Exhibit 10.15


 


COMMISSION AGREEMENT


 


THIS COMMISSION
AGREEMENT (“AGREEMENT”) is effectively dated as of August 11, 2009 by and
between XTENT, INC., a Delaware Corporation (“SELLER”),
and COUNSEL RB CAPITAL LLC., a Delaware
corporation (the “AUCTIONEER”).


 


RECITALS:


 


The SELLER has
engaged the services of the AUCTIONEER to conduct one or more public auction(s) and/or
private sale(s) of certain property of the SELLER (collectively, “SALE”)
pursuant to the terms of this AGREEMENT. 
The SELLER and the AUCTIONEER (collectively, “PARTIES”) have agreed to
execute this AGREEMENT so as to document the terms of the SELLER’S engagement
of the AUCTIONEER in connection with the SALE.


 


NOW, THEREFORE, in
consideration of these premises, the terms and conditions set forth herein, and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the PARTIES agree as follows:


 


Section 1.  Purpose
of Agreement.  The SELLER
hereby hires the AUCTIONEER, as the SELLER’s exclusive agent, to conduct the
SALE of the personal property of the SELLER that is listed and described on Exhibit “A”
attached hereto and made a part hereof (collectively, “ASSETS”), upon the terms
and conditions set forth herein.


 


Section 2.  Manner
of Sale.  The SELLER hereby
authorizes the AUCTIONEER:  (a) to
sell the ASSETS, in whole or in part, at a public auction(s) and/or
private sale(s) to the highest bidder thereof; and (b) to include
other assets (other than assets that are duplicates of any ASSET) in such
auction(s) to increase public attendance. 
Although the AUCTIONEER shall endeavor to consult with the SELLER
regarding the manner and method of the SALE, the AUCTIONEER shall have the
authority to conduct the SALE in the manner, and utilizing the methods, that
the AUCTIONEER deems, in its professional judgment, to be appropriate.  The SELLER hereby agrees that it will not
effectuate any SALE of any of the ASSETS on its own without utilizing the
services of the AUCTIONEER in connection therewith.  The AUCTIONEER:  (i) does not guarantee that any SALE
shall be completed; and (ii) shall not be responsible for any purchaser
that fails to live up to its obligation to complete a purchase of any of the
ASSETS.  It is the present intention of
the AUCTIONEER to conduct the SALE on or about October 6, 2009. AUCTIONEER
shall remove all ASSETS from the PREMISES (as defined below) prior to the
TERMINATION DATE.  In connection
therewith, SELLER shall take reasonable steps to ensure that the disconnection
of utilities from ASSETS and the removal of ASSETS is conducted only by
qualified personnel, in a manner that does not cause damage other ASSETS or the
PREMISES.  Notwithstanding the foregoing,
if the modular clean-room that is located on the PREMISES and that is expressly
treated as SELLER’s “sole property” pursuant to the Lease dated September 15,
2003, by and between SELLER and 125 Constitution Associates, L.P., as the same
has been amended to date (the “LEASE”) is not sold pursuant to the SALE, then
AUCTIONEER shall not be responsible for removing it.


 


Section 3.  Commission;
Gross Proceeds; Expenses; Etc.  The SELLER shall not pay any commission to
the AUCTIONEER. The AUCTIONEER shall advance and the SELLER shall reimburse the
AUCTIONEER for all reasonable and documented expenses incurred by the
AUCTIONEER in connection with the SALE (collectively, “AUCTIONEER’S EXPENSES”),
including but not limited to ad placement fees and all other advertising
expenses, digital photography of the ASSETS, brochure and catalog production,
print and electronic media production, labor, creative services, telemarketing,
data list purchases, facsimile charges, postage, travel, accounting, equipment
rental, insurance, permits and any other out-of-pocket charges incurred by the
AUCTIONEER or otherwise relating to the SALE. 
The amount of the AUCTIONEER’S EXPENSES for which the SELLER is
obligated to reimburse the AUCTIONEER will be capped at Thirty Five Thousand
Dollars ($35,000). As used herein, the term “GROSS PROCEEDS” excludes any and
all “BUYER PREMIUMS” (as that term is commonly understood 


