EXHIBIT 10.14
B XXXXX
October 18, 2006 0000 XxxXxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx Xxxxx, XX 00000
Xxxxx Xxxxxxxxxx Tel: 000.000.0000
President Fax: 000.000.0000
Xxxxxxx Xxxxx xxx.xxxxxxxx.xxx
Chief Financial Officer
Xxxxxxxxxx
000 Xxxxxxx Xxxx
Xxx Xxxx Xxxxxx, XX 00000 PERSONAL & CONFIDENTIAL
-----------------------
Dear Xxxxx and Xxxxxxx:
This will confirm the understanding and agreement (the "Agreement") between X.
Xxxxx & Co., a Delaware corporation ("X. XXXXX") and Xxxxxxxxxx (the "COMPANY")
as follows:
1. The COMPANY hereby engages X. XXXXX as its exclusive financial advisor and
placement agent for the purpose of providing the COMPANY with overall financial
advisory services primarily relating to:
(a) Acting as Placement Agent in connection with the placement of
approximately $20,000,000 of the COMPANY's securities (the
"Securities") to a limited number of investors (the "Investors"),
and
(b) Performing an acquisition of all of a public entity's securities in
exchange for securities consisting of COMPANY Common Stock (the
"Reverse Merger").
2. X. XXXXX hereby accepts the engagement and, in that connection, agrees to:
(a) Review and analyze the business, operations, financial condition and
prospects of the COMPANY;
(b) Prepare, in consultation with the COMPANY, certain documents
describing the COMPANY, which shall not be made available to
potential Investors until the COMPANY has approved such documents
(the "Materials"). The COMPANY will also represent to X. XXXXX that
the Materials do not contain any untrue material statement or
alleged untrue statement of a material fact or omit to state a
material fact required to be stated or necessary to make any
statement not misleading. In this regard,
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X. XXXXX is fully aware and acknowledges that the Materials may contain certain
pro forma materials, projections, estimates and other forward-looking statements
which will be based upon management's best efforts and the results of data from
existing comparable companies;
(c) Develop and review with the Company a schedule of the Investors to
whom the Materials will be provided ("the Investor Schedule")
(d) Use its best efforts to privately place the Securities;
(e) Prepare with the assistance and approval of the COMPANY any other
communications to be used in placing the Securities, whether in the
form of letter, circular, notice or otherwise;
(f) Negotiate the sale of the Securities to the Investors;
(g) Find a suitable Reverse Merger candidate and perform all necessary
due diligence on the public entity;
(h) Negotiate and finalize with a public entity the Reverse Merger
agreement;
(i) Provide a fairness opinion for the benefit of the Xxxxxxxxxx Board
of Directors relating to the Reverse Merger exchange ratio.
3. In connection with X. XXXXX'x engagement, the COMPANY will furnish X. XXXXX
with any information concerning the COMPANY, which X. XXXXX reasonably deems
appropriate and will provide X. XXXXX with access to the COMPANY's officers,
directors, accountants, legal counsel and other advisors. The COMPANY represents
and warrants to X. XXXXX that to the best of its knowledge, all such information
concerning the COMPANY will be true and accurate in all material respects and
will not contain any untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein not misleading
in light of the circumstances under which such statements are made. The COMPANY
acknowledges and agrees that X. XXXXX will be using and relying upon such
information supplied by the COMPANY and its officers, agents and others and any
other available information concerning the COMPANY without any independent
investigation or verification thereof or independent appraisal by X. XXXXX of
the COMPANY or its business or assets.
4. For purposes of this Agreement, a "Financing" shall mean any sale or series
of sales of Securities to an Investor or any COMPANY or subsidiary financing
involving the issuance of equity, or debt with an equity participation,
consummated pursuant to any agreement, commitment or understanding which is
entered into with the COMPANY or any post Reverse Merger entity. Financing shall
include any cash balances existing in the Reverse Merger entity.
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5. As compensation for the financial advisory services to be rendered by X.
