Exhibit 10.2
Finder's Agreement
This Finder's Agreement by and between Immtech International Inc. ("Immtech")
and The Gabriele Group, L.L.C. (the "Finder") will become effective on the date
it is executed by both parties (the "Effective Date") and will, subject to
Section 4 below, automatically terminate on the first anniversary of the
Effective Date.
1 The Finder has and will act as Immtech's non-exclusive agent to develop
and qualify potential business partners and "accredited investors" (within
the meaning of Rule 501 of Regulation D promulgated under the Securities
Act of 1933, as amended) ("Qualified Leads") and will, among other things,
render the following services to Immtech:
A. identify and introduce to Immtech Qualified Leads;
B. increase awareness of Immtech in the financial markets;
C. provide management consulting services, which may include, but are
not limited to, strategic planning, financial advisory services and
market analysis; and
D. identify Qualified Leads for Immtech's pending $2.5 million Series B
private placement offering.
2 The Finder will assign, on a non-exclusive basis, James A. Gabriele and
Allan J. Gabriele, and such other of the Finder's employees as the Finder
shall deem appropriate, to use their best efforts to effect the purposes
of this Agreement.
3 Upon the execution of this Agreement, Immtech will pay to the Finder
40,000 shares of common stock of Immtech, $0.01 par value ("Common Stock")
and Warrants to purchase 30,000 shares of Common Stock of Immtech
("Warrants"). The Warrants shall expire five years from the date of grant,
have an exercise price of $6.00 per share and shall vest only as follows:
A. 10,000 shares at the earlier of (i) when the market price of
Immtech's Common Stock, as reported by Bloomberg L.P., meets or
exceeds $10 for a period of 20 consecutive trading days or (ii) if
the valuation of Immtech's Common Stock in a merger or acquisition
meets or exceeds $10 per share;
B. 10,000 shares at the earlier of (i) when the market price of
Immtech's Common Stock, as reported by Bloomberg L.P., meets or
exceeds $15 for a period of 20 consecutive trading days or (ii) if
the valuation of Immtech's Common Stock in a merger or acquisition
meets or exceeds $15 per share; and
C. 10,000 shares at the earlier of (i) when the market price of
Immtech's Common Stock, as reported by Bloomberg L.P., meets or
exceeds $20 for a period of 20 consecutive trading days or (ii) if
the valuation of Immtech's Common Stock in a merger or acquisition
meets or exceeds $20 per share.
The Warrants shall be subject to adjustment for stock splits, combinations
and the like.
4 Immtech may, in its sole discretion, renew this Agreement for one or more
successive one-year terms (collectively, the "Terms") upon 30 day's notice
to the Finder prior to the expiration of the applicable Term. For each
one-year renewal, Immtech shall pay to the Finder, within 30 days after
the beginning of each Term, an additional 40,000 shares of Common Stock
and 30,000 Warrants. The Warrants shall be exercisable for a period of
five years from the date of grant at an exercise price of $6.00 per share
and shall vest only as follows:
A. 10,000 at the earlier of (i) when the market price of Immtech's
Common Stock, as reported by Bloomberg L.P., meets or exceeds $25
for a period of 20 consecutive trading days or (ii) if the valuation
of Immtech Common Stock in a merger or acquisition meets or exceeds
$25 per share;
B. 10,000 shares at the earlier of (i) when the marker price of
Immtech's Common Stock, as reported by Bloomberg L.P., meets or
exceeds $30 for a period of 20 consecutive trading days or (ii) if
the valuation of Immtech's Common Stock in a merger or acquisition
meets or exceeds $30 per share; and
C. 10,000 shares at the earlier of (i) when the market price of
Immtech's Common Stock, as reported by Bloomberg L.P., meets or
exceeds $35 for a period of 20 consecutive trading days or (ii) if
the valuation of Immtech Common Stock in a merger or acquisition
meets or exceeds $35 per share.
The Common Stock and Warrants to be issued to the Finder pursuant to this
Section 4 shall be subject to adjustment as provided in Section 3 above.
5 The Finder is acquiring (and will acquire, as the case may be) the Commons
Stock, the Warrants and the Common Stock underlying the Warrants, if
exercised, and any Common Stock, Warrants and Common Stock underlying such
Warrants acquired under Section 4 (collectively, the "Securities") for
investment for its own account and not with a view to, or for resale in
connection with, any distribution thereof, and has no present intention of
selling or distributing any such Securities. The Finder understands that
the Securities (i) have not been, or will not be when issued, registered
under the Securities Act of 1933, as amended (the "Securities Act"), or
any state or foreign securities laws, (ii) are hereby sold pursuant to an
exemption from the registration provisions of the Securities Act and state
securities laws, which depend upon, among other things, the
representations of the Finder as expressed herein, (iii) may not be sold
or otherwise disposed of unless the Finder delivers an opinion of counsel
reasonably acceptable to Immtech stating that such sale or disposition is
in accordance with the Securities Act and related state laws and (iv)
shall be legended to reflect this Section 5.
6 Confidentiality. Finder agrees to maintain all information pertaining to
this Agreement in the strictest confidence and not to disclose it, in
whole or in part or in any manner, to a third party without Immtech's
prior written consent, and to cause the Finder's principals and employees
to agree to use their best efforts to provide the described services to
Immtech.
