Exhibit 10.1 - Business Development and Commercialization Agreement
(VEDI PARTNERS L.L.C.)
BUSINESS DEVELOPMENT AND COMMERCIALIZATION AGREEMENT
On this 1st day of September, 2014 (the "Effective Date"), SIGNAL ADVANCE, INC.
(hereafter referred to as "SAI") whose principal offices are located at 0000
Xxxxxx Xxxx 00, Xxxxxxxx, XX 00000, and VEDI Partners, L.L.C. (hereafter
referred to as "ADVISORS"), whose principal offices are located at 0000
Xxxxxxxxxx Xx,, Xxxxxxx, XX 00000 enter into this Business Development Agreement
(the "Agreement"). SAI and ADVISORS are herein referred to as "PARTIES".
WHEREAS, SAI's primary business is the development, commercialization and
licensing of its proprietary Signal Advance (SA) Technology which offsets signal
detection and processing delays associated with a variety of physical sensors
and thereby improves performance in control, intervention, and/or signal
transmission systems; and
WHEREAS, SAI desires to retain the services of ADVISORS due to ADVISORS's
special expertise in medical and other markets worldwide; and
WHEREAS, ADVISORS has also demonstrated special skills in providing other
deliverables and services as set forth in this Agreement; and
WHEREAS, ADVISORS desires to provide to SAI the deliverables and services as set
forth in this Agreement.
NOW THEREFORE, the parties agree to the following terms and conditions:
1. Services. This Business Development and Commercialization Agreement (the
"Agreement") is intended to serve as the agreement between the PARTIES
authorizing ADVISORS to provide to SAI the services described herein, to the
extent they shall be requested by SAI. It is the PARTIES' understanding that SAI
desires to retain the services of ADVISORS, to act as its non-exclusive
independent advisors in assisting SAI to attain the objectives as set forth in
this Agreement. During the term of this Agreement, ADVISORS's primary
responsibilities will be to assist SAI in business development/expansion through
licensing, commercialization and establishment of strategic partnerships.
ADVISORS hereby agrees to use its best efforts to pursue and attain, for the
benefit of SAI, the following goals:
a. To identify and evaluate new business and market opportunities for SA
Technology and its related intellectual property (IP);
b. To identify specific licensing/commercialization opportunities and develop
strategies to pursue same;
c. To evaluate, prepare and disseminate descriptive information and present
material on SA Technology/IP to prospective licensees and/or strategic partners;
d. To identify activities related to licensing/commercialization strategies and
opportunities with other professionals including physician and hospital groups,
medical institutions, medical equipment development and manufacturing firms;
e. To negotiate and secure agreements for the licensing or assignment of IP
rights related to SA Technology with various targeted new business projects
(including private, public and governmental opportunities)\
f. To assist in furthering the financial and business objectives of SAI;
g. To provide periodic (not less than bi-weekly) reporting of activities/
progress to contact(s) as designated by SAI.
Pursuant to the terms of this Agreement, ADVISORS's responsibilities/pursuits
are not specifically limited to medical applications/markets. Accordingly,
ADVISORS is free to pursue the goals listed above, on behalf of and for the
benefit of SAI, for non-medical markets.
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2. Compensation. In consideration of ADVISORS's agreement to provide the
services and deliverables described above, SAI agrees as follows:
a. SAI shall issue to ADVISORS, or its designee, a non-refundable retainer fee
of Two Hundred Thousand (200,000) shares of SAI Common Stock immediately upon
execution of this Agreement. These shares are non-refundable, earned upon
receipt, non-assessable and non-accountable.
b. SAI shall issue an additional One Hundred Thousand (100,000) shares of SAI
Common Stock to ADVISORS upon completion of mutually agreed milestone/goals of
the PARTIES, for the period beginning on the effective date of this agreement
and continuing through December 31, 2014 as detailed in Exhibit A (attached
hereto and incorporated by reference). These shares shall be fully vested on
completion/attainment of the agreed upon milestones/goals.
c. Subsequent three (3) month period of time renewal payments of One Hundred
Thousand (100,000) shares shall be payable based on the completion by ADVISORS
of mutually agreed milestone/goals set per calendar quarter as detailed in
additional Exhibits (to be attached hereto and incorporated by reference).
