EXHIBIT 10.58
[LETTERHEAD OF XXXXXX BROTHERS]
November 10, 1997
Acute Therapeutics, Inc.
0000 Xxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxxx, Ph.D.
President and Chief Executive Officer
Dear Sirs:
November 10, 1997
This letter agreement (this "Agreement") will confirm the understanding
and agreement between Xxxxxx Brothers Inc. ("Xxxxxx Brothers") and Acute
Therapeutics, Inc. (the "Company") as follows:
1. The Company hereby engages Xxxxxx Brothers on an exclusive basis to
provide financial advisory services to the Company concerning the
strategic development of the Company's business, including general
advice with respect to financings, acquisitions, divestitures, joint
ventures or other corporate transactions which the Company is
currently contemplating entering into or which it may consider at a
future date.
Xxxxxx Brothers will, if requested by the Company, advise the
Company generally with respect to financing as well as structuring
of any of the transactions described above.
2. As compensation for the services rendered by Xxxxxx Brothers
hereunder, the Company shall pay Xxxxxx Brothers as follows:
(a) A retainer fee of $100,000, payable in equal quarterly
payments, in any combination of cash and common stock of the
Company (at a valuation to be mutually agreed between the
Company and Xxxxxx Brothers), provided that at least 50% of
the payment is in cash, the first payment being due upon the
signing of this Agreement. This retainer will be credited
against any transaction fee payable pursuant to paragraph
2(b).
(b) If Xxxxxx Brothers provides any additional investment banking
services to the Company in connection with any particular
transaction, then the Company shall pay to Xxxxxx Brothers
additional fees to be mutually agreed upon based on Xxxxxx
Brothers' customary fees for the services rendered.
Acute Therapeutics, Inc.
November 10, 1997
page 2
3. The Company shall reimburse Xxxxxx Brothers upon request for its
reasonable expenses (including, without limitation, professional and
legal fees and disbursements) incurred in connection with its
engagement hereunder.
4. The Company shall:
(a) indemnify Xxxxxx Brothers and hold it harmless against any and
all losses, claims, damages or liabilities to which Xxxxxx
Brothers may become subject arising in any manner out of or in
connection with the rendering of services by Xxxxxx Brothers
hereunder or the rendering of additional services by Xxxxxx
Brothers as requested by the Company that are related to the
services rendered hereunder, unless it is finally judicially
determined that such losses, claims, damages or liabilities
resulted directly from the gross negligence or willful
misconduct of Xxxxxx Brothers; and
(b) reimburse Xxxxxx Brothers promptly for any legal or other
expenses reasonably incurred by it in connection with
investigating, preparing to defend or defending, or providing
evidence in or preparing to serve or serving as a witness with
respect to, or otherwise relating to, any lawsuits,
investigations, claims or other proceedings arising in any
manner out of or in connection with the rendering of services
by Xxxxxx Brothers hereunder or the rendering of additional
services by Xxxxxx Brothers as requested by the Company that
are related to the services rendered hereunder (including,
without limitation, in connection with the enforcement of this
Agreement and the indemnification obligations set forth
herein); provided, however, that in the event a final judicial
determination is made to the effect specified in subparagraph
4(a) above, Xxxxxx Brothers will remit to the Company any
amounts reimbursed under this subparagraph 4(b).
The Company agrees that the indemnification and reimbursement
commitments set forth in this paragraph 4 shall apply if either the
Company or Xxxxxx Brothers is a formal party to any such lawsuits,
investigations, claims or other proceedings and that such
commitments shall extend upon the terms set forth in this paragraph
to any controlling person, affiliate, director, officer, employee or
agent of Xxxxxx Brothers (each, with Xxxxxx Brothers, an
"Indemnified Person"). The Company further agrees that, without
Xxxxxx Brothers' prior written consent, it will not enter into any
settlement of a lawsuit, claim or other proceeding arising out of
the transactions contemplated by this Agreement (whether or not
Xxxxxx Brothers or any other Indemnified Person is an actual or
potential party to such lawsuit, claim or proceeding) unless such
settlement includes an explicit and unconditional release from the
party bringing such lawsuit, claim or other proceeding of all
Indemnified Persons.
Promptly after receipt by Xxxxxx Brothers or any Indemnified Person
of notice of any pending or threatened litigation, Xxxxxx Brothers
or such other Indemnified Person will promptly notify the
Acute Therapeutics, Inc.
November 10, 1997
page 3
Company in writing of such matted; provided, however, that the
failure to provide such prompt notice to the Company shall not
relieve the Company of any liability which it may have to the
Indemnified Persons under this paragraph 4 unless such failure has
materially prejudiced the defense of such litigation and shall not
in any event relieve the Company of any liability it may have to the
Indemnified Persons other than under this paragraph 4. In the event
any action is brought against Xxxxxx Brothers, the Company shall be
entitled to participate therein and to assume the defense thereof,
with counsel reasonably satisfactory to Xxxxxx Brothers; provided,
however, that if Xxxxxx Brothers reasonably determines that the
defenses available to it are not available to the Company and/or may
not be consistent with the best interests of the Company, Xxxxxx
Brothers shall have the right to assume its own defense at the
Company's expense and shall so signify by promptly notifying the
Company of its decision. Such decision shall not relieve the Company
of any liability which it may have to Indemnified Persons under this
paragraph 4.
