FINDERS AGREEMENT This Agreement is dated effective as of July 1, 2009.
Exhibit 4.18
This
Agreement is dated effective as of July 1, 2009.
BETWEEN:
HELIX BIOPHARMA CORP. having
an office at 0-000 Xxxxxxxxxx Xxxxxxx Xxxxx, Xxxxxx, Xxxxxxx, Xxxxxx
(hereinafter referred to as "Helix")
AND:
ACM ALPHA CONSULTING MANAGEMENT EST.
having an office at Xx. Xxxxxxxxxxx 00 X, 0000 Xxxxx,, Xxxxxxxxxxxxx
(hereinafter referred to as “ACM”)
WHEREAS this Agreement is to
confirm the agreement of the parties regarding finder’s fees which may be
payable to ACM in respect of private placements by Helix of securities to
accredited investors, not residents of Canada or the United States, introduced
to Helix by ACM;
NOW THEREFORE in consideration
of the sum of One Dollar now paid by each party to the other, and other good and
valuable consideration, the receipt and adequacy of which are hereby
acknowledged by the parties, the parties hereby covenant and agree as
follows:
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(1)
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Helix
hereby engages ACM to find and introduce to Helix potential investors
(“Investors”), not residents of Canada or the United States, in respect of
private placements (“Placements”) by Helix of its securities
(“Securities”). ACM will only find and introduce to Helix Investors who
fit within the definition of an “accredited investor”, as set out in
Schedule “A” attached.
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(2)
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It
is mutually agreed and understood that Helix will be responsible for all
information, statements, and representations made and for any descriptive
information regarding Helix prepared and contained in any information
provided by Helix to ACM.
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(3)
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ACM
will provide Helix with the names and contact information of any potential
Investors. Helix will then advise ACM whether the potential
Investor has already been introduced to Helix, or whether such potential
Investor may be an “ACM Contacted Investor” for purposes of this
Agreement.
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(4)
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Should
an ACM Contacted Investor successfully complete a Placement with Helix
within six months of such investor being disclosed to Helix by ACM, then
ACM shall have earned and be entitled to a fee equal to 12.5% of the funds
raised. Such fee shall be payable to ACM within 10 business
days following the closing of the Placement, and the receipt by Helix of
the gross proceeds of the
Placement.
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(5)
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Helix
represents and warrants to ACM that it is a corporation duly organized,
validly existing and in good standing under the laws of Canada, that it
has the corporate power to execute, deliver and perform its obligations
under this Agreement, that the execution, delivery and performance of this
Agreement have been duly authorized by all necessary corporate action on
its part and that this Agreement constitutes its legal, valid and binding
obligation, enforceable against it in accordance with its
terms. ACM represents and warrants to Helix that it is a
corporation duly organized, validly existing and in good standing under
the laws of Liechtenstein, that it has the corporate power to execute,
deliver and perform its obligations under this Agreement, that the
execution, delivery and performance of this Agreement have been duly
authorized by all necessary corporate action on its part and that this
Agreement constitutes its legal, valid and binding obligation, enforceable
against it in accordance with its
terms.
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(6)
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ACM
further represents and warrants to Helix that (i) ACM has been duly
licensed, registered, or otherwise officially recognized or approved as
required by applicable law in all jurisdictions where ACM does or intends
to do business, including all jurisdictions in which ACM may contact
Investors, such that ACM may lawfully carry out the transactions
contemplated by this Agreement; and (ii) neither the entering into of this
Agreement or the transactions contemplated hereby will violate any law
applicable to ACM nor constitute a violation of, or, with or without
notice or lapse of time or both, a default under, or conflict with, any
other agreement, document or instrument to which ACM is a party or by
which ACM or any of ACM’s property may be
bound.
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(7)
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ACM
acknowledges that this Agreement and any fee ultimately payable to ACM may
be subject to approval of such regulatory authorities as may have
jurisdiction over Helix and the Placements, including The Toronto Stock
Exchange (“TSX”).
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(8)
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The
terms and conditions of the Placements and the acceptance thereof will be
in the sole and exclusive discretion of
Helix.