XXXXX hereunder, the COMPANY shall pay X. XXXXX as follows:
(a) Upon the signing of this Agreement, the COMPANY agrees to pay X.
XXXXX a one time retainer of $50,000 in cash, credited to Placement
Fees above $1,000,000 on a dollar for dollar basis;
(b) Upon the closing of the Financing, a fee equal to 6.5% of the gross
proceeds of the transaction (the "Placement Fee");
(c) Upon the closing of the Financing, the COMPANY will xxxxx X. XXXXX
warrants to purchase common stock equal to 7.0% of the Financing at
an exercise price equal to (i) 110% of the transaction price for a
common stock transaction or (ii) 110% of the conversion price for
any convertible transaction (the "Warrants"). The Warrants issued
will expire 5 years after the date of issuance, have standard rights
of registration and contain a standard net issuance provision. The
Warrants are not transferable other than to a limited number of
employees and affiliates of X.XXXXX subject to compliance with all
applicable securities laws;
(d) Upon delivery of a fairness opinion, a fairness opinion fee of
$100,000 provided the combined total of the Placement Fee and
fairness opinion does not exceed 7% of the gross proceeds of the
transaction; and
(e) Upon successful completion of a Reverse Merger, an advisory fee of
$100,000.
The COMPANY may secure up to a $10,000,000 investment from the 45th Institute or
other Chinese entity directly related to that memorandum of understanding,
attached as Addendum 2 to this Agreement, sometime in the future ("China"). The
China transaction, as a post Financing transaction, is carved out of the item
5(b) and 5(c) compensation, though, the COMPANY, at its option, may engage
X.XXXXX in the future for various services and advice on the China transaction
under terms and conditions to be agreed upon at that time. If the China
transaction is consummated on or before the Financing, or if it is in lieu of
the Financing, X.XXXXX'x engagement is in effect to represent the COMPANY under
the same terms and conditions as the Agreement, but with a reduced Placement Fee
of 4% and Warrants of 4% on the China transaction.
Such Placement Fees and Warrants shall be payable with respect to any Financing
that occurs either (a) during the term of X. XXXXX'x engagement hereunder
regardless of whether the Investor was identified by X. XXXXX inclusive of
existing COMPANY investors or (b) at any time during a period of twelve (12)
months following the effective date of termination of X. XXXXX'x engagement
hereunder and Financing involves an Investor on the Investor Schedule. The
Investor Schedule shall include name of Investor's organization, individual
contact name and contact date, to be delivered to COMPANY in writing within
fifteen business days following termination of this Agreement. COMPANY agrees to
provide to X.XXXXX all potential investors that have contacted the COMPANY or
may contact the COMPANY directly and such parties will be included on the
Investor Schedule.
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6. The COMPANY agrees that if during the term of this Agreement, and for a
period of eighteen (18) months following a Financing, the COMPANY is acquired,
merges, sells all or substantially all of its capital stock or assets, X. XXXXX
shall be the COMPANY's lead financial advisor and provide customary work in such
capacity and shall be paid upon closing a three percent (3%) M&A Advisory Fee
based on the Enterprise Value of the COMPANY, which shall include (i) the gross
value of all cash, securities, and other property paid directly or indirectly,
by an acquiror and received or retained by a seller or sellers, and (ii) the
aggregate principal amount of any commercial indebtedness for money borrowed
assumed by an acquiror.
7. The COMPANY shall reimburse X. XXXXX for its out-of-pocket and incidental
expenses; incurred during the term of its engagement hereunder X.XXXXX shall
obtain COMPANY approval for any projected expense item in excess of $5,000.
8. The COMPANY may refuse to discuss or negotiate the Financing of the COMPANY
with any party for any reason whatsoever and may terminate negotiations with any
party at any time.
9. Since X. XXXXX will be acting on behalf of the COMPANY in connection with
this engagement, the COMPANY agrees to indemnify X. XXXXX as set forth in
Addendum 1, between X. XXXXX and the COMPANY.
