AGREEMENT
AGREEMENT made and entered into as of the 15th day of March, 1999 by
and between East Coast Angels, L.L.C. ("East Coast"), a Florida Limited
Liability Company, and IXION BIOTECHNOLOGY, INC., a Delaware corporation
("Company").
WHEREAS, Company intends to (a) obtain additional financing by making
an offering ("Offering") consisting of a private placement of the Company's
stock or other securities with investors introduced to Company solely by East
Coast (each an "Investor"); (b) enter into a strategic alliance with an entity
introduced to Company solely by East Coast ("Strategic Alliance") which may
include, but is not limited to, a relationship with a corporate partner, a
commitment to provide funding, or the sale of equity or other securities; and
(c) enter into a merger, consolidation or sale of all or substantially all of
the Company's assets with an entity introduced to Company solely by East Coast
("Business Combination"); and
WHEREAS, East Coast is willing to assist Company with Transactions;
NOW THEREFORE, in consideration of the premises and the mutual
covenants contained herein, the undersigned agree as follows:
1. TERM OF AGREEMENT. This Agreement shall have a term ("Agreement Term") of six
months, beginning on the date first above written, 1999, unless extended by the
mutual written agreement of both parties.
2. DUTIES OF EAST COAST. East Coast's sole function shall be to:
a. Act as a nonexclusive finder, that is to identify prospective
Resources and make introductions of such Resources to Company. Such
introductions shall be in writing. However, in performing such duties East Coast
shall not evaluate or endorse the merits of any investment, Strategic Alliance
or Business Combination opportunity presented to Company and makes no
recommendations or endorsements regarding the appropriateness of particular
investment, Strategic Alliance or Business Combination opportunities for
particular Resources. Potential Resources must rely on their own judgment
regarding the merits of a particular opportunity. Potential resources shall
conduct their own independent investigation of the Company and the facts
submitted by the Company to make an informed decision. East Coast shall not
become involved with any negotiations between Company and Resources or with
structuring any transaction. Additionally, East Coast will not handle any funds
or securities involved in completing the transaction.
3. RIGHTS OF EAST COAST. If at any time during a period of one year after the
expiration of the Agreement Term, including extensions, Company closes a
Transaction with any Resource or any "Affiliate" (as defined below) of any such
Resource that was introduced solely (or if not solely, then introduced first) by
East Coast, East Coast shall be entitled to remuneration as provided in this
Agreement with respect to such Transaction with such Resource or Affiliate.
"Affiliate" for purposes of this Agreement shall mean a person or entity who
controls, is controlled by, or is under common control with a Resource.
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4. EXPENSES. You agree to pay us an initial retainer deposit of One-thousand
dollars ($1,000) upon execution of this Agreement. You authorize us to use those
funds to pay costs and expenses in connection with performing our services
including, but not limited to: outside consulting fees, messenger and other
delivery fees, overnight delivery fees, and travel expenses. Such expenses will
be itemized. Un-expended funds shall be returned to the Company upon
termination. Any other charges above this amount shall be subject to Company's
approval.
5. REMUNERATION.
a. Upon closing of a transaction consistent with the time and rights
pursuant to paragraph 3 of this Agreement, with a Resource or an Affiliate, East
Coast shall be entitled to receive at closing from funds provided through the
transaction a finder's fee equal to Ten (10) percent of the funds raised
("Fee"). If there is more than one closing, East Coast shall receive a Fee at
each closing. The Fee shall be in the same form as the funds raised.
b. If a Transaction is not consummated with a Resource, or with any of
their Affiliates, East Coast shall not be entitled to a Fee under this
Agreement.
c. In the event that the Company consummates a Strategic Alliance, the
total consideration upon which the Fee is based shall include, but shall not be
limited to: (a) payments made for assets, (b) payments made for equity or other
securities, (c) future payments for which the partner is obligated either
absolutely or upon the attainment of expressly specified milestones, (d) funding
by the partner (through reimbursement or otherwise) of any expenditures of the
Company and (e) all future profits for any services provided by the Company for
the Strategic Alliance which are purchased over a period of time. Each Fee
received shall be aggregated with previous Fees received under this Agreement.
