Exhibit 2.6
CHADBOURN SECURITIES, INC.
00000 X. Xx Xxxx Xxxx., Xxxxx 000
Xxxxxxxxx, XX 00000Xxxx 23, 2003
September 15, 2004
Mr. Xxxx Xxxxxx, President
Technology Acquisition Corporation
00000 X. Xx Xxxx Xxxx., Xxxxx 000
Xxxxxxxxx, XX 00000
Re: Engagement Agreement - Technology Acquisition Corporation
Dear Xxxx:
This letter agreement ("Agreement") sets forth the terms pursuant to which
Technology Acquisition Corporation, a Nevada corporation (the "Company"), has
agreed to engage Chadbourn Securities, Inc, an _______ corporation
("Chadbourn"), on a non-exclusive basis to act as its NASD registered broker
dealer and placement agent in connection with the proposed private placement (a
"Financing") by the Company to "accredited investors" (as the term is defined in
Securities and Exchange Rule 501 of Regulation D) of Common Stock of the Company
(the "Common Stock" or the "Securities").
1. Appointment and Acceptance. The Company hereby appoints Chadbourn as
its non-exclusive placement agent in connection with a Financing involving one
or more Qualified Prospective Purchasers (as defined below). Chadbourn hereby
accepts such appointment, subject to the terms and conditions of this Agreement.
Chadbourn hereby agrees that in its capacity hereunder it will use its
commercially reasonable efforts to contact and introduce Qualified Prospective
Purchasers to the Company. For purposes of this Agreement, a "Qualified
Prospective Purchaser" shall mean those "accredited investors" (as the term is
defined in Securities and Exchange Rule 501 of Regulation D) that are introduced
to the Company by Chadbourn.
2. Fees and Expenses.
A. As consideration for the services to be provided by Chadbourn, the
Company shall pay a fee to Chadbourn in the event the following
conditions are first met: (a) the investment is on terms and conditions
substantially similar to those contained in the Common Stock private
placement documents, and (b) the investment is made and accepted by the
Company from Qualified Prospective Purchasers. If all such conditions
are met, then at the closing of the Financing (the "Closing"), the
Company shall pay to Chadbourn a fee which shall be based solely on the
aggregate dollar amount invested (if any) by Qualified Prospective
Purchasers as follows:
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QPP Investment Amount Fee
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Any amount 10% cash and 10% warrants
B. The applicable fee shall be applied against all monies invested by
Qualified Prospective Purchasers. The warrants shall be warrants to
purchase Common Stock, shall have an exercise price equal to the price
per share paid by the investors at the Closing, shall have an exercise
period of five (5) years and shall be net-exerciseable instruments at
the option of the holder.
C. All fees and expenses payable hereunder shall be paid net of all
applicable withholding and similar taxes.
D. Notwithstanding anything herein to the contrary, the Company is under
no obligation to accept investment from any party including any
Qualified Prospective Purchaser.
3. Information.
(a) The Company recognizes and confirms that in connection with the
Financing, Chadbourn will be using publicly available and non-publicly available
information, including information in reports and other materials provided by
others, and information provided by the Company. The Company agrees to furnish
or cause to be furnished to Chadbourn all necessary or appropriate information
for use in the Financing. The Company warrants to Chadbourn that all information
concerning the Company furnished to Chadbourn by the Company in connection with
the Financing will be true and accurate in all material respects and will not
contain any untrue statement of material fact or omit to state a material fact
necessary in order to make the statements therein not misleading in light of the
circumstances under which such statements are made. Chadbourn does not assume
responsibility for and may rely on, without independent verification, the
accuracy and completeness of any non-publicly available information regarding
the Company that is provided to Chadbourn by the Company. Chadbourn agrees to
keep confidential any and all information provided by the Company that has been
identified as confidential. For purposes of determining confidential
information, the Company considers all financial projections, and all
non-publicly available information regarding marketing plans, customers,
clinical trial results and data, scientific progress and related results and
intellectual property to be confidential except for items contained in the
Company's Business Plan which is specifically designated by the Company as
non-confidential, and other items specifically declared non-confidential by the
Company. Furthermore, however, confidential information is not limited to the
above items. The Company agrees that any information or advice rendered by
Chadbourn or any of its representatives in connection with this engagement is
for the confidential use of the Company only in its evaluation of a transaction
and the Company will not, and will not permit any third party to use it for any
other purpose or disclose or otherwise refer to such advice or information, or
to Chadbourn, in any manner without our prior written consent.
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4. Exemption from Registration; Offer and Sale of Same or Similar
Securities. It is understood that the offer and sale of the Securities will be
exempt from the registration requirements of the Securities Act of 1933, as
amended (the "Securities Act"), pursuant to section 4(2) thereof. Chadbourn will
not directly or indirectly, make any offer or sale of the Securities or of
securities of the same or a similar class as the Securities if as a result the
offer and sale of the Securities contemplated hereby would fail to be entitled
to the exemption from the registration requirements of the Securities Act
provided for in section 4(2) of the Securities Act. As used herein, the terms
"offer" and "sale" have the meanings specified in section 2(3) of the Securities
Act.
5. Additional Restrictions on Company and Chadbourn. In connection with
all offers and sales of the Securities:
(a) Neither the Company nor Chadbourn will offer or sell the Securities
by means of any form of general solicitation or general advertising. Such
parties will not at any time during the term of this engagement, or for a period
of six months following completion of the placement of the Securities
contemplated hereby, make any reference publicly to the transactions
contemplated hereby, by way of the issuance of a press release, the placement of
an advertisement or otherwise, without the prior consent of the other.