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(9)
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ACM
will only contact ACM Contacted Investors for purposes of this Agreement,
and will only provide and disclose to ACM Contacted Investors, information
which has been approved by Helix and ACM will ensure that any ACM
Contacted Investor is provided with any new or updated information
provided to ACM by Helix on a timely
basis.
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(10)
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ACM
acknowledges that ACM Contacted Investors are only to be Investors who are
not residents of Canada or the United States and who are purchasing for
their own account and not for the benefit of any resident of Canada or of
the United
States. Accordingly:
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(a)
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ACM
will only contact ACM Contacted Investors who it reasonably believes to be
resident of a country other than Canada or the United States who are
purchasing for their own account;
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(b)
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If
an ACM Contacted Investor provides a signed subscription agreement to
Helix, ACM will, at the request of Helix, provide Helix with its
certificate that the subscriber (or the beneficial purchaser, if the
subscriber is a bank, trust company, brokerage firm, or other person
acting as agent for a beneficial purchaser) is neither directly nor
indirectly a resident or citizen of or incorporated in Canada or the
United States and is not subscribing on behalf of any resident or citizen
or corporation of Canada or of the United
States.
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(11)
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ACM
may have access to information belonging to Helix that is confidential and
proprietary in nature. ACM agrees that all such information
will be kept in confidence and will be dealt with only in accordance with
the Confidentiality Agreement dated as of July 1, 2009 between Helix and
ACM. ACM further acknowledges and agrees that nothing in this
Agreement or such Confidentiality Agreement permits ACM to disclose any of
such confidential information to any Investor, which disclosure is
strictly prohibited.
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(12)
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ACM
agrees that at all times in its dealings with ACM Contacted Investors, and
otherwise in connection with Helix, it will not offer any securities or
take any other action which would result in either ACM or Helix being
required to file or deliver a prospectus or any other form of offering
document under any applicable law, and it will comply with all applicable
laws and regulatory policies, including without limitation, securities
laws and policies and all applicable rules, regulations and policies of
the TSX and any other stock exchange on which the shares of Helix are or
may hereafter be listed. Without limiting the generality of the
foregoing, ACM will not make any written or oral representations to any
ACM Contacted Investor:
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(i)
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that
any person will resell or repurchase the
Securities;
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(ii)
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that
any person will refund, or provide a guarantee against loss of, the
purchase price or value of the
Securities;
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(iii)
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as
to the future price or value of any of the Securities;
or
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(iv)
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that
the Securities will be listed and posted for trading on a stock exchange
or that application has been made to list and post the Securities for
trading on a stock exchange, other than the
TSX.
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(13)
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Subject
to paragraph (16), Helix shall pay to ACM a fixed monthly amount of 30,000
swiss francs to cover all of ACM’s reasonable out-of-pocket expenses
incurred in connection with its obligations hereunder. Such
monthly amount shall be payable within 30 days following receipt of an
invoice from ACM in form and content reasonably acceptable to Helix,
together with such back-up documentation as Helix may reasonably require.
Any expenses incurred by ACM in any month in excess of 30,000 swiss francs
shall be for ACM’s own account and shall not be reimbursed by
Helix.
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(14)
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ACM
shall not, and shall cause its directors, officers, employees, agents, and
partners (if any) to not, directly or indirectly, buy, sell,
borrow, pledge, or otherwise trade in any securities of Helix commencing
from the date hereof until the expiry of 48 hours after Helix issues a
news release disclosing the last of any private placements of Helix
securities, in respect of which ACM is entitled to receive a finders fee
pursuant to this Agreement.
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(15)
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This
Agreement and the services provided by ACM in connection with the
transactions contemplated herein shall be governed by and construed in
accordance with the laws of the Province of
Ontario.
