Exhibit 10.17
FINANCIAL ADVISORY AGREEMENT
This Agreement is made and entered into as of March __, 1997, between First
United Equities Corporation ("First United") and Apollo BioPharmaceutics, Inc.,
a Delaware corporation, (the "Company").
In consideration of the mutual promises made herein and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. The Company hereby engages First United for the term specified in
Paragraph 2 hereof to render consulting advice to the Company as an
investment banker relating to financial and similar matters upon the terms
and conditions set forth herein.
2. Except as otherwise specified in Paragraph 7 hereof, this Agreement shall
be effective for a period of three years, commencing as of the date
hereof. Notwithstanding the foregoing, the parties hereby agree that the
Company may terminate this Agreement at any time upon thirty (30) days'
prior written notice; provided, that, any such termination of this
Agreement will not obligate First United to refund the fee paid by the
Company under Section 5 of this Agreement.
3. During the term of this Agreement, First United shall provide the Company
with such regular and customary consulting advice as is reasonably
requested by the Company in writing, on a project by project basis,
provided that First United shall not be required to undertake duties not
reasonably within the scope of the financial advisory services contemplated
by this Agreement. It is understood and acknowledged by the parties that
the value of First United's advice is not readily quantifiable, and that
First United shall be obligated to render advice upon the request of the
Company, in good faith, but shall not be obligated to spend any specific
amount of time in so doing. First United's duties may include, but will not
necessarily be limited to, providing recommendations concerning the
following financial and related matters:
A. Disseminating information about the Company to the investment
community at large;
B. Rendering advice and assistance in connection with the preparation of
annual and interim reports and press releases;
C. Assisting in the Company's financial public relations;
D. Arranging, on behalf of the Company, at appropriate times, meetings
with securities analysts of major regional investment banking firms;
E. Rendering advice with regard to internal operations, including:
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1. the formation of corporate goals and their implementation;
2. the Company's financial structure and its divisions or
subsidiaries;
3. securing, when and if necessary and possible, additional
financing through
banks and/or insurance companies; and
4. corporate organization and personnel; and
F. Rendering advice with regard to any of the following corporate
finance matters:
1. changes in the capitalization of the Company;
2. changes in the Company's corporate structure;
3. redistribution of shareholdings of the Company's stock;
4. offerings of securities in public transactions;
5. sales of securities in private transactions;
6. alternative uses of corporate assets;
7. structure and use of debt; and
8. sales of stock by insiders pursuant to Rule 144 under the
Securities Act
of 1933, as amended, or otherwise.
In addition to the foregoing, First United agrees to furnish advice to the
Company in connection with (i) the acquisition and/or merger of or with
other companies, divestiture or any other similar transaction, or the sale
of the Company itself (or any significant percentage, assets, subsidiaries
or affiliates thereof), and (ii) bank financings or any other financing
from financial institutions (including but not limited to lines of credit,
letters of credit, loans or other financings not provided for in Paragraph
5 hereof).
Notwithstanding the foregoing, it is hereby acknowledged and agreed that
the Company is under no obligation to follow any advice rendered by First
United under this Agreement.
4. First United shall render such other financial advisory and investment
and/or investment banking services as may from time to time be agreed upon
by First United and the Company.
5. In consideration for the services rendered by First United to the Company
pursuant to this Agreement (and in addition to the expenses provided for in
Paragraph 8 hereof), the Company shall pay to First United, on the date
hereof, $108,000 as compensation for the services to be provided hereunder
by First United.
6. Fees and expenses payable to First United with regard to fairness opinions
and valuations, will be determined by mutual agreement at such time as the
nature and terms of the relevant transaction are affirmed.
7. In addition to the fees payable hereunder, the Company shall reimburse
First United for all reasonable and necessary fees and disbursements of
First United's counsel and First United's reasonable and necessary travel
and out-of-pocket expenses incurred in connection with services rendered by
First United for projects which are approved by the Company in accordance
with Section 3 of this Agreement upon presentation by First United of
documentation, expense statements, vouchers and/or other such supporting
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information as the Company may reasonably request. Such expenses may
include, without limitation, hotel, food and associated expenses and
long-distance telephone calls.
8. (a) The Company acknowledges that all opinions and advice (written or oral)
given by First United to the Company in connection with First United's
engagement are intended solely for the benefit and use of the Company and
the Company's officers, directors, agents and employees in considering the
transaction to which they relate, and the Company agrees that no person or
entity other than the Company and the Company's officers, directors, agents
and employees shall be entitled to make use of or rely upon the advice of
First United to be given hereunder, and no such opinion or advice shall be
used for any other purpose or reproduced, disseminated, quoted or referred
to at any time, in any manner or for any purpose, nor may the Company make
any public references to First United, or use First United's name in any
annual reports or any other reports or releases of the Company without
First United's prior written consent, which consent shall not be reasonably
withheld.
(b) The Company acknowledges that First United makes no commitment to make
a market in the Company's securities and that none of First United's
affiliates makes any commitment whatsoever as to making a market in the
Company's securities or to recommending or advising its clients to purchase
the Company's securities. Research reports or corporate finance reports
that may be prepared by First United will, when and if prepared, be done
solely on the merits or judgment of analysts of First United or any senior
corporate finance personnel of First United.
9. The Company acknowledges that First United and its affiliates are in the
business of providing financial services and consulting advice to others.
Nothing herein contained shall be construed to limit or restrict First
United in conducting such business with respect to others, or in rendering
such advice to others.
10. The Company recognizes and confirms that, in advising the Company and in
fulfilling its engagement hereunder, First United will use and rely on
data, material and other information furnished to First United by the
Company. The Company acknowledges and agrees that in performing its
services under this engagement, First United may rely upon the data,
material and other information supplied by the Company without
independently verifying the accuracy, completeness or veracity of same.
11. Since First United will be acting on behalf of the Company in connection
with its engagement hereunder, the Company and First United have entered
into a separate indemnification agreement substantially in the form
attached hereto as Schedule A and dated the date hereof, providing for the
indemnification of First United by the Company. First United has entered
into this Agreement in reliance on the indemnities set forth in such
indemnification agreement.
12. First United represents and warrants to the Company that First United
currently has no agreement with, nor any other obligation to, any third
party that would materially impact
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First United's ability to perform its obligations under this Agreement, nor
shall First United enter into any such agreement nor incur such an
obligation without the prior written consent of the Company. First United
further represents that the performance of the services hereunder will not
breach any agreement or obligation with any third party, including without
limitation any obligation to refrain from engaging in activities that may
compete with such party.
13. First United acknowledges that its relationship with the Company is one of
high trust and confidence and that, in the course of its service to the
Company, it will have access to and have contact with Proprietary
Information. First United agrees that it will not, during the term of this
Agreement or at any time thereafter, disclose to others, or use for its
benefit or the benefit of others, any Proprietary Information. For purposes
of this Agreement, "Proprietary Information" shall mean, by way of
illustration and not limitation, all information (whether or not patentable
and whether or not copyrightable) owned, possessed or used by the Company,
including, without limitation, any invention, formula, vendor information,
customer information, apparatus, equipment, trade secret, process,
research, report, technical data, know-how, computer program, software,
software documentation, hardware design, technology, marketing or business
plan, forecast, unpublished financial statement, budget, license, price,
cost and employee list that is communicated to, discovered, developed or
otherwise acquired by First United in the course of its service as a
consultant to the Company.
First United's obligations under this Section 13 shall not apply to any
information that (i) is or becomes known to the general public under
circumstances involving no breach by First United of the terms of this
Section 13, (ii) is generally disclosed to third parties by the Company
without restriction on such third parties, or (iii) is approved for release
by written authorization of the Board of Directors of the Company.
Upon termination of this Agreement, First United shall promptly deliver to
the Company all records, files, memoranda, notes, designs, data, reports,
price lists, customer lists, drawings, plans, computer programs, software,
software documentation, sketches, laboratory and research notebooks and
other documents (and all copies or reproductions of such materials)
relating to the business of the Company.
First United represents that its retention as a consultant to the Company
and its performance under this Agreement does not, and shall not, breach
any agreement that obligates it to keep in confidence any trade secrets or
confidential or proprietary information of its or of any other party or to
refrain from competing, directly or indirectly, with the business of any
other party. First United shall not disclose to the Company any trade
secrets or confidential or proprietary information of any other party.
First United acknowledges and agrees that any breach of the provisions of
this Section 13 shall result in serious and irreparable injury to the
Company for which the Company cannot be adequately compensated by monetary
damages alone. First United agrees, therefore, that, in addition to any
other remedy it may have, the Company shall be
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entitled to enforce the specific performance of this Agreement by First
United and to seek both temporary and permanent injunctive relief (to the
extent permitted by law) without the necessity of proving actual damages.
14. Since First United will be acting on behalf of the Company in connection
with its engagement hereunder, the Company and First United have entered
into a separate indemnification agreement substantially in the form
attached hereto as Schedule A and dated the date hereof, providing for the
indemnification of First United by the Company. First United has entered
into this Agreement in reliance on the indemnities set forth in such
indemnification agreement.
15. First United shall perform its services hereunder as an independent
contractor and not as an employee of the Company or an affiliate thereof.
Any duties of First United arising out of its engagement hereunder shall be
owed solely to the Company. It is expressly understood and agreed to by the
parties hereto that First United shall have no authority to act for,
represent or bind the Company or any affiliate thereof in any manner,
except as may be agreed to expressly by the Company in writing from time to
time.
