1
EXHIBIT 10.14
AMENDED AND RESTATED CONSULTING AGREEMENT
This Amended and Restated Consulting Agreement ("Agreement") is made and entered
into as of the 2nd day of June, 1999, between NeoTherapeutics, Inc.
("NeoTherapeutics"), at 157 Technology Drive, Irvine, California 92618, U.S.A.,
and Roccus Capital Partners, LLC ("Roccus"), 300 Park Avenue, New York, NY
10022, and amends and restates in its entirety that certain Consulting Agreement
between the parties dated October 19, 1998.
1. We would like Roccus to serve as an independent consultant to
NeoTherapeutics. The nature, times and places of your consulting
services will be determined by mutual agreement between NeoTherapeutics
and Roccus. Your services may include, but are not limited to: assisting
in the development of business relationships, investor relations and
matters of finance. Roccus shall not contact any prospective investor or
underwriter on NeoTherapeutics' behalf without first disclosing in
writing the name(s) of such prospect(s) and receiving NeoTherapeutics'
prior approval. Roccus shall periodically (but not less than monthly)
provide written reports to NeoTherapeutics that include a summary of all
contacts made by Roccus. Such reports shall include the name, address,
and telephone number of each prospective investor or investment banker
contacted by Roccus on behalf of NeoTherapeutics, and the date or dates
of contact.
Roccus may also have the occasion to meet with NeoTherapeutics' business
associates or customers, in our facilities or at a business associates'
or customer's place of business. From time to time, NeoTherapeutics may
seek your assistance, as a consultant, for other projects.
2. NeoTherapeutics will compensate Roccus as follows:
- Subject to the limitations set forth below, as compensation for its
services, NeoTherapeutics will pay Roccus a fee based on the gross
non-refundable funds received by NeoTherapeutics from financings
pursuant to this agreement of one (1%) percent. Such fee to Roccus
is based on the total amount of gross financing (including segmented
investments, but only after funds have been received) made by a
private or Institutional investor or investors, when and if arranged
directly by your efforts or through a prospective investor or
underwriter introduced by you. Roccus' fee shall be paid at closing.
Each such investor shall be identified in writing to NeoTherapeutics
by Roccus.
- If the financing facilitated by Roccus is in the form of a public
offering of NeoTherapeutics' securities, Roccus' fee shall not
exceed $150,000.
- NeoTherapeutics will also reimburse you for all reasonable travel
and other direct out of pocket expenses related to your consultation
services, provided on our behalf and approved in advance by
NeoTherapeutics. A billing (including copies of receipts) should be
forwarded to our attention showing expenses, with a brief
description of your activities.
1
2
3. NeoTherapeutics agrees that it will not enter into any future financial
agreements with a private or Institutional investor or underwriter that
had been arranged by your efforts, specifically the persons identified
in Exhibit A, attached hereto, for a period of 12 months following the
expiration of this Agreement. However, NeoTherapeutics will have the
right to enter into such an agreement, following the expiration of this
Agreement and for a period of 12 months thereafter, if NeoTherapeutics
pays a fee to Roccus based on the gross non-refundable funds received by
NeoTherapeutics from an investment made by a person or persons listed on
Exhibit A hereto as follows: the fee shall be an amount equal to three
(3%) percent of the gross non-refundable fees received up to the first
$10 million; two and one-half (2 1/2%) percent of the next $5 million,
and 2% of any amount over $15 million; provided, however, that if such
financing is in the form of a public offering of NeoTherapeutic's
securities, the fee paid to Roccus shall not exceed $500,000. Cash
payment shall be made immediately upon the closing of the investment of
funds in NeoTherapeutics. NeoTherapeutics agrees to consider a request
from Roccus for payment of the above amounts to be in stock or warrants,
by mutual agreement. In no event shall NeoTherapeutics be obligated to
pay Roccus a fee for a transaction pursuant to the foregoing after the
lapse of a total period of 36 months from October 19, 1998.