(b) Neither the Company nor Chadbourn will offer or sell the Securities
to any person who is not an "accredited investor."
(c) The Company and Chadbourn will exercise reasonable care to ensure
that the purchasers of the Securities are not underwriters within the meaning of
section 2(11) of the Act and, without limiting the foregoing, that such
purchases will comply with Rule 502(d) under the Act.
6. Compliance with Federal and State Securities Laws. The Company and
Chadbourn each agree to conduct any offering and sale of Securities in any
transaction in accordance with federal and applicable state securities laws, and
neither the Company nor Chadbourn nor any person acting on behalf of either of
them, will offer or sell any Securities in any manner that would be in violation
of federal or applicable state securities laws. Chadbourn has no obligation,
express or implied, to purchase or underwrite any transaction or to itself
provide any type of Financing to the Company or be a party to any funding
transaction, or to solicit investors outside the United States. The Company will
take such action as is necessary to qualify the Securities for offer and sale
under the securities laws of such states and other jurisdictions of the United
States. Chadbourn represents and warrants to the Company that it is a registered
broker/dealer any and all actions undertaken by Chadbourn hereunder are in full
compliance with any and all applicable state and federal securities laws.
7. Termination.
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(a) The engagement of Chadbourn hereunder (i) may be terminated at any
time, with or without cause, by the Company, upon ten (10) days' prior written
notice thereof to Chadbourn and (ii) shall terminate immediately upon the
completion of the private placement of all of the Securities contemplated
hereby.
(b) In the event of the termination of Chadbourn's engagement hereunder
pursuant to clause (a)(i) above, Chadbourn shall be entitled to a full
Chadbourn's Fee in the event that at any time during the six (6) month period
after any such termination the Company sells the Securities to any Qualified
Prospective Purchaser which was contacted by Chadbourn in its capacity as a
Chadbourn hereunder regarding the private placement of the Securities
contemplated hereby and the other conditions to payment described above are also
met. Within fifteen (15) days following any termination hereunder Chadbourn will
confirm in writing the Qualified Prospective Purchasers contacted by Chadbourn
prior to any such termination.
(c) The provisions of Paragraphs 2, 7 and 8 of this Agreement shall
survive any termination of the engagement of Chadbourn under this Agreement and
shall remain in full force and effect. Furthermore, no termination of
Chadbourn's engagement hereunder shall affect the Company's obligation to pay
Chadbourn its Chadbourn's Fee(s).
8. General.
(a) In connection with this engagement, Chadbourn is acting as an
independent contractor and not in any other capacity, with duties owing solely
to the Company. Neither this engagement, nor the delivery of any advice in
connection with this engagement, is intended to confer rights upon any persons
not a party hereto (including security holders, employees or creditors of the
Company) as against Chadbourn or our affiliates or their respective directors,
officers, agents and employees.
(b) No advice rendered by Chadbourn hereunder, whether formal or
informal, may be disclosed, in whole or in part, or summarized, excerpted from
or otherwise referred to without Chadbourn's prior written consent. The Company
also acknowledges that Chadbourn's service do not include the rendering of any
legal services or opinions or the performance of any work that is in the
ordinary purview of a Certified Public Accountant. All final decisions with
respect to consulting, advise and services rendered by Chadbourn to the Company
shall rest with the Company, and Chadbourn shall not have the authority to bind
the Company to any obligation or commitment
(c) This Agreement supersedes any prior agreements, representations
or promises of any kind, whether written, oral, express or implied between the
parties hereto with respect to the subject matters herein. This Agreement
constitutes the full, complete and exclusive agreement between Chadbourn and the
Company with respect to the subject matters herein. This agreement cannot be
changed unless in writing, signed by an authorized officer of the Company and
Chadbourn. The Company has all requisite power and authority to enter into this
Agreement and the transactions contemplated hereby. This Agreement has been duly
and validly authorized by all necessary action on the part of the Company and
has been duly executed and delivered by the Company and constitutes a legal,
valid and binding agreement of the Company, enforceable in accordance with its
terms.
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(d) The validity and interpretation of this Agreement shall be governed
by, and construed and enforced in accordance with, the laws of the State of
California applicable to agreements made and to be fully performed therein
(excluding the conflicts of law rules). Each of the Company and Chadbourn (and,
to the extent permitted by law, on behalf of their respective equity holders and
creditors) hereby knowingly, voluntarily and irrevocably waives any right it may
have to a trial by jury in respect of any claim based upon, arising out of or in
connection with this Agreement or any of the agreements or transactions
contemplated hereby or thereby.
(e) The benefits of this Agreement shall inure to the parties hereto,
their respective successors and assigns, and to the indemnified parties
hereunder (and under the Indemnification Agreement) and their respective
successors and assigns and representatives, and the obligations and liabilities
assumed in this Agreement (and under the Indemnification Agreement) by the
parties hereto shall be binding upon their respective successors and assigns.
(f) The invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of any other
provisions of this Agreement, which shall remain in full force and effect.
If this Agreement correctly sets forth your understanding of the
agreement between Chadbourn and the Company with respect to this engagement,
please sign and return to one of the enclosed copies of this Agreement to the
undersigned. This Agreement, when executed and delivered by the Company, shall
constitute a binding agreement between Chadbourn and the Company as of the date
first above written. Sincerely,
CHADBOURN SECURITIES, INC.
By: _________________________________________
Xxxxx X. Xxxxx, Registered Representative
Accepted and Agreed as of the date first above written:
TECHNOLOGY ACQUISITON CORPORATION.
By: ______________________________________
Xxxx Xxxxxx, President
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