CONFIDENTIAL Date: 08/16/07
Exhibit
10.36
|
CONFIDENTIAL
|
Date:
08/16/07
|
GHL
Financial Services Ltd., Inc. (“GHL”) is please to be engaged by CardioVascular
BioTherapeutics, Inc. (the “Company”) to act as lead placement agent in the
proposed offering, issuance and sale of the Company’s securities (the
“Securities”) by the Company (the “Transaction”). The term of this letter
agreement (the “Agreement”) shall commence on the date hereof and continue until
it is terminated by either party given 30 days notice in writing.
In
connection with its engagement, GHL will perform services, which are normal
and
customary for a placement agent to perform in connection with the Transaction.
In this capacity, GHL will endeavor to obtain commitments from investors
(“Investors”) to purchase the Securities on a private placement basis in
compliance with Regulation S promulgated under the Securities Act of 1934 (the
“1934 Act”). Any financing arranged by GHL will be as the Company’s agent (on a
best efforts basis) and not on an underwritten basis. To facilitate our efforts
to place the Securities, you agree to direct all inquiries from prospective
Investors to GHL during the period this engagement is in effect.
The
Company agrees to pay GHL for its services, under this Agreement, a Transaction
Fee equal to 10% of aggregate gross proceeds received or to be received by
the
Company from the sale of Securities in any Transaction during the Term. Then
GHL
may disburse from that payment any necessary funds required to fulfill
obligations between GHL and sub placing agents.
If
during
the Term, the Company decides to conduct a purchase or sale transaction,
material acquisition or sale of assets or other extraordinary corporate
transaction or a public or private offering of Securities, the Company agrees
to
notify GHL and to provide GHL with a right of first refusal to act as the
exclusive financial advisor, lead placement agent or lead underwriter, as the
case may be, or such other role as necessary and appropriate, for any such
transaction or offering at fees and upon terms, customary and consistent with
industry practice that would be agreed between the Company and GHL in good
faith.
Nothing
contained herein constitutes a commitment on the part of the Company or GHL
to
complete any Transaction and GHL shall not have the power or authority to bind
the Company to any terms or conditions of a Transaction. It is understood and
agreed that this letter does not constitute a commitment by the Company to
offer, issue or sell any Securities or by GHL to purchase or underwrite the
sale
of any Securities.
The
Company will furnish GHL with such information and documents regarding the
Company and its business and financial condition (all such documents and
materials, including those documents and materials prepared for Investors and
all information filed by the Company with the Securities and Exchange Commission
(the “SEC”) shall be, the “Information”) as GHL reasonably believes relevant and
appropriate to its services under this Agreement. The Company agrees to
cooperate fully with GHL in connection with its engagement hereunder, including
making member of management and other employees available to GHL for purposes
of
satisfying GHL’s due diligence requirements and consummating the Transaction and
agrees to commit such time and other resources as are reasonably necessary
or
appropriate to secure reasonable and timely success of the Transaction. The
Company authorizes GHL to transmit to qualified prospective Investors copies
of
any public information regarding the Company and any purchase agreements or
other legal documentation approved by the Company for use in connection with
a
Transaction.
1
The
Company recognizes and agrees that in performing the services contemplated
in
this Agreement, GHL will be relying solely on the Information and that the
Information will not be independently verified by GHL. Accordingly, the Company
agrees that the Information, considered as a whole, will be complete and
accurate in all material respects and not misleading. In addition, the Company
agrees that all information regarding the Securities, including any term sheet,
descriptions or other documentation, shall be complete and accurate in all
respects and not misleading. The Company shall advise GHL promptly if it learns
of any material inaccuracy, any omission of a material fact or any misleading
statement in the Information or the Information regarding the Securities. The
Company agrees that GHL does not have any responsibility for the accuracy or
completeness of the Information; provided that the Company and its counsel
have
approved all information or materials presented to prospective Investors in
advance. The Company has timely filed all reports required to be filed under
the
1934 Act, as amended and any other material reports or documents required to
be
filed with the SEC. All such reports and documents and any registration
statements or prospectuses filed under the Act compiled, when filed, in all
material respects with all applicable requirements of the 1934 Act and the
Securities Act of 1933, as amended (the “Act”).
Neither
the Company nor any parties acting on its behalf will, directly or indirectly
except through GHL, offer or sell, or solicit any offer to buy, any of the
Securities during the Term. As used in this agreement, the terms “offer” and
“sale” have the meaning specified in Section 2(3) of the Act.
The
Company and GHL agrees to conduct the offering and sale of the Securities in
a
manner intended to comply with the registration or qualification requirements,
or available exemptions therefrom, under applicable state “blue sky” laws or the
securities laws of any other jurisdiction (collectively, the “Registration
Exemptions”). The Company has not engaged in any offering of its securities that
would jeopardize the availability of the Registration Exemptions.
In
the
event the Company requests that GHL deliver certain documents and information
relating to this engagement via electronic transmissions, the Company
acknowledges and agrees that the privacy and integrity of the electronic
transmissions cannot be guaranteed due to the possibility that third parties
could intercept, view or alter such electronic transmissions. To the extent
that
any documents or information relating to this engagement are transmitted
electronically, the Company agrees to release GHL from any loss or liability
incurred in connection with the electronic transmission of any such documents
and information, including the unauthorized interception, alteration or
fraudulent generation and transmission of electronic transmission by third
parties but excluding gross negligence and/or willful misconduct on GHL’s part.
Under no circumstances will GHL be liable for any ordinary, direct, indirect,
consequential, incidental, special, punitive or exemplary damages arising out
of
the foregoing, regardless of whether GHL has been apprised of the likelihood
of
such damages occurring.
