Re: Finder's Fee Agreement Dear Gene Cartwright:
Exhibit 10.59
Guided
Therapeutics, Inc.
▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇
▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Re:
Finder's Fee Agreement
Dear
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇:
As
you know, Guided Therapeutics, Inc. (the ' Issuer"), has expressed
an interest in obtaining private equity or debt capital for various
purposes. This letter agreement ("Agreement") sets forth the terms
and conditions upon which
▇.▇.
▇▇▇▇▇.e & Co., Inc. ("▇▇▇▇▇▇"), will introduce the Issuer to
third-party investors (each, an "Introduced
Party”).
1.
Nature of Agreement and Services.
(a)
Promptly upon execution of this Agreement by the issuer, ▇▇▇▇▇▇
will use its best efforts to initiate an introductory meeting
between principals of the Introduced Party and the Issuer to
discuss a possible Transaction (as defined herein). The Issuer
understands that ▇▇▇▇▇▇ is not guaranteeing that a Transaction will
be consummated, is not offering to purchase any securities of the
Issuer and is not obligated to provide any additional services
beyond the scope of this Agreement.
(b)
Issuer is not at the time of this Agreement a customer, affiliate,
or representative of ▇▇▇▇▇▇.
(c)
▇▇▇▇▇▇ is not providing any recommendation to the Issuer in
connection with any possible Transaction.
(d)
▇▇▇▇▇▇ has not provided any investment banking, advisory, or
analytic services to the Issuer, including underwriting or
placement agent services, either as principal or agent, in
connection with the offer or sale of any securities of the
Issuer.
(e) ▇▇▇▇▇▇ is not and will not be a party to any
contract entered into between the 1ssuer and any Introduced
Party(f) ▇▇▇▇▇▇ will not participate in any way in fulfilling any
obligations to any Introduced Party undertaken, by the Issuer,
including services relating to the offer or sale of securities,
such as: (i) performing any independent analysis of the offer or
sale of securities; ii) engaging in any due diligence activities;
(iii) assisting in or providing financing for such pm-chases; (iv)
providing any advice relating to the valuation of or the financial
advisability of such an investment; (v) advising or providing
infom1ation regarding the suitability of any investment for any
person; or (vi) handling any funds or
securities.
2.
Term.
(a) This Agreement will
remain in effect for a period of 30 days from its date (the
"Term"). ▇▇▇▇▇▇ will have the right to terminate this Agreement
upon five days' prior written notice to the Issuer. The Issuer
will not have the right to
terminate this Agreement unless there has been a breach by ▇▇▇▇▇▇
of a material term of this Agreement, and the Issuer has provided
▇▇▇▇▇▇ with written notice of such breach; provided, however,
▇▇▇▇▇▇ will have the right to cure
such breach within 10 days of the date of the notice sent by the
Issuer. Notwithstanding termination of this Agreement, ▇▇▇▇▇▇ will
be entitled to receive compensation under section 3 in the event
the Issuer and an Introduced Party consummate a Transaction (as
defined herein) at any tune during the Term, commencing on the date
hereof Sections 2, 3,6,8, and 11 will survive termination of this
Agreement.
(b)
If during the Term, an Introduced Party enters into an agreement to
purchase securities from the Issuer, which is consummated at: any
time thereafter; each of the foregoing, a "Transaction." the Issuer
will pay ▇▇▇▇▇▇, upon the receipt of the purchase price for the
securities or the close of the Transaction, a Finder's Fee in the
amount that would otherwise have been payable to ▇▇▇▇▇▇ in
accordance with this Agreement had such Transaction occurred during
the Term.
3. Finder's Fee and
Expenses.
(a) In consideration of the foregoing, upon
consummation of the closing regarding a financing on behalf of the
Issuer, directly or through a structured Transaction,
▇▇▇▇▇▇
will be entitled to receive a finder fee ("Finder's Fee") in cash
equal to 2% of the gross proceeds of an equity convertible debt
transaction and 2% of the gross proceeds of a debt transaction
received by the Issuer within three business days from the closing
date. The Issuer and the
Introduced Party will not be obligated to pay ▇▇▇▇▇▇ if the Issuer
does not receive the Transaction Proceeds for any reason
whatsoever.
(b) In the event that the Issuer proceeds with a
non-financing transaction with one or more Introduced Parties, then
prior to closing the Issuer and ▇▇▇▇▇▇ shall mutually agree upon
compensation payable to ▇▇▇▇▇▇ which may include an ownership
interest in the resulting licensed, joint venture and/or
merged/acquiring entity. III the event the Issuer completes a
non-financing transaction with an Introduced Party without first
agreeing with ▇▇▇▇▇▇ on the finder's fee for the non-financing
transaction. then ▇▇▇▇▇▇ shall be entitled to receive a cash fee
equal to 3% of any licensing fees payable upon receipt by the
licensor, a cash fee equal to 3% of the value of the Issuer related
portion of the surviving entity resulting from any merger or
acquisition payable upon closing of the transaction and, in the
case of a joint venture, equal to 3% of Darbie's ownership portion
of the joint venture.
