CONSULTING AGREEMENT
This Agreement is made as of this 2nd day of July, 1996 by and between
INNOVIR LABORATORIES, INC., with principal offices at 510 East 73rd Street, New
York, New York 10021 (the "Company") and MEYERS POLLOCK ROBBINS INC. with
offices at 33 Walt Whitman Road, Suite 200A, Huntington Station, New York 11746
(the "Consultant").
W I T N E S S E T H:
WHEREAS, the Company desires to retain the Consultant, and the Consultant
desires to be retained by the Company, pursuant to the terms and conditions
hereinafter set forth;
1. Retention: The Company hereby retains the Consultant to perform
non-exclusive consulting services related to corporate finance and other
matters, and the Consultant hereby accepts such retention and shall undertake
reasonable efforts to perform for the Company the duties described herein. In
this regard, subject to paragraph 7 hereof, the Consultant shall devote such
time and attention to the business of the Company, as shall be determined by the
Consultant, subject to the direction of the Chairman of the Company.
(a) The Consultant agrees, to the extent reasonably required in the
conduct of the business of the Company, and at the Company's request, to place
at the disposal of the Company its judgement and experience and to provide
business development services to the Company, including, without limitation, the
following:
(i) To assist in potential financing requirements;
(ii) To assist in potential mergers and acquisitions;
(iii) To provide advice on investor relations and marketing
strategies;
(iv) To provide advice with respect to corporate finance
matters including, without limitation, changes in
capitalization and corporate structure; and
(v) To assist in strategic development.
(b) At the Consultant's request, the Company will provide "due
diligence" packages to registered representatives of the Consultant and other
brokerage firms.
2. Term: The Consultant's retention hereunder shall be for a term of two
(2) years commencing on the date of this Agreement. This Agreement may be
terminated by either party upon sixty (60) days prior written notice at any time
after January 1, 1997.
3. Compensation: As full compensation for the consulting services
hereunder, the Company shall grant to the Consultant warrants (the "Warrants")
to purchase an aggregate of 300,000 shares of the Company's common stock, $.013
par value per share ("Common Stock"), exercisable for a period of five (5) years
from the date hereof, as follows:
(a) Warrants to purchase 200,000 shares at an exercise price equal
to $0.05 per share (the "$0.05 Warrants"); and
(b) Warrants to purchase 100,000 shares at an exercise price equal
to $5.00 per share (the "$5.00 Warrants").
The Company shall grant to the Consultant certain demand and "piggyback"
registration rights to include the shares of Common Stock issuable upon exercise
of the Warrants in any registration statement filed by the Company under the
Securities Act of 1933, as amended.
The Warrants shall have certain anti-dilution provisions for stock
dividends, splits, mergers, sale of substantially all of the Company's assets,
and for other unusual events (other than employee benefit and stock option plans
for employees and advisors of the Company).
Vesting of the Warrants shall be as follows and will depend upon the
Consultant's continued performance under the terms of this Agreement:
(i) 50% of each of the $0.05 Warrants and the $5.00 Warrants
(for the purchase of 100,000 shares and 50,000 shares,
respectively) are vested immediately; and
(ii) 50% of each of the $0.05 Warrants and the $5.00 Warrants
(for the purchase of 100,000 shares and 50,000 shares,
respectively) are vested at the end of six (6) months
(January 2, 1997).
4. Expenses: The Company agrees to reimburse the Consultant for reasonable
expenses incurred by the Consultant in connection with the services rendered
hereunder. Any such expenses shall require the prior written approval of the
Company.
5. Indemnification: The Company agrees to indemnify and hold harmless the
Consultant and its affiliates, the respective directors, officers, partners,
agents and employees and each other person, if any, controlling the Consultant
or any of its affiliates (collectively the "Consultant Parties"), to the full
extent lawful, from and against all losses, claims, damages, liabilities and
expenses incurred by them (including attorney's fees and disbursements) that
result from actions taken or omitted to be taken (including any untrue
statements made or any statements omitted to be made) by the Company, its agents
or employees. The Consultant will indemnify and hold
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harmless the Company and the respective director, officers, agents and employees
of the Company (the "Company Parties") from and against all losses, claims,
damages, liabilities and expenses that result from bad faith, negligence or
unauthorized representations of the Consultant. Each person or entity seeking
indemnification hereunder shall promptly notify in writing the Company or the
Consultant, as applicable, of any loss, claim, damage or expense for which the
Company or the Consultant, as applicable, may become liable pursuant to this
paragraph, shall not pay, settle or acknowledge liability under any such claim
without consent of the party liable for such indemnification and shall permit
the Company or the Consultant, as applicable, a reasonable opportunity to cure
any underlying situation and/or to mitigate any actual or potential damages. The
scope of this indemnification between the Consultant and the Company shall be
limited to, and pertain only to, those certain transactions contemplated or
entered into pursuant to this Agreement.
The Company or the Consultant, as applicable, shall have the opportunity
to defend any claim for which it may be liable hereunder, provided it notifies
the party claiming the right to indemnification within fifteen (15) days of
notice of the claim.
The rights stated pursuant to the preceding two paragraphs shall be in
addition to any rights that the Consultant or the Company or any other person
entitled to indemnification may have under common law or otherwise, including,
without limitation, any right to contribution.
6. Status of Consultant: The Consultant shall be deemed to be an
independent contractor and, except as expressly provided or authorized in this
Agreement, shall have no authority to act for or represent the Company.
7. Other Activities of Consultant: The Company recognizes that the
Consultant now renders and may continue to render financial consulting and other
investment banking services to other companies which may or may not conduct
business and activities similar to those of the Company. The Consultant shall
not be required to devote its full time and attention to the performance of its
duties under this Agreement but shall devote only so much of its time and
attention as it deems reasonable for such purposes, subject to the direction of
the Chairman of the Company.
8. Control: Nothing contained herein shall be deemed to require the
Company to take any action contrary to its Certificate of Incorporation or
By-Laws, as each may be amended from time to time, or any applicable statue or
regulation, or to deprive its Board of Directors of their responsibility for any
control of the conduct of the affairs of the Company.
9. Notices: Any notices hereunder shall be sent to the Company and the
Consultant at their respective addresses above set forth. Any notice shall be
given by registered or certified mail, postage prepaid, and shall be deemed to
have been given when deposited in the United States mail. Either party may
designate any other address to which, or manner in which, notice shall be given,
by giving written notice to the other of such change of address in the manner
herein provided.
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10. Governing Law: This Agreement has been made in the State of New York
and shall be construed and governed in accordance with the laws thereof without
regard to conflict of laws.
11. Entire Agreement: This Agreement contains the entire agreement between
the parties, may not be altered or modified, except in writing and signed by the
party to be charged thereby and supersedes any and all previous agreements
between the parties.
12. Binding Effect; Assignment: This Agreement shall be binding upon the
parties hereto and their respective heirs, administrators, successors, and
assigns; provided, however, that this Agreement, and the rights and obligations
sereunder, may not be assigned by either party hereto without the prior written
consent of the other party.
13. Counterparts: This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original but all of which
shall constitute one and the same agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the
day and year first above written.
INNOVIR LABORATORIES, INC. MEYERS POLLOCK ROBBINS INC.
By:/s/ALLAN R. GOLDBERG By:/s/HOWARD SCWHARTZ
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Title: Title:
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