EXHIBIT 10.2
XXXXXXX XXXX PARTNERS
A DIVISION OF PALI CAPITAL INC.
000 XXXXXXXXX XXXXXX TEL 000-000-0000
XXX XXXX, XXX XXXX 00000 FAX 000-000-0000
November 8, 2005
Xx. Xxxxxx Xxxxxxxxx
A-Fem Medical Corporation
000 Xxxxxxxxxx Xx. Xxxxx 000
Xxxxxx, XX 00000
Dear Mr. Witoshkin.:
This agreement confirms the engagement of Xxxxxxx Xxxx Partners, a
division of Pali Capital, Inc. ("BHP") by A-Fern Medical Corporation ("A-Fem" or
the "Company") as its financial advisor in connection with one or more potential
strategic transactions, which may include an acquisition, partnership, strategic
alliance or merger (a. "Strategic Transaction"). In the event the Company elects
to pursue an equity or debt financing during the term of this engagement or an
equity or debt financing is required in connection with a Strategic Transaction,
BHP and the Company shall enter into a separate letter agreement, to be
negotiated in good faith on commercially standard terms, related to such
financing activity. This engagement shall have a term of six months, which term
may be extended upon mutual written agreement of the parties.
As part of BHP's engagement, at the Company's request, BHP will use its
commercially reasonable best efforts to:
(a) assist the Company in analyzing and evaluating the business,
operations and financial position of each suitable prospect for a
Strategic Transaction;
(b) assist the Company with its due diligence efforts related to each
potential Strategic Transaction;
(c) assist the Company in structuring and negotiating each Strategic
Transaction; and
(d) be available at the Company's request to meet with your Board of
Directors to discuss any proposed Strategic Transaction and its
financial implications;
(e) assist the Company with the identification of potential merger,
acquisition, partnership or strategic alliance candidates; andassist
the Company in identifying potential sources of funding.
In connection with BHP's engagement hereunder, the Company shall compensate BHP
as set forth below:
(a) Upon execution of this engagement, the Company shall issue to BHP and
its registered assignees 100,000 common stock purchase warrants
exercisable at $2.00 per share (the "Advisory Warrants"). The Advisory
Warrants shall have a term of five years, a cashless exercise
provision, standard weighted average anti-dilution protection and
piggyback registration rights.
(b) The Company shall pay an advisory of $50,000 to BHP when the Company's
cash balance exceeds $5,000,000
The Company shall reimburse BHP for out of pocket expenses incurred in
connection with this engagement, subject to a cap of ten thousand ($10,000.00)
dollars.
Notice given pursuant to any of the provisions of this Agreement shall
be given in writing and shall be sent by recognized overnight courier or
personally delivered (a) if to the Company, to the address listed above.
Attention: Chief Executive Officer; and (b) if to BHP, to its office at 000
Xxxxxxxxx, 0xx Xxxxx, Xxx Xxxx, XX 00000. Attention; Xxxxx Xxxxxxx, Managing
Director.
No financial advice rendered by BHP pursuant to this Agreement may be
disclosed publicly without BHP's prior written approval, except as may be
required by law, regulation or court order.
This Agreement shall be governed by the laws of the State of New York
applicable to agreements made and to be performed entirely within such State.
The Company may terminate this Agreement upon thirty days written notice to B.
If any provision of this Agreement is determined to be invalid or
unenforceable in any respect, such determination will not effect such prevision
in any other respect or any other provision of this Agreement. The
Indemnification Agreement attached hereto entered into between, the Company and
BHF shall apply to this engagement.
Please confirm that the foregoing correctly sets forth our agreement by
signing and returning to BHP the enclosed duplicate copy of this Agreement.
Very truly yours,
Xxxxxxx Hill Partners, a division of Pali Capital, Inc.