10. The COMPANY agrees that during the term of X. XXXXX'x engagement hereunder,
with respect to a reverse merger and financing, it will not contact or solicit
investors or other entities without discussing with X. XXXXX beforehand and will
immediately inform X. XXXXX of any inquiries.
11. The term of X. XXXXX'x engagement hereunder as the COMPANY's exclusive
financial advisor and placement agent shall extend from the date hereof for six
(6) months. Subject to the provisions of paragraphs 5, 6, 7, 9 and 13 through 16
which shall survive any termination of this Agreement. This Agreement will be
irrevocable for the above term and will automatically extend by mutual consent
under the same terms and conditions on a month-by-month basis unless canceled by
either party giving thirty (30) days written notice duly hand delivered or sent
by registered or certified mail to the principal place of business.
12. The COMPANY agrees that X. XXXXX will have the right to use COMPANY's name,
trademark and logo for the purposes of announcements and press releases related
to the completion of a transaction contemplated herein.
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13. Except as required by law, any advice to be provided by X. XXXXX under this
Agreement, shall not be publicly disclosed or made available to third parties,
other than the investor, without X. XXXXX'x prior consent. In addition, X. XXXXX
may not be publicly referred to without its prior consent.
14. The COMPANY represents and warrants to X. XXXXX that there are no brokers,
representatives or other persons which have an interest in compensation due to
X. XXXXX from any transaction contemplated herein or other agreements, either
oral or written, between the parties hereto with respect to this Agreement and
contains all of the covenants and conditions between the parties. Each party to
this Agreement acknowledges that no representations, inducements, promises or
agreements, orally or otherwise, have been made by any party, or anyone acting
on behalf of any party, which are not embodied herein, and that no other
agreement, statement or promise not contained in this Agreement shall be valid
or binding. Any modifications of this Agreement will be effective only if it is
in writing and signed by all parties.
15. This agreement shall not be assigned by either party without obtaining the
express written consent of the other party.
16. This Agreement may not be amended or modified except in writing and shall be
governed by and construed in accordance with the laws of the State of
California, without regard to principles of conflicts of laws. Any dispute,
controversy or claim directly or indirectly relating to or arising out of this
Agreement shall be submitted to binding arbitration with JAMS/ENDISPUTE in Los
Angeles, California under the JAMS/ENDISPUTE Comprehensive Arbitration Rules and
Procedures. The award in the arbitration shall be final and binding and judgment
thereon may be entered in any court having jurisdiction. The costs and expenses
including reasonable attorney's fees of the prevailing party shall be borne and
paid by the party that the arbitrator, or arbitrators, determine is the
non-prevailing party. The COMPANY agrees and consents to personal jurisdiction,
service of process and venue in any federal or state court within the State of
California in connection with any action brought to enforce an award in
arbitration. If any provision of this Agreement is held to be invalid, void or
unenforceable, the remaining provisions shall nevertheless continue in full
force without being impaired or invalidated in any way.
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X. Xxxxx & Co. is delighted to accept this engagement and looks forward to
working with you. Please confirm that the foregoing correctly sets forth our
mutual agreement by signing the enclosed duplicate of this letter in the space
provided and returning it, whereupon this letter shall be a binding agreement as
of the date first above written.
