AMENDED AND RESTATED ADVISORY SERVICES AGREEMENT
AMENDED
AND RESTATED
This
AMENDED AND RESTATED ADVISORY SERVICES AGREEMENT (this "Agreement")
is entered into effective December 31, 2009, between microHelix, an Oregon
corporation (the "Company"),
and Aequitas Capital Management, Inc., an Oregon corporation ("Aequitas").
Background
A. The
Company and Aequitas entered into an Advisory Services Agreement dated June 27,
2008 (the "Original Agreement") whereby the Company engaged Aequitas to provide
certain advisory services to Company as requested from time to
time.
B. The
parties have agreed to modify the Original Agreement in certain respects and to
restate the terms of the modified Original Agreement.
C. Capitalized
terms used in this Agreement, if any, that are not defined herein have the
meanings assigned to those terms in the Original Agreement.
Agreement
NOW,
THEREFORE, in consideration of the mutual promises contained herein, the parties
hereto, intending to be legally bound, do hereby agree as follows:
1. Engagement. Upon
the terms and conditions herein set forth, the Company will continue to engage
Aequitas for the Term (as defined below) to provide advisory services to the
Company as requested from time to time by the Company in consideration for the
compensation provided for in Section 3
below. These services will be in connection with strategy
development, strategic planning, marketing, corporate development and such other
advisory services as the Company reasonably requests from time to time, and
shall be performed under the direction of the Company's Board of
Directors. In consideration of the remuneration herein specified,
Aequitas agrees to continue to perform the services specified
herein.
2. Term.
This Agreement shall commence on the date hereof and shall terminate (except as
provided in Section
6(g)) on
the earliest to occur of (a) a Sale Transaction (defined below), (b) termination
by Aequitas upon 30 days written notice to the Company, or (c) the date that
Aequitas or an affiliate of Aequitas ceases to have a debt or equity investment
in the Company (the "Term"). "Sale
Transaction" means (i) the sale (in one or a series of related
transactions) of all or substantially all of the Company's assets to a Person
(defined below) or a group of Persons acting in concert, (ii) the sale or
transfer (in one or a series of related transactions) of a majority of the
outstanding capital stock of the Company, to one Person or a group of Persons
acting in concert, or (iii) the merger or consolidation of the Company with or
into another Person that is not an affiliate of the Company, in each case in
clauses (ii) and (iii) above under circumstances in which the holders of a
majority in voting power of the outstanding capital stock of the Company
immediately prior to such transaction (excluding any Person or group of persons
acting in concert who are acquiring the Company) own less than a majority in
voting power of the outstanding capital stock of the Company, or voting equity
securities of the surviving or resulting corporation or acquirer, as the case
may be, immediately following such transaction. A sale (or multiple
related sales) of assets including, without limitation, one or more subsidiaries
(whether by way of merger, consolidation, reorganization or sale of all or
substantially all assets or securities) which constitutes all or substantially
all of the assets of the Company shall be deemed a Sale
Transaction. "Person"
shall be construed in the broadest sense and means and includes, without
limitation, a natural person, a partnership, a corporation, an association, a
joint stock company, a limited liability company, a trust, a joint venture, an
unincorporated organization and any other entity other than Aequitas or an
affiliate of Aequitas.
3. Advisory
Fee; Success Fee.
(a) In
consideration of Aequitas' undertaking to continue to provide the advisory
services hereunder, the Company shall pay Aequitas a monthly advisory fee of
$15,000 effective January 1, 2010 (the "Advisory
Fee"). The Advisory Fee shall be payable by the Company
whether or not the Company actually requests that Aequitas provide any
management advisory services. The Advisory Fee shall be paid monthly,
in advance, on the first business day of each calendar month beginning January
1, 2010. If requested by Aequitas, Advisory Fee payments shall be
made by an Automated Clearing House ("ACH")
transfer from the Company's checking account.
(b) Notwithstanding
anything to the contrary contained herein, the Company shall accrue but not pay
the Advisory Fee if and for so long as (i) any such payment would constitute a
default (or any event which might, with the lapse of time or the giving of
notice or both, constitute a default) under the Company's financing agreements
(a "Default
"); provided, however, that the Company shall be obligated to pay any accrued
Advisory Fees deferred under this Section 0 to the extent that
such payment would not constitute a Default or (ii) Aequitas instructs the
Company not to pay all or any portion of the Advisory Fee during any calendar
month. Interest will accrue on all due and unpaid Advisory Fees not
paid pursuant to clause (i) of the preceding sentence at the Default Rate until
such Advisory Fees are paid, and such interest shall compound
annually. The "Default Rate" shall be 18.0% per annum.