Milestones/goals will be negotiated in good faith and will take into
consideration the prevailing market price for SAI Common Stock. These shares
shall be fully vested on completion or attainment of said milestones/goals.
d. ADVISORS will be paid additional compensation, as a direct fee or comparable
equity, equivalent to six percent (6.0%) of the GROSS revenues received by SAI,
from any and all licensing agreements, assignment, consulting and/or development
agreements which include terms acceptable to SAI. Such agreements must be
initiated by ADVISORS, and negotiated and executed by SAI, or its
representatives, for the sole and direct benefit of SAI.
e. A Performance Bonus/Success Fee will be negotiated in good faith in a
separate agreement by both PARTIES to this Agreement and attached as an
Addendum to this Agreement.
f. ADVISORS may, from time to time, identify to SAI in writing, such assignees
who shall receive all or any portion of the fees to be paid by SAI as provided
herein. Provided, however, any and all such fees shall be reported to all
local, state and federal authorities as having been paid to ADVISORS. The
PARTIES agree ADVISORS may withdraw from representation of SAI if any of the
compensation stated herein is not paid in accordance with this Agreement.
Compensation defined herein is agreed and acknowledged by the PARTIES to be
fair and equitable for the services rendered
3. Expenses. ADVISORS shall be solely financially responsible for the payment of
any and all compensation, benefits and taxes paid to any and all professionals
and such other parties employed by ADVISORS to assist with its performance of
this Agreement. ADVISORS shall be solely responsible for the payment of any and
all customary and ordinary expenses incurred by any of its employees and/or
third party independent agents, including but not limited to the total cost for
all meals, travel, lodging and incidental expenses incurred by representatives
of ADVISORS in carrying out the responsibilities of ADVISORS and delivering the
agreed upon goals as described in this Agreement. Provided, however, ADVISORS
may be reimbursed for all, or any portion of, such expenses only upon the prior
written approval of SAI that SAI has specifically authorized reimbursement for
during the term of this Agreement. If any such specifically authorized expenses
have been approved by SAI for reimbursement, then within thirty (30) days after
receipt of an invoice by ADVISORS for any and all such direct out-of-pocket
expenses, including any professional fees incurred by ADVISORS in connection
with the performance of this Agreement, ADVISORS shall send a copy of such
invoice(s) to SAI with a request for reimbursement. Failure of ADVISORS to
tender the copies of any such invoices within the thirty (30) period of time
after receipt of same will nullify any requirement of SAI to provide
reimbursement to ADVISORS for such expense(s).
4. Non-Exclusivity. This Agreement is a non-exclusive agreement such that SAI
retains the right, at all times, to seek and contract for the same or similar
services related to licensing, commercialization and strategic partnerships
involving SA Technology/IP from any other party or parties without the prior
notice, approval or consent of ADVISORS.
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5. Term. The initial term of this Agreement shall be for a period of one (1)
year from the Effective Date of this Agreement.
6. Termination. Either party may terminate this Agreement, except for the
Surviving Provisions as hereinafter defined (the "Early Termination") by giving
the other party at least thirty (30) days prior written notice of such Early
Termination. If either party considers the other to be in breach of a material
provision of this Agreement, the party will provide written notice of such
alleged breach and allow the other party thirty (30) days from and after the
date of receipt of the notice to cure the putative breach. In the event the
noticed party fails to cure the putative breach of contract within thirty (30)
days of receipt of the notice, the noticing party may terminate this Agreement
as a result of such breach. Notwithstanding any termination or expiration of
this Agreement: (a) Sections 2, 5, 8 and 9 shall survive any termination or
expiration of this Agreement along with any other provisions of this Agreement
which expressly, or by implication, survive termination or expiration
(collectively the "Surviving Provisions").