X. Xxxxx & Co.
By: /s/ Xxxxx X. Xxxxxx
-------------------------------
Xxxxx X. Xxxxxx
Managing Director
AGREED:
Xxxxx Xxxxxxxxxx
By: /s/ Xxxxx Xxxxxxxxxx
--------------------------------
President
Xxxxxxxxxx
Xxxxxxx Xxxxx
By: /s/ Xxxxxxx Xxxxx
--------------------------------
Chief Financial Officer
Xxxxxxxxxx
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ADDENDUM 1
In connection with the engagement, between X. Xxxxx & Co. ("X. XXXXX") and
Xxxxxxxxxx (the "COMPANY"), the COMPANY hereby agrees to indemnify and hold
harmless X. XXXXX and its affiliates, their respective directors, officers,
controlling persons (within the meaning of Section 15 of the Securities Act of
1933 or Section 20 (a) of the Securities Exchange Act of 1934), if any, agents
and employees of X. XXXXX or any of X. XXXXX'x affiliates (collectively,
"Indemnified Persons" and individually, an "Indemnified Person") from and
against any and all claims, liabilities, losses, damages and expenses incurred
by any Indemnified Person (including fees and disbursements of X. XXXXX and an
Indemnified Person's counsel) which:
(A) are related to or arise out of (i) actions taken or omitted to be taken
(including any untrue statements made or any statement omitted to be made) by
the COMPANY or (ii) actions taken or omitted to be taken by an Indemnified
Person with the COMPANY's consent or in conformity with the COMPANY's
instructions or the COMPANY's actions or omissions or
(B) are otherwise related to or arise out of X. XXXXX'x engagement, and will
reimburse X. XXXXX and any other Indemnified Person for all cost and expenses,
including fees of X. XXXXX or an Indemnified Person's counsel, as they are
incurred, in connection with investigating, preparing for, or defending any
action, formal or informal claim, investigation, inquiry or the proceeding,
whether or not in connection with pending or threatened litigation, caused by or
arising out of or in connection with X. XXXXX acting pursuant to the engagement,
whether or not X. XXXXX or any Indemnified Person is named as a party thereto
and whether or not any liability results therefrom. The COMPANY will not,
however, be responsible for any claims, liabilities, losses, damages, or
expenses pursuant to clause (B) of the preceding sentence which are finally
judicially determined to have resulted primarily from X. XXXXX'x bad faith or
negligence.
The COMPANY also agrees that neither X. XXXXX nor any other Indemnified Person
shall have any liability to the COMPANY for or in connection with such
engagement except for any such liability for claims, liabilities, losses,
damages, or expenses incurred by the COMPANY which are finally judicially
determined to have resulted primarily from X. XXXXX'x bad faith or negligence.
The COMPANY further agrees that the COMPANY will not, without the prior written
consent of X. XXXXX, settle or compromise or consent to the entry of any
judgment in any pending or threatened claim, action, suit or proceeding in
respect to which indemnification may be sought hereunder (whether or not X.
XXXXX or any Indemnified Persons an actual or potential party to such claim,
actions, suit or proceeding) unless such settlement, compromise or consent
includes an unconditional release of X. XXXXX and each other Indemnified Person
hereunder from all liability arising out of such claim, action, suit or
proceeding.
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In order to provide for just and equitable contribution, if a claim for
indemnification is made pursuant to these provisions but is found in a final
judgment by a court of competent jurisdiction (not subject to further appeal)
that such indemnification is not available for any reason (except, with respect
to indemnification sought solely pursuant to clause (B) of the first paragraph
hereof, for the reasons specified in the second sentence thereof), even though
the express provisions hereof provide for indemnification in such case, then the
COMPANY, on the one hand, and X. XXXXX, on the other hand, shall contribute to
such claim, liability, loss, damage or expense for which such indemnification or
reimbursement is held unavailable which are uninsured liabilities, losses,
damages or claims in such proportion as is appropriate to reflect the relative
benefits of the COMPANY, on the one hand, and X. XXXXX on the other hand, in
connection with the transactions contemplated by the engagement, subject to the
limitation that in any event X. XXXXX'x aggregate contribution to all losses
claims, damages, liabilities and expenses to which contribution is available
hereunder shall not exceed the amount of fees actually received by X. XXXXX
pursuant to the engagement.
The foregoing right to indemnity and contribution shall be in addition to any
rights that X. XXXXX and/or any other Indemnified Person may have at common law
or otherwise and shall remain in full force and effect following the completion
or any termination of your engagement. The COMPANY hereby consents to personal
jurisdiction and to service and venue in any court in which any claim which is
subject to this agreement is brought against X. XXXXX or any other Indemnified
Person.