16. First United hereby designates Van Gothner as its initial contact person
for purposes of this Agreement. The parties hereby agree that such contact
person may be changed from time to time by First United upon 5 days' prior
written notice to the Company.
(a) This Agreement and the Exhibit attached hereto constitute the entire
agreement and understanding of the parties hereto, and supersede any
and all previous agreements and understandings, whether oral or
written, between the parties with respect to the matters set forth
herein.
(b) Any notice or communication permitted or required hereunder shall be
in writing and shall be deemed sufficiently given if hand-delivered or
sent (i) postage prepaid by registered mail, return receipt requested,
or (ii) by facsimile, to the respective parties as set forth below, or
to such other address as either party may notify the other of in
writing;
If to the Company, to: Apollo BioPharmaceutics, Inc.
One Xxxxxxx Square, Building 200, Suite 2200
Xxxxxxxxx, Xxxxxxxxxxxxx 00000
Attn: Chief Executive Officer
with a copy to: Xxxxxx & Dodge LLP
Xxx Xxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xxxxxxx Xxxxxx, Esq.
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If to First United, to: First United Equities Corporation
000 Xxxxxx Xxxx Xxxxx, Xxxxx 000
Xxxxxx Xxxx, Xxx Xxxx 00000
Attn: _____________________
with a copy to: Xxxxx Xxxx Xxxxx Constant Xxxxxxxx & Bilzin
000 Xxxxx Xxxxxxxx Xxxxxxxxx, Xxxxx 0000
Xxxxx, Xxxxxxx 00000-0000
Attn: Xxxxxx X. Xxxxxxx, Esq.
(c) This Agreement shall be binding upon and inure to the benefit of each
of the parties hereto and their respective successors, legal
representatives and assigns.
(d) This Agreement may be executed in any number of counterparts, each of
which together shall continue one and the same original document.
(e) No provision of this Agreement may be amended, modified or waived,
except in a writing signed by all of the parties hereto.
(f) This Agreement shall be construed in accordance with and governed by
the laws of the State of New York, without giving effect to its
conflict of law principles. The parties hereby agree that any dispute
which may arise between them arising out of or in connection with this
Agreement shall be adjudicated before a court located in New York
City, and they hereby submit to the exclusive jurisdiction of the
courts of the State of New York located in New York, New York and of
the federal courts in the Southern District of New York with respect
to any action or legal proceeding commenced by any party, and
irrevocably waive any objection they now or hereafter may have
respecting the venue of any such action or proceeding brought in such
a court or respecting the fact that such court is an inconvenient
forum, relating to or arising out of this Agreement, and consent to
the service of process in any such action or legal proceeding by means
of registered or certified mail, return receipt requested, in care of
the address set forth in Paragraph 14(b) hereof.
THE PARTIES HEREBY WAIVE TRIAL BY JURY IN ANY ACTION OR PROCEEDING
INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER IN ANY WAY ARISING OUT OF OR IN
CONNECTION WITH THIS AGREEMENT.
FIRST UNITED EQUITIES CORPORATION
By: _______________________________________
Name:
Title:
APOLLO BIOPHARMACEUTICS, INC.
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BY: _______________________________________
Name:
Title:
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Schedule A
First United Equities Corporation
000 Xxxxxx Xxxx Xxxxx, Xxxxx 000
Xxxxxx Xxxx, Xxx Xxxx 00000
Attn: _____________________
Ladies and Gentlemen:
In connection with our engagement of First United Equities Corporation
("First United") as our financial advisor and investment banker, we hereby agree
to indemnify and hold harmless First United and its affiliates, and the
respective directors, officers, shareholders, agents and employees of First
United and its affiliates (collectively the "Indemnified Persons"), from and
against any and all claims, actions, suits, proceedings (including those of
stockholders), damages, liabilities, costs and expenses as incurred by any of
them (including the fees and expenses of counsel) which are (A) related to or
arise out of (i) any actions taken or omitted to be taken (including any untrue
statements made or any statements omitted to be made) by the Company during the
term of the Financial Advisory Agreement (including any extension of the term
thereof), or (ii) any actions taken or omitted to be taken by any Indemnified
Person which were requested by the Company during the term of the Financial
Advisory Agreement (including any extension of the term thereof) in connection
with our engagement of First United, or (B) otherwise relate to or arise out of
First United's activities on our behalf under First United's engagement, and we
shall reimburse any Indemnified Person for all costs and expenses (including the
fees and expenses of counsel) as incurred by such Indemnified Person in
connection with investigating, preparing or defending any such claim, action,
suit or proceeding (collectively a "Claim"), whether or not in connection with
pending or threatened litigation in which any Indemnified Person is a party. We
will not, however, be responsible for any Claim to the extent that it is finally
judicially determined by a court of competent jurisdiction to have resulted from
the negligence, bad faith or misconduct of any person seeking indemnification
hereunder. We further agree that no Indemnified Person shall have any liability
to us for or in connection with our engagement of First United except to the
extent any Claim is determined in a final judgment by a court of competent
jurisdiction to have directly resulted from any Indemnified Person's negligence,
bad faith or misconduct.
