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EXHIBIT 1.2
ADVISORY AND INVESTMENT BANKING AGREEMENT
This Agreement is made and entered into as of the __ day of ,
1997 by and between ▇▇▇▇▇ ▇▇▇▇ & Co., Inc., a New York corporation ("▇▇▇▇▇
▇▇▇▇"), and Rockwell Medical Technologies, Inc., a Michigan corporation (the
"Company").
In consideration of the mutual promises made herein and for
other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the parties hereto agree as follows:
1. PURPOSE: The Company hereby engages ▇▇▇▇▇ ▇▇▇▇ 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. TERM: Except as otherwise specified in paragraph 4 hereof,
this Agreement shall be effective from ____________, 1997 to ___________, 1999.
3. DUTIES OF ▇▇▇▇▇ ▇▇▇▇: During the term of this Agreement,
▇▇▇▇▇ ▇▇▇▇ shall seek out Transactions (as hereinafter defined) on behalf of the
Company and shall furnish advice to the Company in connection with any such
Transactions.
4. COMPENSATION: In consideration for the services rendered by
▇▇▇▇▇ ▇▇▇▇ to the Company pursuant to this Agreement (and in addition to the
expenses provided for in Paragraph 5 hereof), the Company shall compensate ▇▇▇▇▇
▇▇▇▇ as follows:
(a) The Company shall pay ▇▇▇▇▇ ▇▇▇▇ a fee of $4,166 per
month during the term of this Agreement. The sum of $99,984 shall be payable in
full on the date of this Agreement;
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(b) In the event that any Transaction (as hereinafter
defined) occurs during the term of this Agreement or one year thereafter, the
Company shall pay fees to ▇▇▇▇▇ ▇▇▇▇ as follows:
CONSIDERATION FEE
$ - 0 - to $ 500,000 Minimum fee of $25,000
$ 500,000 to $5,000,000 5% of Consideration
$ 5,000,000 or more $250,000 plus 1% of the
Consideration in excess of
$5,000,000
For the purposes of this Agreement, "Consideration" shall
mean the total market value on the day of the closing of stock, cash, assets and
all other property (real or personal) exchanged or received, directly or
indirectly by the Company or any of its security holders in connection with any
Transaction. Any co-broker retained by ▇▇▇▇▇ ▇▇▇▇ shall be paid by ▇▇▇▇▇ ▇▇▇▇.
For the purposes of the Agreement, a "Transaction" shall mean
(a) any transaction originated by ▇▇▇▇▇ ▇▇▇▇, other than in the ordinary course
of trade or business of the Company, whereby, directly or indirectly, control of
or a material interest in the Company or any of its businesses or any of their
respective assets, is transferred for Consideration, (b) any transaction
originated by ▇▇▇▇▇ ▇▇▇▇ whereby the Company acquires any other company or the
assets of any other company or an interest in any other company (an
"Acquisition") or (c) any sale or Acquisition in connection with which the
Company engages an investment banker other than ▇▇▇▇▇ ▇▇▇▇ and pays such
investment banker a fee in respect of such Transaction.
In the event ▇▇▇▇▇ ▇▇▇▇ originates a line of credit with a
lender, the Company and ▇▇▇▇▇ ▇▇▇▇ will mutually agree on a satisfactory fee and
the terms of payment of
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such fee; provided, however, that in the event the Company is introduced to a
corporate partner by ▇▇▇▇▇ ▇▇▇▇ in connection with a merger, acquisition or
financing and a credit line develops directly as a result of the introduction,
the appropriate fee shall be the amount set forth in the schedule above. In the
event ▇▇▇▇▇ ▇▇▇▇ introduces the Company to a joint venture partner or customer
and sales develop as a result of the introduction, the Company agrees to pay a
fee of five percent (5%) of total sales generated directly from this
introduction during the first two years following the date of the first sale.
Total sales shall mean cash receipts less any applicable refunds, returns,
allowances, credits and shipping charges and monies paid by the Company by way
of settlement or judgment arising out of claims made by or threatened against
the Company. Commission payments shall be paid on the 15th day of each month
following the receipt of customers' payment. In the event any adjustments are
made to the total sales after the commission has been paid, the Company shall be
entitled to an appropriate refund or credit against future payments under this
Agreement. All fees to be paid pursuant to this Agreement, except as otherwise
specified, are due and payable to ▇▇▇▇▇ ▇▇▇▇ in cash at the closing or closings
of any transaction specified in Paragraph 4 hereof. In the event that this
Agreement shall not be renewed or if terminated for any reason, notwithstanding
any such non-renewal or termination, ▇▇▇▇▇ ▇▇▇▇ shall be entitled to a full fee
as provided under Paragraphs 4 and 5 hereof, for any transaction for which the
discussions were initiated during the term of this Agreement and which is
consummated within a period of twelve months after non-renewal or termination of
this Agreement.
