Exhibit 10.1
Casimir Capital, LP
000 Xxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
March 11, 2005
MIV Therapeutics, Inc.
0-0000 Xxx Xxxxxx
Xxxxxxxxx, X.X., Xxxxxx, X0X 0X0
Attention: Xxxx Xxxxxxx, Chief Executive Officer
Ladies and Gentlemen:
MIV Therapeutics, Inc., a Nevada corporation (the "Company"), hereby confirms
its agreement (the "Agreement") with Casimir Capital L.P. (the "Placement
Agent"), as follows (unless the context otherwise requires, as used herein, the
"Company" refers to MIV Therapeutic, Inc. and each of its subsidiaries, if any):
1. OFFERING.
(a) The Company is offering to sell (the "Offering"), pursuant to a
Securities Purchase Agreement to be entered into by and among the Company and
each investor (the "Securities Purchase Agreement"), through the Placement Agent
as exclusive agent for the Company, up to $1,000,000 principal amount of senior
convertible debentures (the "Debentures") and warrants (the "Warrants," and
together with the Debentures, the "Securities") to purchase up to 2,000,000
shares of Common Stock, par value $0.001 per share of the Company (the "Common
Stock").
(b) The Offering will commence on the date hereof (the "Commencement
Date"), and shall continue until April 30, 2005 (the "Offering Period"). The
date on which the Offering shall terminate shall be referred to as the
"Termination Date."
(c) The Placement Agent shall not tender to the Company and the Company
shall not accept subscriptions from, or sell Securities to, any persons or
entities that do not qualify as (or are not reasonably believed to be)
"accredited investors," as such term is defined in Rule 501 of Regulation D
("Regulation D") promulgated under Section 4(2) of the Securities Act of 1933,
as amended (the "Act").
(d) The offering of the Securities will be made by the Placement Agent
on behalf of the Company solely pursuant to the Securities Purchase Agreement,
which at all times will be in form and substance reasonably acceptable to the
Placement Agent, the Company and their respective counsel and contain such
legends and other information as the Placement Agent, the Company and their
respective counsel may, from time to time, deem reasonably necessary and
desirable to be set forth therein.
2. REPRESENTATIONS AND WARRANTIES. All representations and warranties to be
contained in the Securities Purchase Agreement by and among the Company and the
investors in the Offering shall be incorporated by reference within this
Agreement as if made herein directly by the Company to the Placement Agent. In
addition to the foregoing, the Company hereby represents and warrants to the
Placement Agent that:
(a) The Company is a corporation duly organized, validly existing and
in good standing under the laws of its jurisdiction of incorporation. The
Company has no subsidiaries and does not have an equity interest in any other
firm, partnership, association or other entity other than M-I Vascular
Innovations, Inc. (Delaware) and MIVI Technologies, Inc. (Yukon). The Company is
duly qualified to transact business as a foreign corporation and is in good
standing under the laws of each jurisdiction where the location of its
properties or the conduct of its business makes such qualification necessary,
except where the failure to be so qualified would not have a material adverse
effect on the Company or its business.
(b) The Company has all requisite power and authority to conduct its
business as presently conducted and as proposed to be conducted, to enter into
and perform its obligations under this Agreement and, immediately prior to the
Initial Closing (as hereinafter defined), the other agreements contemplated
hereby and by the Securities Purchase Agreement, and immediately prior to the
Initial Closing (as hereinafter defined) will have all requisite power and
authority to issue, sell and deliver the Securities, the shares of the Common
Stock issuable upon conversion of the Debentures ("Conversion Shares") and the
shares of the Common Stock issuable upon exercise of the Warrants ("Warrant
Shares"). Upon due execution and delivery, this Agreement will constitute the
valid and binding obligations of the Company, enforceable against the Company in
accordance with their respective terms, subject to any applicable bankruptcy,
insolvency or other laws affecting the rights of creditors generally and to
general equitable principles and the availability of specific performance.
(c) None of the execution and delivery of, or performance by the
Company under this Agreement will conflict with or violates, or will result in
the creation or imposition of, any lien, charge or other encumbrance upon any of
the assets of the Company under any agreement or other instrument to which the
Company is a party or by which the Company or its assets may be bound, or any
term of the charter or by-laws of the Company, or any license, permit, judgment,
decree, order, statute, rule or regulation applicable to the Company or any of
its assets.
(d) No consent, authorization or filing of or with any court or
government authority is required in connection with the consummation of the
transactions contemplated herein, except for required filings with the SEC and
applicable "Blue Sky" or state securities commissions relating specifically to
the Offering (all of which will be duly made on a timely basis).
(e) The Securities Purchase Agreement will not include any untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading. There is no fact which
the Company has not disclosed to the Agent of which the Company is aware which
materially and adversely affects or could reasonably be expected to materially
and adversely affect the business, financial condition, operations or property
of the Company or any of its subsidiaries taken as a whole.
