EXHIBIT 10.116
ENGAGEMENT AGREEMENT
This ENGAGEMENT AGREEMENT (this "Agreement") is made as of this 3rd day
of May, 2002, by and between Nexell Therapeutics, Inc., a Delaware corporation
("Nexell"), having its principal place of business at 9 Parker, Xxxxxx, XX 00000
and Odyssey Capital Group, LLC, an Arizona limited liability company
("Odyssey"), having its principal place of business at 000 Xxxxx Xxxxx Xxxxxx,
0/xx/ Xxxxx, Xxxxxxx, XX 00000.
RECITALS
WHEREAS, Nexell desires to employ Odyssey to provide certain financial
advisory services to Nexell, including services relating to a (a) potential
merger or sale of Nexell's stock and/or assets or (b) a potential restructuring
of Nexell's assets and liabilities. Odyssey desires to provide certain financial
advisory services to Nexell pursuant to and in accordance with the terms and
conditions contained hereinafter.
NOW, THEREFORE, in consideration of the mutual promises set forth
herein, the parties hereto hereby agree as follows:
AGREEMENT
Section 1. Statement of Work.
1.1. Financial Advisory Services. Odyssey shall:
i. to the extent it deems necessary, appropriate and feasible,
familiarize itself with the business, operations,
properties, financial condition and prospects of Nexell; and
ii. to the extent requested by Nexell, advise Nexell in
connection with a potential merger or sale of Nexell's stock
and/or assets (a "Transaction'); and
ii. if Nexell determines to undertake a Restructuring (as
defined below) or an orderly windup of its business, advise
and assist Nexell in structuring and effecting the financial
aspects of such a transaction or transactions, subject to
the terms and conditions of this Agreement.
1.2. Restructuring Services. If Nexell pursues a Restructuring, Odyssey
shall:
i. provide financial advice and assistance to Nexell in
developing and seeking approval of a Restructuring, which
may include a sale of all or substantially all of Nexell's
assets pursuant to 11 U.S.C.(S)(S)363 and 365 (a "363
Sale");
ii. if requested by Nexell, assist Nexell and/or participate in
negotiations with entities or groups who are parties to a
363 Sale or otherwise affected by a Restructuring; and
iii. if requested by Nexell, participate in hearings before the
Bankruptcy Court (as defined below) with respect to the
matters upon which Odyssey has provided advice, including,
as relevant, providing testimony concerning the standards
for confirmation of a plan of reorganization under 11 U.S.C.
(S)1129 and the standards for a 363 Sale. Nexell
acknowledges the important role of its counsel in adequately
preparing Odyssey personnel for such testimony.
For purposes of this Agreement, the term "Restructuring" shall
mean (a) any recapitilization or restructuring (including, without limitation,
through any exchange, conversion, cancellation, forgiveness, retirement and/or a
material modification or amendment to the terms, conditions or covenants
thereof) of Nexell's equity and/or debt securities and/or other indebtedness,
obligations or liabilities (including preferred stock, partnership interests,
lease obligations, trade credit facilities and/or contract or tort obligations),
including pursuant to a repurchase or an exchange transaction; a plan of
reorganization, as modified from time to time (a "Plan") under Chapter 11 of
Title 11 of the United States Code, 11 U.S.C. (S)(S) 101 et. seq. (the
"Bankruptcy Code"), or a solicitation of consents, waivers, acceptances or
authorizations; or (b) a 363 Sale (which shall include a 363 Sale consummated
prior to or as part of the Plan).
Section 2. Term.
The term of this Agreement shall commence on May 3/rd/, 2002 and
terminate on October 1/st/, 2002 (the "Term"). The Term may be extended at any
time by Nexell upon the mutual written consent of Odyssey and Nexell.
Section 3. Compensation.
3.1. Hourly Rate. Odyssey shall xxxx Nexell at a rate of $300 per hour
for Xx. Xxxxx Xxxx'x services. No other person from Odyssey will provide
services to Nexell, without Nexell's prior approval.
3.2. Retainer. Upon execution of this agreement, Nexell shall pay
Odyssey a $15,000 retainer, to be applied against Odyssey's xxxxxxxx, as deemed
by Odyssey.