5. EXPENSES OF ▇▇▇▇▇ ▇▇▇▇: In addition to the fees payable
hereunder, and regardless of whether any transaction set forth in Paragraph 4
hereof is proposed or consummated
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the Company shall reimburse ▇▇▇▇▇ ▇▇▇▇ for all fees and disbursements of ▇▇▇▇▇
▇▇▇▇'▇ counsel and ▇▇▇▇▇ ▇▇▇▇'▇ travel and out-of-pocket expenses incurred in
connection with the services performed by ▇▇▇▇▇ ▇▇▇▇ pursuant to this Agreement,
including without limitation, hotels, food and associated expenses and
long-distance telephone calls.
6. LIABILITY OF ▇▇▇▇▇ ▇▇▇▇:
(1) The Company acknowledges that all opinions and
advice (written or oral) given by ▇▇▇▇▇ ▇▇▇▇ to the Company in connection with
▇▇▇▇▇ ▇▇▇▇'▇ engagement are intended solely for the benefit and use of the
Company in considering the transaction to which they relate, and the Company
agrees that no person or entity other than the Company shall be entitled to make
use of or rely upon the advice of ▇▇▇▇▇ ▇▇▇▇ 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 ▇▇▇▇▇ ▇▇▇▇, or use
▇▇▇▇▇ ▇▇▇▇'▇ name in any annual reports or any other reports or releases of the
Company without ▇▇▇▇▇ ▇▇▇▇'▇ prior written consent.
(2) The Company acknowledges that ▇▇▇▇▇ ▇▇▇▇ makes no
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 ▇▇▇▇▇ ▇▇▇▇
will, when and if prepared, be done solely on the merits or judgment of analysis
of ▇▇▇▇▇ ▇▇▇▇ or any senior corporate finance personnel of ▇▇▇▇▇ ▇▇▇▇.
7. ▇▇▇▇▇ ▇▇▇▇'▇ SERVICES TO OTHERS: The Company acknowledges
that ▇▇▇▇▇ ▇▇▇▇'▇ or 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 ▇▇▇▇▇ ▇▇▇▇ in conducting
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such business with respect to others, or in rendering such advice to others.
8. COMPANY INFORMATION:
(a) The Company recognizes and confirms that, in
advising the Company and in fulfilling its engagement hereunder, ▇▇▇▇▇ ▇▇▇▇ will
use and rely on data, material and other information furnished to ▇▇▇▇▇ ▇▇▇▇ by
the Company. The Company acknowledges and agrees that in performing its services
under this engagement, ▇▇▇▇▇ ▇▇▇▇ may rely upon the data, material and other
information supplied by the Company without independently verifying the
accuracy, completeness or veracity of same.
(b) Except as contemplated by the terms hereof or as
required by applicable law, ▇▇▇▇▇ ▇▇▇▇ shall keep confidential all material
non-public information provided to it by the Company, and shall not disclose
such information to any third party, other than such of its employees and
advisors as ▇▇▇▇▇ ▇▇▇▇ determines to have a need to know.
9. INDEMNIFICATION:
a. The Company shall indemnify and hold ▇▇▇▇▇ ▇▇▇▇
harmless against any and all liabilities, claims, lawsuits, including any and
all awards and/or judgments to which it may become subject under the Securities
Act of 1933, as amended (the "1933 Act"), the Securities Exchange Act of 1934,
as amended (the "Act") or any other federal or state statute, at common law or
otherwise, insofar as said liabilities, claims and lawsuits (including awards
and/or judgments) arise out of or are in connection with the services rendered
by ▇▇▇▇▇ ▇▇▇▇ or any transactions in connection with this Agreement, except for
any liabilities, claims and lawsuits (including awards and/or judgments),
arising out of acts or omissions of ▇▇▇▇▇ ▇▇▇▇. In addition, the Company shall
also indemnify and hold ▇▇▇▇▇ ▇▇▇▇ harmless against any and all costs and
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expenses, including reasonable counsel fees, incurred or relating to the
foregoing.
▇▇▇▇▇ ▇▇▇▇ shall give the Company prompt notice of any such
liability, claim or lawsuit which ▇▇▇▇▇ ▇▇▇▇ contends is the subject matter of
the Company's indemnification and the Company thereupon shall be granted the
right to take any and all necessary and proper action, at its sole cost and
expense, with respect to such liability, claim and lawsuit, including the right
to settle, compromise and dispose of such liability, claim or lawsuit, excepting
therefrom any and all proceedings or hearings before any regulatory bodies
and/or authorities.
▇▇▇▇▇ ▇▇▇▇ shall indemnify and hold the Company harmless
against any and all liabilities, claims and lawsuits, including any and all
awards and/or judgments to which it may become subject under the 1933 Act, the
Act or any other federal or state statute, at common law or otherwise, insofar
as said liabilities, claims and lawsuits (including awards and/or judgments)
arise out of or are based upon any untrue statement or alleged untrue statement
of a material fact required to be stated or necessary to make the statement
therein, not misleading, which statement or omission was made in reliance upon
information furnished in writing to the Company by or on behalf of ▇▇▇▇▇ ▇▇▇▇
for inclusion in any registration statement or prospectus or any amendment or
supplement thereto in connection with any transaction to which this Agreement
applies. In addition, ▇▇▇▇▇ ▇▇▇▇ shall also indemnify and hold the Company
harmless against any and all costs and expenses, including reasonable counsel
fees, incurred or relating to the foregoing.