(c) In
addition to the Advisory Fee, the Company shall reimburse Aequitas promptly upon
request for all reasonable out-of-pocket expenses incurred by Aequitas in
connection with Aequitas' obligations hereunder, including without limitation
the fees and expenses paid to consultants, subcontractors and other third
parties in connection with such obligations, a monthly telephone charge of $50
and a monthly administrative charge of 15% of the out-of-pocket costs and
expenses incurred.
(d) In
addition to the foregoing, the Company shall pay Aequitas a Success Fee as
described in Exhibit A
attached hereto.
(e) On
or before the expiration of the Term of this Agreement (the "Expiration
Date"), the Company will pay Aequitas for any unpaid fees due through the
Expiration Date.
4. Additional Rights and
Obligations of the Parties.
(a) During
the Term, Aequitas shall maintain in its employ, or otherwise have available to
it, personnel in its judgment sufficient in number and adequate in ability to
perform all services that Aequitas is required to perform under this
Agreement.
(b) The
Company shall at all times cooperate with Aequitas and keep Aequitas fully
informed with regard to the business and significant activities of the Company
and its subsidiaries.
(c) Aequitas
shall diligently and faithfully perform its obligations under this Agreement,
but Aequitas shall not be responsible for any loss incurred by the Company or
any of its subsidiaries as a result of any advice or recommendations of
Aequitas.
5. Indemnification.
(a) Indemnification. The
Company agrees to indemnify and hold harmless Aequitas (including its affiliates
and its and their respective principals, officers, directors, shareholders,
partners, members, managers and employees) from and against, and pay or
reimburse Aequitas and such other indemnified persons for, any and all actions,
claims, demands, proceedings, investigations, inquiries, liabilities,
obligations, fines, deficiencies, costs, expenses, royalties, losses and damages
(whether or not resulting from third party claims) related to or arising out of
the execution, delivery or existence of this Agreement or the performance by
Aequitas of services under this Agreement, and to reimburse Aequitas and any
other indemnified person for out-of-pocket expenses and reasonable legal and
accounting expenses incurred by it in connection with or relating to
investigating, preparing to defend, defending, asserting or prosecuting any
actions, claims or other proceedings (including any investigation or inquiry)
arising in any manner out of or in connection with the execution, delivery or
existence of this Agreement or Aequitas' performance of services hereunder
(whether or not such indemnified person is a named party in such proceeding);
provided, however, that the
Company shall not be responsible under this Section 5(a) for any claims,
liabilities, losses, damages or expenses to the extent that they are finally
judicially determined (without right of further appeal) to result from actions
taken by Aequitas (or by any other indemnified person) due to Aequitas' (or by
any other indemnified person's) gross negligence, willful misconduct, bad faith
or knowing violation of applicable law. The rights to indemnification pursuant
to this Agreement shall be in addition to (but without duplication of) any other
indemnification or other rights in favor of Aequitas or its
affiliates.
(b) Limitation on
Liability. The Company also agrees that neither Aequitas nor any other
indemnified person shall have any liability (whether direct or indirect, in
contract or tort or otherwise) to the Company for, or in connection with (i) the
retention of Aequitas pursuant to this Agreement or the performance by Aequitas
of its obligations under this Agreement, except to the extent that any such
liability is finally judicially determined (without right of further appeal) to
have resulted from Aequitas' (or such other indemnified person's) gross
negligence or willful misconduct; or (ii) any investment by Aequitas or any of
its affiliates in, or any loan by Aequitas or any of its affiliates to, the
Company or any of its affiliates. Aequitas makes no representations
or warranties, express or implied, in respect of the services to be provided by
Aequitas under this Agreement. The Company further acknowledges that
Aequitas' role under this Agreement is as an advisor only, that Aequitas does
not and will not have or exercise control over the Company's affairs and/or
governance, that Aequitas will have no liability for the actions of its
affiliates in the absence of gross negligence, and that the Company waives any
claims based on assertions that Aequitas exercises control or influence over the
Company's affairs. In no event will Aequitas or any other indemnified
person be liable under this Agreement for any punitive, exemplary, indirect,
special, incidental or consequential damages, including lost profits or savings,
whether or not such damages are foreseeable, or in respect of any liabilities
relating to any third party claims (whether based in contract, tort or
otherwise).
(c) Contribution. If
and to the extent that the indemnification provided for in Section 5(a) is not
enforceable for any reason, the Company agrees to make the maximum contribution
possible pursuant to applicable law to the payment and satisfaction of any
actions, claims, liabilities, losses and damages incurred by Aequitas or the
other indemnified persons for which they would have otherwise been entitled to
be indemnified hereunder.