5. The Company and Xxxxxx Brothers agree that if any indemnification or
reimbursement sought pursuant to the preceding paragraph 4 is
judicially determined to be unavailable for a reason other than the
gross negligence or willful misconduct of Xxxxxx Brothers, then,
whether or not Xxxxxx Brothers is the Indemnified Person, the
Company and Xxxxxx Brothers shall contribute to the losses, claims,
damages, liabilities and expenses for which such indemnification or
reimbursement is held unavailable (i) in such proportion as is
appropriate to reflect the relative benefits to the Company on the
one hand, and Xxxxxx Brothers on the other hand, in connection with
the transactions to which such indemnification or reimbursement
relates, or (ii) if the allocation provided by clause (i) above is
judicially determined not to be permitted, in such proportion as is
appropriate to reflect not only the relative benefits referred to in
clause (i) but also the relative faults of the Company on the one
hand, and Xxxxxx Brothers on the other hand, as well as any other
equitable considerations; provided, however, that in no event shall
the amount to be contributed by Xxxxxx Brothers pursuant to this
paragraph exceed the amount of the fees actually received by Xxxxxx
Brothers hereunder.
6. Except as contemplated by the terms hereof or as required by
applicable law or pursuant to an order entered or subpoena issued by
a court of competent jurisdiction, Xxxxxx Brothers shall keep
confidential all material non-public information provided to it by
the Company, and shall not disclose such information to any third
party, other than such of its employees and advisors as Xxxxxx
Brothers determines to have a need to know. Xxxxxx Brothers shall
give the Company prior notice of any disclosure required by law or
pursuant to an order or subpoena under this paragraph 6.
7. Except as required by applicable law, any advice to be provided by
Xxxxxx Brothers under this Agreement shall not be disclosed publicly
or made available to third parties without the prior
Acute Therapeutics, Inc.
November 10, 1997
page 4
approval of Xxxxxx Brothers, and accordingly suck advice shall not
be relied upon by any person or entity other than the Company.
8. The term of Xxxxxx Brothers' engagement hereunder shall extend from
the date hereof through October 31, 1998, unless terminated earlier
as set forth below. Subject to the provisions of paragraphs 2
through 7 and paragraphs 9 through 12, which shall survive any
termination or expiration of this Agreement, either party may
terminate Xxxxxx Brothers' engagement hereunder at any time by
giving the other party at least 10 days' prior written notice. In
the event that Xxxxxx Brothers' engagement hereunder is terminated
or expires, Xxxxxx Brothers shall be entitled to fees pursuant to
paragraph 2(b) only with respect to a transaction of the types
contemplated to be covered by this agreement that is (i) with a
party introduced to the Company by Xxxxxx Brothers during the term
of this agreement and (ii) is consummated within one year after such
termination or expiration.
9. The Company agrees that Xxxxxx Brothers has the right to place
advertisements in financial and other newspapers and journals at its
own expense describing its services to the Company hereunder,
provided that Xxxxxx Brothers will submit a copy of any such
advertisements to the Company for its approval, which approval shall
not be unreasonably withheld.
10. Nothing in this Agreement, expressed or implied, is intended to
confer or does confer on any person or entity other than the parties
hereto or their respective successors and assigns, and to the extent
expressly set forth herein, the Indemnified Persons, any rights or
remedies under or by reason of this Agreement or as a result of the
services to be rendered by Xxxxxx Brothers hereunder. The Company
further agrees that neither Xxxxxx Brothers nor any of its
controlling persons, affiliates, directors, officers, employees or
agents shall have any liability to the Company or any person
asserting claims on behalf of or in right of the Company for any
losses, claims, damages, liabilities or expenses arising out of or
relating to this Agreement or the services to be rendered by Xxxxxx
Brothers hereunder, unless it is finally judicially determined that
such losses, claims, damages, liabilities or expenses resulted
directly from the gross negligence or willful misconduct of Xxxxxx
Brothers.
11. The invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of any
other provisions of this Agreement, which shall remain in full force
and effect.
12. This Agreement may not be amended or modified except in writing
signed by each of the parties and shall be governed by and construed
and enforced in accordance with the laws of the State of New York.
Any right to trial by jury with respect to any lawsuit, claim or
other proceeding arising
Acute Therapeutics, Inc.
November 10, 1997
page 5
out of or relating to this Agreement or the services to be rendered
by Xxxxxx Brothers hereunder is expressly and irrevocably waived.
If the foregoing correctly sets forth the understanding and
agreement between Xxxxxx Brothers and the Company, please so indicate in
the space provided for that purpose below, whereupon this letter shall
constitute a binding agreement as of the date hereof.
XXXXXX BROTHERS INC.
By: /s/ [ILLEGIBLE]
---------------------------------
Vice Chairman
AGREED:
ACUTE THERAPEUTICS, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
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Name:
Title:
