EXHIBIT 10.1
NATIONAL CAPITAL INVESTMENT BANKING AGREEMENT
This is to confirm our understanding that National Capital has been engaged as a
financial advisor to MIV THERAPEUTICS, INC., its successors, subsidiaries and
affiliates (collectively, the "Company"), with respect to financial advisory,
corporate finance and merger and acquisition matters for the twelve (12) month
period commencing the date hereof. In connection with its duties hereunder,
National Capital shall devote such business time and attention to matters on
which the Company shall request its services. All services shall be rendered by
National Capital, or its associates.
A. FINANCIAL ADVISORY SERVICES
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During the term of this agreement, National Capital shall provide the
Company with such regular and customary financial advisory services as are
reasonably requested by the Company, provided that National Capital shall not be
required to undertake duties not reasonably within the scope of the financial
advisory services in which it is generally engaged. In performance of its
duties, National Capital shall provide the Company with the benefits of its best
judgment and efforts. It is understood and acknowledged by the parties that the
value of National Capital' advice is not measurable in a quantitative manner and
National Capital shall be obligated to render advice, upon the request of the
Company, in good faith, as shall be determined by National Capital. National
Capital' duties may include, but will not necessarily be limited to:
(i) advice regarding the formation of corporate goals and their
implementation;
(ii) advice regarding the financial structure of the Company or its
divisions or any programs and projects undertaken by any of
the foregoing;
(iii) advice regarding obtaining financing; and
(iv) advice regarding corporate organization, personnel and
selection of needed specialty skills.
In consideration of such financial advisory services, the Company
agrees to (i) pay National Capital a non-refundable and non-accountable fee of
$120,000 which shall be payable upon the execution of this letter. Up to fifty
percent of this amount may be paid with restricted securities, based on the
closing bid price and at least 50% must be paid in cash or cash equivalents, and
(ii) issue to National Capital or its designee(s), warrants ("Warrants") to
purchase __________ shares (4 % of the outstanding shares) of the Company's
common stock at an exercise price of $ ____ per share (25% out of the money).
The Warrants shall be issued upon execution of this letter agreement. The
Warrants will be exercisable for a five year period commencing on the date of
issuance and shall contain such terms and conditions as are satisfactory in form
and substance to National Capital, the Company and their respective counsel,
including, without limitation, one-time demand registration rights (which shall
vest six months following the initial public offering of the Company's
securities) and piggyback registration rights, anti-dilution and net cash
exercise provisions. The payments referenced in this paragraph shall be in
addition to any other compensation and reimbursement of expenses described
herein.
B. FUTURE FINANCINGS
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National Capital will have a right of first refusal to underwrite or
place any public or private sale of debt or equity securities (excluding sales
to employees) of the Company, any subsidiary or successor of the Company, or
held by any of the Principal Shareholders (as defined below) during the term of
this agreement. It is understood that if such a proposed financing is offered to
National Capital, National Capital shall have three (3) full business days in
which to determine whether or not to accept such offer.
Additionally, if National Capital introduces the Company to another
party or entity during the term of this agreement and, as a result of such
introduction, a financing transaction is consummated during the 12 month period
following the term of this agreement, the Company shall pay National Capital
upon the consummation of such financing transaction a fee equal to ten percent
(10%) of the gross proceeds raised in such transaction.
Recognizing that matters of the type contemplated in this engagement sometimes
result in litigation and that National Capital' role is advisory, the Company
agrees to indemnify and hold harmless National Capital, its affiliates and their
respective officers, directors, employees, agents and controlling persons
(collectively, the "Indemnified Parties"), from and against any losses, claims,
damages and liabilities, joint or several, related to or arising in any manner
out of any transaction, financing, proposal or any other matter (collectively,
the "Matters") contemplated by the engagement of National Capital hereunder, and
will promptly reimburse the Indemnified Parties for all expenses (including fees
and expenses of legal counsel) as incurred in connection with the investigation
of, preparation for or defense of any pending or threatened claim related to or
arising in any manner out of any Matter contemplated by the engagement of
National Capital hereunder, or any action or proceeding arising there from
(collectively, "Proceedings"), whether or not such Indemnified Party is a formal
party to any such Proceeding. Notwithstanding the foregoing, the Company shall
not be liable in respect of any losses, claims, damages, liabilities or expenses
that a court of competent jurisdiction shall have determined by final judgment
resulted solely from the gross negligence or willful misconduct of an
Indemnified Party.
