (including, without limitation, the cost of investigating,
preparing or defending any such action, suit, proceeding or claim, whether or
not in connection with any action, suit, proceeding or claim in which JMA or the
Company is a party), as and when incurred, directly or indirectly, caused by,
relating to, based upon or arising out of JMA's service pursuant to this
Agreement. The Company further agrees that JMA shall incur no liability to the
Company or any other party on account of this Agreement or any acts or omissions
arising out of or related to the actions of JMA relating to this Agreement or
the performance or failure to perform any services under this Agreement except
for JMA's intentional or willful misconduct. This paragraph shall survive the
termination of this Agreement. Notwithstanding the foregoing, no party otherwise
entitled to indemnification shall be entitled thereto to the extent such party
has been determined to
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have acted in a manner which has been deemed gross negligence or wilful
misconduct regarding the matter for which indemnification is sought herein.
9. This Agreement may not be transferred, assigned or delegated by
any of the parties hereto without the prior written consent of the other party
hereto.
10. The failure or neglect of the parties hereto to insist, in any
one or more instances, upon the strict performance of any of the terms or
conditions of this Agreement, or their waiver of strict performance of any of
the terms or conditions of this Agreement, shall not be construed as a waiver or
relinquishment in the future of such term or condition, but the same shall
continue in full force and effect.
11. This Agreement is for a term of thirty-six (36) months, except
for Section 4 above which shall be for a term of sixty (60) months, and may not
be terminated by the Company. This Agreement may be terminated by JMA at any
time upon 30 days notice; provided JMA shall repay any portion of their fee
which was not earned on the effective date of such termination. Paragraphs 4, 7
and 8 shall survive the expiration or termination of this Agreement under all
circumstances.
12. Any notices hereunder shall be sent to the Company and to JMA at
their respective addresses set forth above. Any notice shall be given by
registered or certified mail, postage prepaid, and shall be deemed to have been
given when deposited in the United States mail. Either party may designate any
other address to which notice shall be given, by giving written notice to the
other of such change of address in the manner herein provided.
13. (a) This Agreement shall be construed in accordance with the
laws of the State of New York, without giving effect to conflict of laws.
(b) The Company (a) agrees that any legal suit, action or
proceeding arising out of or relating to this Agreement shall be instituted
exclusively in New York State Supreme Court, County of New York, or in the
United States District Court for the Southern District of New York, (b) waives
any objection which the Company may have now or hereafter to the venue of any
such suit, action or proceeding, and (c) irrevocably consents to the
jurisdiction of the New York State Supreme Court, County of New York and the
United States District Court for the Southern District of New York in any such
suit, action or procedure. Each of the Company and the Underwriter further
agrees to accept and acknowledge service of any and all process which may be
served in any suit, action or proceeding in the New York State Supreme Court for
the Southern District of New York, and agrees that service of process upon the
Company mailed by certified mail to the Company's
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address shall be deemed in every respect effective service of process upon the
company in any such suit, action or proceeding. In the event of litigation
between the parties arising hereunder, the prevailing party shall be entitled to
costs and reasonable attorney's fees.
14. This Agreement contains the entire agreement between the
parties, may not be altered or modified, except in writing and signed by the
party to be charged thereby, and supersedes any and all previous agreements
between the parties relating to the subject matter hereof.
15. This Agreement shall be binding upon the parties hereto, the
indemnified parties referred to in Section 7, and their respective heirs,
administrators, successors and permitted assigns.
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If you are in agreement with the foregoing, please execute two
copies of this letter in the space provided below and return them to the
undersigned.
Very truly yours,
XXXXXXX/XXXXXX ASSOCIATES, L.P.
BY: XXXXXX/XXXXXXX SECURITIES CORP.
General Partner
By_________________________________________
Xxxxx Xxxxxx
Vice President
ACCEPTED AND AGREED TO AS OF
THE DATE FIRST ABOVE WRITTEN
ANTHRA PHARMACEUTICALS, INC.
By:___________________________
Xxxxxxx X. Xxxxxx
President
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