7. Notices. Notices to the parties under this Agreement shall be served, in
writing, to the persons and/or entities at the address set forth below for each
party:
For SAI: Signal Advance, Inc. For ADVISORS: VEDI Partners, LLC
0000 Xxxxxx Xxxx 00 0000 Xxxxxxxxxx Xx
Xxxxxxxx, XX 00000 Xxxxxxx, XX 00000
8. Confidentiality and Non-Circumvention. In connection with this Agreement, the
term "Confidential Information" means (i) confidential business or technical
information or data of SAI that is competitively and commercially valuable to
SAI and not generally known, or available by legal means, to the public or to
any competitors of SAI or (ii) materially non-public information about SAI,
which, in either case, is somehow clearly marked or identified in writing as
being Confidential Information. ADVISORS agrees that during the term of this
Agreement, whether the initial term or any renewal periods, unless SAI has
consented in writing, or unless otherwise required by law, by a court or by any
federally recognized agency of the United States government, ADVISORS will not
reveal or disclose any such Confidential Information to any third party, except
to utilize such Confidential Information in a manner consistent with customary
industry practices in connection with the provision of services under this
Agreement. Following the termination of this Agreement, all such non-public
Confidential Information in ADVISORS's possession will be promptly returned to
SAI.
Following the termination of this Agreement and this engagement any and all
materials in all mediums, including any and all copies of such materials held or
retained by ADVISORS, including but not limited to, contracts, agreements,
letters of intent, memorandums, marketing materials, strategies, scenarios,
financial models etc, developed by ADVISORS for SAI associated with performance
of ADVISORS's primary responsibilities described in Paragraph 1 will remain the
intellectual property of SAI, will be promptly delivered to SAI and will not be
used by ADVISORS without the express written consent of SAI.
Furthermore, all terms and conditions of this Agreement shall remain
confidential and not be disclosed to third parties unless required by Court
Order.
During the term hereof, SAI and its duly authorized representatives agree they
will not compete with ADVISORS with respect to any items identified or revealed
in the Confidential Information provided by ADVISORS.
Neither the previous paragraph nor any restriction, non-disclosure or use
limitation or other obligation contained in this Agreement shall apply to any
information, data or item of any kind which is: (i) in the public domain,
through no action of the PARTIES; (ii) already known by the PARTIES; (iii)
disclosed to the PARTIES by any person or entity not known by the PARTIES to be
under an obligation of confidentiality to the PARTIES; or (iv) independently
developed or derived by the PARTIES.
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In connection with this Agreement, the term "Non-Circumvention" means that
during the term of this Agreement:
a. SAI shall not solicit any officer, director, employee or associate of
ADVISORS for any type of business relationship without notifying ADVISORS.
b. SAI will notify ADVISORS if it makes any contact with, communicates with,
deals with or otherwise becomes involved in any transaction(s) with any person,
entity, association, banking or lending institutions, trusts, Sovereign Trust,
corporations, companies, or individuals, lenders or any third party which are,
or were, directly or indirectly located, identified or introduced by ADVISORS to
SAI.
c. SAI will not engage in any effort to circumvent ADVISORS in an attempt to
gain fees, commissions, remunerations, financing or considerations to the
benefit of SAI or to exclude ADVISORS of such a benefit.
d. SAI agrees that should discussions initially fail, for any reason, to result
in a mutually acceptable licensing agreements, assignments and/or consulting
and/or development agreements with any party or parties introduced by ADVISORS
to SAI, but, subsequently, SAI is thereafter successful in reaching a licensing
agreement with any such entity within two (2) years after the date of the
initial introduction by ADVISORS, then any and all fees due to be paid to
ADVISORS from any such transaction shall not be waived or forfeited by ADVISORS
unless specifically stated in writing and agreed to by all PARTIES.
e. SAI agrees that if any resulting transaction, which was initiated by
ADVISORS, is subsequently presented by a third party to SAI, SAI will notify
third party and ADVISORS of such presentation and that SAI has prior knowledge
of such entity or person. SAI agrees that it will not, without first notifying
ADVISORS, attempt to contact or solicit any party or parties introduced to SAI
by ADVISORS for a period of two (2) years following the original introduction
of such parties by ADVISORS, provided SAI established no beneficial or material
business relationship with said party or parties during the term of this
Agreement.