It is understood that, in connection with X. XXXXX'x engagement, X. XXXXX may
also be engaged to act for the COMPANY in one or more additional capacities, and
that the terms of this engagement or any such additional engagement may be
embodied in one or separate written agreements. This indemnification shall apply
to said engagement, any such additional engagement(s) (whether written or oral)
and any modification of said engagement or such additional engagement(s) and
shall remain in full force and effect following the completion or termination of
said engagement or such additional engagements.
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XXXXXXXXXX
Memorandum of Understanding
September 23, 2006
Beginning in March of 2006, the 45th Research Institute and Xxxxxxxxxx have
engaged in a study of how we can jointly research, develop, design, manufacture,
sale and service in the Peoples Republic of China advanced next generation CMP
equipment for 300mm 65nm processes and beyond.
This study has been thorough and conducted in a spirit of cooperation with the
goal of developing a long term mutually beneficial partnership. We are confident
that, together, we can produce and distribute CMP products capable of competing
successfully in the global market place. We now desire to move forward in
partnership.
The main features of our partnership will be:
1. The 45th Research Institute and Xxxxxxxxxx will establish a joint venture
CMP company ("JV CMP Co.") in China.
2. The mission of JV CMP Co. will be to research, develop, design,
manufacture, sale and service advanced next generation CMP equipment for
300mm 65nm processes and beyond.
3. JV CMP Co. will be owned 50/50 by 45th Research Institute and Xxxxxxxxxx.
4. Xxxxxxxxxx will provide to JV CMP Co. an exclusive license to use
Xxxxxxxxxx'x CMP intellectual property, patents and designs in the Peoples
Republic of China.
5. Xxxxxxxxxx will provide to JV CMP Co. an exclusive license to manufacture
Xxxxxxxxxx'x CMP products in the Peoples Republic of China and will
provide sell and service jointly with JVCMP Co. in Asian countries and
regions.
6. Xxxxxxxxxx will provide JV CMP Co with equipment and comprehensive
assistance in all aspects of manufacturing, selling, servicing and process
development of such equipment.
7. 45th Research Institute will provide to JV CMP Co. manufacturing
facilities, staff and operating funds.
8. JV CMP Co. will provide to Xxxxxxxxxx an exclusive license to sell and
distribute JV CMP Co.'s products in the rest of the world.
9. JV CMP Co. will in principle purchase $10M of Xxxxxxxxxx stock at a
discount to Xxxxxxxxxx'x public market value, subject to appraisal of
Xxxxxxxxxx'x market value by an appraisal company to he hired by the 45th
Institute.
10. It is the intent of 45" Research Institute and Xxxxxxxxxx for JV CMP Co.
to become a public company at a future time determined to offer the best
return on our investment.
11. When agreement is reached and action is taken to establish the JV CMP Co.,
Xxxxxxxxxx and the 45" Institute will hold discussions on additional
cooperation on the development and manufacture of the grinding and
polishing products for the LED and the next generation semiconductor
materials.
12. Xxxxxxxxxx will confirm the export license requirements with relevant US
government agencies for establishing the JV CMP Co. to manufacture and
sell 300mm/65nm and beyond CMP equipment in China upon agreement of
working business model between the 45th Institute and Xxxxxxxxxx.
13. After signing of this MOU, both parties shall organize technical personnel
to prepare for a feasibility study report which will he presented to the
relevant Chinese government agency for seeking fund and support of such a
major special project.
Both parties agree that time is of the essence and to work together to finalize
our partnership in a legally binding agreement at the earliest possible date.
This MOU is subject to approval by the top management of each party.
45th Research Institute Xxxxxxxxxx
Xxx Xxxxxxxx, Director Xxxxx Xxxxxxxxxx, President
/s/ Xxx Xxxxxxxx /s/ Xxxxx Xxxxxxxxxx
09/23/06 10/07/06