This letter, including both sides, constitutes the entire understanding of the
parties with respect to the subject matter hereof and may not be altered or
amended except in a writing signed by both parties. This agreement shall be
governed by and construed under the laws of the State of California without
regard to principles of conflicts of law thereof. Neither the execution and
delivery of this agreement by the Company nor the consummation of the
transactions contemplated hereby will, directly or indirectly, with or without
the giving of notice or lapse of time, or both: (i) violate any provisions of
the Certificate of Incorporation or By-laws of the Company; or (ii) violate, or
be in conflict with, or constitute a default under, any agreement, lease,
mortgage, debt or obligation of the Company or require the payment, any
pre-payment or other penalty with respect thereto.
If the foregoing correctly sets forth the terms of our agreement, so indicate by
signing and returning the top copy of this agreement.
ACCEPTED AND AGREED TO this 15th day of April, 2003:
Sign: /S/ XXXX XXXXXXX
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By: PRESIDENT AND CEO
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[Name and Title]
C. ACQUISITION TRANSACTION
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For purposes of this agreement, the term "Acquisition Transaction"
means (i) any merger, consolidation, reorganization or other business
combination pursuant to which the businesses of a third party are combined with
that of the Company, (ii) the acquisition, directly or indirectly, by the
Company of all or a substantial portion of the assets or common equity of a
third party by way of negotiated purchase or otherwise or (iii) the acquisition,
directly or indirectly, by a third party of all or a substantial portion of the
assets or common equity of the Company by way of negotiated purchase or
otherwise.
In connection with a proposed Acquisition Transaction, National
Capital' advisory services will include the following: (i) assistance in the
evaluation of a third party from a financial point of view, (ii) assistance and
advice with respect to the form and structure of the Acquisition Transaction and
the financing thereof, (iii) conducting discussions and negotiations regarding
an Acquisition Transaction and (iv) providing other related advice and
assistance as the Company may reasonably request in connection with an
Acquisition Transaction.
For purpose of this agreement, "Consideration" means the aggregate
value, whether in cash, securities, assumption (or purchase subject to) of debt
or liabilities (including, without limitation, indebtedness for borrowed money,
pension liabilities and guarantees) or other property, obligations or services,
paid or payable directly or indirectly (in escrow or otherwise) or otherwise
assumed in connection with an Acquisition Transaction. The value of such
Consideration shall be determined as follows:
(a) the value of securities, liabilities, obligations, property
and services shall be the fair market value as we shall
mutually agree upon at the date of the closing of the
Acquisition Transaction; and
(b) the value of indebtedness, including indebtedness assumed,
shall be the face amount.
If the Consideration payable in an Acquisition Transaction includes
contingent payments to be calculated by reference to uncertain future
occurrences, such as future financial or business performance, then any fees of
National Capital relating to such Consideration shall be payable at the time of
the receipt of such Consideration.
In connection with our services, you agree that if, during the term of
this agreement or, within one year thereafter, an Acquisition Transaction is
consummated with a third party introduced by National Capital, or the Company
enters into a definitive agreement with a third party introduced by National
Capital, which at any time thereafter results in an Acquisition Transaction, you
will pay National Capital a transaction fee equal to five percent (5%) of the
Consideration; PROVIDED, HOWEVER, if the Company (directly or through a third
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party) procures the other party to an Acquisition Transaction without the direct
or indirect introduction by National Capital, the Company shall pay National
Capital a fee equal to one percent (1%) of Consideration, with a minimum payment
of Fifty Thousand ($50,000) Dollars, but only in the event National Capital
provides advisory services to the Company in connection with the Acquisition
Transaction.
D. GENERAL
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The services to be provided by National Capital hereunder do not
include the giving of tax, legal, regulatory, actuarial or other specialist
advice or the provision of' any other services unless National Capital
specifically agrees in writing to provide such services. National Capital will
have no liability in respect of any services or advice provided to the Company
by persons other than National Capital (including accountants, legal advisers
and other specialist advisers) and the degree to which National Capital may rely
on the work of such other persons shall not be affected by any limitation of
liability for such work agreed between them and the Company.