 

















 


by the AUCTIONEER
to mean) which shall be paid by the purchaser(s) of the ASSETS (“PURCHASER”
or “PURCHASERS”) to the AUCTIONEER in connection with the SALE and any
subsequent sale of any unsold ASSET made within two (2) months of the
SALE.  The AUCTIONEER intends to charge
each PURCHASER a BUYER PREMIUM in an amount equal to twelve and one-half
percent (12.5%) of the aggregate GROSS PROCEEDS paid by each such PURCHASER;
provided, however, that the BUYER PREMIUM that certain PURCHASERS shall be
obligated to pay shall be an amount equal to fifteen percent (15%) of the
aggregate GROSS PROCEEDS paid by such PURCHASERS since the AUCTIONEER is
obligated to pay its internet provider or such other third party a commission
or internet related fee equal to two and one-half percent (2.5%) of such GROSS
PROCEEDS.


 


Notwithstanding
anything contained in this section to the contrary, SELLER shall retain the
right to cancel the SALE and pay a cancellation fee as follows:  (i) Fifty Thousand Dollars ($50,000)
plus actual incurred expenses if cancelled prior to the mailing of the auction
brochure; and (ii) Seventy Five Thousand Dollars ($75,000) plus actual
incurred expenses if cancelled after mailing of the auction brochure.  In addition, SELLER shall retain the right to
remove from the SALE any ASSETS that SELLER sells to a third party who has
purchased intellectual property of the SELLER (“BUNDLED ASSETS”).  In the event SELLER removes any BUNDLED
ASSETS from the SALE, SELLER will pay to AUCTIONEER a fee of Fifty Thousand
Dollars ($50,000); and will reimburse AUCTIONEER for actual incurred expenses.


 


Section 4.  Sale
Proceeds.  The SELLER
hereby authorizes the AUCTIONEER to accept direct payment of the GROSS PROCEEDS
from the PURCHASERS.  Within fifteen (15)
business days from the date of the SALE, the AUCTIONEER shall deliver to the
SELLER an amount equal to the following (“NET PROCEEDS”) — the amount of the
GROSS PROCEEDS, less the AUCTIONEER’S EXPENSES (subject to the terms of Section 3
hereof).  All BUYER PREMIUMS are the sole
property of the AUCTIONEER.  At the time
that the AUCTIONEER delivers the NET PROCEEDS to the SELLER, the AUCTIONEER
shall deliver to the SELLER an itemized accounting of the SALE.


 


Section 5.  Location
of Assets.  The ASSETS are
located on the parcel(s) of real property located at 125 Constitution
Drive, Menlo Park, CA (the “PREMISES”).


 


Section 6.  Use of
the Premises.  The
SELLER:  (a) authorizes the
AUCTIONEER to enter and use the PREMISES for the purposes of — (i) storing
the ASSETS thereupon, (ii) preparing for and conducting the SALE
thereupon, and (iii) otherwise exhibiting the ASSETS; (b) shall not
charge the AUCTIONEER any rent, storage fees, utilities, or any other fees
associated with the AUCTIONEER’s use of the PREMISES in accordance with the
terms of this Section; and (c) shall provide adequate utilities to the
PREMISES, at the SELLER’s sole expense, to allow the AUCTIONEER — (i) to
demonstrate and exhibit the ASSETS to any prospective PURCHASER, and (ii) to
conduct the SALE.  Notwithstanding any of
the terms of this Section to the contrary, the SELLER’s obligations to the
AUCTIONEER under this Section shall: 
(A) commence upon the mutual execution and delivery of this
AGREEMENT; and (B) terminate, unless otherwise extended by the PARTIES,
seventy five (75) days following the mutual execution and delivery of the
AGREEMENT (“TERMINATION DATE”). 
Notwithstanding the foregoing, the SELLER shall not be obligated to do,
and AUCTIONEER agrees no to do, anything that would cause SELLER to violate any
provision of the LEASE.


