Exhibit 10.9
ADVISORY AND INVESTMENT BANKING AGREEMENT
This Agreement is made and entered into as of the __th day of , 2003
by and between Xxxxxxx Xxxxxxxx Securities Corp. ("Xxxxxxx"), and Vaso Active
Pharmaceuticals, Inc., a Delaware corporation (the "Company").
In consideration of the mutual promises made herein and for other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
1. PURPOSE: The Company hereby engages Xxxxxxx for the term specified in
Paragraph 2 hereof to render consulting advice to the Company as an investment
banker relating to financial and similar matters upon the terms and conditions
set forth herein.
2. TERM: Except as otherwise specified in Paragraph 4 hereof, this
Agreement shall be effective for a two year term commencing on the date hereof.
3. DUTIES OF XXXXXXX: During the term of this Agreement, Xxxxxxx shall
seek out Transactions (as hereinafter defined) on behalf of the Company and
shall furnish advice to the Company in connection with any such Transactions.
4. COMPENSATION: In consideration for the services rendered by Xxxxxxx to
the Company pursuant to this Agreement (and in addition to the expenses provided
for in Paragraph 5 hereof), the Company shall compensate Xxxxxxx as follows:
(a) The Company shall pay Xxxxxxx a fee of $5,000 per month
during the term of this Agreement. The sum of $120,000 shall be payable in full
on the date of this Agreement. In the
event that Xxxxxxx ceases its business operations as a financial advisor and
investment banker, materially breaches or is unable to satisfy its performance
obligations hereunder, then (i) Xxxxxxx shall repay to the Company the pro rata
unearned portion of foregoing fee, based on the number of months for which
performance was delivered and the remaining number of months in the term and
(ii) the Company shall have the right to terminate this Agreement by written
notice to Xxxxxxx, which termination shall be effective as at the end of the
month following the date of the Company's notice of termination (subject to such
repayment by Xxxxxxx).
(a) In the event that any Transaction (as hereinafter defined) occurs
during the term of this Agreement or one year thereafter, the Company shall pay
fees to Xxxxxxx as follows:
CONSIDERATION FEE
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$ - 0 - to $ 1,000,000 5% of Consideration
$ 1,000,001 to $2,000,000 4% of Consideration
$ 2,000,001 to $3,000,000 3% of Consideration
$ 3,000,001 to $4,000,000 2% of Consideration
$4,000,001 or more 1% of the Consideration in excess of $4,000,001
For the purposes of this Agreement, "Consideration" shall mean
the total market value on the day of the closing of stock, cash, assets and all
other property (real or personal) exchanged or received, directly or indirectly
by the Company or any of its security holders in connection with any
Transaction. Any co-broker or brokers retained by Xxxxxxx shall be paid by
Kashner.
For the purposes of the Agreement, a "Transaction" shall mean (a)
any transaction originated by Xxxxxxx, other than in the ordinary course of
trade or business of the Company, whereby,
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directly or indirectly, control of or a material interest in the Company or any
of its businesses or any of their respective assets, is transferred for
Consideration or (b) any transaction originated by Xxxxxxx whereby the Company
acquires any other company or the assets of any other company or a controlling
interest in any other company (an "Acquisition"). For purposes of the Agreement,
"control" or "controlling" shall mean the possession, direct or indirect, of the
power to direct or cause the direction of the management and policies of the
Company or another company , as applicable, whether through ownership of voting
securities, by contract or otherwise.
(b) In the event Xxxxxxx originates a line of credit with a lender,
the Company and Xxxxxxx will mutually agree on a satisfactory fee for such
services based upon reasonable and customary practice in the industry and the
terms of payment of such fee; provided, however, that in the event the Company
is introduced to a corporate partner by Xxxxxxx in connection with a merger,
acquisition or financing and a credit line develops directly as a result of the
introduction, the appropriate fee shall be the amount set forth in the schedule
under clause (b) above with consideration to be based upon the amount of credit
available under the line of credit. In the event Xxxxxxx introduces the Company
to a joint venture or licensing arrangement partner and the Company realizes
sales as a result of the introduction, the Company agrees to pay a fee (the
"Sales Fee") of five percent (5%) of total sales generated directly from this
introduction during the first two years following the date of the first sale, in
lieu of the fees set forth in the schedule under clause (b) above. Total sales
shall mean cash receipts less any applicable refunds, returns, promotional
program discounts and incentives, allowances, credits and shipping charges and
monies paid by the Company by way of settlement or judgment arising out of
claims made by or threatened against the Company. Sales Fee payments shall be
paid on the 15th day of the month following each fiscal quarter during which the
Company receives such payments from
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customers. In the event any adjustments are made to the total sales after the
Sales Fee has been paid, the Company shall be entitled to an appropriate refund
or credit against future payments under this Agreement.
(c) All fees to be paid pursuant to this Agreement, except as
otherwise specified, are earned due and payable to Xxxxxxx in cash at the
closing or closings (if such closing or closing occur(s)) of the relevant
transaction specified in Paragraph 4 hereof. In the event that this Agreement
shall expire at the end of its term or be terminated for any reason,
notwithstanding any such expiration or termination, Xxxxxxx shall be entitled to
its fee as provided under this Paragraph for any transaction originated by
Xxxxxxx for which the discussions by or with the Company were initiated during
the term of this Agreement and which is consummated within a period of twelve
months after expiration or termination of this Agreement.
5. EXPENSES OF XXXXXXX: In addition to the fees payable hereunder, and
regardless of whether any transaction set forth in Paragraph 4 hereof is
proposed or consummated, the Company shall reimburse Xxxxxxx for all actual fees
and disbursements for Xxxxxxx'x travel and reasonable out-of-pocket expenses
incurred in connection with and in direct furtherance of the services performed
by Xxxxxxx pursuant to this Agreement, including without limitation, hotels,
food and associated expenses and long-distance telephone calls. Xxxxxxx shall
obtain the consent of the Company before incurring any expense over $1,000.
6. LIABILITY OF XXXXXXX:
(a) The Company acknowledges that all opinions and advice (written or
oral) given by Xxxxxxx to the Company in connection with Xxxxxxx'x engagement
hereunder are intended solely for the benefit and use of the Company in
considering the transaction to which they relate, and the Company
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agrees that no person or entity other than the Company shall be entitled to make
use of or rely upon the advice of Xxxxxxx to be given hereunder, and no such
opinion or advice shall be used for any other purpose or reproduced,
disseminated, quoted or referred to at any time, in any manner or for any
purpose, nor may the Company make any public references to Xxxxxxx, or use
Xxxxxxx'x name in any annual reports or any other reports or releases of the
Company without Xxxxxxx'x prior written consent.
(b) The Company acknowledges that Xxxxxxx makes no commitment
whatsoever as to making a market in the Company's securities or to recommending
or advising its clients to purchase the Company's securities.
7. XXXXXXX'X SERVICES TO OTHERS: The Company acknowledges that Xxxxxxx'x
or its affiliates are in the business of providing financial services and
consulting advice to others. Nothing herein contained shall be construed to
limit or restrict Xxxxxxx in conducting such business with respect to others, or
in rendering such advice to others.
8. COMPANY INFORMATION:
(a) The Company recognizes and confirms that, in advising the Company
and in fulfilling its engagement hereunder, Xxxxxxx will use and rely on data,
material and other information furnished to Xxxxxxx by the Company. The Company
acknowledges and agrees that in performing its services under this engagement,
Xxxxxxx may rely upon the data, material and other information supplied by the
Company without independently verifying the accuracy, completeness or veracity
of same.
(b) Except as contemplated by the terms hereof or as required by
applicable law, Xxxxxxx shall keep confidential all material non-public
information provided to it by the Company, and shall not disclose such
information to any third party, other than such of its employees and advisors as
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Xxxxxxx determines to have a need to know. Upon termination of this Agreement,
at the request of the Company, Xxxxxxx shall deliver to the Company all
non-public material in its possession relating to the business affairs of the
Company.
