EXHIBIT 10.59
AGREEMENT setting forth the terms and conditions upon which TPG CAPITAL
CORPORATION ("TPG") is engaged by IVP TECHNOLOGY CORPORATION together with any
predecessors, successors, parents, subsidiaries and affiliated companies
(collectively "IVP") to effect transactions ("the Transactions") intended to
combine IVP with a United States reporting company and for related matters.
1. SERVICES PROVIDED.
Following its engagement, TPG and its affiliates will:
1.1. Inform IVP of the structure of the Transactions and actions to be
taken by IVP in preparation for the completion of the Transactions;
1.2. Combine IVP with an existing United States corporation ("the Business
Combination") which is reporting company under ss. 12(g) of the Securities
Exchange Act of 1934, as amended.
1.3. Prepare, assist in preparing or review the agreements for the
Business Combination ("Business Combination Agreement");
1.4. Prepare and file with Securities and Exchange Combination a Form 8-K
describing the Business Combination with the Company ("the Company" hereinafter
shall mean IVP following the Business Combination, unless the context requires
otherwise);
1.5. Take any other actions reasonably required of it to complete the
Transactions as contemplated by this Agreement.
2. BUSINESS COMBINATION.
2.1. TPG will provide, at its expense, a United States corporation ("the
Reporting Company") with audited financial statements showing no material assets
or liabilities which is a reporting company under ss. 12(g) of the Securities
Exchange Act of 1934 ("xxx 0000 Xxx"), and is current in its reporting
requirements under Section 13 of the 1934 Act.
3. PAYMENTS.
3.1. In full satisfaction for the services of TPG and its affiliates in
regard to the Transactions, IVP will make the payments to TPG as described
herein. All payments hereunder will be deemed accrued when paid and are
non-refundable.
3.2. On execution this agreement, IVP will deposit $200,000 with Xxxxxxx &
Associates, Washington, D.C. as the Exchange Agent under the Business
Combination Agreement. The Exchange Agent shall pay $100,000 to TPG upon the
Closing of the Business Combination and $100,000 on the filing of a Form 8-K
reporting the Business Combination.
3.3. Prior to the Closing of the Business Combination, IVP will deposit
with the Exchange Agent a certificate for 350,000 shares of its common stock
("the Exchange Shares") in the name of the shareholder of the Reporting Company
to be exchanged for the shares of the Reporting Company as part of the Business
Combination.
3.4. IVP will issue the Exchange Shares pursuant to Rule 504 of Regulation
D if possible, or otherwise pursuant to Rule 506 of Regulation D. IVP will
include the Exchange Shares in the first subsequent registration statement of
its securities on Form S-1 or SB-2, if any, without cost to TPG.
3.5. On the one year anniversary date of the execution of this agreement
("Reset Date"), the number of Exchange Shares shall be increased or deceased, if
and as required, so that the number of Exchange Shares times the average closing
bid of IVP's common stock for the 30 days immediately prior to the Reset Date
shall equal a value of $500,000. If, on the Reset Date the value of the Exchange
Shares is less than $500,000, IVP will issue to TPG additional shares valued as
described herein necessary to equal the difference between the value of the
Exchange Shares and $500,000. If, on the Reset Date, the value of the Exchange
Shares is more than $500,000, TPG will assign and transfer to IVP all Exchange
Shares in excess of $500,000 in value.
4. EXPENSES.
4.1. TPG will bear its expenses incurred in regard to the Transactions,
including without limitation, travel, telephone, duplication costs, and postage.
4.2. IVP will its own and third-party expenses (other than those of TPG)
including without limitation. Federal, state and Nasdaq filing fees,
underwriting and market makings costs, corporate financial relations, accounting
fees, duplicating costs and other expenses of the Company. TPG will not incur
any expenses on behalf of the Company unless permitted by it to do so in
writing.
5. AGREEMENT TO COMPLETE TRANSACTIONS.
IVP agrees that it will timely take all steps necessary to complete the
Transactions to include, without limitation, causing audited financial
statements to be prepared in proper form for IVP, obtaining consents of the
Board of Directors and the shareholders of IVP, as required causing all
necessary document to be property and timely prepared, executed, approved or
ratified, and filed, as appropriate, and timely taking all other actions
reasonably required of it to complete the Transactions.
6. PERFORMANCE OF SERVICES BY OTHERS.
From time to time, the achievement of certain results desired by the
Company, including the promotion of interest in its public securities may be
enhanced by the service of other parties. These parties may include consultants,
advertising agencies, financial analysts and similar persons, who may, directly
or indirectly, assist in creating interest in the Company's securities. All
compensation, costs and expenses of such parties, if engaged by the Company,
will be borne by it.