9. Indemnification. In further consideration of ADVISORS executing this
Agreement and agreeing to perform the services and provide the deliverables
pursuant hereto, SAI agrees to indemnify and hold harmless ADVISORS and each of
its directors, officers, advisors, employees and controlling persons of and from
negligence of SAI and each of its directors, officers, advisors, employees and
controlling persons. The provisions of this Section 9 shall survive any
expiration or termination of this Agreement and shall be binding upon any and
all successors or assigns of SAI. Notwithstanding any other provision to the
contrary in this Agreement, ADVISORS shall be solely liable for its own
negligence, including gross negligence, for any act or action of any of its
officers, directors, employees, managers, members, attorneys, accountants,
consultants and other advisors, who are, or may be deemed to be, in violation of
any local, state or federal law or regulation as a result of such actions.
10. General Provisions.
a. SAI is a sophisticated business enterprise with competent internal financial
advisors and legal counsel, and SAI has entered into this Agreement with
ADVISORS for the limited purposes set forth in this Agreement. The parties
acknowledge and agree that their respective rights and obligations as set forth
herein are contractual in nature. Accordingly, SAI disclaims any intention to
impose fiduciary obligations on ADVISORS by virtue of this Agreement and
ADVISORS shall not be deemed to have any fiduciary duties or obligations to any
prospects, other business entities or SAI, or their respective officers,
directors, shareholders, affiliates or creditors, as a result of this Agreement
or the services to be provided pursuant hereto. SAI agrees that any agreement as
contemplated by this Agreement shall contain language which reflects that the
other parties to the transaction relied solely upon their own independent
investigation and counsel before deciding to enter into the contemplated
transaction.
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b. ADVISORS is a sophisticated business enterprise with competent internal
financial ADVISORSs and legal counsel, and ADVISORS has entered into this
Agreement with SAI for the limited purposes set forth in this Agreement. The
parties acknowledge and agree that their respective rights and obligations as
set forth herein are contractual in nature. Accordingly, ADVISORS disclaims any
intention to impose fiduciary obligations on SAI by virtue of this Agreement and
SAI shall not be deemed to have any fiduciary duties or obligations to any
prospects, other business entities or ADVISORS, or their respective officers,
directors, shareholders, affiliates or creditors, as a result of this Agreement
or the services to be provided pursuant hereto. ADVISORS acknowledges that any
agreement as contemplated by this Agreement shall also contain language which
reflects that the other parties to the transaction relied solely upon their own
independent investigation and counsel before deciding to enter into the
contemplated transaction.
c. ADVISORS may perform additional agreed upon services to support the goals of
SAI. If such services are outside the scope of this Agreement then the services,
and any fees to be paid in connection with those services, will be governed by
separate agreements between the PARTIES.
d. Both PARTIES shall have the right, subsequent to receipt of any letter of
intent or the closing of any licensing agreement, assignment, consulting and/or
development agreement or any other related commercialization or strategic
partnership agreement, to place notices, press releases or advertisements at its
own cost in financial and other newspapers and journals describing its services
hereunder, unless precluded from doing so in writing as a condition of the
letter of intent or agreement.
e. This Agreement may be executed in one or more counterparts, each of which
shall be an original but all of which shall together constitute one instrument.
Electronic signatures may also be used to execute this Agreement.
f. In conjunction with the terms of this Agreement as set forth herein, SAI
agrees to provide, to the best of its ability, its assistance and so much
information as may be reasonably required by ADVISORS to initiate discussions of
SA Technology with those qualified parties who indicate a legitimate interest in
entering into licensing agreements with SAI. In connection with ADVISORS's
services, SAI will use its best efforts to furnish to ADVISORS such information
and data relating to SAI as ADVISORS may reasonably request to present a concise
understanding of the SA Technology. SAI recognizes and confirms that ADVISORS,
in the performance of its services hereunder: (i) may rely upon such
information received from SAI and its other advisors or prospects, without
independent verification by ADVISORS; and (ii) does not assume responsibility
for the accuracy or completeness of such information received from SAI, its
advisors or prospects whether or not ADVISORS makes an independent verification
thereof.
g. This Agreement shall be governed by and construed in accordance with the laws
of the State of Texas. This Agreement shall be binding upon and shall inure to
the benefit of the parties hereto and their respective successors and permitted
assigns.
h. All claims arising out of the interpretation, application or enforcement of
this Agreement, including, without limitation, any breach hereof, shall be
settled by final and binding arbitration in Brazoria County, Texas, in
accordance with the commercial rules then prevailing as set forth by the
American Arbitration Association by a panel of three (3) arbitrators appointed
by a duly authorized representative of the American Arbitration Association.