4. All information and materials provided by NeoTherapeutics to Roccus
during the term of this Agreement will be considered confidential
property of NeoTherapeutics. You agree not to disclose this confidential
information to any third party, or to use this information for any
purpose other than the performance of responsibilities under this
Agreement. The provisions of this paragraph 4 will not apply to
information which: (a) was in the public domain at the time of the
disclosure; or (b) has been furnished to Roccus by a third party who has
not obtained the information from NeoTherapeutics and has a lawful right
to disclose the information on a non-confidential basis without
violation of any obligation to NeoTherapeutics. Information developed by
NeoTherapeutics and/or Roccus at NeoTherapeutics' request for use in
connection with the solicitation of investors may be disclosed to
prospective investors subject to such restrictions as NeoTherapeutics
may impose.
5. The term of this Agreement is for five (5) months, but may be canceled
by either party upon providing thirty (30) days written notice to the
other party. Thereafter, the Agreement may be renewed for an additional
period by mutual written agreement of the parties. Paragraph 3, above
shall survive the termination of this Agreement.
6. This Agreement is not assignable.
7. Roccus will be an independent contractor and will not be considered an
agent or legal representative of NeoTherapeutics.
8. Roccus warrants that it and its principals are free to provide
consulting services in accordance with the terms of this Agreement
without violation of obligation to any third party, and by providing
consultation services to NeoTherapeutics will have no conflict of
interest with any third party.
2
3
9. Should any part of this Agreement be unenforceable or in conflict with
the applicable laws or regulations of any jurisdiction, the invalid or
unenforceable part or provision will be replaced with a provision that
accomplishes, to the extent possible, the original business purpose of
such part or provision in a valid and enforceable manner, and the
remainder of this Agreement will remain binding upon the parties.
10. Any controversy or claim arising from or related to this Agreement, or
the breach thereof, shall be settled by arbitration in accordance with
the rules of the American Arbitration Association, and judgment upon the
award rendered by the arbitrator(s) shall be entered in any court having
jurisdiction. For that purpose, the parties agree to the jurisdiction
and venue of an appropriate court located in Orange County, State of
California.
11. With regard to the services to be performed by Roccus, pursuant to the
terms of this Agreement, Roccus shall not be liable to NeoTherapeutics,
or to anyone who may claim any right due to any relationship with
NeoTherapeutics, for any acts or omissions in the performance of
services by Roccus, except when such acts or omissions are due to
willful misconduct or negligence. NeoTherapeutics shall hold Roccus and
its principals free and harmless from any obligations, costs, claims,
judgments, or attorney's fees arising from the services rendered to
NeoTherapeutics, except when due to willful misconduct or negligence and
Roccus is adjudged to be guilty of willful misconduct or negligence by a
court of law or by an arbitrator.
12. This Agreement shall be construed in accordance with the laws and
judicial decisions of the State of California in effect as of the date
of this Agreement.
13. This Agreement represents the entire understanding between the parties
as of the date of this Agreement with respect to the subject matter
described, and supersedes all prior agreements, negotiations,
understandings, representations, statements, and writings between the
parties listed. No modification, alteration, waiver or change in any of
the terms of this Agreement will be valid or binding upon the parties
unless made in writing and specifically referring to this Agreement and
signed by each of the parties listed.
AGREED AND ACCEPTED:
NEOTHERAPEUTICS, INC. ROCCUS CAPITAL PARTNERS, LLC
By: /s/ SAMUEL GULKO By: /s/ RICHARD BERKLEY
------------------------------- -------------------------------
Samuel Gulko Richard Berkley, Principal
Chief Financial Officer,
Secretary and Treasurer
Date: June 2, 1999 Date: June 2, 1999
----------------------- -----------------------
3
4
EXHIBIT A
Alta Partners
EBI Securities Corporation
George Carhart
Charles Gerber - Triumph Worldwide & Affiliates
Dr. Bill Greenberg - Quantum Investment Group
J. H. Whitney
Joseph Charles & Assoc., Inc. (except during the term of this Agreement as set
forth in paragraph 5 herein, when the provisions of paragraph 2 of the Agreement
shall apply)
Robert Kramer - Trautman Kramer & Company Inc.
Larry Remmel, Esq.
Marvin Sirota
Zanette Securities
Morgan Stanley & Co.