EX-10.1



 






EXHIBIT 10.1




AMENDMENT

TO

ADVISORY CONSULTING AGREEMENT




     INTERNATIONAL CAPITAL ADVISORY INC. (“ICA”) and MINRAD INC. (“Minrad”) hereby enter
into this Amendment to Advisory Consulting Agreement (the “Amendment”) and agree as
follows:



     1. Reference is made to a certain Advisory Agreement, between ICA and Minrad dated on or about
December 1, 2003, as subsequently amended (the “Advisory Agreement”). Any specially
capitalized terms used in this agreement shall have the same defined meanings as provided for in
the Advisory Agreement. For purposes hereof, the Amendment is effective as of the close of
business on August 31, 2006 (the “Effective Time”),



     2. Minrad agrees to pay ICA, within three (3) business days after the execution and delivery
of this Amendment, the following:



          $XXXXX, which the parties agree constitute all accrued but unpaid commission royalty payments
under Section 3(c) of the Advisory Agreement through the Effective Time;



          $XXXXX, which constitutes the prepayment in full of the monthly retainer (previously amended
to be $XXXXX per month) that is provided for in Section 3(a) of the Advisory Agreement for the
remainder of the term; and



          $XXXXX, which constitutes the pre-payment to ICA in full of the royalties and other amounts
payable under Section 3(c) of the Advisory Agreement in respect of the sale of Minrad product to
RxElite pursuant to the distribution agreement between Minrad and RxElite as in effect at the
Effective Time (the “Distribution Agreement”) or otherwise on account of RxElite as an ICA
Prospect (except as provided for in Paragraph 3 and 4 hereof).



All amounts are in U.S. funds and shall be paid by wire transfer of immediately available funds to
such bank account as ICA shall designate to Minrad’s Treasurer as soon as practicable.



     3. The Advisory Agreement is hereby amended as follows:



          In consideration of the payments provided for in Paragraph 2 of this Amendment, the parties
confirm and ICA agrees that it shall continue to provide the services



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contemplated by Sections 1 and 2 of the Advisory Agreement for the remainder of the term
thereof, which has been mutually agreed to extend to, and will terminate on, December 31, 2007.



          Minrad shall not owe or pay ICA any amount under Section 3(b) of the Advisory Agreement in
respect of any equity investment by Minrad in XXXXX (provided, however, that, if Minrad were to
acquire XXXXX, or XXXXX were to acquire Minrad, during the time period provided for in Paragraph 4
below, then Minrad would owe ICA a fee, determined in accordance with such Section 3(b)).



          Section 3(c) of the Advisory Agreement is clarified and amended to provide that, for any new
products that Minrad either (A) agrees in writing prior to December 31, 2007 to sell to RxElite
which are not currently covered by the Distribution Agreement between RxElite and Minrad or (B)
agrees in writing prior to December 31, 2007 to sell any other ICA Prospect, Minrad would owe ICA
the royalties contemplated by said Section 3(c). There shall, however, be no 12-month tail under
Section 2(c) or Section 3(c) with respect to any product distribution, marketing, licensing or
manufacturing arrangement.



          The parties desire to clarify and confirm that, notwithstanding the prepayments provided for
in Paragraph 2 of this Amendment, Minrad will continue to pay ICA’s expenses through December 31,
2007 in accordance with, and subject to the conditions of, Section 3(d) of the Advisory Agreement.



     4. Reference is made to Sections 2(c), 3(b) and 4(b) of the Advisory Agreement. Minrad and
ICA further desire to clarify and confirm that ICA will be entitled to a fee under said Section
3(b) with respect to any merger or acquisition involving Minrad (A) only if it is with an ICA
Prospect identified and agreed to pursuant to Section 2(c) of the Advisory Agreement; (B) only if
such transaction is completed prior to December 31, 2008; and (C) unless subsequently agreed to in
writing by the parties hereto, only in the event that Minrad is the acquiring party in any
acquisition and with respect to any merger or similar transaction, Minrad’s then existing
shareholders continue to control 51% or more of the voting shares of the surviving entity
immediately after the transaction.



     5. Sections 2(c) and 4(b) of the Advisory Agreement are hereby amended to be consistent in all
respects with the amendments and clarifications provided for in this Amendment.



     6. Except as provided for in this Amendment, the Advisory Agreement shall remain in full force
and effect.



     This Amendment has been executed below by the duly authorized representatives of ICA and
Minrad.



 
                






	 	 	 	 	 	 	 	 
	INTERNATIONAL
CAPITAL

ADVISORY INC.	 	MINRAD INC.

	 
	 	 	 	 	 	 	 	 	 	 
	By:

	 	/s/ Tracey Tobin
	 	By:
	 	/s/ William H. Burns, Jr.
	 

	 	 
	 	 	 	 
	 

	 	Tracey Tobin, President
	 	 	 	William H. Burns, Jr., CEO
	 
	 	 	 	 	 	 
	Date:

	 	October 26, 2006
	 	Date:
	 	October 26, 2006







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