(f) Except as set forth in the Securities Purchase Agreement, the
Company is not obligated to pay, and has not obligated the Agent to pay, a
finder's or origination fee in connection with the Offering and agrees to
indemnify the Agent from any such claim made by any other person.
3. PLACEMENT AGENT APPOINTMENT AND COMPENSATION.
(a) In accordance with the terms hereof, the Company hereby appoints
the Placement Agent and its selected dealers, as its exclusive agent in
connection with the Offering. The Company acknowledges that the Placement Agent
may use selected dealers and sub agents to fulfill its agency hereunder;
provided that such dealers and sub agents are compensated solely by the
Placement Agent; provided, further, that the Placement Agent shall ensure that
such selected dealers and sub agents are provided with a copy of this Agreement
and agree to be bound by the terms hereof to the same extent as if they were
parties hereto. The Placement Agent shall, in any event, be responsible for any
breach of this Agreement by any such dealers or sub agents. Except as expressly
stated herein, the Company has not and will not make, or permit to be made, any
offers or sales of the Securities other than through the Placement Agent without
the Placement Agent's prior written consent. The Placement Agent has no
obligation to purchase any of the Securities. The agency of the Placement Agent
hereunder shall continue until the earlier of the Termination Date or the Final
Closing (as defined below).
(b) The Company will cause to be delivered to the Placement Agent
copies of the Securities Purchase Agreement and has consented, and hereby
consents, to the use of such copies for the purposes permitted by the Act and
applicable securities laws, and hereby authorizes the Placement Agent and its
agents, employees and selected dealers to use the Securities Purchase Agreement
in connection with the sale of the Securities until the Termination Date, and no
other person or entity is or will be authorized to give any information or make
any representations other than those contained in the Securities Purchase
Agreement or to use any offering materials other than those contained in the
Securities Purchase Agreement in connection with the sale of the Securities. The
Company will provide at its own expense such quantities of the Securities
Purchase Agreement and other documents and instruments relating to the Offering
as the Placement Agent may reasonably request.
(c) Subject to Section 13 hereof, the Company will cooperate with the
Placement Agent by making available to its representatives such information as
may be requested in making a reasonable investigation of the Company and its
affairs and shall provide access to such employees as shall be reasonably
requested in connection with the performance of the Placement Agent's
obligations hereunder.
(d) The Company shall pay to the Placement Agent a placement fee (the
"Placement Agent's Fee") equal to ten percent (10%) of the aggregate gross
proceeds in each closing of the sale of the Securities (each, a "Closing"). In
addition, the Company shall pay all expenses set forth in Section 5(i) hereof.
The Placement Agent's Fee and the expenses set forth in Section 5(i) hereof will
be deducted from the gross proceeds of the Securities sold at each Closing, as
set forth in Section 4 hereof. The Placement Agent shall direct all such amounts
to be paid directly from the escrow account established pursuant to Section 4(b)
hereof.
(e) As additional compensation hereunder, at each Closing, the Company
shall sell to the Placement Agent or its designees, for nominal consideration,
warrants to purchase the number of shares of Common Stock equal to fifteen
percent (15%) of the shares of Common Stock underlying the Warrants sold in each
Closing (the "Agent's Warrants"), at an exercise price equal to the exercise
price of the Warrants sold at such Closing. The shares of Common Stock
underlying the Agent's Warrants shall be referred to collectively herein as the
"Agent's Shares" and, together with the Agent's Warrants, as the "Agent's
Securities". The Agent's Warrants shall be exercisable until five years after
their date of issuance. The holders of the Agent's Securities shall have
registration rights equivalent to those granted to the holders of Securities.
The form of the Agent's Warrants shall be substantially similar to the Warrants,
except that the Agent's Warrants shall contain cashless exercise provisions for
the entire term of the Agent's Warrant.
(f) In the event any investor in the Offering, whose investment shall
be evidenced by the execution and delivery by such investor to the Company of a
Securities Purchase Agreement (or other similar agreement), or any other party
contacted by the Placement Agent in connection with the Offering, invests in the
Company at any time within eighteen (18) months from the later of the
Termination Date or the final Closing (the "Final Closing") of the Offering, the
Company shall pay to the Placement Agent cash and warrant compensation with
respect to such investment or consideration equal to that which is set forth
herein with respect to the Offering.
(g) The parties agree that the Placement Agent shall have the right to
conduct the Company's next public or pipe financing after the date hereof on
terms and conditions consistent with the then current pipe market for issuers in
the same industry as, and of similar size to, the Company.