 


Section 7.  Term of
Agreement.  With the
exception of the agreements of the PARTIES described in Sections 10, 17 and 18
hereof, the rights and obligations of the PARTIES under this AGREEMENT shall
terminate upon the completion of the SALE of all of the ASSETS by the
AUCTIONEER, the removal of the ASSETS following the SALE (which, consistent
with the terms of the immediately preceding Section hereof, shall take
place prior to the 75th day following the mutual execution and delivery of the
AGREEMENT, and the satisfaction of the PARTIES’ respective payment obligations
to one another set forth herein (“TERMINATION DATE”).  Prior to the SALE, the PARTIES will conduct a
joint walk-through inspection (“INITIAL INSPECTION”) of the PREMISES to
identify ASSETS that may require alterations to the PREMISES or fixtures
thereto in order to be removed properly. 
Following the removal of ASSETS and prior to the TERMINATION DATE, the
PARTIES shall conduct a second joint walk-through inspection (“FINAL INSPECTION”)
of the PREMISES, at which time SELLER will notify AUCTIONEER of any ASSETS that
have not been removed from the PREMISES, or damages 


 


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to the PREMISES
caused by the removal of the ASSETS from the PREMISES or the disconnection of
utilities from ASSETS.  Except for
damages that are unavoidable due to the nature of specific ASSETS (for example,
a piece of equipment too large to pass through any available doorway)
AUCTIONEER shall be responsible, at AUCTIONEER’s expense for repairing all such
damages.  Except for any such damages
brought to AUCTIONEER’s attention on the date of the FINAL INSPECTION, the
AUCTIONEER shall have no obligation to remove unsold ASSETS from the PREMISES,
to disconnect any utilities to unsold ASSETS, or to repair any damages to the
PREMISES that are caused by the removal of the ASSETS from the PREMISES or the
disconnection of utilities to sold ASSETS, unless the SELLER is able to prove
that the damages are the direct result of the AUCTIONEER’s negligence or
misconduct.


 


Section 8.  Liability
and Workers’ Compensation Insurance.  The AUCTIONEER shall provide the SELLER with
evidence that the AUCTIONEER has:  (a) public
liability and property damage insurance — (i) insuring the AUCTIONEER
against loss as a result of personal injury or property damage in connection
with the ASSETS, the PREMISES and any SALE, (ii) with limits of not less
than Three Million Dollars ($3,000,000.00) in the aggregate as to personal
injury, and (iii) naming the SELLER as an additional insured; and (b) workers’
compensation insurance with limits of coverage that comply with applicable laws
and regulations.  The AUCTIONEER shall
maintain the insurance described in this Section until the TERMINATION
DATE.


 


Section 9.  Casualty
Insurance.  Until such
time as title to and possession of the ASSETS is delivered to the PURCHASER,
the SELLER (and not the AUCTIONEER) shall obtain and thereafter maintain a
policy or policies of all-risk or fire and extended coverage casualty
insurance, and vandalism and malicious mischief, for the ASSETS:  (a) in an amount not less than the full
insurable value of the ASSETS; and (b) names the AUCTIONEER as an
additional insured.  In the event that,
prior to the SALE of all of the ASSETS, all or any portion of the ASSETS shall
be lost or damaged by fire or other casualty, or by theft or vandalism, the
AUCTIONEER shall be entitled to receive a portion of the insurance proceeds
therefrom in an amount equal to the AUCTIONEER’S EXPENSES incurred to date
(subject to the terms of Section 3 hereof), plus (Z) an
additional twelve and one-half percent (12.5%) of such insurance proceeds since
that is the standard amount of the BUYER PREMIUM that the AUCTIONEER would have
received were it not for such fire or other casualty, or theft or vandalism.


