, 1997
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Dr. Katherine Gordon
President and Chief Executive Officer
Apollo BioPharmaceutics, Inc.
One Kendall Square, Suite 2200
Cambridge, Massachusetts 02139
Dear Dr. Gordon:
Section of our Underwriting Agreement dated
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, 1997 provides that Apollo BioPharmaceutics,
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Inc. ("Company") shall retain Neidiger, Tucker, Bruner, Inc
("NTB") as the Company's financial consultant with respect
to investment banking activities for a term of 36 months
commencing , 1997. The purpose of this letter
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is to confirm our mutual understandings and agreement
concerning of the terms and conditions of such engagement.
1. Engagement. The Company hereby engages NTB as the
Company's financial consultant with respect to investment
banking activities and opportunities and NTB accepts such
engagement on the terms and conditions hereby set forth.
2. Financial Consulting Services. For a term of 36
months commencing , 1997, NTB, through the
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offices of Anthony B. Petrelli, Senior Vice President,
Investment Banking Services, shall consult and advise the
Company, at the Company's request, from time to time, as to
market conditions, financial alternatives, resource
allocation, periodic review and advice with respect to the
Company's capital structure, banking methods and systems and
otherwise provide investment banking consultation and advice
in connection with the Company's business plans and
projections. Such advice and consultation are hereinafter
referred to as "Financial Consulting Services". The
Financial Consulting Services shall be provided by NTB to
the Company in such form, manner and place as the Company
shall make reasonable requests from time to time. NTB shall
not be prevented or barred from rendering Financial
Consulting Services of the same or similar nature, as herein
described, or services of any nature whatsoever for, or on
behalf of, persons or entities other than the Company.
Similarly, the Company shall not be prevented or barred from
seeking or requiring services of a same or similar nature
from persons other than NTB.
3. Extent of Financial Consulting Services to be
Provided. NTB shall be available to provide Financial
Consulting Services for not more than ten (10) hours per
month during the said 12 month period that such services are
to be provided ("Minimum Financial Consulting Services"). In
addition, NTB shall be available during said 36 month period
for an additional one person per day per month at the
request of the Company for the purpose of providing
additional Financial Consulting Services ("Additional
Financial Consulting Services"). NTB
may, but shall not be required to, devote such additional
time to the Company asmay be requested by the Company. For
purposes of thisAgreement, a "person per day" shall be a total
of 8 hours ofwork by NTB's representative.
4. Compensation for Financial Consulting Services.
As compensation for the Minimum Financial Consulting
Services, the Company shall pay to NTB a fee of $70,000,
payable in full upon the Company's execution hereof. In
addition, subject to the provisions of Section 5 below, if
NTB provides Additional Financial Consulting Services to the
Company, NTB shall be compensated for such Additional
Financial Consulting Services at the rate of $1,500 for each
additional person per day, payable on the first day of the
month following the month in which such Additional Financial
Consulting Services were rendered.
5. Accumulation of Minimum Financial Consulting
Services. During the said 36 month period, any person per
day of Minimum Financial Consulting Services not requested
in the month in which the Company is entitled thereto may be
requested at any time during the immediately following
month's period. If not requested during such following
period, the Company waives performance and receipt of such
Minimum Financial Consulting Services.
6. Indemnification. The Company agrees to indemnify
and hold harmless NTB and the officers, directors and
employees of NTB against any and all losses, claims, damages
and expenses as incurred (including reasonable fees and
disbursement of counsel to NTB) arising out of the Financial
Consulting Services performed by NTB pursuant to this
Agreement except for claims, damages, losses, liabilities
and expenses caused by the negligence or willful misconduct
on the part of NTB, its officers, directors or employees.
7. Amendment. Any amendment or modifications of this
Agreement shall be by written instrument signed by the
parties.
8. Waiver. Any term or condition of this Agreement
may be waived in writing at any time and from time to time
by the party entitled to the benefit thereof, but a waiver
of a term or condition in one instance shall not be deemed
to constitute a waiver of such term or condition in any
other instance. A failure to enforce any provision of this
Agreement shall not operate as a waiver of provision or of
any other provision hereof.
9. Assignment. Any attempt by either party to assign
any right, duty, or obligation which may arise under this
Agreement, without the prior written consent of the other
party, shall be void.
10. Counterparts. This Agreement may be executed in
any number of counterparts, each of which may be deemed an
original and all of which together shall constitute one and
the same instrument.
11. Governing Law. This Agreement shall be governed
by and construed in accordance with the laws of the State of
Colorado without giving any effect to any choice of law
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or conflict of law provision or rule whether of the State of
Colorado or any other jurisdiction that would cause the
application of the laws of any jurisdiction other than the
State of Colorado. The parties agree to the exclusive
jurisdiction of the courts of the State of Colorado or of
the United States of America for the District of Colorado
and irrevocably submit to such jurisdiction, which
jurisdiction shall be exclusive, in connection with any
action brought by either party hereto relating to this
Agreement or the transactions which are the subject matter
hereof.
12. Entire Agreement. This Agreement sets forth the
entire understanding of the parties with respect to the
subject matter hereof and this Agreement shall be binding
and inure to the benefit of the parties and their respective
successors and assigns.
If the foregoing confirms your understanding of the
terms of our engagement, please sign in the space provided
below and the same shall become our written agreement with
respect to the subject matter.
NEIDIGER, TUCKER, BRUNER,INC.
By:
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Anthony B. Petrelli
Senior Vice President
Confirmed and accepted this day of ,1997.
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APOLLO BIOPHARMACEUTICS,INC.
By:
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Katherine Gordon
President and Chief Executive Officer
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