National Capital will not be responsible for any due diligence for the
Company in relation to any transaction (whether in terms of nature, extent,
adequacy or performance). In particular, National Capital will not have any
responsibility for due diligence which would normally be carried out by
specialist advisers (such as accountancy, tax, legal or valuation advisers)
notwithstanding that any information or advice from these advisers may be passed
on to National Capital or passed on by National Capital to the Company. It is
solely the Company's responsibility to ensure that the information and advice
relating to such due diligence is received and considered by the Company and is
adequate for the purposes of the transaction.
Notwithstanding that National Capital is not responsible for due
diligence, National Capital reserves the right at its absolute discretion and
for its own purposes to take whatever steps it may consider appropriate to
satisfy itself as to the accuracy and completeness of any public documents
issued in connection with any transaction and the Company agrees to co-operate
fully with National Capital in the taking of such steps.
In addition to all other charges payable to National Capital as per the
terms hereof, the, Company agrees to reimburse National Capital, upon requests
made from time to time, for all of its reasonable pre-approved out-of-pocket
expenses incurred in connection with its activities under this agreement.
Payment is to be made to National Capital Investment Banking as
designed on the front of this agreement. In the event of suit, the party named
as a Defendant, agrees to pay attorney fees to the plaintiff in the amount of
35% (but in any event not less than $1,500) of the claim if the Defendant fails
to answer the Complaint, and the suit is concluded by a default judgment. If the
suit is filed, by either party, and the party named as Defendant, answers the
Complaint, the successful party shall be entitled to reasonable attorney fees.
Any suit arising out of or related to this agreement must be brought in the Los
Angeles Municipal Court (Van Nuys Division), in the Los Angeles Superior Court
(Northwest District), or in the Federal District Court in Los Angeles.
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ADDENDUM
I. This addendum, together with the National Capital Investment Banking
Agreement, constitutes the entire contract. When in conflict, the
addendum supercedes the contract.
II. Section titled FINANCIAL ADVISORY SERVICES shall be amended as follows:
1. Term of agreement is 3 months renewable at MIVT sole discretion.
2. Cost of services is $30,000, half to be paid in S-8 stock, half in
restricted stock
A. 65,217 S-8 Shares
B. 65,217 Restricted Shares
3. Warrant is for 1.2 million shares
A. Term of warrant is 6 months
B. Price of warrant is 50 cents
C. Anti-dilution provision is voided
III. Section titled FUTURE FINANCINGS shall be amended as follows:
Future financings will not be subject to first rights of refusal, rather advance
notice to National Capital. Also, the 10% financing fee paid by the company
shall be universal, meaning that's the entire amount the company shall pay in
fees (in cash or in stock).
IV. Page one, section B, paragraph three, starting with "Recognizing that
matters" and ending with "of an indemnified party" is null and void and is
stricken from the agreement.
V. Section titled ACQUISITION TRANSACTION shall be amended as follows:
The 5% fee will only apply if National Capital makes the introduction to the
company of the acquired company.
If the National Capital Investment Banking Agreement and this addendum
accurately reflect the entire understanding of the agreement, kindly indicated
by signing below.
SIGN: /S/ XXXX XXXXXXX SIGN: /S/ XXXXX XXXXXXXXXX
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BY: PRESIDENT AND CEO BY: XXXXX XXXXXXXXXX/ DIRECTOR
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DATE: 15TH APRIL 2003
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MEMORANDUM OF UNDERSTANDING
Effective immediately, MIV Therapeutics agrees to lower the strike price of
National Capitals 1.2 million warrants issued in the contract dated April 15,
2003 to a price of .40 cents and issue an additional 200,000 warrants with a
strike price of .42 cents. MIV Therapeutics agrees to register these warrants
immediately. National Capital agrees to split any proceeds over .50 cents (US)
from the sale of 200,000 warrants with MIV Therapeutics. Term of this warrant
shall be 6 months from the date these warrants are registered (200,000 @42
cents).
If the foregoing correctly sets forth the terms of our agreement, so indicate by
signing and returning the agreement.
ACCEPTED AND AGREE TO this 9th day of June, 2003:
Sign: /S/ XXXX XXXXXXX
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By: Xxxx Xxxxxxx, MIV Therapeutics
Sign: /S/ XXXXX XXXXXXXXXX
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By: Xxxxx Xxxxxxxxxx, National Capital
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