 


Section 10.  Default;
Termination of Agreement. 
In the event that the SELLER materially violates the terms of, or fails
to perform its obligations under, this AGREEMENT, and fails to remedy such
violation of failure within a reasonable time following notice from AUCTIONEER,
the AUCTIONEER may terminate the AUCTIONEER’s obligations under this AGREEMENT,
upon the delivery of written notice thereof to the SELLER, and the SELLER shall
promptly pay to the AUCTIONEER an amount equal to the sum of:  (a) all of the AUCTIONEER’S EXPENSES
incurred to date (subject to the terms of Section 3 hereof); plus (b) an
amount equal to the twelve and one-half percent (12.5%) of the greater of — (i) the
appraised fair market value of the ASSETS, or (ii) if the SELLER sold or
otherwise approved the SALE of all or a portion of the ASSETS without utilizing
the services of the AUCTIONEER in connection therewith (“UNAUTHORIZED SALE”),
the GROSS PROCEEDS of the UNAUTHORIZED SALE.  Notwithstanding the terms of the
preceding sentence to the contrary, in lieu of terminating the AUCTIONEER’s
obligations under this AGREEMENT following such a violation or failure by the
SELLER, if the AUCTIONEER proceeds with the SALE and the AUCTIONEER’S EXPENSES
are increased due to such a violation or failure by the SELLER, the SELLER
shall be obligated to reimburse the AUCTIONEER for such additional AUCTIONEER’S
EXPENSES.  In the event that the AUCTIONEER
materially violates the terms of, or materially fails to perform its
obligations under, this AGREEMENT, and fails to remedy such violation of
failure within a reasonable time following notice from SELLER, the SELLER may
terminate this AGREEMENT, upon the delivery of written notice thereof to the
AUCTIONEER, and the AUCTIONEER shall promptly pay to the SELLER all NET
PROCEEDS received prior to the date of such termination.


 


Section 11.  Seller’s Authorizations
Regarding Bills of Sale. 
The SELLER hereby authorizes the AUCTIONEER to execute, on the SELLER’s
behalf, all bills of sale, receipts and other documents necessary to transfer
title to the ASSETS to the PURCHASER upon payment of the GROSS PROCEEDS.


 


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Section 12.  Satisfaction
of Liens.  Notwithstanding
the SELLER’s representations that are more fully described below, in the event
any claim is made by any alleged creditor for the payment of sums due
(collectively, “CLAIM”) in connection with any liens, encumbrances, security
interests, adverse claims, mortgages, pledges, liabilities, conditional sale
agreements, restrictions and charges of any kind associated with any of the
ASSETS (collectively, “LIENS”), the SELLER shall use its best good faith efforts
to expeditiously resolve, settle or pay the amount of the CLAIM so as to
discharge all LIENS associated with the ASSETS and to obtain a full and
complete release thereof.


 


Section 13.  Representations
of the Seller.  The SELLER
represents and warrants to the AUCTIONEER that:


 


(a)                                  on or before the time of the SALE, the
SELLER shall receive the authorization to sell the ASSETS free and clear of all
LIENS;


 


(b)                                 the SELLER has the authority and has
performed all acts necessary to sell, transfer and deliver good and
merchantable title to the ASSETS to the PURCHASER free and clear of all LIENS
and agrees to defend the Purchaser’s title therein against each and every
person whomsoever may bring a CLAIM or otherwise seek to enforce any LIEN;


 


(c)                                  other than the BUYER PREMIUM, no
brokerage fees are due and owing in connection with the SALE;


 


(d)                                 the person executing this AGREEMENT on
behalf of the SELLER is duly authorized to do so;


 


(e)                                  the AUCTIONEER has no obligation
whatsoever to purchase, sell, make, store, handle, treat, dispose, generate,
transport or remove any HAZARDOUS SUBSTANCES that may be located at the
PREMISES or otherwise associated with the ASSETS.


 


The term “HAZARDOUS
SUBSTANCES” means, collectively, any chemical, solid, liquid, gas, or other
substance having the characteristics identified in, listed under, or designated
pursuant to — (i) the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended, 42 U.S.C.A. ‘9601(14),
as a “hazardous substance,” (ii) the Resource, Conservation and
Recovery Act, 42 U.S.C.A. ‘‘6903(5) and 6921, as a “hazardous waste,”
or (iii) any other laws, statutes, or regulations of a government or
political subdivision or agency thereof, as presenting an imminent and
substantial danger to the public health or welfare or to the environment, or as
otherwise requiring special handling, collection, storage, treatment, disposal,
or transportation.