(c) The Finder's Fee will
be paid in cash and will be payable whether or not the Transaction
involves equity or debt securities, or a combination of equity and
debt securities and cash or is made on the installment-sale basis. The Finder's Fee
will be deducted from the Transaction Proceeds by the Introduced
Party, and the introduced Party will remit the Finder's Fee
directly to ▇▇▇▇▇▇ on Issuer's behalf. For purposes of this
Agreement "Transaction Proceeds" will mean the fair market value of
all cash and securities received by the Issuer from the Introduced
Party, including a debt repayment or debt assumption, all
determined in accordance with generally accepted accounting
principles. Notwithstanding the foregoing, in the event that the
Transaction Proceeds are received by the Issuer in installments,
the compensation payable to ▇▇▇▇▇▇ hereunder will be due and
payable upon receipt by the Issuer of each installment in the same
manner described earlier in this section.
(d)
▇▇▇▇▇▇ will be solely liable for the payment of any taxes imposed
or arising out of any Finder's Fee received by it under this
Agreement.
(e) Issuer agrees to not circumvent ▇▇▇▇▇▇ by
entering into business relations with any Introduced Party without
providing payment of the agreed upon Finder's Fee as stated
in this Agreement.
(f)
Issuer and ▇▇▇▇▇▇ will each pay its own expenses arising out of or
relating to this Agreement.
(g)
Preexisting Relationship. In the event Issuer has prior evidentiary
communication with an Introduced Parry, the Issuer will notify
▇▇▇▇▇▇ of such a relationship and, upon written request, provide
documentation of the Issuer's prior communication with an
Introduced Party. Communication will include phone or e-mail
contact or written representations
by both Issuer and an Introduced Party of a preexisting
relationship. For purposes of this paragraph, email communication
is deemed acceptable.
Guided
Therapeutics, Inc.
5/14/2020
Page
3
(h)
Darbie's Representations and Warranties. ▇▇▇▇▇▇, a registered
broker-dealer, represents and warrants that: (a) it is not
prohibited by any legal contractual, fiduciary, or other obligation
from receiving a Finder's Fee; (ii) it has the full legal authority
and capacity to sign this Agreement; (iii) it is acting merely as a
tinder and will not provide investment banking or related services
to Issuer or any potential Introduced Parties; and (iv) no other
person or entity is entitled to or has arty claim to the Finder's
Fee or arty portion thereof. ▇▇▇▇▇▇ agrees to notify the Issuer
promptly if any of the foregoing representations ceases to be
true.
(i)
Confidential Information. ▇▇▇▇▇▇ will hold in confidence, for a
period of two years from the date hereof, any confidential
information that the Issuer may provide to it pursuant to this
Agreement unless the Issuer gives ▇▇▇▇▇▇ permission in writing to
disclose such confidential information to a specific third party.
Notwithstanding the foregoing, ▇▇▇▇▇▇ will not be required to
maintain confidentiality for information: (a) that is or becomes
part of the public domain through no fault or action of ▇▇▇▇▇▇; (b)
of which it had independent knowledge prior to disclosure to it by
the Issuer; (c) that comes into Darbie's possession in the normal
and routine course of its own business from and through
independent, nonconfidential sources; or (d) that is required to be
disclosed by ▇▇▇▇▇▇ by governmental or security regulatory
requirements. If ▇▇▇▇▇▇ 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 Issuer
or the existence of other negotiations in the course of its
dealings with the Issuer or its representatives, ▇▇▇▇▇▇ will,
unless prohibited by law, promptly notify the Issuer of such a
request so that the Issuer may seek an appropriate protective
order.
(j)
Independent Contractor. Nothing in this Agreement win constitute a
business combination, joint venture, partnership or employment
relationship between the Issuer and ▇▇▇▇▇▇. ▇▇▇▇▇▇ acknowledges and
agrees that it is merely and strictly acting as a finder, and not
as an agent, employee, or representative of the Issuer, and has no
authority to negotiate for or to bind the issuer. This Agreement is
not exclusive, and each party is free to enter into similar
arrangements with third parties. ▇▇▇▇▇▇ agrees it will not make,
publish, or distribute any advertisement or marketing material
using the trademarks, logos, trade names or abbreviations thereof,
or any other such identifying ▇▇▇▇ or name of the Issuer or its
affiliates without the prior consent of the Issuer.
