AMENDMENT NO. 1 TO
INVESTMENT BANKING AGREEMENT
This Amendment No. 1 to Investment Banking Agreement is made as of this
23rd day of September, 1996 by and between DynaGen, Inc., having its business
offices at ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ (the "Company") and ▇.▇. ▇▇▇▇▇▇ &
Co., Inc., having its business offices at ▇▇▇▇ ▇▇. ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇ (the "Consultant").
WHEREAS, the Company and the Consultant have entered into an Investment
Banking Agreement dated November 20, 1995 (the "Agreement"); and
WHEREAS, the parties desire to supplement and amend the Agreement as
set forth below.
NOW, THEREFORE, in consideration of the foregoing and the mutual
promises and covenants contained herein, it is agreed as follows:
1. Paragraph 1 is hereby deleted and replaced in its entirety with the
following:
"1. RETENTION. The Company hereby retains the Consultant to
perform non-exclusive consulting services related to corporate finance and other
matters, and the Consultant hereby accepts such retention and shall undertake
reasonable efforts to perform for the Company the duties described herein. In
this regard, subject to paragraph 7 hereof, the Consultant shall devote such
time and attention to the business of the Company, as shall be determined by the
Consultant, in its sole discretion, subject to the direction of the Chairman of
the Company.
a) The Consultant agrees, to the extent reasonably
required in the conduct of the business of the Company, and at the Company's
request, to place at the disposal of the Company its judgment and experience and
to provide business development services to the Company including the following:
(i) review the Company's managerial and financial
requirements;
(ii) review budgets and business plans;
(iii) analyze and assess alternatives for the
Company, presented by the Company for raising capital, including public or
private offerings of the Company's securities; and
(iv) prepare and disseminate a "Corporate Profile"
report in compliance with applicable state and federal securities laws.
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b) In addition, the Consultant agrees, to the extent
reasonably required in the conduct of the business of the Company, and at the
Company's request, to place at the disposal of the Company its judgment and
experience and to provide a broad array of merger and acquisition services as
requested by the Company including:
(i) identifying opportunities for a transaction
involving the Company including, without limitation, the purchasing by the
Company of other companies, or any of their businesses, assets, or properties,
or the sale of the Company, or any of its businesses, assets or properties, more
specifically, in connection with the Company's acquisition of certain assets of
Able Laboratories, Inc.
(ii) advising the Company concerning such
transactions with respect to structure;
(iii) providing detailed valuation analyses for such
transactions including formal fairness opinions if required.
c) At the Consultant's request, the Company will provide
"due diligence" presentations to Registered Representatives of the Consultant
and other brokerage firms."
2. Paragraph 3(a) of the Agreement is hereby deleted and replaced in
its entirety with the following:
"3. Compensation.
a) The Consultant shall be paid the sum of $500,000.00
payable upon the signing of this Agreement. In addition, for its consulting
services hereunder, the Company shall grant to the Consultant a warrant (the
"Warrant") to purchase 400,000 shares of the Common Stock of the Company (the
"Registerable Shares") exercisable for five (5) years from the date hereof at a
price of $2.50 per share. Registerable Shares will not include any shares of
Common Stock which are eligible for sale pursuant to Rule 144, as so opined by
the Company's outside legal counsel. The Warrant shall be in a form to be
mutually agreed upon by the parties. All compensation is non-refundable."
3. All other terms and provisions of the Agreement shall remain in full
force and effect.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement the
day and year first above written.
DYNAGEN, INC.
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Title: Chairman and Executive V.P.
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▇.▇. ▇▇▇▇▇▇ & CO., INC.
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Managing Director, Corporate Finance