 


Section 14.  Representations
of the Auctioneer.  The
AUCTIONEER represents and warrants to the SELLER that:


 


(a)                                  all necessary authority to conduct the
SALE has been obtained by the AUCTIONEER;


 


(b)                                 the person executing this AGREEMENT on
behalf of the AUCTIONEER is duly authorized to do so; and


 


(c)                                  the terms of this AGREEMENT are binding
upon and enforceable against the AUCTIONEER.


 


Section 15.  Assignment
of Service Agreements; Manuals; Etc.  To the extent available, and to the extent
permitted, the SELLER agrees to assign to the PURCHASER, without additional
consideration from the AUCTIONEER or the PURCHASER, any and all service
agreements, warranties, operating agreements, maintenance agreements, manuals,
plans, and all similar and other documents relating to the ASSETS or the SALE
which are in the possession or under the control of the SELLER (collectively, “SERVICE
AGREEMENTS”).  The SERVICE AGREEMENTS
shall be delivered to the 


 


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PURCHASER at the
time of the consummation of the SALE, unless otherwise agreed to by the PARTIES
and the PURCHASER in writing. 
Notwithstanding any of the terms of this Section to the contrary,
the SELLER is not obligated to deliver any SERVICE AGREEMENT that is not in the
possession or under the control of the SELLER.


 


Section 16.  Advertising; Disclaimers
of Warranties; Etc.  The
SELLER hereby authorizes the AUCTIONEER: 
(a) to use the SELLER’s name, without additional consideration from the
AUCTIONEER, in promotional materials pertaining to the SALE; and (b) to state
both in its advertising of the SALE and at the SALE that — (i) all ASSETS are
being sold, “AS IS, WHERE IS, AND WITH ALL FAULTS,”
and otherwise to include any disclaimers of warranty, including but not limited
to disclaimers of the warranties of merchantability and fitness for a
particular purpose or use, and (ii) “THERE IS NO WARRANTY
RELATING TO TITLE, POSSESSION, QUIET ENJOYMENT, OR THE LIKE IN THE DISPOSITION
OF ANY OF THE ASSETS.”  The
SELLER hereby acknowledges and agrees that the AUCTIONEER:  (A) has no knowledge with respect to, and has
no obligation to investigate, the merchantability or fitness for any particular
purpose or use of any of the ASSETS; and (B) has no duty to comply with the
relevant provisions of the SECURED TRANSACTIONS LAWS (if applicable), including
but not limited to the delivery of any requisite notice to third parties, as it
is the SELLER’s responsibility to ensure that every aspect of the SALE shall be
commercially reasonable (if applicable). SELLER hereby grants AUCTIONEER a
non-exclusive license to use its Trademark and/or Logo throughout the world, in
all media now or hereafter known, including without limitation on and in
advertising or promotional materials.


 


Section 17.  Indemnifications
by the Seller.  The SELLER
hereby indemnifies, defends and agrees to hold harmless the AUCTIONEER and the
AUCTIONEER’s officers, agents and employees from and against any and all
claims, demands, liabilities, judgments, damages, settlements, costs and
expenses (including but not limited to court costs and attorneys’ fees)
(individually a “LOSS” and collectively the “LOSSES”) that may be sustained or
incurred by the AUCTIONEER as a result of:


 


(a)                                  any CLAIM (as that term is defined in Section 12
hereof);


 


(b)                                 the ASSETS not being free and clear of
all LIENS;


 


(c)                                  any acts or omissions of the SELLER that
result in — (i) personal or property injury incurred at the PREMISES, (ii) a
violation of any governmental statute, ordinance or code related to the ASSETS
or the PREMISES, or (iii) a violation of any security interest, license
agreement, patent or other encumbrance restricting the SALE or the use of the
ASSETS;


 


(d)                                 any claim made by a third party for
commissions allegedly due and owing in connection with the SALE;


 


(e)                                  any environmental action being brought — (i) because
the ASSETS allegedly were involved in, or are somehow related to, the storage,
handling, treatment, disposition, generation, or transportation of HAZARDOUS
SUBSTANCES, or (ii) against the AUCTIONEER in connection with any remedial
actions associated with the ASSETS or the PREMISES; or


 


(f)                                    any material misrepresentation of the
warranties more fully described in Section 13 hereof.