4. SUBSCRIPTION AND CLOSING PROCEDURES.
(a) Each prospective purchaser will be required to complete and execute
one original omnibus signature page to the Securities Purchase Agreement and the
accredited investor certification attached thereto, which will be forwarded or
delivered to the Placement Agent at the Placement Agent's offices at the address
set forth in Section 11 hereof, together with the subscriber's check or good
funds in the full amount of the purchase price per Security for the number of
Securities desired to be purchased.
(b) All funds for subscriptions received from the Offering will be
promptly forwarded by the Placement Agent or the Company, if received by it, to
and deposited in an escrow account (the "Escrow Account") with Signature Bank,
acting as escrow agent (the "Escrow Agent") established for the purpose of
holding subscription funds prior to a Closing. All such funds for subscriptions
will be held in the Escrow Account pursuant to the terms of the escrow agreement
with respect thereto among the Company, the Placement Agent and the Escrow
Agent. The Company will pay all fees related to the establishment and
maintenance of the Escrow Account. The Placement Agent can reject any
subscriptions for any reason. The Company will either accept or reject the
Securities Purchase Agreements in a timely fashion and at each Closing will
countersign the Securities Purchase Agreements and provide copies of such
agreements to the Placement Agent. The Company will give written notice to the
Placement Agent of its acceptance or rejection of each subscription. The
Company, or the Placement Agent on the Company's behalf, will promptly return to
subscribers incomplete, improperly completed, improperly executed and rejected
subscriptions and give written notice thereof to the Placement Agent upon such
return.
(c) Once subscriptions for Securities have been accepted by the Company
and all of the conditions set forth elsewhere in this Agreement are fulfilled,
an initial closing shall be held promptly with respect to the Securities sold
(the "First Closing"). Thereafter, the remaining Securities will continue to be
offered and sold in accordance with the terms hereof until the Termination Date.
Additional Closings may from time to time be conducted at times mutually
agreeable with respect to the additional Securities sold, with the Final Closing
to occur within ten (10) days after the earlier of the Termination Date or the
sale of all Securities offered. Delivery of payment for the accepted
subscriptions from the funds held in the Escrow Account will be made at each
Closing at the Placement Agent's offices against delivery by the Company of the
Securities comprising the Securities at the address set forth in Section 11
hereof (or at such other place as may be mutually agreed upon between the
Company and the Placement Agent), net of amounts due to the Placement Agent
pursuant to Section 5(i) hereof as of such Closing. Executed Securities and the
Agent's Warrants will be in such authorized denominations and issued in such
names as the Placement Agent may request on or before the second full business
day prior to the date of each Closing ("Closing Date"), and will be made
available to the Placement Agent for review and packaging at the Placement
Agent's office at least one full business day prior thereto.
(d) If subscriptions for Securities have not been received and accepted
by the Company on or before the Termination Date for any reason, the Offering
will be terminated, no Securities will be sold, and the Escrow Agent will, at
the request of the Placement Agent, cause all monies received from subscribers
for the Securities to be promptly returned to such subscribers without interest,
penalty, expense or deduction.
5. FURTHER COVENANTS. The Company hereby covenants and agrees that:
(a) The Company agrees that it shall modify or supplement the
Securities Purchase Agreement during the course of the Offering to ensure that
the Securities Purchase Agreement does not contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein, in light of the circumstances in
which they were made, not misleading, and shall, at its sole cost, prepare and
furnish to the Placement Agent copies of appropriate amendments and/or
supplements in such quantities as the Placement Agent may reasonably request.
The Company will not at any time, whether before or after the Final Closing,
prepare or use any amendment or supplement to the Securities Purchase Agreement
of which the Placement Agent will not previously have been advised and furnished
with a copy, or to which the Placement Agent or its counsel will have objected
in writing or orally (confirmed in writing within 24 hours), or which is not in
compliance with the Act, the Regulations and other applicable securities laws.
(b) Except with the prior written consent of the Placement Agent, which
consent shall not be unreasonably withheld, the Company shall not, at any time
prior to the Final Closing, take any action that would cause any of the
representations and warranties made by it in this Agreement not to be complete
and correct in all material respects on and as of each Closing Date with the
same force and effect as if such representations and warranties had been made on
and as of each such date.
(c) As soon as practicable following notification thereof, the Company
will advise the Placement Agent and its counsel, and confirm the advice in
writing, of any order preventing or suspending the use of the Securities
Purchase Agreement, or the suspension of the qualification or registration of
the Securities for offering or the suspension of any exemption for such
qualification or registration of the Securities for offering in any
jurisdiction, or of the institution or threatened institution of any proceedings
for any of such purposes, and the Company will use its reasonable best efforts
to prevent the issuance of any such order, judgment or decree, and, if issued,
to obtain as soon as reasonably practicable the lifting thereof.