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(16)
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This
Agreement shall terminate on December 31, 2009. Notwithstanding
the foregoing, either party may terminate this Agreement upon 30 days’
written notice to the other. Any fees which have been earned
but have not been paid prior to termination shall remain payable. The
monthly expense amount otherwise payable pursuant to Paragraph (13) in
respect of the month in which notice of termination is given (the
“termination month”) shall be pro-rated, with the proportion of such
amount payable being equal to the proportion that the number of days in
the termination month leading up to and including the date notice of
termination is given is to the total number of such days in the
termination month. No expense amount shall be payable in respect of any
month following the termination month. Paragraph (11) of this
Agreement shall survive termination of this
Agreement.
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Executed
as of the day and year first set forth above.
| Per: | ___________________________________ |
| Xxxxxx X. Xxxxx, Chairman and CEO | |
| Per: | ___________________________________ |
| Xxxx Xxxxxxxx, President and COO | |
ACM
ALPHA CONSULTING MANAGEMENT EST.
| Per: | ___________________________________ |
| Xxxxxxx Xxxxxxxxx |
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SCHEDULE
“A” TO FINDERS AGREEMENT BETWEEN
HELIX
BIOPHARMA CORP. AND ACM ALPHA CONSULTING MANAGEMENT EST.
DATED
JULY 1, 2009
Definitions and Deeming
Provisions
For
purposes of this Schedule “A”, the following definitions and deeming provisions
shall apply:
affiliates — An issuer shall
be deemed to be an affiliate of another issuer if one of them is the subsidiary
of the other or if each of them is controlled by the same person.
beneficial ownership of
securities — A person (first person) shall be deemed to own beneficially
securities beneficially owned by a person (second person) controlled by the
first person or by an affiliate of the second person. An issuer shall
be deemed to own beneficially securities beneficially owned by its
affiliates.
control of person or company
— A person (first person) is considered to control another person
(second person), if:
(a)
the first person beneficially owns or directly or indirectly exercises control
or direction over securities of the second person carrying votes which, if
exercised, would entitle the first person to elect a majority of the directors
of the second person, unless the first person holds the voting securities only
to secure an obligation;
(b)
the second person is a partnership, other than a limited partnership, and the
first person holds more than 50 per cent of the interests of the partnership;
or
(c)
the second person is a limited partnership and the general partner of the
limited partnership is the first person or company.
issuer — means a person who
has outstanding, issues or proposes to issue, a security.
person — means (i)
an individual, (ii) a corporation, (iii) a partnership, trust, fund and an
association, syndicate, organization, or other organized group of persons,
whether incorporated or not, and (iv) an individual or other person in that
person’s capacity as a trustee, executor, administrator, or other legal
representative.
spouse - means an
individual who is married to another individual and is not living separate and
apart within the meaning of the Divorce Act (Canada), from
the other individual, or who is living with another individual in a
marriage-like relationship;
subsidiary — means an issuer
that is controlled directly or indirectly by another issuer and includes a
subsidiary of that subsidiary;
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Accredited
Investor
An
“accredited investor" means a person who is:
1. An
individual who, either alone or with a spouse, beneficially owns, directly or
indirectly, financial assets (being cash, securities, or a contract of
insurance, a deposit or an evidence of a deposit that is not a security for the
purposes of any Canadian securities legislation) having an aggregate realizable
value that before taxes, but net of any related liabilities (being liabilities
incurred or assumed for the purpose of financing the acquisition or ownership of
financial assets, or liabilities that are secured by financial assets) exceeds
$1,000,000;
2. An
individual whose net income before taxes exceeded $200,000 in each of the 2 most
recent calendar years or whose net income before taxes combined with that of a
spouse exceeded $300,000 in each of the 2 most recent calendar years and who, in
either case, reasonably expects to exceed that net income level in the current
calendar year;
3. An
individual who, either alone or with a spouse, has net assets of at least
$5,000,000;
4. A person,
other than an individual or investment fund, that has net assets of at least
$5,000,000 as shown on its most recently prepared financial statements, but has
not been created or used solely to purchase or hold securities as such an
accredited investor; or
5. A person
in respect of which all of the owners of interests, direct, indirect or
beneficial, except the voting securities required by law to be owned by
directors, are persons that are described in paragraphs 1, 2, 3 or 4
above.
[END OF
SCHEDULE “A”]
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