7 Indemnification.
A. Immtech shall indemnify the Finder from and against any and all
expenses (including attorneys' fees), judgments, fines, claims,
causes of action, liabilities and other amounts paid (whether in
settlement or otherwise actually and reasonably incurred) by the
Finder in connection with such action, suit or proceeding if (i) the
Finder was made a party to any action, suit or proceeding by reason
of the fact that the Finder rendered advice or services pursuant to
this Agreement, and (ii) the Finder (A) acted in good faith and in a
manner reasonably believed by the Finder to be in or not opposed to
the interests of Immtech, (B) did not act negligently with respect
to the claims in such action, suit or proceeding and (C), with
respect to any criminal action or proceeding, had no reasonable
cause to believe his conduct was unlawful.
B. The Finder shall indemnify Immtech from and against any and all
expenses (including attorney's fees), judgments, fines, claims,
causes of action, liabilities and other amounts paid (whether in
settlement or otherwise actually and reasonably incurred) by Immtech
in connection with such action, suit or proceeding if (i) Immtech
was made a party to any action, suit or proceeding by reason of the
fact that the Finder rendered advice or services pursuant to this
Agreement, and (ii) the Finder (A) did not act in good faith and in
a manner reasonably believed by Immtech to be in or not opposed to
the interests of Immtech, (B) was negligent with respect to the
claims in such action, suit or proceeding or (C), with respect to
any criminal action or proceeding, did not reasonably believe his
conduct was lawful.
8 It is expressly understood and agreed that this is a consulting agreement
only and does not constitute an employer-employee relationship.
9 All notices provided by this Agreement shall be in writing and shall be
given by facsimile transmission, overnight courier, registered mail or
personal delivery, by one party to the other, addressed to such other
party at the applicable address set forth below, or to such other address
as may be given for such purpose by such other party by notice duly given
hereunder. Notice shall be deemed properly given on the date of the
delivery.
If to the Finder: If to Immtech:
The Gabriele Group Immtech International Inc.
311 South Wacker Drive, Suite 4550 150 Fairway Drive, Suite 150
Chicago, IL 60606 Vernon Hills, IL 60061 USA
Attn: James A. Gabriele Attn: T. Stephen Thompson
10 Miscellaneous.
A. Waiver. The waiver by Immtech or the Finder of any action, right or
condition in this Agreement, or of any breach of a provision of this
Agreement, shall not constitute a waiver of any other occurrences of
the same event.
B. Entire Agreement; Amendments. This Agreement contains the entire
agreement between the parties hereto, and supersedes all prior
agreements, written or oral, with respect to the subject matter
hereof. Any variation to this Agreement must be made in writing and
signed by both parties.
C. Governing Law. This Agreement shall be construed and interpreted in
accordance with the laws of the State of New York, without regard to
its laws regarding conflict of laws other than G.O.L. Section
5-1401.
D. Binding Effect. This Agreement shall bind and inure to the benefit
of the parties hereto and their respective heirs, executors,
administrators, successors and assigns.
E. Expenses. Each party shall pay and be responsible for the costs and
expenses, including, without limitation, attorneys' fees, incurred
by such party in connection with the negotiation, preparation and
execution of this Agreement and the transactions contemplated
hereby.
F. Assignment. No party hereto may assign any of its rights or delegate
any of its obligations under this Agreement without the express
written consent of the other party hereto.
G. Counterparts. This Agreement may be executed simultaneously in two
counterparts, each of which shall be deemed an original, but both of
which together shall constitute one and the same agreement, binding
upon both parties hereto, notwithstanding that both parties are not
signatories to the same counterpart.
H. Consent to Arbitration. The parties hereto agree to try to settle
any disputes, controversies, differences or claims that may arise
between Immtech and the Finder in respect of this Agreement amicably
through mutual consultation for a period of at least 1 month.
Failing such settlement, any such dispute, controversy, difference
or claim shall be exclusively and finally settled by confidential
binding arbitration commenced by either party in New York City in
accordance with the rules of the American Arbitration Association
then in effect, except as discussed below in the section, "Enforcing
the Confidentiality Provision." There shall be three arbitrators,
one selected by the Finder, one selected by Immtech and the third
selected by the two so selected. The arbitrators shall have no
authority to amend the terms of this Agreement directly or
indirectly. Any award of the arbitrators may be entered as a
judgment in any court having jurisdiction.
I. Enforcing the Confidentiality Provision. Nothing in the foregoing
section, "Consent to Arbitration," will limit the right of Immtech
to seek injunctive relief from any court of competent jurisdiction
in order to enforce the confidentiality provision above.
J. Headings. The section headings in this Agreement are for reference
purposes only and shall not be deemed to be a part of this Agreement
or to affect the meaning or interpretation of this Agreement.
K. Mutual Cancellations and Power. Any time after the six month
anniversary of that Effective Date, either party may cancel this
Agreement upon thirty days' advance written notice to the other
party. In the event this Agreement is cancelled pursuant to this
subsection 10(K), any payment of Common Stock to the Finder pursuant
to either Section 3 or Section 4 hereof shall be prorated to the
last full month of uncompleted service and any unvested Warrants
hereunder shall be immediately cancelled. The Finder hereby
authorizes Immtech to cancel any certificate or certificates (or
portion thereof) representing "unearned Common Stock or Warrants in
the event of cancellation by either party pursuant to this
subsection 10(K) and in such event the Finder shall tender to
Immtech any such certificates and Immtech shall issue to the Finder
a replacement certificate for any shares not so cancelled.
IN WITNESS THEREOF, each of the parties has caused this Agreement to be executed
on its behalf by a duly authorized signatory as of the date listed below.
The Gabriele Group, L.L.C. Immtech International Inc.
Dated as of: 7-31-02 Dated as of: 7-31-02
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/s/ James A. Gabriele /s/ T. Stephen Thompson
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James A. Gabriele T. Stephen Thompson
President and Chief Executive Officer
/s/ Allan J. Gabriele
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Allan J. Gabriele