3.3. Reimbursement of Expenses. In addition to any fees payable by
Nexell to Odyssey hereunder, Nexell shall, whether or not any transaction
contemplated by this Agreement shall be proposed or consummated, reimburse
Odyssey on a monthly basis for its travel and other reasonable out-of-pocket
expenses (including all reasonable fees, disbursements and other charges of
counsel to be retained by Odyssey, and of other consultants and advisors
retained by Odyssey with Nexell consent) incurred in connection with, or arising
out of Odyssey's activities
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under or contemplated by this engagement provided, however, that such expenses
shall not exceed in the aggregate $10,000 without Nexell's prior written
consent. Nexell shall also reimburse Odyssey, at such times as Odyssey shall
request, for any sales, use or similar taxes (including additions to such taxes,
if any) arising in connection with any matter referred to or contemplated by,
this engagement. Such reimbursements shall be made promptly upon submission by
Odyssey of statements for such expenses.
Section 4. Termination.
This Agreement and Odyssey's engagement hereunder may be terminated by
Nexell or by Odyssey at any time, upon prior written notice thereof to the other
party; provided, however, that (a) termination of Odyssey's engagement hereunder
shall not affect Nexell continuing obligation to indemnify Odyssey and certain
related persons as provided for in this Agreement, and its continuing
obligations and agreements under Section 9, (b) notwithstanding any such
termination, Odyssey, shall be entitled to the full fees in the amounts, at the
times and subject to the terms and conditions provided for in Section 3 hereof
and (c) any termination of Odyssey's engagement hereunder shall not affect
Nexell obligation to reimburse expenses accruing prior to such termination to
the extent provided in Section 3 hereof.
Section 5. Representations of Nexell.
Nexell hereby acknowledges that the ability of Odyssey to adequately
provide financial advisory services hereunder is dependent upon the prompt
dissemination of accurate, correct and complete information to Odyssey. Nexell
represents and warrants (i) that this Agreement and the transactions
contemplated hereunder, have been duly and validly authorized by all requisite
corporate action; (ii) that Nexell has the full right, power and capacity to
execute, deliver and perform its obligations hereunder; (iii) that this
Agreement, upon execution and delivery of the same by Nexell, will represent the
valid and binding obligation of Nexell enforceable in accordance with its terms;
and (iv) that all information furnished by Nexell or on its behalf to Odyssey
will be accurate and complete in all material respects. The representations and
warranties set forth herein shall survive the termination of this Agreement.
Section 6. Provision of Information.
Nexell shall make available to Odyssey all information concerning the
business, assets, operations, financial condition and prospects that Odyssey
reasonably requests in connection with the services to be performed for Nexell
hereunder to the extent that Nexell has access to such information. Nexell shall
provide Odyssey with reasonable access to Nexell officers, directors, employees,
independent accountants and other advisors and agents as Odyssey shall deem
appropriate. Nexell recognizes and confirms that in advising Nexell and
completing its engagement hereunder, Odyssey will be using and relying on
publicly available information and on data, material and other information
furnished to Odyssey by Nexell and other parties with respect to Nexell. It is
understood that in performing under this engagement Odyssey may
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assume and rely upon the accuracy and completeness of, and is not assuming any
responsibility for independent verification of, such publicly available
information and the other information so furnished. Odyssey agrees to maintain
the confidentiality of any nonpublic information furnished to it by Nexell.
Section 7. [Reserved]
Section 8. Independent Contractor.
Odyssey has been retained under this Agreement as an independent
contractor with no agency relationship to Nexell or to any other party. The
advice (oral or written) rendered by Odyssey pursuant to this Agreement is
intended solely for the benefit and use of the board of directors and
stockholders of Nexell in considering the matters to which this Agreement
relates, and Nexell agrees that such advice may not be relied upon by any other
person or entity.
Section 9. Indemnification.
9.1. Nexell hereby agrees to indemnify and hold harmless Odyssey and
its affiliates, their respective directors, officers, agents, employees and
controlling persons, and each of their respective successors and assigns
(collectively, the "Indemnified Persons"), to the full extent lawful, from and
against all losses, claims, damages, liabilities and expenses incurred by them
which (A) are related to or arise out of (i) actions or alleged actions taken or
omitted to be taken (including any untrue statements made or any statements
omitted to be made) by Nexell or (ii) actions or alleged actions taken or
omitted to be taken by an Indemnified Person with Nexell consent or in
conformity with Nexell actions or omissions or (B) are otherwise related to or
arise out of Odyssey's activities undertaken pursuant to this Agreement. Nexell
will not be responsible, however, for any losses, claims, damages, liabilities
or expenses which are judicially determined to have resulted primarily from the
gross negligence or willful misconduct of the person seeking indemnification
hereunder.