7. ACTIONS AND UNDERSTANDINGS FOLLOWING THE BUSINESS COMBINATION.
7.1. IVP understands the obligations and responsibilities of being a
reporting company and the trading of its securities in the public market. IVP
Understands that in order to achieve the greater market interest in its
securities it, its officers and its directors, all or some, will be required to
continuously interact with the financial community. This interaction will
include, without limitation, timely filing of reports under the Securities
Exchange Act of 1934, including audited financial statements; annual reports to
shareholders and shareholder meetings; issuing periodic press releases, and
meetings and discussions with existing and prospective brokers, market makers,
investment bankers and institutions.
7.2. IVP understands that the completion of the Transactions will not, in
itself, result in capital investment in the Company. The public status of the
Company and its introduction to market makers and others in the financial
community may result in investment interest. However, investment interest will
depend upon the success of the Company, market conditions and other factors over
which neither TPG nor its affiliates have any control.
2
7.3. IVP understands that the ultimate judgement of the financial
community of the investment merits of the Company will depend upon the Company's
ability to successfully carry out its business plans and operations, to operate
at a profit and similar business considerations. IVP represents in good faith
that it currently has no reason to believe that it will not be able to complete
the Transactions and to achieve its business objectives.
8. COMPLIANCE WITH SECURITIES LAW.
Now and following the Business Combination, as applicable, IVP represents
and warrants that:
8.1. IVP and its affiliates will at all times observe and comply with
Federal and State securities laws, rules and regulations incident to the
issuance and trading of the securities of the Company and will take all steps
reasonably required within its control to prohibit any persons, whether or not
affiliated with IVP, from engaging in any transactions in contravention of such
laws, rules and regulations.
8.2. IVP and its affiliates will furnish all information and documents
concerning it and its affiliates required for the preparation and filing of a
Form 8-K by the Company and will assure that such information is complete and
accurate and does not contain any material misstatement or omit any material
information. Toward that end, IVP and its affiliates will timely provide all
requested information and documents, including officers' and directors'
questionnaires.
8.3. IVP and its affiliates will not at any time knowingly engage in any
activity which would constitute a prohibited market manipulation of the
securities of the Company and will take all steps reasonably required within its
control to prohibit any officer, director, other affiliate, agent or employee
from engaging in such conduct.
8.4. For not less than 36 months following execution of this agreement,
the Company will not at any time issue securities registered on Form S-8 or
issued pursuant to Regulation S of the General Rules and Regulations of the
Securities and Exchange Commission without (i) prior written notification to TPG
and (ii) a written opinion of qualified counsel that neither the issuance nor
intended use of such securities will violate any law, rule, or regulation under
the Securities Act of 1933 or the Securities Exchange Act of 1934.
8.5. The Company will not issue any securities to any person for the
promotion or maintenance of a trading market in the Company's securities without
first receiving an opinion of qualified counsel that such issuance will be in
accord with securities laws, rules and regulations and will not, directly or
indirectly, receive from such persons any capital by loan, investment or
otherwise resulting from the sale or pledge of such securities.
8.6. For not less than 36 months following execution of this agreement,
the Company will timely make all required Federal, state and other filings
necessary to allow the public trading of the Company's securities and, if the
Company's securities are then quoted on the Nasdaq Stock Market or listed on any
regional or national exchange, will take all actions necessary to maintain such
status for the Company's securities.
8.7. For so long as TPG or its designee is an owner of any of the
securities to be received by it under this agreement, TPG shall have the right
to enforce the provisions of this paragraph.
9. NOTICES.
Any notices required or permitted under this agreement shall be deemed to
have been given when delivered in writing by hand, certified mail (return
receipt requested) or commercial courier, such as FedEx, to the following
addresses or to such other addresses as may have been given to each party in the
manner provided for in this paragraph:
3
In the case of IVP to
Xxxxx 000
00 Xxxxxxx Xxxxxx Xxxxx
Xxxxxxxxxxx, Xxxxxxx, Xxxxxx X0X 1VP
In the case of TPG to
TPG Capital Corporation
0000 X Xxxxxx X.X.
Xxxxxxxxxx, X.X. 00000
10. ARBITRATION.
10.1. SCOPE. The parties hereby agree that any and all claims (except only
for requests for injunctive or other equitable relief) whether existing now, in
the past or in the future as to which the parties or any affiliates may be
adverse parties, and whether arising out of this agreement or from any other
cause, will be resolved by arbitration before the American Arbitration
Association within the District of Columbia.
10.2. CONSENT TO JURISDICTION, SITUS AND JUDGEMENT. The parties hereby
irrevocably consent to the jurisdiction of the American Arbitration Association
and the situs of the arbitration (and of any action for injunctive or other
equitable relief) within the District of Columbia. Any award in arbitration may
be entered in any domestic or foreign court having jurisdiction over the
enforcement of such awards.
10.3. APPLICABLE LAW. The law applicable to the arbitration and this
agreement shall be that of the state of Delaware, determined without regard to
its provisions which would otherwise apply to a question of conflict of laws.
