FINDER FEE AGREEMENT
FINDER
FEE AGREEMENT
This
agreement (the "Agreement") is made as of this 8th
day of
September, 2004, by and between Glenrock Israel Ltd. of 85 Medinat Xxxxxxxxx
Xx.
Xxxxx X, 0xx Xxxxx, Xxxxxxxx Xxxxxxx, Xxxxxx (the“Finder”);
and
Rosetta Genomics Ltd. of 00
Xxxxx
Xxxxxx, Xxxxxxxxx, Xxxxxx,
(the
“Company").
| Whereas |
Rosetta
is engaged in breakthrough research and development in the field
of
bioinformatic
detection, prediction and discovery of micro RNA genes and their
respective functions and utilities, and therapeutic and diagnostic
uses
based thereof;
|
| Whereas |
the
Finder
has connections with potential investors (“Investors”)
that may have interest in making cash investments in the Company’s equity
(“Investment
Transactions”);
|
| Whereas |
the
Company is interested in using the Finder services, on a non exclusive
basis, for the purposes of locating Investors and facilitating such
Investment Transactions, subject to the terms and conditions contained
herein.
|
NOW,
THEREFORE, in consideration of the mutual promises and conditions set forth
herein the parties agree as follows:
| 1. |
Finder
Obligations.Finder
shall act to locate Finder Contacts (as such term is defined herein),
present them to the Company and assist the Company in negotiating
and
facilitating Investment Transactions with such Finder
Contacts.
|
| 2. |
Finder
Contacts.
The term "Finder Contact" shall mean all Investors that: (i) Finder
introduced to the Company and the parties mutually agreed in writing
that
it shall be so considered, and (ii) with which Finder arranged meetings
or
discussions and contributed to facilitating Investment Transactions
with,
and (iii) that were pre-approved by the Company and are listed on
Schedule
A
hereto as amended from time to time by the parties in writing.
Notwithstanding anything contained herein it is clarified and declared
that the conclusion of an Investment Transaction, if any, shall be
at the
Company’s sole discretion. The Finder shall not introduce the Company to
any specific Investor without receiving the Company’s prior consent.
|
| 3. |
Success
Fees.
|
| 3.1. |
In
the event the Company enters into an agreement for an Investment
Transaction with a Finder Contact during the Term (as defined in
Section
6
below) or within 3 months following the date of its expiration or
termination (the “Determining Period”), the Company shall pay the Finder
success fees equal to 4% of the net cash investments actually paid
to the
Company by the Finder Contact (“Finder Investments”) during the
Determining Period.
|
1
| 3.2. |
In
addition to the consideration specified in Section 3.1 above the
Finder
shall be entitled to an option to purchase an amount of ordinary
shares of
the Company equal to up to 2% of the amount of shares allotted by
the
Company to the Finder Contacts in accordance with the Investment
Round, at
the price per share of the Investment Round. The option will be valid
for
18 months following the closing of the Investment Round.
|
| 4. |
Payments
and
Reports.
|
| 4.1. |
All
cash amounts due to Finder
hereunder shall be paid in the same currency in which the Company
receives
the Finder Investments. VAT shall be added to all payments against
a
proper VAT invoice. For the removal of doubt, it is hereby agreed
that the
Finder shall be responsible for all taxes, withholdings, and other
similar
statutory obligations. The Finder agrees to defend, indemnify and
hold the
Company harmless from any and all claims made by any entity on account
of
an alleged failure by the Finder to satisfy any such tax or withholding
obligations.
|
| 4.2. |
The
Company shall inform Finder
of
any Investment Agreement between the Company and a Finder Contact
within 30 days of its signing.
|
| 5. |
Company
Information.
The Company shall provide Finder with all reasonable non-confidential
information, as it may deem necessary, regarding the Company, its
products, services, technology and relevant markets for the purpose
of
Finder performing its duties hereunder. Subject to Section 2 above,
the
Company hereby authorizes the Finder to provide such information
to
prospective Finder Contacts pre-approved by the Company. Notwithstanding,
all information provided by the Company to Finder is subject to the
confidentiality clause in this agreement. Confidential information
obtained by the Finder from the Company shall be subject to the terms
and
conditions of the Company’s non-disclosure agreement, as detailed in
Section 8 below.
|
| 6. |
Term
and Termination.