9. INDEMNIFICATION:
(a) The Company shall indemnify and hold Xxxxxxx and its directors,
officers, employees and agents harmless against any and all liabilities, claims,
lawsuits, including any and all awards and/or judgments to which it may become
subject under the Securities Act of 1933, as amended (the "1933 Act"), the
Securities Exchange Act of 1934, as amended (the "Act") or any other federal or
state statute, at common law or otherwise, insofar as said liabilities, claims
and lawsuits (including awards and/or judgments) arise out of or are in
connection with the services rendered by Xxxxxxx or any transactions in
connection with this Agreement, except for any liabilities, claims and lawsuits
(including awards judgments and related costs and expenses), arising out of acts
or omissions of Xxxxxxx. In addition, the Company shall also indemnify and hold
Xxxxxxx harmless against any and all reasonable costs and expenses, including
reasonable counsel fees, incurred or relating to the foregoing. If it is finally
judicially determined that the Company will not be responsible for any
liabilities, claims and lawsuits or expenses related thereto, the indemnified
party, by his or its acceptance of such amounts, agrees to repay the Company all
amounts previously paid by the Company to the indemnified person and will pay
all costs of collection thereof, including but not limited to reasonable
attorneys fees related thereto.
Xxxxxxx shall give the Company prompt notice of any such
liability, claim or lawsuit which Xxxxxxx contends is the subject matter of the
Company's indemnification and the Company thereupon shall be granted the right
to take any and all necessary and proper action, at its sole
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cost and expense, with respect to such liability, claim and lawsuit, including
the right to settle, compromise and dispose of such liability, claim or lawsuit,
excepting therefrom any and all proceedings or hearings before any regulatory
bodies and/or authorities.
(b) Xxxxxxx shall indemnify and hold the Company and its directors,
officers, employees and agents harmless against any and all liabilities, claims
and lawsuits, including any and all awards and/or judgments to which it may
become subject under the 1933 Act, the Act or any other federal or state
statute, at common law or otherwise, insofar as said liabilities, claims and
lawsuits (including awards and/or judgments) arise out of or are based upon
Xxxxxxx'x gross negligence, intentional misconduct, bad faith or any untrue
statement or alleged untrue statement of a material fact or omission at a
material fact required to be stated or necessary to make the statement provided
by Xxxxxxx, not misleading, which statement or omission was made in reliance
upon information furnished in writing to the Company by or on behalf of Xxxxxxx
for inclusion in any registration statement or prospectus or any amendment or
supplement thereto in connection with any transaction to which this Agreement
applies. In addition, Xxxxxxx shall also indemnify and hold the Company harmless
against any and all costs and expenses, including reasonable counsel fees,
incurred or relating to the foregoing.
The Company shall give to Xxxxxxx prompt notice of any such
liability, claim or lawsuit which the Company contends is the subject matter of
Xxxxxxx'x indemnification and Xxxxxxx thereupon shall be granted the right to a
take any and all necessary and proper action, at its sole cost and expense, with
respect to such liability, claim and lawsuit, including the right to settle,
compromise or dispose of such liability, claim or lawsuit, excepting therefrom
any and all proceedings or hearings before any regulatory bodies and/or
authorities.
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(c) In order to provide for just and equitable contribution under the
Act in any case in which (i) any person entitled to indemnification under this
Section 9 makes claim for indemnification pursuant hereto but it is judicially
determined (by the entry of a final judgment or decree by a court of competent
jurisdiction and the expiration of time to appeal or the denial of the last
right of appeal) that such indemnification may not be enforced in such case
notwithstanding the fact that this Section 9 provides for indemnification in
such case, or (ii) contribution under the Act may be required on the part of any
such person in circumstances for which indemnification is provided under this
Section 9, then, and in each such case, the Company and Xxxxxxx shall contribute
to the aggregate losses, claims, damages or liabilities to which they may be
subject (after any contribution from others) in such proportion taking into
consideration the relative benefits received by each party from the offering
covered by the prospectus with respect to any transactions in connection with
this Agreement (taking into account the portion of the proceeds of the offering
realized by each), the parties' relative knowledge and access to information
concerning the matter with respect to which the claim was assessed, the
opportunity to correct and prevent any statement or omission and other equitable
considerations appropriate under the circumstances; provided, however, that
notwithstanding the above in no event shall Xxxxxxx be required to contribute
any amount in excess of the sum of (i) 10% of the public offering price of any
securities to which such Prospectus applies and (ii) the fees payable to Xxxxxxx
under this Agreement; and provided, that, in any such case, no person guilty of
a fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation.