(k) Indemnification. Each party hereto agrees to
indemnify and hold harmless the other parry and its officers,
directors, employees, agents, representatives, and controlling
persons (and the officer's, directors, employees, agents,
representatives, and controlling persons of each of them) (as such
are defined in Section 20 of the Securities Exchange Act of 1934,
as amended), 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 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 ▇▇▇▇▇▇ or the Issuer is a party), as and when incurred, directly
or indirectly, caused by, ▇▇▇▇▇▇.▇▇ to, based upon, or arising out
of Darbie's service pursuant to this Agreement, including any suit
based upon the terms and conditions of a Transaction or
information, representations, or warranties provided by the Issuer
to a Transaction party by the Issuer. The Issuer further agrees
that ▇▇▇▇▇▇ will incur no liability to the Issuer for any acts OJ
omissions by ▇▇▇▇▇▇ arising out of or relating to this Agreement or
Darbie's performance or failure to perform any services under this
Agreement, except for: (a) Darbie's intentional or willful
misconduct; or (b) information regarding ▇▇▇▇▇▇ that is provided by
▇▇▇▇▇▇ to the Issuer or to a Transaction party. Further, in no
event will ▇▇▇▇▇▇ be liable to the Issuer or to any third party or
Transaction party for an amount in excess of the cash compensation
received pursuant to section 3 hereof. This section 8 will survive
the termination of this Agreement. Notwithstanding the foregoing,
no party otherwise entitled to indemnification will be entitled
thereto to the extent such party has been determined to have acted
in a manner that has been deemed as gross negligence or willful
misconduct regarding the matter for which indemnification is sought
herein.
Guided
Therapeutics, Inc.
5/14/2020
Page
4
(I)
Notices. Any notice, demand, request, or other communication
permitted or required under this Agreement will be in writing and
will be deemed to have been given as of the date so delivered, if
personally delivered; as of the date so sent, if sent by electronic
mail and receipt is acknowledged by the recipient; and one day
after the date so sent, if delivered by overnight courier service;
addressed as follows:
If
to the Issuer:
Guided
Therapeutics, Inc.
▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇
▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Email:
▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇.▇▇▇
If
to ▇▇▇▇▇▇, to: ▇ ▇ ▇▇▇▇▇▇ & Co.,Inc.
▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Email:
▇▇@▇▇▇▇▇▇▇▇.▇▇▇
Notwithstanding
the foregoing, service or legal process or other similar
communications will not be given by electronic mail and will not be
deemed duly given under this Agreement if delivered by such means.
Each party, by notice duly given in accordance herewith, may
specify a different address for the giving of any notice
hereunder.
(m)
Successors and Assigns. No party will assign its rights, duties,
and obligations under Agreement without the written consent of the
other party, which will not be unreasonably withheld, except as
otherwise specifically contemplated in this Agreement. This
Agreement will be binding upon, inure to the benefit of, and be
enforceable by the parties and their permitted successors and
assigns.
(n)
Governing Law and Enforcement. This Agreement will be governed by
and constructed under and in accordance with the laws of the state
of New York, without giving effect to any choice or conflict of law
provision or rule (whether the state of New York or any other
jurisdiction) that would cause the application of the laws of any
jurisdiction other than the state of New York. All matters
involving the Issuer and ▇▇▇▇▇▇, whether arising under this
Agreement or otherwise will be heard and determined by mediation or
arbitration.
(o)
Entire Agreement. This Agreement incorporates and includes all
prior negotiations, correspondence, conversations, agreements, or
understandings applicable to the matters contained herein, and the
parties agree that there are no commitments, agreements, or
understandings concerning the subject matter of this Agreement that
are not contained in this document. The parties acknowledge that,
in deciding to enter into this Agreement, they have not relied upon
any statements, promises, or representation!>, written or oral,
express or implied, other than those set forth in tills Agreement.
Accordingly, it is agreed that no deviation from the terms hereof
will be predicated upon any prior representations or agreements,
whether oral or written. The parties acknowledge that they have
negotiated this Agreement at arm's-length with adequate
representation on an equal basis, and the filing of a suit
challenging the negotiated terms of this Agreement by either party
will be deemed a default and this Agreement will be terminated as
provided herein.
Guided
Therapeutics, Inc.
5/14/2020
Page
5
(p)
Amendment. Any amendment, modification, or waiver of the terms of
this Agreement must be executed in writing by both
parties.
(q)
Severability. The provisions of this Agreement are severable and
should any provision hereof be void, voidable, or unenforceable
under any applicable law, such void, voidable, or unenforceable
provision will not affect or invalidate any other provision of this
Agreement, which will continue to govern the relative rights and
duties of the parties as though the void, voidable, or
unenforceable provision was not a part hereof. In addition, it is
the intention and agreement of the parties that all the terms and
conditions hereof be enforced to the fullest extent permitted by
law.
(r)
Warranty of Authority. Each of the individuals signing this
Agreement on behalf of a party hereto warrants and represents that
such individual is duly authorized and empowered to enter in this
Agreement and bind such party hereto.
(s)
Counterpart Signatures. This Agreement may be executed in any
number of counterparts (and any counterpart may be executed by
original, portable document format (pdf), or facsimile signature)
each of which when executed and delivered will be deemed an
original, but all of which will constitute one and the same
instrument.
If
the foregoing is acceptable to you, please so indicate by signing
in the space provided below and returning a signed copy of this
Agreement to us for our records.
Sincerely,
▇ ▇
DARBlE & CO., INC.
Agreed to and accepted this
19 day
of May, 2020.
Issuer:
Guided Therapeutics,
Inc.
Name:/▇▇▇▇
▇▇▇▇▇▇▇▇▇▇/
Title:
CEO