Amended Advisors Agreement with The Sage Group, Inc. dated July 15 2010 AMENDED ADVISER’S AGREEMENT
Exhibit
10.4
Amended Advisors
Agreement with The Sage Group, Inc. dated July 15 2010
AMENDED
ADVISER’S AGREEMENT
This Amended Advisers Agreement (the
"Agreement") is entered into as of July 15, 2010 by and between HemispherX
BioPharma, Inc., a Delaware Corporation ("Company"), and The Sage Group, Inc.
and its employees, Principals, and Senior Directors (“Adviser”), a New Jersey
corporation, with respect to the following:
A. Adviser
represents that it has knowledge of and contacts with companies which have the
potential to become partners of various types with Company and that Adviser
represents that it has experience and expertise that can be used to facilitate
and help close such transactions for the benefit of the Company.
B. Company
is agreeable to having Adviser act in such capacities and Company and Adviser
hereby agree that Company appoints Adviser and Adviser agrees to use all
reasonable efforts to help increase the value of the Company.
C. Definitions:
Transaction means a licensing,
partnering, distribution, alliance, or similar transaction pertaining to and
promoting the sale of the company’s products and technologies, including but not
limited to, any and all uses for Ampligen, Alferon, and related intellectual
property. A Transaction also means the acquisition of companies
in whole or in part and the sale or the merger of Company. For clarity,
non-revenue producing agreements such as an MTA, a clinical research agreement
or feasibility study is not a Transaction hereunder. Should a
Transaction not be introduced to Company by Adviser and/or should Company decide
for whatever reason, to not involve Adviser in a possible Transaction, then such
transaction will not be a Transaction herein under. However, it
is the intention of the parties that the Adviser be an active participant in all
material transactions of the company. A Transaction is any transaction that
occurs during the Term or 18 months thereafter.
Consideration means any
monies, securities and/or other valuable consideration that Company and/or its
Affiliates receives as a result of a Transaction including but not limited to
upfront and milestone payments, the purchase of securities related to a
Transaction, the gain (payments, less out of pocket related expenses) on funded
R&D and clinical development, product purchases, royalties, etc. no matter
when received by Company.
D. Independent
Contractor. Adviser is and at all times shall be an independent
contractor in all matters relating to this Amended Adviser’s
Agreement. Adviser and his employees are not agents of Company for
any purposes and have no power or authority, whether apparent, actual,
ostensible or otherwise, to bind or commit Company in any
way. Transactions shall first be approved in writing by the
company, so as to avoid any dispute as to Adviser’s entitlement to payment of
its fees, and Adviser efforts toward such approved Transactions will be as
directed and agreed by the Company.
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E.Adviser's Fee. In
consideration for the Services to be performed by Adviser hereunder, Company
shall pay to Adviser a fee ("Adviser's Fee") of:
1. Monthly
Fee: A monthly fee of $15,000 payable, at Company’s option incash or liquid
shares for the Amended Term of this Agreement.
2. Success
Fees
a. Five
(5%) of all Consideration with such Success Fees capped at $5 million per
annum.
3. Options:
Company will grant, upon execution of this Amended Adviser’s Agreement, the
following fully vested options to the following Sage personnel under the
Company’s Equity Incentive Plan of 2009.
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250,000
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50,000
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50,000
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50,000
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50,000
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50,000
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25,000
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10,000
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10,000
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4. In
addition Company will grant an option to ▇▇▇▇▇ ▇▇▇▇▇▇ to acquire 50,000 shares
of Company at a price equal to the average of the 20 days prior to a new
Collaboration Agreement (or the like) being executed between Company and Biken
or related parties providing that the terms are substantively superior to those
in December, 2007 agreement between Company and Biken.
5. At
the sole and absolute discretion of the Board of Directors of the Company,
Adviser may receive bonuses for extraordinary performance or special projects
which may include, withoutlimitation, efforts to gain security analyst coverage,
connections to financing sources, assessment of unique business opportunities
and the like, as determined by Company, providing such bonuses do not exceed
$250,000 per year.