Within fifteen (15) days after receipt by any party to this
Agreement (or its representative) of notice of the commencement of any action,
suit or proceeding, such party will, if a
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claim for contribution in respect thereof is to be made against another party
(the "Contributing Party"), notify the Contributing Party of the commencement
thereof, but the omission so to notify the Contributing Party will not relieve
it from any liability which it may have to any other party other than for
contribution hereunder. In case any such action, suit or proceeding is brought
against any party, and such party notifies a Contributing Party or his or its
representative of the commencement thereof within the aforesaid fifteen (15)
days, the Contributing Party will be entitled to participate therein with the
notifying party and any other Contributing Party similarly notified. Any such
Contributing Party shall not be liable to any party seeking contribution on
account of any settlement of any claim, action or proceeding effected by such
party seeking contribution without the written consent of the Contributing
Party. The indemnification provisions contained in this Section 9 are in
addition to any other rights or remedies which either party hereto may have with
respect to the other or hereunder.
10. XXXXXXX AN INDEPENDENT CONTRACTOR : Xxxxxxx shall perform its services
hereunder as an independent contractor and not as an employee of the Company or
an affiliate thereof. It is expressly understood and agreed to by the parties
hereto that Xxxxxxx shall have no authority to act for, represent or bind the
Company or any affiliate thereof in any manner, except as may be agreed to
expressly by the Company in writing from time to time.
11. MISCELLANEOUS:
(a) This Agreement between the Company and Xxxxxxx constitutes the
entire agreement and understanding of the parties hereto, and supersedes any and
all previous agreements and understandings, whether oral or written, between the
parties with respect to the matters set forth herein.
(b) Any notice or communication permitted or required hereunder shall
be in writing and shall be deemed sufficiently given if hand-delivered or sent
(i) postage prepaid by registered mail,
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return receipt requested, or (ii) by facsimile, to the respective parties as set
forth below, or to such other address as either party may notify the other in
writing:
If to the Company, to: Vaso Active Pharmaceuticals, Inc.
00 Xxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Attn: Xxxx X. Masiz, President
Fax: (000) 000-0000
with a copy to: Xxxxxxxx & Xxxx LLP
Xxx Xxxxxx Xxxxx
Xxxxxx, XX 00000
Attn: Xxxxx X. Xxxxxx, Esq.
Fax: (000) 000-0000
If to Xxxxxxx, to: Xxxxxxx Davidson Securities Corp.
00 Xxxxx Xxxx Xxxxxx
Xxxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxxx, President
Fax: (000) 000-0000
with a copy to: Sichenzia Xxxx Xxxxxxxx Xxxxxxx LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx Xxxxxxxxx, Esq.
Fax: (000) 000-0000
(c) This Agreement shall be binding upon and inure to the benefit of
each of the parties hereto and their respective successors, legal
representatives and assigns.
(d) This Agreement may be executed in any number of counterparts,
each of which together shall constitute one and the same original document.
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(e) No provision of this Agreement may be amended, modified or
waived, except in a writing signed by all of the parties hereto.
(f) This Agreement shall be construed in accordance with and governed
by the laws of the State of
New York, without giving effect to conflict of law
principles. The parties hereby agree that any dispute which may arise between
them arising out of or in connection with this Agreement shall be adjudicated
before a court located in
New York City, and they hereby submit to the exclusive
jurisdiction of the courts of the State of
New York located in
New York,
New
York and of the federal courts in the Southern District of
New York with respect
to any action or legal proceeding commenced by any party, and irrevocably waive
any objection they now or hereafter may have respecting the venue of any such
action or proceeding brought in such a court or respecting the fact that such
court is an inconvenient forum, relating to or arising out of this Agreement,
and consent to the service of process in any such action or legal proceeding by
means of registered or certified mail, return receipt requested, in care of the
address set forth in Paragraph 11(b) hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed, as of the day and year first above written.
XXXXXXX DAVIDSON SECURITIES CORP.
By:
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Name: Xxxxxxx X. Xxxxxxx
Title: President and CEO
VASO ACTIVE PHARMACEUTICALS, INC.
By:
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Name: Xxxx X. Masiz
Title: President and Chief Executive Officer
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