(d) The Company shall comply in all material respects with the Act, the
rules and regulations of the Securities and Exchange Commission (the "SEC"), the
1934 Act, and the rules and regulations thereunder in each case applicable to
the offer and sale of the Securities, and all applicable state securities laws
and the rules and regulations thereunder in the states in which the Placement
Agent's Blue Sky counsel has advised the Placement Agent that the Securities are
qualified or registered for sale or exempt from such qualification or
registration (except to the extent that such qualification or registration would
require the Company to be qualified to do business in such state or states), so
as to permit the continuance of the sales of the Securities, and will file with
the SEC, and shall promptly thereafter forward to the Placement Agent, any and
all reports on Form D as are required.
(e) The Company shall use its reasonable best efforts to qualify the
Securities for sale (or seek exemption therefrom) under the securities laws of
such jurisdictions in the United States as the Placement Agent shall designate,
and the Company will (through Blue Sky counsel) make such applications and
furnish information as may be required for such purposes. The Company will, from
time to time, prepare and file such statements and reports as are or may be
required to continue such qualifications in effect for so long a period as the
Placement Agent may reasonably request.
(f) The Company shall place a legend on the certificates representing
the Securities issued to subscribers stating that the securities evidenced
thereby have not been registered under the Act or applicable state securities
laws, setting forth or referring to the applicable restrictions on
transferability and sale of such securities under the Act and applicable state
laws.
(g) During the Offering Period, the Company shall afford each
prospective purchaser of Securities the opportunity to ask questions of and
receive answers from an officer of the Company concerning the terms and
conditions of the Offering and the opportunity to obtain such other additional
information necessary to verify the accuracy of the Securities Purchase
Agreement to the extent it possesses such information or can acquire it without
unreasonable expense.
(h) Except with the prior written consent of the Placement Agent, which
consent shall not be unreasonably withheld, the Company shall not, at any time
prior to the earlier of the Final Closing or the Termination Date, engage in or
commit to engage in any transaction outside the ordinary course of business,
including, without limitation, the incurrence of material indebtedness;
materially change its business or operations as shall be described in the SEC
Reports (as that term is defined in the Securities Purchase Agreement); dispose
of any material assets or make any material acquisition; or issue, agree to
issue or set aside for issuance any securities (debt or equity) or any right to
acquire such securities, except as shall be contemplated by the Securities
Purchase Agreement. Notwithstanding the preceding sentence, the Company may
issue (i) compensatory option grants to employees and consultants in the
ordinary course of business pursuant to option plans presently in effect, (ii)
shares of its Common Stock upon exercise of outstanding options or warrants or
conversion of outstanding convertible securities and (iii) securities included
in the Securities sold in the Offering and the Agent's Warrants.
(i) Whether or not the Offering is consummated, or this Agreement is
terminated, the Company hereby agrees to pay all of its fees, costs and expenses
incident hereto and to the Offering, including, without limitation, those in
connection with (i) preparing and distributing all necessary offering documents
and instruments related to the Offering; (ii) the authorization, issuance,
transfer and delivery of the Securities, Conversion Shares, Warrant Shares and
the Agent's Securities, including, without limitation, fees and expenses of any
transfer agent or registrar; (iii) the fees and expenses of the Escrow Agent
(subject to Section 4(b) hereof); (iv) all fees and expenses of legal,
accounting and other advisers to the Company; (v) all filing fees, costs and
legal fees and expenses for Blue Sky services and related filings with respect
to Blue Sky exemptions and qualifications (the "Blue Sky Fees"); and (i) subject
to Section 9 hereof, a nonaccountable expense allowance ("Placement Agent
Expenses") relating to expenses incurred by the Placement Agent in connection
with the Offering (including, without limitation, travel and related expenses
and fees and expenses of legal, accounting and other advisers to the Placement
Agent) equal to $10,000. The Placement Agent Expenses will be deducted from the
gross proceeds of the Securities sold at the First Closing.
(j) Until the Termination Date, neither the Company nor any person or
entity acting on its behalf will negotiate or enter into any agreement with any
other placement agent or underwriter with respect to a private or public
offering of the Company's or any subsidiary's debt or equity securities. Neither
the Company nor anyone acting on its behalf will, until the Termination Date,
without the prior written consent of the Placement Agent, offer for sale to, or
solicit offers to subscribe for Securities or other securities of the Company
from, or otherwise approach or negotiate in respect thereof with, any other
person.
(k) The Company shall apply the net proceeds from the sale of the
Shares to fund its working capital requirements and for acquisitions.
6. CONDITIONS OF PLACEMENT AGENT'S OBLIGATIONS. The obligations of the Placement
Agent hereunder are subject to the fulfillment, at or before each Closing, of
the following additional conditions:
(a) Each of the representations and warranties of the Company contained
in this Agreement which are qualified as to materiality shall have been true and
correct, and the representations and warranties of the Company which are not
qualified to materiality shall have been true and correct in all material
respects, in each case, as of the date of this Agreement and as of each Closing
Date as though made on and as of each Closing Date, except to the extent any
such representation or warranty expressly speaks of a particular date, in which
case it shall be true and correct as of such date.
