EXHIBIT 10.1
CONFIDENTIAL PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED PURSUANT TO REGULATION S-K ITEM 601(b)(10)(iv) OF THE SECURITIES ACT OF 1933, AS AMENDED AND REPLACED WITH [***]. SUCH IDENTIFIED INFORMATION HAS BEEN EXCLUDED FROM THIS EXHIBIT BECAUSE IT IS (i) NOT MATERIAL AND (ii) WOULD LIKELY CAUSE COMPETITIVE HARM TO THE COMPANY IF PUBLICLY DISCLOSED.
CONSULTING AGREEMENT
This Consulting Agreement (the “Agreement”) is made as of October 14, 2021, by and between Tenax Therapeutics, Inc., a Delaware corporation, with its principal place of business being ONE Copley Parkway, Suite 490, Morrisville, NC 27560 (the “Company”) and Danforth Advisors, LLC, a Massachusetts limited liability company, with its principal place of business being 91 Middle Road, Southborough, MA 01772 (“Danforth”). The Company and Danforth are herein sometimes referred to individually as a “Party” and collectively as the “Parties.”
WHEREAS, the Company is a specialty pharmaceutical company focused on identifying, developing, and commercializing products that address cardiovascular and pulmonary diseases with high unmet medical need; and
WHEREAS, Danforth has expertise in financial and corporate operations and strategy; and
WHEREAS, Danforth desires to serve as an independent consultant for the purpose of providing the Company with certain strategic and financial advice and support services, using personnel described in Exhibit A attached hereto, (the "Services"); and
WHEREAS, the Company wishes to engage Danforth on the terms and conditions set forth herein.
NOW THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which are hereby acknowledged, the Parties agree and covenant as follows.
1. | Services of Consultant. Danforth will assist the Company with matters relating to the Services. The Services are more fully described in Exhibit A attached hereto. Danforth and the Company will review the Services on a monthly basis to determine appropriate staffing requirements. Company shall have the right to request changes to the Danforth personnel at any time in writing. If Company makes a written request, Danforth shall replace such personnel subject to the Company’s right of pre-approval. |
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Compensation for Services. In full consideration of Danforth’s full, prompt and faithful performance of the Services, the Company shall compensate Danforth a consulting fee more fully described in Exhibit A (the “Consulting Fee”). Danforth shall, from time to time, but not more frequently than once per calendar month, invoice the Company for Services rendered, and such invoice will be paid upon 30 days of receipt. Each month the Parties shall evaluate jointly the current fee structure and scope of Services. Danforth reserves the right to an annual increase in consultant rates of up to 4%, effective January 1, 2023. Upon termination of this Agreement pursuant to Section 3, no compensation or benefits of any kind as described in this Section 2 shall be payable or issuable to Danforth after the effective date of such termination. In addition, the Company will reimburse Danforth for reasonable out-of-pocket business expenses, including but not limited to travel and parking, incurred by Danforth in performing the Services hereunder, upon submission by Danforth of supporting documentation reasonably acceptable to the Company. Any such accrued expenses in any given three (3) month period that exceed $1,000 shall be submitted to the Company for its prior written approval. |
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All Danforth invoices and billing matters should be addressed to:
Company Accounts Payable Contact:
| Name: | Karen Miller |
| Title: | Senior Accountant |
| Address: | ONE Copley Parkway, Suite 490, Morrisville, NC 27560 |
| Phone: | 919.855.2100 |
| E-mail: |
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All Company payments and billing inquiries should be addressed to:
| Danforth Accounting: | Betsy Sherr bsherr@danforthadvisors.com (508) 277-0031 Danforth Advisors, LLC PO Box 335 Southborough, MA 01772 |
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8. | Use of Name and Logo. The Company agrees to permit the use of its name and logo in a roster of Danforth clients, which may appear on the Danforth website and in its marketing materials. |
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9. | Intellectual Property. Danforth agrees that all ideas, inventions, discoveries, creations, manuscripts, properties, innovations, improvements, know‑how, designs, developments, apparatus, techniques, methods, and formulae that Danforth conceives, makes, develops or improves as a result of performing the Services, whether or not reduced to practice and whether or not patentable, alone or in conjunction with any other party and whether or not at the request or upon the suggestion of the Company (all of the foregoing being hereinafter collectively referred to as the “Inventions”), shall be the sole and exclusive property of the Company. |
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10. | Non Solicitation. All personnel representing Danforth are employees or contracted agents of Danforth. Accordingly, they are not retainable as employees or contractors by the Company and the Company hereby agrees not to solicit, hire or retain their services for so long as they are employees or contracted agents of Danforth and for two years thereafter. Should the Company violate this restriction, it agrees to pay Danforth liquidated damages equal to forty percent (40%) of the employee’s starting annual base salary and target annual bonus for each Danforth contracted agent hired by the Company in violation of this Agreement plus Danforth’s reasonable attorneys’ fees and costs incurred in enforcing this agreement should the Company fail or refuse to pay the liquidated damages amount in full within 30 days following its violation. For purposes herein, “solicit” does not include broad-based recruiting efforts, including, without limitation, help wanted advertising and posting of open positions on a party’s internet site. |
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12. | Limited Warranty. Danforth represents and warrants that neither this Agreement nor the performance thereof will conflict with or violate any obligation of Danforth or right of any third party. Except for any express warranties stated herein, the Services are provided on an "as is" basis, and the Company disclaims any and all other warranties, conditions, or representations (express, implied, oral or written), relating to the Services or any part thereof. Further, in performing the Services, Danforth is not engaged to disclose illegal acts, including fraud or defalcations, which may have taken place. The foregoing notwithstanding, Danforth will promptly notify the Company if Danforth becomes aware of any such illegal acts during the performance of the Services. Because the Services do not constitute an examination in accordance with standards established by the American Institute of Certified Public Accountants (the “AICPA”), Danforth is precluded from expressing an opinion as to whether financial statements provided by the Company are in conformity with generally accepted accounting principles or any other standards or guidelines promulgated by the AICPA, or whether the underlying financial and other data provide a reasonable basis for the statements. |