The Company shall give to ▇▇▇▇▇ ▇▇▇▇ prompt notice of any
such liability, claim or lawsuit which the Company contends is the subject
matter of ▇▇▇▇▇ ▇▇▇▇'▇ indemnifica-
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tion and ▇▇▇▇▇ ▇▇▇▇ thereupon shall be granted the right to a take any and all
necessary and proper action, at its sole cost and expense, with respect to such
liability, claim and lawsuit, including the right to settle, compromise or
dispose of such liability, claim or lawsuit, excepting therefrom any and all
proceedings or hearings before any regulatory bodies and/or authorities.
b. In order to provide for just and equitable contribution
under the Act in any case in which (I) any person entitled to indemnification
under this Section 9 makes claim for indemnification pursuant hereto but it is
judicially determined (by the entry of a final judgment or decree by a court of
competent jurisdiction and the expiration of time to appeal or the denial of the
last right of appeal) that such indemnification may not be enforced in such case
notwithstanding the fact that this Section 10 provides for indemnification in
such case, or (ii) contribution under the Act may be required on the part of any
such person in circumstances for which indemnification is provided under this
Section 10, then, and in each such case, the Company and ▇▇▇▇▇ ▇▇▇▇ shall
contribute to the aggregate losses, claims, damages or liabilities to which they
may be subject (after any contribution from others) in such proportion taking
into consideration the relative benefits received by each party from the
offering covered by the prospectus with respect to any transactions in
connection with this Agreement (taking into account the portion of the proceeds
of the offering realized by each), the parties' relative knowledge and access to
information concerning the matter with respect to which the claim was assessed,
the opportunity to correct and prevent any statement or omission and other
equitable considerations appropriate under the circumstances; provided, however,
that notwithstanding the above in no event shall ▇▇▇▇▇ ▇▇▇▇ be required to
contribute any amount in excess of 10% of the public offering price of any
securities to which such Prospectus applies; and provided, that, in any such
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case, no person guilty of a fraudulent misrepresentation (within the meaning of
Section 11(f) of the Act) shall be entitled to contribution from any person who
was not guilty of such fraudulent misrepresentation.
Within fifteen (15) days after receipt by any party to this
Agreement (or its representative) of notice of the commencement of any action,
suit or proceeding, such party will, if a claim for contribution in respect
thereof is to be made against another party (the "Contributing Party"), notify
the Contributing Party of the commencement thereof, but the omission so to
notify the Contributing Party will not relieve it from any liability which it
may have to any other party other than for contribution hereunder. In case any
such action, suit or proceeding is brought against any party, and such party
notifies a Contributing Party or his or its representative of the commencement
thereof within the aforesaid fifteen (15) days, the Contributing Party will be
entitled to participate therein with the notifying party and any other
Contributing Party similarly notified. Any such Contributing Party shall not be
liable to any party seeking contribution on account of any settlement of any
claim, action or proceeding effected by such party seeking contribution without
the written consent of the Contributing Party. The indemnification provisions
contained in this Section 10 are in addition to any other rights or remedies
which either party hereto may have with respect to the other or hereunder.
10. ▇▇▇▇▇ ▇▇▇▇ AN INDEPENDENT CONTRACTOR : ▇▇▇▇▇ ▇▇▇▇ shall
perform its services hereunder as an independent contractor and not as an
employee of the Company or an affiliate thereof. It is expressly understood and
agreed to by the parties hereto that ▇▇▇▇▇ ▇▇▇▇ 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.
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11. MISCELLANEOUS:
(1) This Agreement between the Company and ▇▇▇▇▇ ▇▇▇▇
constitutes the entire agreement and understanding of the parties hereto, and
supersedes any and all previous agreements and understandings, whether oral or
written, between the parties with respect to the matters set forth herein.
(2) 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 in writing:
If to the Company, to: Rockwell Medical Technologies, Inc.
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
with a copy to: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
If to ▇▇▇▇▇ ▇▇▇▇, to: ▇▇▇▇▇ ▇▇▇▇ & Co., Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
with a copy to: ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Gersten, Savage, ▇▇▇▇▇▇▇▇▇
& ▇▇▇▇▇▇▇▇▇▇, LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
(3) 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.
(4) This Agreement may be executed in any number of
counterparts, each of which together shall constitute one and the same original
document.
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(5) No provision of this Agreement may be amended,
modified or waived, except in a writing signed by all of the parties hereto.
(6) This Agreement shall be construed in accordance with
and governed by the laws of the State of New York, without giving effect to
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 11(b) hereof.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed, as of the day and year first above written.
▇▇▇▇▇ ▇▇▇▇ & CO., INC.
By:________________________________
ROCKWELL MEDICAL TECHNOLOGIES, INC.
By:________________________________
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