(b) The Company shall have performed and complied in all material
respects with all agreements, covenants and conditions required to be performed
and complied with by it hereunder at or before each Closing.
(c) No order suspending the use of the Securities Purchase Agreement or
enjoining the offering or sale of the Securities shall have been issued, and no
proceedings for that purpose or a similar purpose shall have been initiated or
pending, or, to the best of the Company's knowledge, are contemplated or
threatened.
(d) The Placement Agent shall have received certificates of the Chief
Executive Officer of the Company, dated as of the applicable Closing Date,
certifying: (i) the adoption by the Company's Board of Directors of attached
resolutions authorizing, among other things, the execution and delivery of this
Agreement and the Ancillary Agreements and the consummation of the transactions
contemplated herein, and (ii) the incumbency and signatures of the officers of
the Company executing this Agreement, the Ancillary Agreements and the other
agreements and instruments contemplated herein..
(e) The Company shall have delivered to the Placement Agent a currently
dated good standing certificate from the Secretary of State of Nevada and each
jurisdiction in which the Company is qualified to do business as a foreign
corporation.
(f) On or prior to the date hereof and at each Closing, the Company
shall have delivered to the Placement Agent a certificate of an authorized
officer of the Company certifying that the representations and warranties of the
Company contained in this Agreement and in each certificate or document
delivered by the Company to the Placement Agent and Investors in connection with
the transactions contemplated hereby and thereby are true and correct when made
on the date hereof and shall be true and correct in all material respects on and
as of the Closing Date, as though made on and as of such date and the Company
shall have performed all obligations and complied in all material respects with
all agreements, undertakings, covenants and conditions required hereunder or
thereunder to be performed by it prior to the Closing.
(g) At each Closing, the Company shall have (i) paid to the Placement
Agent the Placement Agent's Fee in respect of all Securities sold at such
Closing, (ii) paid all fees, costs and expenses set forth in Section 5(i)
hereof, and (iii) executed and delivered to the Placement Agent the Agent's
Warrants in an amount proportional to the Securities sold at such Closing.
(h) There shall have been delivered to the Placement Agent a signed
opinion of outside counsel to the Company, dated as of each Closing Date, in
substantially the form attached hereto as Exhibit A.
7. INDEMNIFICATION.
(a) The Company will (i) indemnify and hold harmless the Placement
Agent, its selected dealers and their respective officers, directors, employees
and each person, if any, who controls the Placement Agent within the meaning of
the Act and such selected dealers (each an "Indemnitee") against, and pay or
reimburse each Indemnitee for, any and all losses, claims, damages, liabilities
or expenses whatsoever (or actions or proceedings or investigations in respect
thereof), joint or several (which will, for all purposes of this Agreement,
include, but not be limited to, all reasonable costs of defense and
investigation and all reasonable attorneys' fees, including appeals)
(collectively, a "Claim"), to which any Indemnitee may become subject, under the
Act or otherwise, in connection with the offer and sale of the Securities,
whether such losses, claims, damages, liabilities or expenses shall result from
any claim of any Indemnitee or any third party; and (ii) reimburse each
Indemnitee for any legal or other expenses reasonably incurred in connection
with investigating or defending against any such loss, claim, action, proceeding
or investigation; provided, however, that the Company will not be liable in any
such case to the extent that any such claim, damage or liability results
directly and primarily from (A) an untrue statement or alleged untrue statement
of a material fact made in the Securities Purchase Agreement, or an omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, in reliance upon and
in conformity with written information furnished to the Company by the Placement
Agent or any such controlling persons specifically for use in the preparation
thereof, or (B) any violations by the Placement Agent of the Act or state
securities laws which does not result from a violation thereof or a breach
hereafter by the Company or any of its affiliates. In addition to the foregoing
agreement to indemnify and reimburse, the Company will indemnify and hold
harmless each Indemnitee against any and all Claims to which any Indemnitee may
become subject insofar as such costs, expenses, losses, claims, damages or
liabilities arise out of or are based upon the claim of any person or entity
that he or it is entitled to broker's or finder's fees from any Indemnitee in
connection with the Offering. Notwithstanding the foregoing, in no event shall
this Section 7(a) apply with respect to any Claim that is finally judicially
determined to have resulted primarily from the gross negligence or willful
misconduct of any Indemnitee.