We further agree that we will not, without the prior written consent of
First United, settle, compromise or consent to the entry of any judgment in any
pending or threatened Claim in respect of which indemnification may be sought
hereunder (whether or not any Indemnified Person is an actual or potential party
to such Claim), unless such settlement, compromise or consent includes an
unconditional, irrevocable release of each Indemnified Person hereunder from any
and all liability arising out of such Claim.
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Promptly upon receipt by an Indemnified Person of notice of any complaint
or the assertion or institution of any Claim with respect to which
indemnification is being sought hereunder, such Indemnified Person shall notify
us in writing of such complaint or of such assertion or institution, but failure
to so notify us shall not relieve us from any obligation we may have hereunder,
unless and only to the extent such failure results in the forfeiture by us of
substantial rights and defenses, and will not in any event relieve us from any
other obligation or liability we may have to any Indemnified Person otherwise
than under this Agreement. If we so elect or are requested by such Indemnified
Person, we will assume the defense of such Claim, including the employment of
counsel reasonably satisfactory to such Indemnified Person and the payment of
the fees and expenses of such counsel. In the event, however, that such
Indemnified Person reasonably determines in its sole judgment that having common
counsel would present such counsel with a conflict of interest or if the
defendant in, or target of, any such Claim, includes an Indemnified Person and
us, and such Indemnified Person reasonably concludes that there may be legal
defenses available to it or other Indemnified Persons different from or in
addition to those available to us, then such Indemnified Person may employ its
own separate counsel to represent or defend it in any such Claim and we shall
pay the fees and expenses of such counsel. Notwithstanding anything herein to
the contrary, if we fail timely or diligently to defend, contest, or otherwise
protect against any Claim, the relevant Indemnified Person shall have the right,
but not the obligation, to defend, contest, compromise, settle, assert
crossclaims, or counterclaims or otherwise protect against the same, and shall
be fully indemnified by us therefor, including without limitation, for the fees
and expenses of its counsel and all amounts paid as a result of such Claim or
the compromise or settlement thereof. In any Claim in which we assume the
defense, the Indemnified Person shall have the right to participate in such
Claim and to retain its own counsel therefor at its own expense.
We agree that if any indemnity sought by an Indemnified Person hereunder is
held by a court to be unavailable for any reason, then (whether or not First
United is the Indemnified Person), we and First United shall contribute to the
Claim for which such indemnity is held unavailable in such proportion as is
appropriate to reflect (i) the relative benefits to us, on the one hand, and
First United on the other, in connection with First United's engagement referred
to above or (ii) if (but only if) the allocation provided for in clause (i) is
for any reason held unenforceable, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause (i) but also the
relative fault of us, on the one hand, and First United, on the other, as well
as any other relevant equitable considerations, subject to the limitation that
in no event shall the amount of First United's contribution to such Claim exceed
the amount of fees actually received by First United from us pursuant to First
United's engagement. We hereby agree that the relative benefits to us, on the
one hand, and First United on the other, with respect to First United's
engagement shall be deemed to be in the same proportion as (a) the total value
paid or proposed to be paid or received by us or our stockholders as the case
may be, pursuant to the transaction (whether or not consummated) for which you
are engaged to render services bears to (b) the fee paid or proposed to be paid
to First United in connection with such engagement.
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Our indemnity, reimbursement and contribution obligations under this
Agreement shall be in addition to, and shall in no way limit or otherwise
adversely affect any rights that any Indemnified Party may have at law or at
equity.
Should First United or its personnel be required or requested by us to
provide documentary evidence or testimony in connection with any proceeding
arising from or relating to First United's engagement, we agree to pay all
reasonable expenses (including fees incurred for legal counsel) in complying
therewith and $5,000 per day for sworn testimony or preparation therefor,
payable in advance.
We hereby consent to personal jurisdiction and service of process and venue
in any court in which any claim for indemnity is brought by any Indemnified
Person.
It is understood that, in connection with First United's engagement, First
United may be engaged to act in one or more additional capacities and that the
terms of the original engagement or any such additional engagement may be
embodied in one or more separate written agreements. The provisions of this
Agreement shall apply to the original engagement, any such additional engagement
and any modification of the original engagement or such additional engagement
and shall remain in full force and effect following the completion or
termination of First United's engagement(s).
Very truly yours,
APOLLO BIOPHARMACEUTICS, INC.
By: _______________________________________
Name:
Title:
Confirmed and agreed to:
FIRST UNITED EQUITIES CORPORATION
By: _________________________________
Name:
Title:
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