By: /s/Xxxxx X. Xxxxxxx
--------------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Managing Director
Accepted and agreed to as of the date written above
A-Fem Medical Corporation
By: /s/Xxxxxx Xxxxxxxxx
------------------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Chief Executive Officer
TO: Xxxxxxx Xxxx Partners
A division of Pali Capital, Inc. Date: November 8, 2005
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
In connection with your engagement pursuant to on letter Agreement of
even date herewith (the "Engagement"), we agree to indemnify and hold harmless
Xxxxxxx Hill Partners, a division of Pali Capital, Inc. ("BHP") and its
affiliates, the respective directors, officers, partners, agents and employees
BHP and its affiliates, and each other person, if any, controlling BHP or any of
its affiliates (collectively, "Indemnified Persons"), from and against, and we
agree that no Indemnified Person shall have any liability to us or our owners,
parents, affiliates, security holders for, any losses, claims, damages or
liabilities (including actions or proceedings in respect thereof) (collectively
"Losses") (A) related to or arising out of (i) our actions or failures to act
(including statements or omissions made, or information provided, by us or our
agents) or (ii) actions or failures to act by an Indemnified Person with our
consent or in reliance on our actions or failures to act, or (B) otherwise
related to or arising out of the Engagement or your performance thereof, except
that this clause (B) shall not apply to any Losses that are finally judicially
determined to have resulted primarily from your bad faith, willful misconduct or
gross negligence or breach of the letter Agreement. If such indemnification is
for any reason not available or insufficient to hold you harmless, we agree to
contribute to the Losses involved in such proportion as is appropriate to
reflect the relative benefits received by us and by you with respect to the
Engagement or, if such allocation is judicially determined unavailable, in such
proportions as is appropriate to reflect other equitable considerations such as
the relative fault of us on the one hand and of you on the other hand; provided
however, that, to the extent permitted by applicable law, the Indemnified
Persons shall not be responsible for amounts which in the aggregate are in
excess of the amount of all fees actually received by you from us in connection
with the Engagement. Relative benefits to us, on the one hand, and you on the
other hand, with respect to the Engagement shall be deemed to be in the same
proportion as (i) the total value paid or proposed to be paid or received or
proposed to be received by us or our security holders, as the case may be,
pursuant to the transactions), whether or not consummated, contemplated by the
Engagement bears to (ii) all fees paid or proposed to be paid to you by us in
connection with the Engagement.
We will reimburse each Indemnified Person for all expenses (including
reasonable fees and disbursement of counsel) promptly after they are incurred
after submission to us of documentation related to the incurrence of such
expenses by such Indemnified Person in connection with investigating, preparing
for or defending any action, claim investigation, inquiry, arbitration or other
proceeding ("Action") referred to above (or enforcing this Agreement or any
related engagement Agreement), whether or not in connection with pending or
threatened litigation in which any Indemnified Person is a party, and whether or
not such Action is initiated or brought by you. We further agree that we will
not settle or compromise or consent to the entry of any judgment in any pending
or threatened Action in respect of which indemnification may be sought hereunder
(whether or not an indemnified Person is a party thereof) unless we have given
you reasonable prior written notice thereof and used all reasonable efforts,
after consultation with you, to obtain an unconditional release of each
Indemnified Person from all liability arising from the event thereof.
In the event that we are called or subpoenaed to give testimony in a
court of law, you agree to pay our expenses related thereto and for every day or
part thereof that we are required to be there or in preparation thereof. Our
obligations hereunder shall be in addition to any rights that any Indemnified
Person may have at common law or otherwise. Solely for the purpose of enforcing
this Agreement, we hereby consent to personal jurisdiction on and to service and
venue in any court in which any claim which is subject to this Agreement is
brought by or against any Indemnified Person. We acknowledge that in connection
with this Engagement you are acting as an independent contractor with duties
owing solely to us. YOU HEREBY AGREE, AND WE HEREBY AGREE ON OUR OWN BEHALF AND,
TO THE EXTENT PERMITTED BY APPLICABLE LAW, ON BEHALF OF OUR SECURITY HOLDERS, TO
WAIVE ANY RIGHT TO TRIAL BY JURY WITH RESPECT TO ANY CLAIM, COUNTER-CLAIM OR
ACTION ARISING OUT OF THE ENGAGEMENT, YOUR PERFORMANCE THEREOF OR THIS
AGREEMENT.
The provisions of this Agreement shall Apply to the Engagement
(including related activities prior to the date hereof) and any modification
(hereof and shall remain in full force and effect regardless of the completion
or termination of the Engagement. This Agreement and any other Agreements
relating to the Engagement shall be governed by and construed in accordance with
the laws of the State of New York, without regard to conflicts of law principles
thereof.
Very truly yours,
Accepted and Agreed;
Xxxxxxx Xxxx Partners, Client: A-Fem Medical Corporation
a Division of Pali Capital, Inc.
By: /s/Xxxxx Xxxxxxx By: /s/Xxxxxx Xxxxxxxxx
---------------------------- -------------------------------
Name: Xxxxx Xxxxxxx Name: Xxxxxx Xxxxxxxxx
Title: Managing Director Title: Chief Executive Officer