10.4. DISCLOSURE AND DISCOVERY. The arbitrator may, in its discretion,
allow the parties to make reasonable disclosure and discovery, in regard to any
matters which are the subject of the arbitration and to compel compliance with
such disclosure and discovery order. The arbitrator may order the parties to
comply with all or any of the disclosure and discovery provisions of the Federal
Rules of Civil Procedure, as they then exist, as may be modified by the
arbitrator consistent with the desire to simply the conduct and minimize the
expense of the arbitration.
10.5. RULES OF LAW. Regardless of any practices of arbitration to the
contrary, the arbitrator will apply the rules of contract and other law of the
jurisdiction whose law applies to the arbitration so that the decision of the
arbitrator will be, as much as possible, the same as if the dispute had been
determined by a court of competent jurisdiction.
10.6. FINALITY AND FEES. Any award or decision by the American Arbitration
Association shall be final, binding and non-appealable except as to errors of
law or the failure of the arbitrator to adhere to the arbitration provisions
contained in this agreement. Each party to the arbitration shall pay its own
costs and counsel fees except as specifically provided otherwise in this
agreement.
10.7. MEASURE OF DAMAGES. In any adverse action, the parties shall
restrict themselves to claims for compensatory damages and\or securities issued
or to be issued and no claims shall be made by any party or affiliate for lost
profits, punitive or multiple damages.
10.8. COVENANT NOT TO XXX. The parties covenant that under no conditions
will any party or any affiliate file any action against the other (except only
requests for injunctive or other equitable relief) in any forum other than
before the American Arbitration Association, and the parties agree that any such
action, if filed, shall be dismissed upon application and shall be referred for
arbitration hereunder with costs and attorney's fees to the prevailing party.
4
10.9. INTENTION. It is the intention of the parties and their affiliates
that all disputes of any nature between them, whenever arising, whether in
regard to this agreement or any other matter, from whatsoever cause, based on
whatever law, rule or regulation, whether statutory or common law, and however
characterized, be decided by arbitration as provided herein and that no party or
affiliate be required to litigate in any other forum any disputes or other
matters except for requests for injunctive or equitable relief. This agreement
shall be interpreted in conformance with this stated intent of the parties and
their affiliates.
10.10. SURVIVAL. The provisions for arbitration contained herein shall
survive the termination of this agreement for any reason.
11. ASSIGNMENT.
In order to better carry out the Transactions, TPG may assign all or
parts of this agreement provided that the assignee agrees to all the terms and
conditions of this agreement pertaining to such assignment. An assignment will
relieve TPG of any of its obligations under this agreement.
12. CONFIDENTIALITY.
As a result of entering into this agreement, IVP will have access to
information which TPG regards as confidential and proprietary regarding TPG's
methods of carrying out the Transactions (collectively the "Business of TPG").
IVP agrees that it will not, except as reasonably required pursuant to this
Agreement, use itself, or divulge, furnish, or make accessible to any person ay
knowledge, knowhow, techniques, or information with respect to TPG or the
Business of TPG without the prior written agreement of TPG.
13. TERMINATION.
TPG may terminate this agreement, without further obligation or liability,
at any time (i) that TPG has a reasonable basis to believe that any aspect of
the transactions covered by this agreement would constitute a fraud or deception
on the market or (ii) that the Company fails to meet its obligations under this
agreement in a manner which would constitute a material breach. In any such
case, TPG will be entitled to retain all payments to it made or accrued prior to
such termination.
14. MISCELLANEOUS.
14.1. COVENANT OF FURTHER ASSURANCE. The parties agree to take any further
actions and to execute any further documents which may from time to time be
necessary or appropriate to carry out the purposes of this agreement.
14.2 SCOPE OF AGREEMENT. This agreement constitutes the entire
understanding of the parties. No undertakings, warranties or representations
have been made other than as contained herein, and no party shall assert
otherwise. This agreement may not be changed or amended orally.
14.3 CURRENCY. All references to currency in this agreement are to United
Sates Dollars.
14.4. REVIEW OF AGREEMENT. Each party acknowledges that it has had time to
review this agreement and, as desired, consult with counsel. In the
interpretation of this agreement, no adverse presumption shall be made against
any party on the basis that it has prepared, or participated in the preparation
of, this agreement.
15. EFFECTIVE DATE.
The effective date of this agreement is March 17, 2000.
[ILLEGIBLE TEXT.]
5
IN WITNESS WHEREOF, the parties have approved and executed this agreement.
TPG CAPITAL CORPORATION
[ILLEGIBLE SIGNATURE]
-----------------------------------
[ILLEGIBLE]
IVP TECHNOLOGY CORPORATION
[ILLEGIBLE SIGNATURE]
-----------------------------------
[ILLEGIBLE]
6