9.2. After receipt by an Indemnified Person of notice of any complaint
or the commencement of any action or proceeding with respect to which
indemnification is being sought hereunder, such person will notify Nexell in
writing of such complaint or of the commencement of such action or proceeding,
but failure so to notify Nexell will relieve Nexell from any liability which
Nexell may have hereunder only if, and to the extent that such failure results
in the forfeiture by Nexell of substantial rights and defenses, and will not in
any event relieve Nexell from any other obligation or liability that Nexell may
have to any Indemnified Person otherwise than under these indemnification
provisions. If Nexell so elects or is requested by such Indemnified Person,
Nexell will assume the defense of such action or proceeding, including the
employment of counsel reasonably satisfactory to Odyssey and the payment of the
reasonable fees and disbursements of such counsel. In the event, however, such
Indemnified Person reasonably determines in its judgment that having common
counsel would present such counsel with a conflict of interest or if the
defendants in, or targets of, any such action or
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proceeding include both an Indemnified Person and Nexell, and such Indemnified
Person reasonably concludes that there may be legal defenses available to it or
other Indemnified Persons that are different from or in addition to those
available to Nexell, or if Nexell fails to assume the defense of the action or
proceeding or to employ counsel reasonably satisfactory to such Indemnified
Person, in either case in a timely manner, then such Indemnified Person may
employ separate counsel to represent or defend it in any such action or
proceeding and Nexell will pay the reasonable fees and disbursements of such
counsel; provided, however, that Nexell will not be required to pay the
reasonable fees and disbursements of more than one separate counsel (in addition
to local counsel) for all Indemnified Persons in any jurisdiction in any single
action or proceeding. In any action or proceeding the defense of which Nexell
assumes, the Indemnified Person will have the right to participate in such
litigation and to retain its own counsel at such Indemnified Person's own
expense. Nexell further agrees that it will not, without the prior written
consent of Odyssey, which shall not be unreasonably withheld, settle or
compromise or consent to the entry of any judgment in any pending or threatened
claim, action, suit or proceeding in respect of which indemnification or
contribution may be sought hereunder (whether or not Odyssey or any other
Indemnified Person is an actual or potential party to such claim, action, suit
or proceeding) unless such settlement, compromise or consent includes an
unconditional release of Odyssey and each other Indemnified Person hereunder
from all liability arising out of such claim, action, suit or proceeding.
9.3. Nexell agrees that if any indemnification sought by an Indemnified
Person pursuant to these indemnification provisions is held by a court to be
unavailable for any reason other than as specified in the second sentence of
Section 9.1, then (whether or not Odyssey is the Indemnified Person), Nexell and
Odyssey will contribute to the losses, claims, damages, liabilities and expenses
for which such indemnification is held unavailable in such proportion as is
appropriate to reflect the relative benefits to Nexell, on the one hand, and
Odyssey, on the other hand, in connection with Odyssey's engagement referred to
above and also the relative fault of Nexell, on the one hand, and Odyssey, on
the other hand, as well as any other relevant equitable considerations. It is
hereby agreed that for purposes of this Section 9.3, the relative benefits to
Nexell, on the one hand, and Odyssey, on the other hand, with respect to
Odyssey's engagement shall be deemed to be in the same proportion as (i) the
total value paid or proposed to be paid or received by Nexell or Nexell
stockholders, claims holders or contract parties, as the case may be, pursuant
to the transaction, whether or not consummated, for which Odyssey is engaged to
render financial advisory services, bears to (ii) the fee paid or proposed to be
paid to Odyssey in connection with such engagement. It is agreed that it would
not be just and equitable if contribution pursuant to this Section 9.3 were
determined by pro rata allocation or by any other method which does not take
into account the considerations referred to in this Section 9.3.
9.4. Nexell further agrees that it will promptly reimburse Odyssey and
any other Indemnified Person hereunder for all expenses (including reasonable
fees and disbursements of counsel) as they are incurred by Odyssey or such other
Indemnified Person in connection with investigating, preparing for or defending,
or providing evidence in, any pending or threatened action, claim, suit or
proceeding in respect of which indemnification or contribution may be sought
hereunder (whether or not Odyssey or any other Indemnified Person is a party)
and in enforcing this Section 9.