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13. | Indemnification. Each Party hereto agrees to indemnify and hold the other Party hereto, its directors, officers, agents and employees harmless against any claim based upon circumstances alleged to be inconsistent with such representations and/or warranties contained in this Agreement. Further, the Company shall indemnify and hold harmless Danforth and any of its subcontractors against any claims, losses, damages or liabilities (or actions in respect thereof) that arise out of or are based on the Services performed hereunder, except for any such claims, losses, damages or liabilities arising out of the gross negligence or willful misconduct of Danforth or any of its subcontractors. The Company will endeavor to add Consultant and any applicable subcontractor to its insurance policies as additional insureds. Furthermore, during the Term of this Agreement, if the Company desires that Danforth provide treasury services, the Company shall obtain and maintain a Crime and Cyber Insurance Policy that includes coverage for "Social Engineering" claims and extends coverage to Danforth. |
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| If to the Company: | |
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| Title: | Chief Executive Officer |
| Address: | ONE Copley Parkway, Suite 490, Morrisville, NC 27560 |
| Phone: | 919.855.2100 |
| E-mail: |
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| If to Danforth: |
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| Name: | Gregg Beloff |
| Title: | Managing Director |
| Address: | 91 Middle Road |
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| Southborough, MA 01772 |
| Phone: | (617) 686-7679 |
| E-mail: | gbeloff@danforthadvisors.com |
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Amendments and Waivers. This Agreement may be amended or supplemented only by a written instrument duly executed by each of the Parties. No provision of this Agreement may be waived except by a written instrument signed by the Party hereto sought to be bound. No failure or delay by any Party in exercising any right or remedy hereunder or under applicable law will operate as a waiver thereof, and a waiver of a particular right or remedy on one occasion will not be deemed a waiver of any other light or remedy, or a waiver on any subsequent occasion. | |
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24. | Counterparts. This Agreement may be executed in counterparts, each of which will be deemed an original, but all of which together will constitute one agreement. Counterparts may be delivered via facsimile, electronic mail (including pdf or any electronic signature complying with the U.S. federal ESIGN Act of 2000, e.g., www.docusign.com) or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes. |
If you are in agreement with the foregoing, please sign where indicated below, whereupon this Agreement shall become effective as of the Effective Date.
DANFORTH ADVISORS, LLC |
| TENAX THERAPEUTICS, INC. | ||
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By: | /s/ Chris Connors |
| By: | /s/ Christopher T. Giordano |
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Print Name: | Chris Connors |
| Print Name: | Christopher T. Giordano |
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Title: | Chief Executive Officer |
| Title: | Chief Executive Officer |
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Date: | October 14, 2021 |
| Date: | October 14, 2021 |
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EXHIBIT A
Description of Services and Schedule of Fees
Danforth will perform mutually agreed to finance and accounting functions which are necessary to support the management and operations of the Company.
Services and Fees:
Initial Staffing will be Eliot M. Lurier, who will act as Interim Chief Financial Officer of the Company, serving as its Principal Financial Officer and Principal Accounting Officer and performing all services related to such positions including, but not limited to, the following:
· | Participation in financing activities; |
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· | Overseeing the preparation and review of the Company’s SEC filings and compliance with other regulatory documents; |
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· | Certification of the Company’s SEC filings; |
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· | Support of investor relations activities; |
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· | Overseeing the finance and accounting functions of the Company; |
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· | Acting as Treasurer to the Company and its Subsidiaries; |
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· | Board and Board Committee meeting support and attendance; |
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· | Finance support for operational planning; |
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· | Corporate and business development support; |
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· | Financial modeling, planning and analysis; |
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· | Strategic opportunity assessment; and |
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· | Capitalization table management. |
Mr. Lurier has been interviewed and approved by the Company. Additional personnel will be added in accordance with Section 1 of this Agreement.
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Fees:
Mr. Lurier (Interim CFO): $400/hr
Additional fee rates provided below:
Role |
| Hourly Rate |
| Function |
Sr. Advisor |
| $[***]/hour |
| Senior Advisory |
CFO |
| $400/hour |
| CFO |
Sr. Director |
| $[***]/hour |
| Principal Accounting Officer |
Sr. HR Director |
| $[***]/hour |
| Human Resources |
HR Director |
| $[***]/hour |
| Human Resources |
Director |
| $[***]/hour |
| VP Finance |
Sr HR Manager |
| $[***]/hour |
| Human Resources |
Sr Manager |
| $[***]/hour |
| Sr Controller/FP&A |
Manager |
| $[***]/hour |
| Controller |
HR Manager |
| $[***]/hour |
| Human Resources |
Sr. Consultant |
| $[***]/hour |
| Asst. Controller |
Consultant |
| $[***]/hour |
| Staff Accountant |
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