6. Miscellaneous.
(a) Marketing
Authorization. The Company agrees that Aequitas may use the
Company's name and logo, and general information concerning the Company's
relationship with Aequitas, on the Aequitas website and in Aequitas firm
brochures (typically in a form commonly known as "tombstones"), in press
releases, advertisements, and in other related marketing materials. This
authorization will extend to reissues of the advertisements and other marketing
tools which Aequitas may utilize in its marketing activities. The
Company may notify Aequitas in writing at any time to stop further use of
references to Company in Aequitas marketing materials.
(b) Notices. All notices,
demands and other communications given or delivered under this Agreement shall
be in writing and shall be deemed to have been given (i) when personally
delivered (including delivery by same-day courier), (ii) 3 business days after
being mailed by first class mail, certified with return receipt requested, or
(iii) 1 business day after delivery to a reputable overnight courier for next
business day delivery, to the following addresses (or such other address as is
specified in writing):
Aequitas
Capital Management, Inc.
0000
Xxxxxxx Xxxx, Xxxxx 000
Xxxx
Xxxxxx, XX 00000
Attn: Legal
Department
microHelix,
Inc.
Attn:
President
0000
Xxxxxxx Xxxx, Xxxxx 000
Xxxx
Xxxxxx, XX 00000
(c) Entire Agreement; Amendment
and Modification. This Agreement constitutes the entire agreement between
the parties with respect to the subject matter hereof, superseding all prior
understandings and agreements whether written or oral. This Agreement
may not be amended or revised except by a writing signed by Aequitas and the
Company.
(d) Successors and
Assigns. This Agreement shall be binding upon and inure to the benefit of
the parties and their respective successors and assigns but may not be assigned
(and no duties may be delegated) by any party without the prior written consent
of the other parties hereto, except that without such written consent Aequitas
may assign this Agreement, or the right to receive any amounts due from the
Company to Aequitas hereunder, to any of its affiliates.
(e) Arbitration. Any
dispute arising under this Agreement shall be resolved by binding arbitration in
Portland, Oregon and carried out under the auspices and rules of Arbitration
Service of Portland, Inc. or any other arbitration service acceptable to the
parties. The parties agree that any such arbitration shall be
initiated within one year of the event forming the basis for the
dispute. Any claims not submitted to arbitration within one year
shall be deemed waived. The arbitration shall be held before a single
arbitrator (unless otherwise agreed by the parties). The arbitrator
shall be chosen from a panel of attorneys knowledgeable in the field of law
concerning the matter in dispute. The parties agree that the arbitrator shall
have no jurisdiction to consider evidence with respect to or render an award or
judgment for punitive damages (or any other amount awarded for the purpose of
imposing a penalty) or any amount in excess of actual damages. The
parties agree that all facts and other information related to any arbitration
arising under this Agreement shall be kept confidential to the fullest extent
permitted by law. Depositions may be taken and other discovery may be
obtained during such arbitration proceedings to the same extent authorized in
civil judicial proceedings. The determination of the arbitrator shall
be binding upon the parties and judgment upon the award rendered may be entered
in any court having jurisdiction thereof. Arbitration fees payable to
the arbitrator shall be paid equally by the parties to the dispute; each party
shall otherwise bear its own attorney fees, costs and expenses associated with
the arbitration. Notwithstanding the foregoing, no party shall be
prevented from seeking injunctive relief from a court of competent jurisdiction
in order to enforce this Agreement. In any action for equitable
relief, the parties agree to waive any requirement for the posting of a bond or
security to the extent permitted by law.
(f) Governing Law; Venue.
This Agreement shall be deemed a contract made under the laws of the state of
Oregon and, together with the rights and obligations of the parties hereunder,
will be construed under and governed by the laws of the state of Oregon, without
giving effect to any conflicts of law provisions thereunder. Subject
to Section 6(e) above, the parties irrevocably submit to the jurisdiction of any
state or federal court sitting in Portland, Oregon, in any action or proceeding
brought to enforce, or otherwise arising out of or relating to, this Agreement,
and hereby waive any objection to venue in any such court and any claim that
such forum is an inconvenient forum.
(g) Waiver of Jury
Trial. Each party hereby irrevocably waives any right it may
have, and agrees not to request, a jury trial for the adjudication of any
dispute hereunder or in connection herewith or arising out of this Agreement or
any transaction contemplated hereby.
(h) Survival. Upon
expiration or termination of this Agreement, all liabilities and obligations
hereunder automatically shall terminate except (i) liability for breaches by any
party prior thereto, (ii) the Company's obligations under Section 3 (with respect
to any fees payable or incurred either prior to or at the termination of this
Agreement or following termination), and (iii) the Company's obligations under
Section 5, each of which
shall survive the termination of this Agreement.