 


Notwithstanding
the above, to the extent an LOSS or LOSSES are caused by the AUCTIONEER’S
negligence or willful or intentional misconduct, SELLER shall not be required
to indemnify AUCTIONEER for such LOSS or LOSSES.


 


Section 18.  Indemnifications
by the Auctioneer.  The
AUCTIONEER hereby indemnifies, defends and agrees to hold harmless the SELLER
and the SELLER’s officers, agents and employees from and against any and all
claims, demands, liabilities, judgments, damages, settlements, costs and 


 


5

















 


expenses
(including but not limited to court costs and attorneys’ fees) that may be
sustained or incurred by the SELLER as a result of:


 


(a)                                  any acts or omissions of the AUCTIONEER
that result in — (i) personal or property injury incurred at the PREMISES,
or (ii) a violation of any governmental statute, ordinance or code related
to the ASSETS or the PREMISES;


 


(b)                                 any claim made by a third party for
commissions allegedly due and owing in connection with the SALE; or


 


(c)                                  any material misrepresentation of the
warranties more fully described in Section 14 hereof.


 


Notwithstanding
the above, to the extent an LOSS or LOSSES are caused by the SELLER’S
negligence or willful or intentional misconduct, AUCTIONEER shall not be
required to indemnify SELLER for such LOSS or LOSSES.


 


Section 19.  Dispute
Resolution.  Any
controversy or claim arising out of or related to this AGREEMENT, or any
alleged breach of the terms hereof, shall be settled by arbitration in
accordance with the rules, procedures and regulations promulgated by the
American Arbitration Association (“ARBITRATION PROCEEDING”).  The PARTIES hereby agree that the award rendered
by the person conducting the ARBITRATION PROCEEDING (“ARBITRATOR”) shall be
final and non-appealable, and judgment may be entered upon the award in
accordance with applicable law in any court having jurisdiction thereof.


 


Section 20.  Payment Of Arbitration
Proceeding Costs And Fees.  All
costs and fees incurred by both PARTIES in connection with an ARBITRATION
PROCEEDING, including but not limited to their respective attorneys’ fees and
the fees to be paid to the ARBITRATOR, shall be paid by the PARTY who is deemed
by the ARBITRATOR to be in default under the terms of this AGREEMENT; unless
the ARBITRATOR apportions the costs and fees incurred in connection with the
ARBITRATION PROCEEDING in a different manner or proportion.


 


Section 21.  Limitation
of Liability. 
Notwithstanding any of the terms of this AGREEMENT to the contrary, the
AUCTIONEER’s maximum liability for — (i) any breach of the AUCTIONEER’s
covenants, agreements and/or indemnifications set forth herein, and (ii) any
and all damages of any type or nature whatsoever, whether in contract, tort or
otherwise, that may be sustained by the SELLER or any other person or entity
that arises from or is otherwise related to this AGREEMENT or the SALE and
which is in excess of any applicable insurance coverage — shall be limited to two
(2) times the aggregate amounts actually received by the AUCTIONEER as
compensation under this AGREEMENT.


 


Section 22.  Binding
Obligation; Assignment. 
This AGREEMENT shall be binding upon the PARTIES and their respective
successors and assigns.  Neither PARTY
may assign its interest in this AGREEMENT without the prior written consent of
the other PARTY.


 


Section 23.  Final Agreement.  This AGREEMENT — and any and all (i) exhibits
that are attached hereto and made a part hereof, and (ii) side agreements,
letter agreements, and amendments (if any) that are executed by the SELLER and
the AUCTIONEER in furtherance of this AGREEMENT — contains the final and entire
agreement and understanding of the PARTIES, and any terms and conditions not
set forth in this AGREEMENT (or in such exhibits, side letters, letter
agreements, and amendments) are not a part of this AGREEMENT and the
understanding of the PARTIES.  This
AGREEMENT may be amended or altered only in writing signed by the PARTY to be
bound by the change or alteration.