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9.5. Nexell indemnity, contribution, reimbursement and other
obligations under this Section 9 shall be in addition to any liability that
Nexell may otherwise have, at common law or otherwise, and shall be binding on
Nexell successors and assigns.
9.6. The indemnification provisions of this Section 9 shall apply to
the engagement referenced in this Agreement, activities relating to this
Agreement occurring prior to the date hereof, and any subsequent modification of
or amendment to this Agreement, and shall remain in full force and effect
following the termination of this Agreement.
Section 10. Amendment.
No modification, waiver, amendment, discharge or change of this
Agreement shall be valid unless the same is evidenced by a written instrument,
executed by the party against which such modification, waiver, amendment,
discharge, or change is sought.
Section 11. Notices.
Any notice required or permitted to be provided hereunder will be in
writing and delivered by either: (a) certified mail, return receipt requested,
postage prepaid; (b) hand delivery; (c) reputable overnight courier service,
freight prepaid; or (d) by fax; addressed as follows:
Odyssey: Odyssey Capital Group, LLC
000 Xxxxx Xxxxx Xxxxxx, 0/xx/ Xxxxx
Xxxxxxx, Xxxxxxx 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
Attn: Xxxxx Xxxx
Email: xxxxx@xxxxxx.xxx
Nexell: Nexell Therapeutics, Inc.
0 Xxxxxx
Xxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxxxx, Xx.
Telephone: 000-000-0000
Facsimile: 000-000-0000
Section 12. Entire Agreement.
This Agreement contains all of the understandings and agreements of the
parties with respect to the subject matter discussed herein.
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Section 13. Severability.
The invalidity, illegality or unenforceability of any provision or
provisions of this Agreement will not affect any other provision of this
Agreement, which will remain in full force and effect, nor will the invalidity,
illegality or unenforceability of a portion of any provision of this Agreement
affect the balance of such provision. In the event that any one or more of the
provisions contained in this Agreement or any portion thereof shall for any
reason be held to be invalid, illegal or unenforceable in any respect, this
Agreement shall be reformed, construed and enforced as if such invalid, illegal
or unenforceable provision had never been contained herein.
Section 14. Governing Law; Consent to Jurisdiction.
The validity, interpretation, performance and enforcement of this
Agreement shall be governed by the laws of the State of California without
regard to the conflicts of laws principles thereof. Nexell and Odyssey hereby
irrevocably and unconditionally consents to the jurisdiction of the state and
federal courts located in Orange County, California for any action, suit or
proceeding arising out of or relating to this Agreement, and agrees not to
commence any action, suit or proceeding related thereto except in such courts.
Nexell and Odyssey hereby irrevocably and unconditionally waive any objection to
the laying of venue of any action, suit or proceeding arising out of or relating
to this Agreement in the state or federal courts located in Orange County,
California and hereby further irrevocably and unconditionally waive and agree
not to plead or claim that any such action, suit or proceeding brought in such
courts has been brought in any inconvenient forum. Nexell and Odyssey further
agree that service of any process, summons, notice or document by U.S.
registered mail to their respective corporate addresses set forth in Section 11
above shall, be effective service of process of any action, suit or proceeding
brought against it in the state and federal courts located in Orange County,
California.
Section 15. Counterparts.
This Agreement may be executed in any number of counterparts, including
facsimile signatures which shall be deemed as original signatures. All executed
counterparts shall constitute one Agreement, notwithstanding that all
signatories are not signatories to the original or the same counterpart.
Section 16. Unenforceable Terms.
Any provision hereof prohibited by law or unenforceable under the law
of any jurisdiction in which such provision is applicable shall as to such
jurisdiction only be ineffective without affecting any other provision of this
Agreement.
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Section 17. Further Assurances.
From time to time each of Nexell and Odyssey will execute and deliver
such further instruments and will take such other action as the other party may
reasonably request in order to discharge and perform its obligations and
agreements thereunder and to give effect to the intentions expressed in this
Agreement.
Section 18. Third Party Beneficiaries.
This Agreement is not intended to confer any rights upon any creditor
or partner of Nexell, or any other person or entity not a party hereto other
than the Indemnified Persons referenced in Section 9.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
Nexell Therapeutics, Inc.,
a Delaware corporation
By:__________________________________________________
Name: Xxxxxxx X. Xxxxxxxx, Xx.
Title: CEO and President
ODYSSEY CAPITAL GROUP, LLC,
an Arizona limited liability company
By:__________________________________________________
Name:_____________________________________________
Title:____________________________________________
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