(b) The Placement Agent will indemnify and hold harmless the Company,
its officers, directors, employees and each person, if any, who controls the
Company within the meaning of the Act against, and pay or reimburse any such
person for, any and all losses, claims, damages or liabilities or expenses
whatsoever (or actions, proceedings or investigations in respect thereof) to
which the Company or any such person may become subject under the Act or
otherwise, whether such losses, claims, damages, liabilities or expenses (or
actions, proceedings or investigations in respect thereof) shall result from any
claim of the Company, any of its officers, directors, employees, agents, any
person who controls the Company within the meaning of the Act or any third
party, insofar as such losses, claims, damages or liabilities are based upon any
untrue statement or alleged untrue statement of any material fact contained in
the Securities Purchase Agreement but only with reference to information
contained in the Securities Purchase Agreement relating to the Placement Agent,
or an omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not misleading, if
made or omitted in reliance upon and in conformity with written information
furnished to the Company by the Placement Agent or any such controlling persons,
specifically for use in the preparation thereof. The Placement Agent will
reimburse the Company or any such person for any legal or other expenses
reasonably incurred in connection with investigating or defending against any
such loss, claim, damage, liability or action, proceeding or investigation to
which such indemnity obligation applies. Notwithstanding the foregoing, in no
event shall the Placement Agent's indemnification obligation hereunder exceed
the amount of the Placement Agent's Fees actually received by it.
(c) Promptly after receipt by an indemnified party under this Section 7
of notice of the commencement of any action, claim, proceeding or investigation
("Action"), such indemnified party, if a claim in respect thereof is to be made
against the indemnifying party under this Section 7, will notify the
indemnifying party of the commencement thereof, but the omission to so notify
the indemnifying party will not relieve it from any liability which it may have
to any indemnified party under this Section 7 unless the indemnifying party has
been substantially prejudiced by such omission. The indemnifying party will be
entitled to participate in, and, to the extent that it may wish, jointly with
any other indemnifying party, to assume the defense thereof subject to the
provisions herein stated, with counsel reasonably satisfactory to such
indemnified party. The indemnified party will have the right to employ separate
counsel in any such Action and to participate in the defense thereof, but the
fees and expenses of such counsel will not be at the expense of the indemnifying
party if the indemnifying party has assumed the defense of the Action with
counsel reasonably satisfactory to the indemnified party; provided, however,
that if the indemnified party shall be requested by the indemnifying party to
participate in the defense thereof or shall have concluded in good faith and
specifically notified the indemnifying party either that there may be specific
defenses available to it which are different from or additional to those
available to the indemnifying party or that such Action involves or could have a
material adverse effect upon it with respect to matters beyond the scope of the
indemnity agreements contained in this Agreement, then the counsel representing
it, to the extent made necessary by such defenses, shall have the right to
direct such defenses of such Action on its behalf and in such case the
reasonable fees and expenses of such counsel in connection with any such
participation or defenses shall be paid by the indemnifying party. No settlement
of any Action against an indemnified party will be made without the consent of
the indemnifying party and the indemnified party, which consent shall not be
unreasonably withheld or delayed in light of all factors of importance to such
party and no indemnifying party shall be liable to indemnify any person for any
settlement of any such claim effected without such indemnifying party's consent.
8. CONTRIBUTION. To provide for just and equitable contribution, if (i) an
indemnified party makes a claim for indemnification pursuant to Section 7 hereof
and it is finally determined, by a judgment, order or decree not subject to
further appeal that such claims for indemnification may not be enforced, even
though this Agreement expressly provides for indemnification in such case; or
(ii) any indemnified or indemnifying party seeks contribution under the Act, the
1934 Act, or otherwise, then each indemnifying party shall contribute to such
amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Company on the one hand and the Placement Agent on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages, liabilities or expenses (or actions in respect thereof), as
well as any other relevant equitable considerations. The relative benefits
received by the Company on the one hand and the Placement Agent on the other
shall be deemed to be in the same proportion as the total net proceeds from the
Offering (before deducting expenses) received by the Company bear to the total
commissions and fees received by the Placement Agent. The relative fault, in the
case of an untrue statement, alleged untrue statement, omission or alleged
omission will be determined by, among other things, whether such statement,
alleged statement, omission or alleged omission relates to information supplied
by the Company or by the Placement Agent, and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement, alleged statement, omission or alleged omission. The Company and the
Placement Agent agree that it would be unjust and inequitable if the respective
obligations of the Company and the Placement Agent for contribution were
determined by pro rata allocation of the aggregate losses, liabilities, claims,
damages and expenses or by any other method or allocation that does not reflect
the equitable considerations referred to in this Section 8. No person guilty of
a fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
will be entitled to contribution from any person who is not guilty of such
fraudulent misrepresentation. For purposes of this Section 8, each person, if
any, who controls the Placement Agent within the meaning of the Act will have
the same rights to contribution as the Placement Agent, and each person, if any,
who controls the Company within the meaning of the Act will have the same rights
to contribution as the Company, subject in each case to the provisions of this
Section 8. Anything in this Section 8 to the contrary notwithstanding, no party
will be liable for contribution with respect to the settlement of any claim or
action effected without its written consent. This Section 8 is intended to
supersede, to the extent permitted by law, any right to contribution under the
Act, the 1934 Act or otherwise available.
