EXHIBIT 10.4
July 23, 2003
MIV Therapeutics, Inc
Xxxx 0, 0000 Xxx Xxxxxx
Xxxxxxxxx, XX X0X 0X0
Xxxxxx
Attn: Xx. Xxxx Xxxxxxx, Chairman, President & CEO
Dear Xx. Xxxxxxx:
This letter, when executed by the parties hereto, will constitute an agreement
between MIV Therapeutics, Inc (the "Company") and Xxxxxx Associates L.P. ("MA")
pursuant to which the Company agrees to retain MA and MA agrees to be retained
by the Company under the terms and conditions set forth below.
1. The Company hereby retains MA to perform consulting services related to
corporate finance and other financial service matters, and MA hereby accepts
such retention on a non-exclusive basis. In this regard, subject to the terms
set forth below, MA 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 MA 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 also sell to MA (or its designated affiliates) upon the execution of this
agreement, 500,000 common stock purchases warrants. Such warrants will expire
one (1) year after the date hereof and will be exercisable at $0.50. The
warrants are extendable after a year upon company's review. 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 MA for any
and all reasonable expenses incurred by MA in the performance of its duties
hereunder, and MA 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 MA from receiving any additional compensation under paragraph 4
herein or otherwise.
3. In addition, MA shall hold itself ready to assist the Company in evaluating
and negotiating particular contracts or transactions, 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 MA with respect to such evaluations and negotiations.
Nothing herein shall require the Company to utilize MA' services in any
particular transactions nor shall limit the Company's obligations arising under
any other agreement or understanding.
4. The Company and MA further acknowledge and agree that MA 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 MA 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 MA 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 MA. MA will receive such a fee if the introduction
is done on a 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 obligating the Company to pay MA 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 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 MA to the Company
prior to such termination, the Company shall pay to MA a fee with respect to
such transaction calculated in accordance with this paragraph.
5. All obligations of MA contained herein shall be subject to MA' reasonable
availability for such performance, in view of the nature of the requested
service and the amount of notice received. MA shall devote such time and effort
to the performance of its duties hereunder as MA shall determine is reasonably
necessary for such performance. MA 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 MA all information reasonably relevant to the
performance by MA of its obligations under this Agreement, or particular
projects as to which MA is acting as advisor, which will permit MA to know all
facts material to the advice to be rendered, and all material or information
reasonably requested by MA. In the event that the Company fails or refuses to
furnish any such material or information reasonably requested by MA, and thus
prevents or impedes MA' performance hereunder, any inability of MA to perform
shall not be a breach of its obligations hereunder.
6. Nothing contained in this Agreement shall limit or restrict the right of MA
or of any partner, employee, agent or representative of MA, 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 MA to render services of any kind to any other corporation, firm,
individual or association.
7. MA will hold in confidence any confidential information, which the Company
provides to MA pursuant to this Agreement unless the Company gives MA permission
in writing to disclose such confidential information to a specific third party.
In addition, all confidential information which the Company provided to MA in
connection with any prior or ongoing Offering shall be considered confidential
information for purposes of this Agreement. Notwithstanding the foregoing, MA
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 MA 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 MA by governmental requirements. If MA 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, MA shall, unless prohibited by law, promptly notify the Company
of such request(s) so that the Company may seek an appropriate protective order.
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8. (a) The Company agrees to indemnify and hold harmless Xxxxxx, its
partners, employees, agents, representatives and controlling persons (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 Xxxxxx is a party), as and when incurred, directly
or indirectly, caused by, relating to, based upon or arising out of Xxxxxx'
services pursuant to this Agreement; provided, however, 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). 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 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 Xxxxxx is
a party), as and when incurred, directly or indirectly, caused by, relating to,
based upon or arising out of 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 MA 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 & AGREED
XXXXXX ASSOCIATES L.P. MIV Therapeutics, Inc
By: /S/ XXXXX XXXXXX BY: /S/ XXXXXXX XXXXXXX
---------------------------------- --------------------------------
Xxxxx Xxxxxx Name: Xxxxxxx XxXxxxx
General Partner Title: Executive Vice President
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