(h) Independent
Contractor. The parties acknowledge and agree that Aequitas is
and shall act as an independent contractor of the Company in the performance of
its duties hereunder. Aequitas is not, and in the performance of its
duties will not hold itself out as, an employee, agent or partner of the Company
or any of its subsidiaries.
(i) Counterparts. This
Agreement may be signed and delivered in multiple counterparts (including
delivery by means of facsimile or electronic means), each of which shall be
deemed an original but which together shall constitute one and the same
instrument.
[Signatures
on following page]
IN
WITNESS WHEREOF, the parties have duly executed this Amended and Restated
Advisory Services Agreement as of the date first above written.
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MICROHELIX,
INC.
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By:
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/s/ Xxxxx X. Xxxxxx
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Name: Xxxxx
X. Xxxxxx
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Its:
Secretary
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AEQUITAS
CAPITAL MANAGEMENT, INC.
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By:
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/s/ Xxxxxx X. Jesenik
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Name: Xxxxxx
X. Jesenik
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EXHIBIT
A
SUCCESS
FEES
1. The
Company shall pay Aequitas a contingent success fee ("Success
Fee") based upon the successful consummation by the Company of each of
the following types of transactions. These Success Fees shall not
apply to any transactions covered under a term sheet provided to the Company by
Aequitas relating to an investment by Aequitas or its affiliates.
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(a)
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1.50%
of the amount of any secured debt facility commitment (plus any increases
in commitment amount during the 12 months following the initial
transaction) provided to the Company by a lender, including any lender now
providing a debt facility or financing to the
Company.
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(b)
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3.50%
of the amount of any subordinated/mezzanine/private debt facility or
unsecured debt facility commitment (plus any increases in commitment
amount during the 12 months following the initial transaction) from
sources introduced by Aequitas.
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(c)
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5.00%
of the amount of new equity provided to the Company by an investor
introduced to the Company by Aequitas. This fee will be reduced to 2.50%
if the equity is provided by an investor who was contacted directly by the
Company without the assistance of
Aequitas.
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(d)
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5.00%
of the amount of debt cancellation, debt reduction or similar discounts
provided by lenders or creditors of the
Company.
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(e)
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A
percentage of the total purchase price paid or payable by the Company with
respect to an acquisition target acquired by the Company which was
introduced by Aequitas as follows:
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·
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5.00%
of the first $5 million
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·
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4.00%
of the next $5 million
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·
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3.00%
of the next $5 million
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·
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2.50% of
any additional purchase price amount exceeding $15
million
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(f)
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2.50%
of the total purchase price paid or payable by the Company with respect to
an acquisition target acquired by the Company which was not introduced by
Aequitas.
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(g)
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A
mutually agreed fee in the event of a sale of the Company or a substantial
portion of its assets not in the ordinary course of
business.
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(h)
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A
mutually agreed fee for referrals of new customers to the
Company.
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Exhibit
A
Page
1
Success
Fees shall be paid in full at the closing of each transaction. If (a) a facility
or financing commitment, or portion thereof, is based on future results of the
Company or achievement of milestones by the Company, or (b) a sale or
acquisition transaction provides for contingent or earnout payments, then the
portion of the Success Fee based on future results, milestone achievement or
contingent or earnout payments (the "Milestone
Fee") shall be calculated based upon pro forma projections developed by
the Company and Aequitas. An amount equal to 50% of the Milestone Fee
as so calculated shall be paid at the closing of the transaction in satisfaction
of the Milestone Fee.
In the
case of an acquisition transaction, the purchase price includes consideration
payable in the form of cash, assets, receivables, securities, promissory notes,
any loans constituting an integral part of the transaction, earnouts,
investments, license or royalty agreements, assumed liabilities, covenants not
to compete, consulting agreements or employment agreements with
owners/shareholders in excess of market, leases or rents payable to
owners/shareholders in excess of market, and any other economic benefits,
rights, property or interests, including payments contingent upon future events
or conditions.
Notwithstanding
anything to the contrary herein, Aequitas shall not be entitled to, and the
Company shall have no obligation to pay, a Success Fee with respect to a
publicly registered offering of the Company's securities.
Upon
request, the Company agrees to execute an authorization for the lender/investor
to pay a Success Fee, and/or any unpaid Aequitas invoice amount, out of the
financing proceeds by direct wire transfer to Aequitas at closing.
2.
Notwithstanding
the expiration of the Term of this Agreement, Aequitas will be entitled to a
Success Fee as described in Section 1 above (in the same manner that a Success
Fee would be due to Aequitas in the absence of expiration) with respect to any
transaction which is consummated by the Company (a) with a person who was
introduced during the Term to the Company by Aequitas during the 2 year period
following the Expiration Date, or (b) with any other person during the 1 year
period following the Expiration Date if Aequitas provided material assistance in
connection with the transaction.
Exhibit
A
Page
2
