Exhibit 10.1 Consulting Agreement with Xxxx Xxxxxx Associates, LP
August 23, 2002
MIV Therapeutics, Inc.
Xxxx 0, 0000 Xxx Xxxxxx
Xxxxxxxxx, XX X0X 0X0
Xxxxxx
Attn: Xx. Xxxx Xxxxxxx, Chairman, President and CEO
Dear Xx. Xxxxxxx:
This letter, when executed by the parties hereto, will constitute an agreement
between MIV Therapeutics, Inc. (the "Company") and Xxxx Xxxxxx Associates LP
("RMA") pursuant to which the Company agrees to retain RMA and RMA agrees to be
retained by the Company under the terms and conditions set forth below.
1. The Company hereby retains to perform consulting services related to
corporate finance and other financial service matters, and RMA hereby accepts
such retention on a non-exclusive basis. In this regard, subject to the terms
set forth below, RMA 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. The
services, which RMA will perform, shall include, without limitation, assisting
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 a retainer of $15,000. The Company shall also sell to RMA (or its
designated affiliates) upon the execution of this agreement, 500,000 common
stock purchase warrants. Such warrants will expire five (5) year after the date
hereof and will be exercisable at $0.40. The warrants may be exercised as to all
or a lesser number of shares and will contain provisions for registration of the
resale of the underlying shares at the Company's expense. In addition to its
compensation hereunder, the Company will reimburse RMA for any and all
reasonable expenses incurred by RMA in the performance of its duties hereunder,
and RMA shall account for such expenses to the Company; provided, however that
any expense in excess of $1,000 shall require the prior written approval of the
Company, which will not be unreasonably withheld. Such reimbursement shall
accumulate and be paid monthly. Nothing contained herein shall prohibit RMA from
receiving any additional compensation under paragraph 4 herein or otherwise.
3. In addition, RMA shall hold itself ready to assist the Company in evaluating
and negotiating particular contracts or transaction, 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 RMA with respect to such evaluations and negotiations.
Nothing herein shall require the Company to utilize RMA's services in any
particular transactions nor shall limit the Company's obligations arising under
any other agreement or understanding.
4. The Company and RMA further acknowledge and agree that RMA 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 in the event RMA shall 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 RMA a fee of five (5%)
percent of the first $5,000,000 and two and one-half (2 1/2 %) percent of the
amount over $5,000,000 of the consideration paid or received by the Company (or
by any subsidiary or affiliated entity of the Company) in any transaction
(including mergers, acquisitions, joint ventures and other business
transactions) consummated by the Company or any subsidiary or affiliated entity
of the Company, which were introduced to the Company by RMA. RMA will receive
such a fee if the introduction is done on an active basis and that merely
sending information to other party or mentioning either party to the other does
not represent a proper introduction for the purpose of obligation the Company to
pay RMA a fee. Such fee shall be paid in cash at the closing of the transaction
to which it relates, and shall be payable whether or not the transaction
involves a stock, or a combination of stock and cash, or is made on the
installment sale basis. In addition, if the Company shall, within 12 months
immediately following the termination of this Agreement, consummate a
transaction with any party first introduced by RMA to the Company prior to such
termination, the Company shall pay to RMA a fee with respect to such transaction
calculated in accordance with this paragraph.
5. All obligations of RMA contained herein shall be subject to RMA reasonable
availability for such performance, in view of the nature of the requested
service and the amount of notice received. RMA shall devote such time and effort
to the performance of its duties hereunder as RMA shall determine is reasonably
necessary for such performance. RMA 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 RMA all information reasonably relevant to the
performance by RMA of its obligations under this Agreement, or particular
projects as to which RMA is acting as advisor, which will permit RMA to know all
facts material to the advice to be rendered, and all material or information
reasonably requested by RMA. In the event that the Company fails or refuses to
furnish any such material or information reasonably requested by RMA, and thus
prevents or impedes RMA performance hereunder, any inability of RMA to perform
shall not be a breach of its obligations hereunder.
6. Nothing contained in this Agreement shall limit or restrict the right of RMA
or of any partner, employee, agent or representative of RMA, to be a partner,
director, officer, 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 RMA to render services of any kind to any other corporation, firm,
individual or association.
7. RMA will hold in confidence any confidential information, which the Company
provides to RMA pursuant to this Agreement unless the Company gives RMA
permission in writing to disclose such confidential information to a specific
third party. In addition, all confidential information which the Company
provided to RMA in connection with any prior or ongoing Offering shall be
considered confidential information for purposes of this Agreement.
Notwithstanding the foregoing, RMA shall not be required to maintain
confidentiality with respect to information (i) which is or becomes part of the
public domain; (ii) of which it had independent knowledge prior to disclosure;
(iii) which comes into the possession of RMA 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 RMA by government requirements. If RMA 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, RMA shall, unless prohibited by law, promptly
notify the Company of such request(s) so that the Company may seek an
appropriate protective order.
8. (a) The Company agrees to indemnify and hold harmless Roan/Xxxxxx, its
partners, employees, agents, representatives and controlling person (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 Roan/Xxxxxx is a party), as and when incurred,
directly or indirectly, caused by, relating to, based upon or arising out of
Roan/Xxxxxx; services pursuant to this Agreement; provided, however, Roan/Xxxxxx
shall not be entitled to indemnification for its own gross negligence or willful
misconduct. This paragraph shall survive the termination of this Agreement.
(b) Roan/Xxxxxx agrees to indemnify and hold harmless the company, its
officers, directors, shareholders, employees, agents, representatives and
controlling persons (and the officers, directors, employees, agents,
representatives and controlling person 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 limitations, 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 Roan/Xxxxxx is a
party), as and when incurred, directly or indirectly, caused by, relating to,
based upon or arising out of Roan/Xxxxxx' services pursuant to this Agreement;
provided, however, the Company shall not be entitled to indemnification for its
own gross negligence or willful misconduct. This paragraph shall survive the
termination of this Agreement.
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. This Agreement is for a term of one (1) year and may be terminated by either
party upon 30 days notice after ninety (90) days. Paragraphs 4 and 8 shall
survive the expiration or termination of this Agreement under all circumstances.
11. Any notices hereunder shall be sent to the Company and to RMA 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.
12. This Agreement has been made in the State of New York and shall be construed
and governed in accordance with the laws thereof without giving effect to
principles governing conflicts of law.
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, ACCEPTED AND AGREED
XXXX XXXXXX ASSOCIATES, LP MIV Therapeutics, Inc.
By: /s/ Xxxxx Xxxxxx By: /s/ Xxxx X. Xxxxxxx
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Xxxxx Xxxxxx Xxxx X. Xxxxxxx
General Partner Chairman, President & CEO