Alternatively, SAI and ADVISORS may each select one arbitrator, and the two
selected arbitrators shall then select the third arbitrator to hear the case as
between the PARTIES. The majority decision of the three (3) arbitrators shall be
binding on SAI and ADVISORS and may be entered and enforced in any court of
competent jurisdiction by either party as a final judgment. The arbitration
shall be pursued and brought to conclusion as rapidly as is possible. SAI AND
ADVISORS EACH WAIVE ANY AND ALL RIGHTS TO TRIAL BY JURY IN ANY ACTION OR
PROCEDING (WHETHER BASED UPON CONTRACT, TORT OR OTHERWISE) RELATED TO OR ARISING
OUT OF THIS AGREEMENT BETEEN SAI AND ADVISORS PURSUANT TO, OR THE PEREFORMANCE
BY ADVISORS, OF THE SERVICES CONTEMPLATED BY THIS AGREEMENT.
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i. All ADVISORS' services and deliverables shall be provided on a best efforts
basis and are based on ADVISORS' experience and expertise. There are no
guarantees, warranties or representations of any kind that ADVISORS' advice or
services will produce any specific results for the benefit of SAI. Actual
results may substantially and materially differ from those suggested by
ADVISORS. For the avoidance of doubt, nothing in this Agreement shall be
construed to require or permit ADVISORS to engage in the offer or sale of any of
SAI's securities or otherwise act as a selling advisor, marketing advisor,
solicitor or finder for SAI or the interests to be offered. ADVISORS shall not
engage in any activity that would require ADVISORS to register as a broker
dealer or investment advisor.
j. SAI and ADVISORS each acknowledge that they have had a sufficient amount of
time for this Agreement to be reviewed by their respective legal counsel as well
as their governing boards prior to executing the Agreement.
k. The execution and delivery by the PARTIES to this Agreement does not, to the
best of their knowledge and belief, conflict with, constitute a breach of, or
result in a default hereunder, of any State, Federal or International laws that
might or could affect this Agreement. Furthermore, both PARTIES agree to comply
with all State, Federal or International laws. However, notwithstanding any
provisions to the contrary, both PARTIES agree that each has a duty to perform
its obligations under this Agreement with care, and with a duty of loyalty
because of their special relationship of good faith and fair dealing as agreed
upon between the PARTIES.
11. Severability. If any one or more of any of the provisions of this Agreement
are held invalid for any reason, such invalidity shall not affect any other
provision or the intent of this Agreement.
12. This Agreement constitutes the entire agreement and understanding between
the PARTIES regarding the subject matter contained herein and supersedes any
and all prior, contrary agreements and understandings, whether oral or written,
relating to the subject matter of this Agreement. All contemporaneous oral or
written communications or agreements between the PARTIES regarding the subject
matter contained herein are merged into this Agreement and may not be considered
outside the scope of this Agreement. This Agreement may not be modified, changed
or amended in any manner, and none of the provisions of this Agreement shall be
waived or extended except by written express agreement, signed by duly
authorized representatives for both PARTIES to this Agreement.
13. Effective Date: The effective date of this agreement is September 1, 2014.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed as of
the Effective Date, by their duly authorized representatives.
SIGNAL ADVANCE INC. VEDI PARTNERS, L.L.C.
By: /s/ Xxxxx X. Xxxxx By: /s/ Xxxxxxxxxxx X. Xxxxx
Name: Xxxxx X. Xxxxx Name: Xxxxxxxxxxx X. Xxxxx
Title: President Title: Principal
By: /s/Xxxx X. Xxxxxxx
Name: Xxxx X. Xxxxxxx
Title: Principal
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