BREAN MURRAY CARRET & CO. LETTERHEAD]
[XXXXX
XXXXXX XXXXXX & CO. LETTERHEAD]
September
16, 2009
STRICTLY
PRIVATE
AND
CONFIDENTIAL
Xx.
Xxxxxxx X. Xxxxxxxx
President
and Chief Operating Officer
Hythiam,
Inc.
0000
Xxxxx Xxxxxx Xxxxxxxxx
Los
Angeles, CA 90025
Dear Xx.
Xxxxxxxx:
This is
to acknowledge and confirm the terms of our corporate finance representation
agreement (the “Agreement”) as follows:
1.
Hythiam Inc. (“Hythiam” or the “Company”) hereby engages Xxxxx Xxxxxx, Carret
& Co. (“BMC”), and BMC hereby agrees to render services to the Company, as a
non-exclusive corporate finance advisor on the terms and for the services
specified herein. BMC agrees to provide advice to the Company and evaluate
relevant transactions (“Transaction(s)”) the Company may consider during the
term of this Agreement, including but not limited to raising the Company growth
financing via a public or private offering of equity (the
“Offering”)
2. The
term of this engagement (the “Engagement Period”) shall be for a period of
thirty (30) days (the “Term”) commencing with the execution of this Agreement by
the Company (the “Effective Date”).
3. The
Company agrees that should it consummate an Offering during the Term of the
Agreement, the Company shall pay to BMC, or cause BMC to be paid, at the closing
of such Transaction, a cash fee 1% of the gross proceeds raised.
4.
Transaction fees described herein are payable in full, without discount or
reduction, in cash on
closing
of any Transaction.
Xx.
Xxxxxxx X. Xxxxxxxx
September
16, 2009
Page
2
5. The
benefits of this Agreement shall inure to the parties hereto and their
respective successors and assigns, and the obligations and liabilities assumed
in this Agreement shall be binding upon the parties hereto and their respective
successors and assigns. Notwithstanding anything contained herein to the
contrary, the Company shall not assign to an unaffiliated third party any of its
rights or obligations hereunder without the express written consent of
BMC.
6. Any
dispute between the parties to this Agreement shall be settled by arbitration
before the facilities of the Financial Industry Regulatory Authority and will be
conducted pursuant to applicable federal laws, the laws of the State of New
York, without regard to conflicts of laws, and the rules of the selected
arbitral facility. The parties understand that the award of the arbitrators, or
of a majority of them, will be final and that a judgment upon any award rendered
may be entered in any court having jurisdiction.
7. All
notices provided hereunder shall be given in writing and either delivered
personally or by overnight courier service or sent by certified mail, return
receipt requested, if to BMC, to 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Xx. Xxxxx X. Xxxxxxxxx; and if to the Company, to 00000 Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx 0000, Xxx Xxxxxxx, XX 00000, Attention: Xx. Xxxxxxx X.
Xxxxxxxx.
8. The
Company represents and warrants to BMC that Xx. Xxxxxxx X. Xxxxxxxx is the
President and Chief Operating Officer of the Company and is authorized on behalf
of the Company to execute the Agreement and to consummate the potential
transactions described herein, and the execution of this Agreement will not
conflict with or breach the certificate or articles of incorporation or bylaws
of the Company or any agreement to which the Company is a party.
9.
Indemnification is incorporated by reference to Addendum I.
10. The
Agreement sets forth the entire understanding of the parties relating to the
subject matter hereof, and supersedes and cancels any prior communications,
understandings and agreements between the parties. This Agreement cannot be
modified, or changed, nor can any of its provisions be waived, except by written
agreement signed by all parties.
Xx.
Xxxxxxx X. Xxxxxxxx
September
16, 2009
Page
3
Please
confirm that the foregoing is in accordance with your understanding by signing
and returning this letter to BMC and keeping a duplicate for your files. This
Agreement shall be effective after your acceptance below and its receipt by BMC
at its address set forth on this letter.
Very
truly yours,
Xxxxx
Xxxxxx, Carret & Co.
Xxxxx X.
Xxxxxxxxx
Managing
Director
Agreed
and accepted on the day
of
September, 2009.
Hythiam,
Inc.
By:__________________________
Xx.
Xxxxxxx X. Xxxxxxxx
President
and Chief Operating Officer