The Fee shall be calculated using the sum of the above categories, (a) through
(e), commencing on the first day of the Strategic Alliance using the following
percentages over the specified time periods:
1. 5% for the first twelve months (1st day through 12th month);
2. 4% for the next twelve months (12th month plus one day
through 24th month);and
3. 3% for the next twelve months (24th month plus one day
through the 36th month).
6. REPRESENTATIONS. The acts, statements and representations made by Company to
Resources and East Coast are the sole responsibility of Company, and Company
agrees to indemnify East Coast for any liability, claims, losses and expenses,
including legal expenses, incurred by East Coast that result from Company's
representations which are materially incomplete, false, or misleading. Company
represents that all materials provided to East Coast regarding the Transaction
are truthful and accurate in all material respects. East Coast warrants that it
will be the only finder entitled to a fee in connection with a Transaction,
unless other finders are disclosed in advance and accepted by Company.
7. AUTHORITY. Company represents that it has the authority to enter into this
Agreement, and all parties executing this Agreement have been duly authorized by
the Company.
8. ADR; WAIVER OF JURY TRIAL. Neither party shall institute a proceeding in any
court or administrative agency to resolve a dispute between the parties before
that party has sought to resolve the dispute through direct negotiations with
the other party. If the dispute is not resolved within three weeks after a
demand for direct negotiation, the parties shall attempt to resolve the dispute
through mediation under the Center for Public Resources ("CPR") Model Procedure
for Mediation of Business Disputes in effect on the date of this agreement. The
parties will select a mediator with the assistance of the CPR. Unless otherwise
agreed, the parties will select a mediator from the CPR Panels of Distinguished
Neutrals. Any controversy or claim arising out of or relating to this agreement,
or the breach, termination, or validity thereof, shall be settled by arbitration
by a sole arbitrator in accordance with the CPR Rules for Non-Administered
Arbitration, and judgement upon the award rendered by the arbitrator may be
entered by any court having jurisdiction thereof. All parties to this Agreement
agree to waive the right either may have to a trial by jury with respect to any
litigation in any way related to this Agreement.
9. ENTIRE AGREEMENT. This Agreement constitutes the entire Agreement of, and
supersedes any prior agreements or understandings between, the parties. No
amendment, alteration or withdrawal of this Agreement shall be valid or binding
unless made in writing and signed by the parties. Any purported amendment,
modification or withdrawal which is oral shall be void and of no effect
whatsoever.
10. CHOICE OF LAWS; VENUE. This Agreement shall be governed by and construed in
accordance with the laws of the State of Florida, exclusive of its choice-of-law
principles; and any suit, action or proceeding arising out of or relating to
this Agreement may be commenced and maintained in any court of competent
jurisdiction in Palm Beach County, Florida, and each party waives all objections
to such jurisdiction and venue.
11. CONTINUING EFFECT. Sections 6 and 10 shall survive the expiration or
termination of this Agreement.
12. ENFORCEABILITY AND SEVERABILITY. In the event that any term or provision of
this Agreement is found to be invalid, illegal or unenforceable, such event
shall in way impair the other terms and provisions of this Agreement.
13. NOTICES. All legal notices required under this Agreement shall be deemed
sufficient if forwarded to the parties by certified mail, and shall be deemed
received upon the third business day after mailing. Such notices shall be mailed
as follows:
If to East Coast:
Xxxxxxx & Xxxxxx, LLP
Attention: Xxxxxxx Xxxxxx
000 Xxxxx Xxxx Xxx, Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
If to Company:
Ixion Biotechnology, Inc.
00000 Xxxxxxxx Xxxx., Xxx 00
Xxxxxxx, Xxxxxxx 00000
14. EXECUTION OF AGREEMENT. This Agreement may be executed in counterparts.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed as of the date first above written.
EAST COAST ANGELS, L.L.C.
By:
Xxxxx X. Xxxxx, Secretary
By:
Xxxxxx X. Xxxxxx
Chairman and Chief Executive Officer