Financial Consulting Agreement
January ____, 1997
CONFIDENTIAL
Niche Pharmaceuticals, Inc.
000 Xxxxx Xxx
X.X. Xxx 000
Xxxxxxx, Xxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx
Gentlemen:
This will confirm the engagement of Xxxxxxxx Xxxxxx & Company, Inc.
("Xxxxxxxx Xxxxxx") as financial advisor to Niche Pharmaceuticals (the
"Company") to perform such general financial consulting services as Xxxxxxxx
Xxxxxx and the Company may agree upon from time to time. Xxxxxxxx Xxxxxx'x
engagement hereunder shall extend for three years from the Effective Date of the
Underwriting Agreement between Xxxxxxxx Xxxxxx and the Company (the
"Underwriting Agreement"), and may be extended by mutual agreement. The
provisions of this Agreement relating to the payment of fees and expenses and
indemnification and contribution will survive any termination of this Agreement.
Capitalized terms used herein which are not defined herein have those
meanings ascribed to them in the Underwriting Agreement.
As compensation for Xxxxxxxx Xxxxxx'x services, the Company will pay
Xxxxxxxx Xxxxxx a monthly fee of $2,778.78 payable in its entirety on the
Closing Date. Fees payable to Xxxxxxxx Xxxxxx for additional services will be
mutually agreed upon, and where appropriate, will be the subject of separate
engagement letters.
The Company will furnish Xxxxxxxx Xxxxxx with such information as
Xxxxxxxx Xxxxxx believes appropriate to its assignment (all such information so
furnished being the "Information"). The Company recognizes and confirms that
Xxxxxxxx Xxxxxx (a) will use and rely primarily on the
Information and on information available from generally recognized public
sources in performing the services contemplated by this Agreement without having
independently verified the same, (b) does not assume responsibility for the
accuracy or completeness of the Information and such other information and (c)
will not make any appraisal of any assets of the Company. To the best of the
Company's knowledge, the Information to be furnished by the Company when
delivered, will be true and correct in all material respects and will not
contain any material misstatement of fact or omit to state any material fact
necessary to make the statements contained therein not misleading. The Company
will promptly notify Xxxxxxxx Xxxxxx if it learns of any material inaccuracy or
misstatement in, or material omission from, any Information theretofore
delivered to Xxxxxxxx Xxxxxx.
It is understood that Xxxxxxxx Xxxxxx is being engaged hereunder solely
to provide the services described above to the Company and that Xxxxxxxx Xxxxxx
is not acting as an agent or fiduciary of, and shall have no duties or liability
to, the equity holders of the Company or any other third party in connection
with its engagement hereunder, all of which are hereby expressly waived.
In consideration of Xxxxxxxx Xxxxxx'x agreement to engage in financial
consulting services for the Company, the Company agrees to indemnify and hold
harmless Xxxxxxxx Xxxxxx and its employees and affiliates from any claims,
losses, damages, expenses or liabilities related to or arising out of Xxxxxxxx
Xxxxxx'x performance of services in connection with this Agreement. This
obligation requires that (i) Xxxxxxxx Xxxxxx give prompt written notice to the
Company of any such claim, action, or demand, (ii) Xxxxxxxx Xxxxxx allows the
Company to control the defense and related settlement negotiations and (iii)
Xxxxxx Xxxxxxxx fully assist, at the Company's expense, in the defense. The
Company will not, however, be responsible for any claims, losses, damages,
expenses, or liabilities that result from gross negligence or willful misconduct
by Xxxxxxxx Xxxxxx or any of its affiliates. Should any legal dispute arise
between the Company and Xxxxxxxx Xxxxxx, the prevailing party shall be entitled
to reimbursement of reasonable attorney fees.
THIS AGREEMENT WILL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE
PERFORMED ENTIRELY IN SUCH STATE.
EACH OF THE COMPANY AND XXXXXXXX XXXXXX AGREE THAT
ANY ACTION OR PROCEEDING BASED HEREON, OR ARISING OUT
OF XXXXXXXX XXXXXX'X ENGAGEMENT HEREUNDER, SHALL BE
BROUGHT AND MAINTAINED EXCLUSIVELY IN XXX XXXXXX XX
XXX XXXXX XX XXX XXXX LOCATED IN THE CITY AND COUNTY
OF NEW YORK OR IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK. THE COMPANY
AND XXXXXXXX XXXXXX EACH HEREBY IRREVOCABLY SUBMIT TO
THE JURISDICTION OF THE COURTS OF THE STATE OF NEW
YORK LOCATED IN THE CITY AND COUNTY OF NEW YORK AND
OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF NEW YORK FOR THE PURPOSE OF ANY SUCH
ACTION OR PROCEEDING AS SET FORTH ABOVE AND
IRREVOCABLY AGREE TO BE BOUND BY ANY JUDGEMENT
RENDERED THEREBY IN
CONNECTION WITH SUCH ACTION OR PROCEEDING. EACH OF
THE COMPANY AND XXXXXXXX XXXXXX HEREBY IRREVOCABLY
WAIVE, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY
OBJECTION WHICH IT MAY HAVE OR HEREAFTER MAY HAVE TO
THE LAYING OF VENUE OF ANY SUCH ACTION OR PROCEEDING
BROUGHT IN ANY SUCH COURT REFERRED TO ABOVE AND ANY
CLAIM THAT ANY SUCH ACTION OR PROCEEDING HAS BEEN
BROUGHT IN AN INCONVENIENT FORUM.
The Company (for itself, anyone claiming through it or its name, and on
behalf of its equity holders) and Xxxxxxxx Xxxxxx each hereby irrevocably waive
any right they may have to a trial by jury in respect of any claim based upon or
arising out of this Agreement or the transactions contemplated hereby. This
Agreement may not be assigned by either party without the prior written consent
of the other party.
This Agreement embodies the entire agreement and understanding between
the parties hereto and supersedes all prior agreements and understandings
relating to the subject matter hereof. If any provision of this Agreement is
determined to be invalid or unenforceable in any respect, such determination
will not affect such provision in any other respect or any other provision of
this Agreement, which will remain in full force and effect. This Agreement may
not be amended or otherwise modified or waived except by an instrument in
writing signed by both Xxxxxxxx Xxxxxx and the Company.
Please confirm that the foregoing correctly sets forth our agreement by
signing and returning to Xxxxxxxx Xxxxxx the enclosed original copy of this
Agreement.
Very truly yours,
XXXXXXXX XXXXXX & COMPANY, INC.
By:________________________________
Name:
Title:
Accepted as of the date written above.
NICHE PHARMACEUTICALS, INC.
By:_________________________________
Name:
Title:
