Unassociated Document


    Exhibit
10.27
 

    HSF
BUSINESS ADVISORS LLC

    115
East 82nd St.
Suite 2A

    New
York, NY 1028

    917-816-3088

    fischerhs@aol.com

    


    October
11, 2009

    


    Avax
Technologies, Inc.

    2000
Hamilton Street

    Suite
204

    Philadelphia,
PA 19130

    


    
      	
              Attention:

            	
              John
      Prendergast

            


    

    
      	
               
      

            	
              Executive
      Chairman

            


    

    


    Dear Mr.
Prendergast:

    


    This
letter confirms our understanding that Avax Technologies, Inc. (the “Company”)
has engaged HSF Business Advisors LLC (“Consultant”) for the services
of its President, Howard S. Fischer, to provide consulting services (the
“Services”) for the Company. References herein to the Company include affiliates
of the Company and any entity that the Company or any of its affiliates may form
or invest in to pursue any of the matters contemplated hereby. If appropriate in
connection with performing its services hereunder, Consultant may utilize the
services of one or more of its affiliates or other persons, in which case
references herein to Consultant shall, as applicable, be deemed to include such
affiliates or persons.

    


    
      	 	
              1.

            	
              Services.
      The Services to be provided by Consultant, pursuant to this engagement,
      shall be those typically expected of a Chief Financial Office who has the
      assistance of a corporate
  controller.

            


    

    
      
         

        
          	
                	
                  2.

                	
                  Compensation.
      Consultant shall receive a fees for services provided hereunder: (i)
      $42,500 upon the completion of the closing of the contemplated bridge
      financing (the “Firebird Bridge Financing”) of the Company by Firebird
      Management or one or more of its affiliates (“Firebird”), (ii) $37,500 on
      October 27, 2009; (iii) $25,000 on November 23, 2009. The Company shall
      make payment by wire transfer to the account supplied by Consultant
      (attached hereto as Exhibit A) or such successor account as Consultant
      shall subsequently supply. In addition, upon the closing of the Firebird
      Bridge Financing, the Company shall issue warrants, with a term of 5
      years, to Consultant equal to 2.0% of the fully-diluted equity of the
      Company assuming that the Company effects a $32.5 million financing at a
      pre-money valuation equal to that accorded Firebird in the bridge
      financing (the “Firebird Valuation”), with the exercise price at a
      per-share price equal to the Firebird Valuation, provided
      however, that should the U.S.
      Internal Revenue Services determine that the issuance of the warrants to
      Consultant would result in taxable income to Consultant, Consultant in its
      sole discretion may request that the terms of the warrants be adjusted so
      that no taxable income would be reportable by Consultant. The warrants
      shall contain a cashless exercise feature. The Company represents that as
      of the date of the Firebird Bridge Financing the Company will be insolvent
      and that there is no active trading market for any warrants issued by the
      Company.

                


        

      

    

     

    
      
         


      

      
        
        

        
          

        

      

      
         


      

    


    Avax
Technologies, Inc.

    October
11, 2009

    Page
2

    


    
      	
            	
              3.

            	
              Expense
      Reimbursement. Consultant shall also be promptly reimbursed, upon
      the presentation of a statement to the Company for all reasonable
      out-of-pocket expenses incurred in connection with its role hereunder,
      including but not limited to: reasonable attorneys’ and advisors fees and
      disbursements (if approved by the Company, which approval shall not be
      unreasonably withheld), travel expenses incurred in connection with the
      Services, purchased research, the cost of telecommunications, supplies,
      photocopies, business services, postage and overnight carrier
      costs.

            


    

     

    
      	
            	
              4.

            	
              Term. This
      agreement shall commence on the day following the closing of the Firebird
      Bridge Financing and terminate on December 31, 2009. This agreement may be
      terminated with or without cause by either party upon 10 days written
      notice, provided however, that if Consultant is terminated prior to the
      date when the November 23, 2009, $25,000 installment is due, the Company
      shall, upon delivery of the termination notice pay Consultant an amount
      equal to the first two payments less any amounts from such first two
      payments previously remitted to the Consultant plus Consultant’s pro rata
      share of the final $25,000 payment for the number of days into December
      2009 (if applicable) that the Consultant will serve until such termination
      becomes effective. Should the Company fail to cure any unremitted payment
      due Consultant within five (5) business days following the due date, such
      failure shall be deemed a notice of termination by the Company to
      Consultant and this agreement shall terminate 10 days thereafter. In the
      event, Consultant terminates prior to December 31, 2009, Consultant shall
      be entitled to retain the first $42,500 payment irrespective of the date
      of termination and $12,500 of the second payment if Consultant termination
      does not become effective before October 31, 2010. Consultant shall be
      entitled to retain the balance of the second payment ($25,000) if the
      effective date of Consultant’s termination occurs after October 31, 2009,
      and the full amount of the third payment ($25,000) if the effective date
      of termination occurs after November 30, 2009 and the provided however, that Consultant will promptly reimburse
      the Company, if such termination becomes effective in October in an amount
      equal to the number of days consultant has not served from the earlier of
      October 15, 2009 or the closing date to October 31, 2009 divided by 16 and
      taking that quotient and multiplying it by $12,500. If such termination
      becomes effective in November, Consultant will reimburse the Company an
      amount equal to the number of days not served in November divided by 30
      and multiplying that quotient by $25,000. If such termination becomes
      effective in December, Consultant will reimburse the Company an amount
      equal to the number of days not served in December divided by 31 and
      multiplying that quotient by $25,000. Notwithstanding the above,
      Consultant shall make no reimbursement if the Company has failed to remit
      to Consultant any payment(s) due in the month(s) prior to termination. If
      the Company has failed to remit any payment due in the month(s) prior to
      the effective termination date and in the event of a termination by
      Consultant, the Company’s outstanding obligation to Consultant shall be
      calculated by taking the abovementioned formulas into consideration. Any
      termination of Consultant’s engagement hereunder shall not affect the
      Company’s obligation to indemnify Consultant with respect to actions and
      omissions prior to such termination as provided in the separate letter
      agreement referred to below and to reimburse Consultant for out-of-pocket
      expenses.

            


    

     

    
      
         


      

      
        
        

        
          

        

      

      
         


      

    


    Avax
Technologies, Inc.

    October
11, 2009

    Page
3

    


    
      	
            	
              5.

            	
              No Responsibility for
      Underlying Business Decisions. In rendering its services to the
      Company hereunder Consultant is not assuming any responsibility for the
      Company’s underlying business decision to pursue any business strategy or
      to undertake the contemplated
transaction.

            


    

     

    
      	
            	
              6.

            	
              Information
      Availability. The Company shall make available to Consultant all
      information concerning the Company that Consultant reasonably requests in
      connection with the Services to be performed for the Company hereunder,
      and shall provide Consultant with reasonable access to the Company’s
      officers, directors, employees, independent accountants, systems
      engineers, IT personnel and other advisors and agents as Consultant shall
      deem appropriate. The Company represents that all information furnished by
      it or on its behalf to Consultant will be accurate and complete in all
      material respects. The Company recognizes and confirms that, in advising
      the Company and in completing its engagement hereunder, Consultant will be
      using and relying on publicly available information and on data, material,
      and other information furnished to Consultant by the Company, Firebird and
      other parties. It is understood that in performing under this engagement
      Consultant may assume and rely upon the accuracy and completeness of, and
      is not assuming any responsibility for independent verification of, such
      publicly available information and the other information so
      furnished.

            


    

     

    
      	
            	
              7.

            	
              No Disclosure. No
      advice rendered by Consultant whether formal or informal, may be disclosed
      in whole or in part, or summarized, excerpted from or otherwise publicly
      referred to, without Consultant’s prior written consent. In addition,
      Consultant may not be otherwise being publicly referred to without its
      prior written consent.

            


    

     

    
      
         


      

      
        
        

        
          

        

      

      
         


      

    


    Avax
Technologies, Inc.

    October
11, 2009

    Page
4

     

    
      	
            	
              8.

            	
              Indemnification.
      Since Consultant will be acting on behalf of the Company in connection
      with its engagement hereunder, the Company has entered into a separate
      letter agreement attached hereto, providing for the indemnification by the
      Company of Consultant and certain related
  entities.

            


    

     

    
      	
            	
              9.

            	
              Independent
      Contractor.
      Consultant has been retained under this agreement as an independent
      contractor with no fiduciary or agency relationship to the Company or to
      any other party. The advice (oral or written) rendered by Consultant
      pursuant to this agreement is intended solely for the benefit and use of
      the Senior Management and Board of Directors of the Company in considering
      the matters to which this agreement relates, and the Company agrees that
      such advice may not be relied upon by any other person, used for any other
      purpose or reproduced, disseminated, quoted or referred to at any time, in
      any manner or for any purpose, nor shall any public references to
      Consultant be made by the Company without the prior written consent of
      Consultant.

            


    

     

    
      	
            	
              10.

            	
              Other Services.
      In the event that Consultant agrees to provide additional advisory
      services to the Company (other than the advisory services specifically
      described herein), then the Company may pay additional fees to Consultant
      in such amounts as shall be customary given the nature of the services
      provided, and such services shall be provided upon such other terms as the
      Company and Consultant shall mutually agree in
  writing.

            


    

     

    
      	
            	
              11.

            	
              Legal. This
      agreement shall be deemed made in New York. This agreement and all
      controversies arising from or relating to performance under this agreement
      shall be governed by and construed in accordance with the laws of the
      State of New York, without giving effect to such state’s rules concerning
      conflicts of laws that might provide for any other choice of law. The
      Company hereby irrevocably consents to personal jurisdiction in the
      Supreme Court of the State of New York in New York County, Commercial
      Part, or any Federal court sitting in the Southern District of New York
      for the purposes of any suit, action or other proceeding arising out of
      this agreement or any of the agreements or transactions referred to herein
      or contemplated hereby, which is brought by or against the Company, hereby
      waives any objection to venue with respect thereto, and hereby agrees that
      all claims in respect of any such suit, action or proceeding shall be
      heard and determined in any such court, and that such courts shall have
      exclusive jurisdiction over any claims arising out of or relating to such
      agreements or transactions. The Company hereby irrevocably consents to the
      service of process of any of the aforementioned courts in any such suit,
      action or proceeding by the mailing of copies thereof by registered or
      certified mail, postage prepaid, to the Company at its address set forth
      above, such service to become effective ten (10) days after such mailing.
      ANY RIGHT TO TRIAL BY JURY WITH RESPECT TO ANY CLAIM OR ACTION ARISING OUT
      OF THIS AGREEMENT OR CONDUCT IN CONNECTION WITH THIS ENGAGEMENT IS HEREBY
      WAIVED.

            


    


    
      
         


      

      
        
        

        
          

        

      

      
         


      

    


    Avax
Technologies, Inc.

    October
11, 2009

    Page
5

    


    
      	
            	
              12.

            	
              Counterparts.
      This agreement may be executed in counterparts, each of which together
      shall be considered a single document. This agreement shall be binding
      upon Consultant and the Company and their respective successors and
      assigns. This agreement is not intended to confer any rights upon any
      shareholder, creditor, owner or partner of the Company or AVAX, or any
      other person not a party hereto other than the indemnified persons
      referenced in the indemnification agreement referred to
    above.

            


    

     

    
      	
            	
              13.

            	
              Successors and
      Assigns. This Agreement shall be binding on the Parties hereto and
      their respective successors and assigns. Neither party may assign its
      rights or obligations hereunder without the prior written consent of the
      other.

            


    

     

    
      	
            	
              14.

            	
              Entire
      Agreement. This Agreement constitutes the entire agreement between
      the Parties and supersedes all prior agreements, oral or written
      representations, statements, negotiations, proposals and undertakings with
      respect to the subject matter hereof. This Agreement shall not be modified
      or amended except by a writing executed by the Parties. We are delighted
      to accept this engagement and look forward to working with you on this
      assignment. Please confirm that the foregoing is in accordance with your
      understanding by signing and returning to us the enclosed duplicate of
      this Agreement.

            


    

     

    
      
        
          
            
              
                	 
      	
                        Very
      truly yours,

                      
	 
      	 
      
	 
      	
                        HSF
      BUSINESS ADVISORS LLC

                      
	 	 
	 
      	      
                        /s/
      Howard S. Fischer

                      	  
      
	 
      	
                        Howard
      S. Fischer

                      
	 
      	
                        President
      and Managing
Member

                      


              

            

          

        

      

    

    


    
      
        
          	
                  Accepted
      and Agreed to:

                	 
      
	 
      	 
      
	
                  AVAX
      TECHNOLOGIES, INC.

                	 
      
	 
      	 
      
	
                  By:

                	/s/
      John Prendergast  	 
      
	 
      	
                  John
      Prendergast

                	 
      
	 
      	
                  Executive
      Chairman & CEO

                	 
      


        

      

    


    
      
         


      

      
        
        

        
          

        

      

      
         


      

    

    


    Avax
Technologies, Inc.

    2000
Hamilton Street

    Suite
204

    Philadelphia,
PA 19130

    


    October
11, 2009

    


    HSF
Business Advisors LLC

    115 East
82nd
St. Suite 2A

    New York,
NY 10028

    


    
      	
              Attention:

            	
              Howard
      S. Fischer

            


    

    President
and Managing Member

    


    In
connection with your engagement (the “engagement”) dated October 11, 2009 to
provide consulting services to Avax Technologies, Inc. (the “Company”), we agree
to indemnify and hold harmless HSF Business Advisors LLC (“Consultant”) and its
members, partners, agents, representatives and employees (“Indemnified
Persons”), from and against, and we agree that no Indemnified Person shall have
any liability to us or our owners, parents, affiliates, security holders or
creditors for, any losses, claims, damages or liabilities (including actions or
proceedings in respect thereof) (collectively “Losses”) (A) related to or
arising out of: (i) our actions or failures to act (including statements or
omissions made or information provided, by us or our agents) or (ii) actions or
failures to act by an Indemnified Person with our consent or in reliance on our
actions or failures to act, or (B) otherwise related to or arising out of the
engagement or your performance thereof, except that this clause (B) shall not
apply to any Losses that are finally judicially determined to have resulted
primarily from your bad faith or gross negligence.

    


    If such
indemnification is for any reason not available, we agree to contribute to the
Losses involved in such proportion as is appropriate to reflect the relative
benefits received (or anticipated to be received) by us and by you with respect
to the engagement or, if such allocation is judicially determined unavailable,
in such proportion as is appropriate to reflect other equitable considerations
such as the relative fault of us on the one hand and of you on the other hand,
provided, however, that, to the extent permitted by applicable law, the
Indemnified Persons shall not be responsible for amounts which in the aggregate
are in excess of the amount of all fees actually received by you from us in
connection with the engagement. Relative benefits to us, on the one hand, and
you, on the other hand, with respect to the engagement shall be deemed to be in
the same proportion as (i) the total value paid or proposed to be paid or
received or proposed to be received by us or our security holders, as the case
may be, pursuant to the transaction or services provided, whether or not
consummated, contemplated by the engagement bears to (ii) all fees paid or
proposed to be paid to you by us in connection with the
engagement.


    
      
         


      

      
        
        

        
          

        

      

      
         


      

    


    HSF
Business Advisors LLC

    October
11, 2009

    Page
2

    


    Promptly
after receipt by an Indemnified Person of notice of any complaint or the
commencement of any action or proceeding with respect to which indemnification
is being sought hereunder, such person will notify us in writing of such
complaint or of the commencement of such action or proceeding, but failure to so
notify us will relieve us from any liability which we may have hereunder only if
and to the extent that such failure results in the forfeiture by us of
substantial rights and defenses, and will not in any event relieve us from any
other obligation or liability that we may have to any Indemnified Person
otherwise than under this letter agreement. If we so elect or are requested by
such Indemnified Person, we will assume the defense of such action or
proceeding, including the employment of counsel reasonably satisfactory to
Indemnified Person and the payment of the fees and disbursements of such
counsel. In the event, however, such Indemnified Person reasonably determines in
its judgment that having common counsel would present such counsel with a
conflict of interest or if the defendants in, or targets of any such action or
proceeding include both an Indemnified Person and us, and such Indemnified
Person reasonably concludes that there may be legal defenses available to it or
other Indemnified Persons that are different from or in addition to those
available to us, or if we fail to assume the defense of the action or proceeding
or to employ counsel reasonably satisfactory to such Indemnified Person, in
either case in a timely manner, then such Indemnified Person may employ separate
counsel to represent or defend it in any such action or proceeding and we will
pay the fees and disbursements of such counsel; provided, however, that we will
not be required to pay the fees and disbursements of more than one separate
counsel (in addition to local counsel) for all Indemnified Persons in any
jurisdiction in any single action or proceeding. In any action or proceeding the
defense of which we assume, the Indemnified Person will have the right to
participate in such litigation and to retain its own counsel at such indemnified
person’s own expense.

    


    We
further agree that we will not settle or compromise or consent to the entry of
any judgment in any pending or threatened Action in respect of which
indemnification may be sought hereunder (whether or not an Indemnified Person is
a party therein) unless we have given you reasonable prior written notice
thereof and used all reasonable efforts, after consultation with you, to obtain
an unconditional release of each Indemnified Person from all liability arising
therefrom.

    


    We
further agree that we will promptly reimburse Consultant and any other
Indemnified Person hereunder for all reasonable expenses (including fees and
disbursements of counsel) as they are incurred by Consultant or such other
Indemnified Person in connection with investigating, preparing for or defending,
or providing evidence in, any pending or threatened action, claim, suit or
proceeding in respect of which indemnification or contribution may be sought
hereunder (whether or not Consultant or any other Indemnified Person is a party)
and in enforcing this agreement.


    
      
         


      

      
        
        

        
          

        

      

      
         


      

    


    HSF
Business Advisors LLC

    October
11, 2009

    Page
3

    


    Our
obligations hereunder shall be in addition to any rights that any Indemnified
Person may have at common law or otherwise. Solely for the purpose of enforcing
this agreement, we hereby consent to personal jurisdiction and to service and
venue in any court in which any claim that is subject to this agreement is
brought against any Indemnified Person. We acknowledge that in connection with
the engagement you are acting as an independent contractor with duties owing
solely to us, except as are set forth in Paragraph 11 entitled “Conflict Waiver”
in the Engagement Letter between us dated August 25, 2009.

    


    This
Indemnification Agreement shall be deemed made in New York. This Indemnification
Agreement and all controversies arising from or relating to performance under
this Indemnification Agreement shall be governed by and construed in accordance
with the laws of the State of New York, without giving effect to such state’s
rules concerning conflicts of laws. YOU HEREBY AGREE, AND WE HEREBY AGREE ON OUR
OWN BEHALF AND, TO THE EXTENT PERMITTED BY APPLICABLE LAW ON BEHALF OF OUR
SECURITY HOLDERS, TO WAIVE ANY RIGHT TO TRIAL BY JURY WITH RESPECT TO ANY CLAIM,
COUNTER-CLAIM OR ACTION ARISING OUT OF THE ENGAGEMENT, YOUR PERFORMANCE THEREOF
OR THIS AGREEMENT

    


    The
provisions of this Indemnification Agreement shall apply to the abovementioned
engagement, activities relating to the engagement occurring from June 1, 2009,
which for avoidance of doubt is prior to the date hereof, and any subsequent
modification of or amendment to such engagement, and shall remain in fall force
and effect following the completion or termination of Consultant’s
engagement.

     

    
      
        	 
      	
                Very
      truly yours,

              	 
      
	 
      	 
      	 
      
	 
      	
                AVAX
      TECHNOLOGIES, INC.

              	 
      
	 
      	 
      	 
      
	 
      	
                By:

              	/s/
      John Prendergast  	 
      
	 
      	 
      	
                John
      Prendergast

              	 
      
	 
      	 
      	
                Chairman

              	 
      


      

    

    


    Accepted
and Agreed:

    


    
      
        	
                HSF
      BUSINESS ADVISORS LLC

              	 
      
	 
      	 
      
	
                By:

              	      
                /s/
      Howard S. Fischer

              	 
      
	 
      	
                Howard
      S. Fischer

              	 
      
	 
      	
                Managing
      Member