The term of this Agreement is for a period of 4 months
commencing at the
date hereof (the “Term”).
|
Either
party may terminate this agreement on the occurrence of one of the
following:
| 6.1. |
by
serving the other party a 60 days prior written notice to such effect;
|
| 6.2. |
forthwith,
by serving the other party a written notice, in the event that the
other
party has breached any of its undertaking hereunder and not cured
such
breach within 14 days of the non-breaching party’s notice to such
effect;
|
| 6.3. |
forthwith,
without need for a written notice, in the event that the other party
has
entered into any liquidation, insolvency, bankruptcy or similar
proceedings.
|
In
the
event of termination of this Agreement, and if such termination is made by
the
Company pursuant to Sections 6.2 or 6.3 above, the Finder
shall
not be entitled to receive any Success Fees not paid to them by the date of
termination. In any other event, the provisions of Section 3 apply. Subject
to
the above, the Company may continue to pursue any relations with Finder Contacts
following termination of this Agreement. Following termination of this
Agreement, for any reason: (i) Finder
shall
immediately cease representing to third parties that it has any rights granted
to it herein, and (ii) the Company may require Finder
to
return all documentation concerning the Company and its products in its
possession to the Company. For avoidance of doubt, the provisions of Sections
7
and 8 below shall survive the termination of this Agreement.
2
| 7. |
Intellectual
Property.
Finder recognizes and acknowledges that all of the Company’s IP, including
without limitation, all the Company’s patents, patent applications,
copyrights, trade names and trade marks, solely belong to the Company
which is and shall remain its sole owner, and it is hereby expressly
agreed that nothing in this agreement shall constitute or be considered
as
constituting a transfer or license of the Company’s intellectual property
rights or any part thereof by the Company to Finder. Finder shall
adhere
to any reasonable instructions given to it in writing by the Company
aimed
for the protection of the Company’s trademarks and any other intellectual
property rights.
|
| 8. |
Confidentiality.
Finder shall, both during the term of this Agreement and after the
expiration or termination of this Agreement, hold the proprietary
and
confidential information of the Company (the "Confidential Information")
in strict confidence and will not to make such Confidential Information
available in any form to any third party or to use such Confidential
Information for any purposes other than the implementation of this
Agreement. The Finder shall sign a Confidentiality undertaking in
the form
attached as Schedule
B
hereto.
|
| 9. |
Independent
Contractors.
It is hereby expressly declared and agreed that the parties have
entered
this Agreement as independent contractors and this Agreement in no
way
establishes any principal - agent, employer - employee, or partnership
relations between the parties. Nothing in this Agreement shall be
construed as granting either party the power or authority to act
for or on
behalf of the other party, to create any undertakings on behalf of
the
other party, or to bind or commit the other party in respect to any
such
undertakings, except as set forth herein or as otherwise agreed to
in
writing between the parties prior to such
act.
|
| 10. |
Governing
Law/ Jurisdiction.This
Agreement shall be governed by the laws of the State of Israel, without
regard to its conflict of law rules and the competent courts of Tel
Aviv-Jaffa shall have exclusive jurisdiction over all matters arising
under or relating to this
Agreement.
|
| 11. |
Counterparts/Entire
Agreement.
This Agreement may be executed in several counterparts, each of which
shall be deemed an original and all of which shall together constitute
one
and the same Agreement. This Agreement constitutes the entire agreement
between the Parties respecting the subject matter hereof and supersedes
any and all prior agreements or understandings between the Parties
with
respect to the subject matter hereof, whether written or oral. Except
as
set forth herein, no addition or modification of this Agreement will
be
effective or binding unless in writing and executed by both of the
Parties.
|
IN
WITNESS WHEREOF the Parties, through their duly authorized representatives
have
executed this Agreement on the date(s) as of the date written
above.
_______________
____________
Rosetta
Genomics Ltd. Glenrock
Israel Ltd.
By:
__________
Title__________
3
Schedule
A - FINDER CONTACTS
1.
4