9. TERMINATION.
(a) (I) The Offering may be terminated by the Placement Agent at any
time prior to the expiration of the Offering Period in the event that (i) any of
the representations or warranties of the Company contained herein shall have
been false or misleading in any material respect when made or deemed made, (ii)
the Company shall have failed to perform in any material respect any of its
obligations hereunder, (iii) the Company shall have determined for any reason
not to continue with the Offering or (iv) the Placement Agent shall determine in
its sole discretion, reasonably exercised, that it is reasonably likely that any
of the conditions to Closing set forth herein will not, or cannot, be satisfied.
In the event of any such termination occasioned by or arising out of or in
connection with the matters set forth in clauses (i)-(iii) above, or occasioned
by or arising out of or in connection with a matter set forth in clause (iv)
above due to any breach or failure hereunder on the part of the Company or if
the Company prevents completion of the Offering (except where the Company does
so because of a breach by the Placement Agent of a covenant, representation or
warranty contained herein which the Placement Agent fails to cure within ten
(10) business days of receipt of written notice from the Placement Agent), the
Placement Agent shall be entitled to receive, an amount equal to the sum of: (A)
any Placement Agent's Fees to which the Placement Agent is entitled pursuant to
Section 3(d) hereof earned through the Termination Date, (B) the full amount of
the Expense Allowance and (C) all amounts that may become payable pursuant to
Section 3(f) hereof. Notwithstanding the foregoing, in the event the Company
completes one or more public or private offerings of its securities within one
year after the Company prevents the completion of the Offering (except where the
Company does so because of a breach by the Placement Agent of a covenant,
representation or warranty contained herein which the Placement Agent fails to
cure within ten (10) business days of receipt of written notice from the
Placement Agent), the Company shall also pay the Placement Agent an investment
banking fee equal to five percent (5%) of the total consideration received by
the Company in connection with such sales of securities.
(II) This Offering may be terminated by the Placement Agent by notice
to the Company at any time if, in the sole judgment of the Placement Agent
reasonably exercised, the Offering or the sale or the payment for or the
delivery of the Securities is rendered impracticable or inadvisable because (i)
additional material governmental restrictions not in force and effect on the
date hereof shall have been imposed upon trading in securities generally, or
minimum or maximum prices shall have been generally established on the New York
Stock Exchange, or trading in securities generally on such exchange shall have
been suspended or a general banking moratorium shall have been established by
federal or New York State authorities, (ii) a war, major hostilities, terrorist
or similar activity, act of God or other calamity shall have occurred or, if
existing, shall have been substantially escalated, or (iii) of a material
adverse change in the condition (financial or otherwise) of the Company, its
business or business prospects.
(b) This Offering may be terminated by the Company at any time prior to
the Termination Date in the event that the Placement Agent shall have failed to
perform any of its material obligations hereunder. In the event of any
termination by the Company pursuant to this paragraph, the Placement Agent shall
be entitled to receive all amounts as may be due under any indemnity or
contribution obligation provided herein or any other Transaction Document, at
law or otherwise. On such Termination Date, the Company shall pay all unpaid
Blue Sky Fees and other expenses set forth in Section 5(i) hereof.
(c) Upon any such termination, the Escrow Agent will, at the request of
the Placement Agent, cause all money received in respect of subscriptions for
Securities not sold to be promptly returned to such subscribers without
interest, penalty, expense or deduction. Any interest earned thereon shall be
applied first to the payment of amounts, if any, due to the Escrow Agent and
next to the payment of any amounts payable to the Placement Agent hereunder
which remain unpaid.
10. SURVIVAL.
(a) The obligations of the parties to pay any costs and expenses
hereunder and to provide indemnification and contribution as provided herein
shall survive any termination hereunder.
(b) The respective indemnities, agreements, representations, warranties
and other statements of the Company set forth in or made pursuant to this
Agreement will remain in full force and effect, regardless of any investigation
made by or on behalf of, and regardless of any access to information by, the
Company or the Placement Agent, or any of their officers or directors or any
controlling person thereof, and will survive the sale of the Securities.
11. NOTICES. All communications hereunder will be in writing and, except as
otherwise expressly provided herein or after notice by one party to the other of
a change of address, if sent to the Placement Agent, will be mailed, delivered
or telefaxed and confirmed to Casimir Capital L.P., 000 Xxxxxxxx, Xxx Xxxx, Xxx
Xxxx 00000-0000, Attention: Xxxxxxx Xxxxx, Telefax number 000-000-0000, with a
copy to Xxxxxxx Krooks LLP, 000 Xxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000,
Attn: Xxxxxxxx X. Xxxxxxx, Esq., telefax number (000) 000-0000, and if sent to
the Company, will be mailed, delivered or telefaxed and confirmed to MIV
Therapeutics, Inc., 0-0000 Xxx Xxxxxx, Xxxxxxxxx, X.X., Xxxxxx, X0X 0X0, Attn.:
Chief Executive Officer, Telefax number: (000) 000-0000, with a copy to Xxxxxx
X. Xxxxx, Esq., 000-000 Xxxxxx Xxxxxx, Xxxxxxxxx, XX X0X 0X0, Telefax number:
000-000-0000.