2
The
Company acknowledges and agrees that GHL has been retained to act as lead
placement agent to the Company. In such capacity, GHL will act under this
Agreement as an independent contractor and any duties of GHL arising out of
its
engagement pursuant to this Agreement shall be owed solely to the Company.
It is
understood that GHL’s responsibility to the Company is solely contractual in
nature and that GHL does not owe the Company or any other party, any fiduciary
duty as a result of its engagement.
No
advice
rendered by GHL, whether formal or informal, may be quoted or referred to orally
or in writing, reproduced or disseminated, by the Company or any of its
affiliates (other than to officers, directors and legal counsel of the Company
on a need to know basis) except to the extent legally required (after
consultation with GHL and its counsel), without GHL’s prior written
consent.
The
scope
of GHL’s engagement shall be limited to those matters expressly set out in this
Agreement and shall not include tax, legal, regulatory, accountancy or other
technical advice or services. This letter shall not constitute an offer,
agreement or commitment to lend by GHL or its affiliates.
This
Agreement shall be governed by and construed in accordance with, the laws of
the
State of Nevada without regard to its conflicts of law principles. GHL and
the
Company (on its own behalf and to the extent permitted by law, on behalf of
its
security holders) each waives any right to trial by jury in any action, claim,
suit or proceedings with respect to GHL’s engagement as placement agent or its
services hereunder. Solely for the purpose of enforcing this agreement and
the
related indemnification letter agreement, each of the Company and GHL hereby
submits to the non-exclusive jurisdiction of any Federal or state court in
the
State of Nevada, City of Las Vegas and County and Xxxxx and irrevocably agrees
that all claims in respect of such action, claim, suit or proceeding may be
determined in any such court. Service of process, summons, notice or document
by
mail to the Company’s address set forth above shall be effective service of
process for any suit, action or other proceeding brought in such courts. Each
of
the Company and GHL irrevocably and unconditionally waives any objection to
the
laying of venue of any suit, action or other proceeding has been brought in
an
inconvenient forum. Each of the Company and GHL hereby waives all immunity
from
jurisdiction, service of process, attachment (both before and after judgment)
and execution to which it might otherwise be entitled with respect to any
immunity to the enforcement of any judgment relating to any such enforcement
action.
The
Company agrees that GHL, at its option and expense, has the right to place
advertisements in financial and other newspapers and journals describing its
services to the Company hereunder. The Company must approve the form of such
advertisement to be used in advance and in writing. If requested by GHL, the
Company shall include a mutually acceptable reference to GHL in the press
release (on other public announcements) made by the Company announcing the
Transaction, to the extent permitted by law.
3
Either
GHL or the Company without the written consent of the other party, which shall
not be unreasonably withheld, may not assign this Agreement. The benefits of
and
the obligations and liabilities assumed in, this Agreement shall inure to the
benefit of and be binding upon any successors and permitted
assigns.
No
waiver, amendment or other modification of this Agreement shall be effective
unless in writing and signed by each party to be bound thereby.
Compliance
Requirements for Subscriber(s) for Securities
GHL
represents and warrants to the Company that it will use its best efforts to
assure that (a) each Subscriber for Securities (the “Subscriber”), and, if
applicable, the beneficial owner(s) of the Securities being subscribed for
by
the Subscriber, is (i) not currently identified on the Specially Designated
Nationals and Blocked Persons List maintained by the Office of Foreign Assets
Control, Department of Treasury (“OFAC”) and/or on any other similar list
maintained by OFAC pursuant to any authorizing statute, Executive Order or
regulation (collectively, the “List”), and (ii) not a person or entity with whom
a citizen of the United States is prohibited to engage in transactions by any
trade embargo, economic sanction, or other prohibition of United States law,
regulation or Executive Order of the President of the United States; (b) none
of
the funds or other assets of the Subscriber constitute property of, or are
beneficially owned, directly or indirectly, by any Embargoed Person (as
hereinafter defined); (c) no Embargoed Person has any interest of any nature
whatsoever in the Subscriber (whether directly or indirectly); (d) none of
the
funds of the Subscriber invested in the Company have been derived from any
unlawful activity with the result that the investment in the Company is
prohibited by law; and (e) the Subscriber has implemented procedures, and will
consistently apply those procedures, to ensure the foregoing representations
and
warranties remain true and correct at all times. The term “Embargoed Person”
means any person, entity or government subject to trade restrictions under
United States law, including, but not limited to, the International Emergency
Economic Powers Act, 30 U.S.C.A. §1701 et seq., The Trading with the Enemy Act,
50 U.S.C. App 1 et seq., and any Executive Orders or regulations promulgated
thereunder with the result that the investment in the Company is prohibited
by
law or the Subscriber is in violation of law.
GHL
further represents and warrants that it will use its best efforts to assure
that
the Subscriber complies with all the requirements of United States law relating
to money laundering, now or hereafter in effect, including without limitation
the Money Laundering Control Act, 18 U.S.C. §§1956 and 1957, and the
International Money Laundering Abatement and Financial Anti-Terrorism Act of
2001, and all regulations under each of the foregoing.
4
If
the
foregoing meets with your approval, please sign both copies of this Agreement
and return one fully executed copy to us.
Very
truly yours,
GHL
Financial Services Ltd., Inc.
By_____/s/Xxxxx
Xxxxxx_______
Its_____President_____________
Agreed
and Accepted as of the Date First Written Above:
By___/s/Xxxxxxx
X. Xxxx________
Its____Chief
Financial Officer____
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