F. Expenses. Company
shall reimburse Adviser for reasonable out-of pocket expenses that are
pre-approved by Company.
G. No
Obligation. Adviser acknowledges that the decision to enter into any
Transaction rests solely with the Company and the Company is NOT obliged to
enter any transaction proffered by Adviser.
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H. Prohibitions; Compliance
with Laws. Adviser shall not make any representations or warranties
on behalf of Company to any third party, it being understood that such
representations and warranties will be made only by the
Company.
I. Amended Term and
Termination. This Amended Adviser’s Agreement is effective as of the
date hereof and shall continue for 18 months from the Effective Date and will be
automatically renewed for 18 month unless terminated 180 days prior to the
expiration of the Term. This Amended Adviser’s Agreement cannot be
terminated by Company except if Adviser fails to remedy failures to perform
within 30 days after receiving written notice from company of failure to perform
with specifics of such failure clearly set out.
J. Reliance. Company
acknowledges that all opinions and advice (oral or written) given by Adviser to
Company in connection with Adviser’s engagement hereunder, are intended solely
for the benefit and use of Company in considering the matters to which they
relate, and Company agrees that no such opinion or advice shall be used for any
other purpose or reproduced, disseminated, quoted or referred to at any time, in
any manner or be made by the Company (or such persons), without Adviser’s
express written consent, which consent shall not be unreasonably
withheld.
K.
General Provisions.
1.Governing
Law; Severability. This Agreement shall be governed by and under the
laws of the State of Pennsylvania without giving effect to conflicts of law
principles. If any provision hereof is found invalid or
unenforceable, that part shall be amended to achieve as nearly as possible the
same effect as the original provision and the remainder of this Agreement shall
remain in full force and effect.
2. Disputes. Any
dispute arising under or in any way related to this Agreement shall be submitted
to binding arbitration by the American Arbitration Association in accordance
with the Association's commercial rules then in effect.
3. Confidential
Information. Adviser acknowledges that, in the course of performing
its duties under this Agreement, it may obtain information relating to Company
that is not available to the public ("Confidential Information"). Adviser shall
execute the customary form of Confidentiality or Non-Disclosure Agreement used
by Company.
4. Entire
Agreement. This Agreement constitutes the entire agreement and final
understanding of the parties with respect to the subject matter hereof and
terminates all prior and/or contemporaneous understandings, agreements and/or
discussions between the parties, whether written or verbal, express or implied,
relating in any way to the subject matter hereof including, but not limited any
other arrangements between the parties for contingency fees. This
Agreement may not be altered, amended, modified or otherwise changed in any way
except by a written agreement, signed by both parties and prior approval of the
Board of Directors of the Company.
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5. Notices. Any
notice or other communication pursuant hereto shall be given to a party at its
address below its signature hereto by (i) personal delivery, (ii) commercial
overnight delivery service with written verification of receipt, or (iii)
registered or certified mail. If so mailed or delivered, a notice
shall be deemed given on the earlier of the date of actual receipt or three days
after the date of transmission by authorized means.
6. Nonassignability. Neither
this Agreement, nor any rights, duties or interest herein, shall be assigned,
transferred, pledged, hypothecated or otherwise conveyed by either party without
the prior written consent of the other party. Any such attempted
conveyance in violation of this paragraph shall be void and shall constitute a
default entitling the other party to terminate this Agreement.
IN WITNESS WHEREOF, the Company and
Adviser have executed this Agreement effective as of the date set forth
above.
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HEMISPHERX
BIOPHARMA, INC.
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THE
SAGE GROUP, INC.
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6th
Floor
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Clinton,
NJ 08809
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By:
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By:
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Dr.
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Chairman
and CEO
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Executive
Director
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Date: July
15, 2010
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Date: July
15, 2010
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