12. APPLICABLE LAW, COSTS, ETC. THIS AGREEMENT WILL BE GOVERNED BY, CONSTRUED
AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO
CONTRACTS MADE AND TO BE PERFORMED WHOLLY WITHIN SUCH STATE. Each party agrees
that all legal proceedings concerning the interpretations, enforcement and
defense of the transactions contemplated by this Agreement and shall be
commenced exclusively in the state and federal courts sitting in The City of New
York, Borough of Manhattan. Each party hereto hereby irrevocably submits to the
exclusive jurisdiction of the state and federal courts sitting in The City of
New York, New York, Borough of Manhattan for the adjudication of any dispute
hereunder or in connection herewith or with any transaction contemplated hereby
or discussed herein, and hereby irrevocably waives, and agrees not to assert in
any suit, action or proceeding, any claim that it is not personally subject to
the jurisdiction of any such court, that such suit, action or proceeding is
improper. Each party hereto (including its affiliates, agents, officers,
directors and employees) hereby irrevocably waives, to the fullest extent
permitted by applicable law, any and all right to trial by jury in any legal
proceeding arising out of or relating to this Agreement or the transactions
contemplated hereby. If either party shall commence an action or proceeding to
enforce any provision of this Agreement, then the prevailing party in such
action or proceeding shall be reimbursed by the other party for its attorneys
fees and other costs and expenses incurred with the investigation, preparation
and prosecution of such action or proceeding.
13. CONFIDENTIALITY. The Company hereby agrees to hold confidential the
identities of the purchasers in the Offering and shall not disclose their names
and addresses without the prior written consent of the Placement Agent, unless
required by law. The Company hereby consents to the granting of an injunction
against it by any court of competent jurisdiction to enjoin it from violating
the foregoing confidentiality provisions. The Company hereby agrees that the
Placement Agent will not have an adequate remedy at law in the event that the
Company breaches these confidentiality provisions contained herein, and that the
Placement Agent will suffer irreparable damage and injury as a result of any
such breach. Resort to such equitable relief shall not, however, be construed to
be a waiver of any other rights or remedies which the Placement Agent may have.
14. MISCELLANEOUS. No provision of this Agreement may be amended or modified, or
any provision hereof waived, except, in the case of an amendment or
modification, by an instrument in writing signed by the Company and the
Placement agent, and in the case of a waiver, by an instrument signed in writing
by the party against whom such waiver is sought. Unless expressly so provided,
no party to this Agreement will be liable for the performance of any other
party's obligations hereunder. Any party hereto may waive compliance by the
other with any of the terms, provisions and conditions set forth herein;
provided, however, that any such waiver shall be in writing specifically setting
forth those provisions waived thereby. No such waiver shall be deemed to
constitute or imply waiver of any other term, provision or condition of this
Agreement. This Agreement contains the entire agreement between the parties
hereto and is intended to supersede any and all prior agreements between the
parties relating to the same subject matter. This Agreement shall be binding
upon and inure to the benefit of the parties and their successors and permitted
assigns. Neither party may assign this Agreement or any rights or obligations
hereunder without the prior written consent of the other party. This Agreement
may be executed in counterparts, each of which shall be deemed an original and
all of which shall constitute a single agreement. If any provision of this
Agreement is held to be invalid or unenforceable in any respect, the validity
and enforceability of the remaining terms and provisions of this Agreement shall
not in any way be affected or impaired thereby and the parties will attempt to
agree upon a valid and enforceable provision that is a reasonable substitute
therefore, and upon so agreeing, shall incorporate such substitute provision in
this Agreement.
[SIGNATURE PAGE FOLLOWS]
If the foregoing is in accordance with your understanding of our agreement,
kindly sign and return this Agreement, whereupon it will become a binding
agreement between the Company and the Placement Agent in accordance with its
terms.
Very truly yours,
CASIMIR CAPITAL LP.
By: /s/ Xxxxxxx Xxxxx
-----------------------------
Name: Xxxxxxx Xxxxx
Title: Chief Executive Officer
Accepted and agreed to this
11 day of March, 2005.
MIV THERAPEUTIC, INC.
By: /s/ Xxxxxxx XxXxxxx
-----------------------------
Name: Xxxxxxx XxXxxxx
Title: Chief Financial Officer