 


Section 24.  Time.  Time is strictly of the essence of this
AGREEMENT.


 


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Section 25.  Number,
Gender, and Captions.  As
used herein, the singular shall include the plural and the plural may refer to
only the singular.  The use of any gender
shall be applicable to all genders.  The
captions contained herein are for purposes of convenience only and are not a
part of this AGREEMENT.


 


Section 26.  Partial
Invalidity.  If any term,
covenant or condition of this AGREEMENT or its application to any person or
circumstances shall be invalid or unenforceable, the remainder of this
AGREEMENT, or the application of such term or provision to persons or
circumstances other than those to which it is held invalid or unenforceable
shall not be affected, and each term shall be valid and enforceable to the
fullest extent permitted by law.


 


Section 27.  Force
Majeure.  Notwithstanding
any of the terms of this AGREEMENT to the contrary, the AUCTIONEER shall not be
deemed in default with respect to the performance of any of the terms,
covenants and conditions of this AGREEMENT, and the TERMINATION DATE shall be
extended accordingly, if the AUCTIONEER — (i) is unable to conduct the
SALE, (ii) determines that the SALE should be postponed, or (iii) otherwise
is unable to fulfill its obligations hereunder — due to or because of any:  (a) strike or lockout; (b) civil
commotion, war-like operation, invasion, rebellion, terrorist act, hostilities,
military or usurped power, sabotage, or governmental regulation or control; or (c) hurricane,
tornado, flood, mudslide, fire, act of God, or any other cause that is beyond
the control of the AUCTIONEER.


 


Section 28.  Notices.  Any notice required or permitted by or in
connection with this AGREEMENT, without implying the obligation to provide any
such notice, shall be in writing and shall be made by facsimile (confirmed on
the date the facsimile is sent by one of the other methods of giving notice provided
for in this Section) or by hand delivery, by Federal Express, or other similar
overnight delivery service, or by certified mail, unrestricted delivery, return
receipt requested, postage prepaid, addressed to the respective PARTIES at the
appropriate address set forth below or to such other address as may be
hereafter specified by written notice by the respective PARTIES.  If notice is tendered pursuant to the
provisions of this Section and is refused by the intended recipient thereof,
the notice shall be considered to have been given.


 


If to the SELLER:


 


XTENT,
INC.


125 Constitution
Drive


Menlo Park, CA


Attention:  Ron Austin


Fax. No.:   (650) 475-9401


 


If to the
AUCTIONEER:


 


COUNSEL
RB CAPITAL LLC


267 Central Avenue


3435 Wilshire
Blvd., #1870


Los Angeles, CA
90010


Attention:  Adam Reich


Fax. No.:   (310) 559-0924


 


Section 29.  No
Partnership; Etc. 
The AUCTIONEER is not in any way or for any purpose a partner of, joint
venturer with, or an investor or member of any enterprise with, the SELLER in
the conduct of the SELLER’s business, or otherwise.  This AGREEMENT establishes a relationship
solely between a seller and an auctioneer as to certain services that are to be
rendered.


 


[Signatures
begin on the next page.]


 


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IN WITNESS
WHEREOF, the SELLER and the AUCTIONEER execute this AGREEMENT as of the date
first above written (notwithstanding the actual date of execution and delivery
hereof), with the specific intention that this AGREEMENT constitutes a document
under seal.  This AGREEMENT may be
executed in counterparts and may be delivered via facsimile transmission.


 


	
   

  	
  The SELLER:

  
	
   

  	
   

  
	
   

  	
  XTENT, INC.

  
	
   

  	
  A Delaware Corporation

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Gregory D. Casciaro

  
	
   

  	
   

  	
  Name:

  	
  Gregory D. Casciaro

  
	
   

  	
   

  	
  Title:

  	
  President & CEO

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  The AUCTIONEER:

  
	
   

  	
   

  
	
   

  	
  COUNSEL RB CAPITAL LLC

  
	
   

  	
  A Delaware corporation

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  Adam Reich

  
	
   

  	
   

  	
  Name:

  	
  Adam Reich

  
	
   

  	
   

  	
  Title:

  	
  Co-CEO

  



 


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