EXHIBIT 10.1
LETTER OF ENGAGEMENT
MIV THERAPEUTICS, INC.
NOVEMBER 18, 2004
The following sets forth the agreement for the engagement of Trilogy Capital
Partners, Inc. ("Trilogy") by MIV Therapeutics, Inc. ("MIVT" or the "COMPANY"):
TERM Twelve months, commencing as of the date set forth above (the
"Initial Term"), and terminable thereafter by either party
upon 30 days' prior written notice.
OBJECTIVE The development and implementation of a proactive marketing
program to increase the awareness of MIVT generate a
significant increase in liquidity and market capitalization.
In addition, upon request, Trilogy will advise MIVT in
business development and strategic advisory services.
THE PROGRAM Trilogy will structure and implement a marketing program
designed to create extensive financial market and investor
awareness for MIVT to drive long-term shareholder support. The
core drivers of the program will be to create institutional
and retail buying in the Company's stock through a proactive
sales and marketing program emphasizing technology-driven
communications, coupled with 1-to-1 selling and leveraging
MIVT's image to attract additional long term investors and to
create additional opportunities in M&A and Business
Development. As share price is affected by various factors,
Trilogy can give no assurance that the marketing program will
result in an increase in MIVT's stock price.
Trilogy understands that during any period in which the
Company is in "registration" for a public offering of
securities under the Securities Act of 1933, and during the
distribution of such securities, the
Company's investor relations and marketing efforts will be
severely limited. However, it will be the responsibility of
the Company (with the advice of its securities counsel) to
determine what investor relations and financial marketing
efforts are permissible and non-permissible during such
periods, and Trilogy will follow the direction of the Company
and its securities counsel.
RESPONSIBILITIES In addition to marketing and financial public relations,
Trilogy will assume the responsibilities of an in-house
Investor Relations Officer for MIVT on a full turnkey basis,
including the generation of corporate and shareholder
communications, retail and institutional investor contact and
media. Trilogy will work in conjunction with the Company's
management, securities counsel, investment bankers and
auditors and under supervision of management. The content is
as follows:
o Campaign Development and Execution
o Press Announcements: drafting, approval and distribution
o Database Development and Management
o Image Analysis: recommendations and implementation
o Messaging: institutional and retail
o Online presentations, drafting and production
responsibilities
o Website Overhaul - installation and maintenance of auto
IR program
o Email messaging: targets: Retail and Institutional/Other
databases
o Media including interactives and PowerPoints
o Direct Mail: shareholder, media, MIVT relationship
universe
o Public Relations
o Capital Conferences
FEES $10,000 per month, with first payment due on execution. Wiring
information is set forth below.
EQUITY MIVT will issue to Trilogy an aggregate of 2,720,000 Warrants.
COMPENSATION The Warrants will have a term of three (3) years with an
exercise price of $0.26 per share and having piggyback and
demand rights to the next Registration Statement filed by the
Company.
It is expressly understood that the Company has agreed to file
a Registration Statement with the Securities and Exchange
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Commission registering the underlying shares to the Warrant
which is anticipated to be filed no later than 30 days from
the date of this Letter of Engagement.
MARKETING To support the financial marketing program, MIVT acknowledges
BUDGET that it will incur certain third party marketing costs. Prior
to the execution of this agreement, Trilogy will prepare a
detailed three month budget setting forth the approximate
costs associated with the campaign. Trilogy will not incur
these costs without the approval of the Company. At Trilogy's
request, the Company will pay these costs directly to the
third party.
INDEMNIFICATION The Company agrees to provide the indemnification set forth in
"Exhibit A" attached hereto.
CORPORATE The obligations of Trilogy are solely corporate obligations,
OBLIGATIONS and no officer, director, employee, agent, shareholder or
controlling person of Trilogy shall be subject to any personal
liability whatsoever to any person, nor will any such claim be
asserted by or on behalf of any other party to this Agreement.
ADDITIONAL If Trilogy is called upon to render services directly or
SERVICES indirectly relating to the subject matter of this Agreement,
beyond the services contemplated above (including, but not
limited to, production of documents, answering
interrogatories, giving depositions, giving expert or other
testimony, whether by agreement, subpoena or otherwise), the
Company shall pay to Trilogy a reasonable hourly rates for the
persons involved for the time expended in rendering such
services, including, but not limited to, time for meetings,
conferences, preparation and travel, and all related costs and
expenses and the reasonable legal fees and expenses of
Trilogy's counsel.
SURVIVAL OF The Sections entitled "Indemnification" (including
CERTAIN "Exhibit A"), "Corporate Obligations" and "Additional
PROVISIONS Services" shall survive any termination of this Agreement and
Trilogy's engagement pursuant to this Agreement. In addition,
such termination shall not terminate Trilogy's right to
compensation accrued through the date of termination and for
reimbursement of expenses. Any purported termination of this
Agreement by the Company prior to the end of the
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Initial Term, or any termination by Trilogy as a result of
non-payment or other material breach by the Company, shall not
terminate Trilogy's right to the monthly fee through the
entire Initial Term (as Trilogy's time and commitment are
expected to be greater in the first part of its engagement).
SERVICES/COSTS The compensation paid to Trilogy under this Agreement will
cover all costs for Trilogy personnel. Travel and
entertainment costs for Trilogy personnel, in addition to
certain third-party costs, will be borne by the Company.
Trilogy will provide reasonable documentation to support
reimbursement claims. Trilogy will not incur any particular
reimbursable cost of $500 or more without the written approval
from the Company.
ATTORNEYS' FEES If any action or proceeding is brought to enforce or interpret
any provision of this Agreement, the prevailing party shall be
entitled to recover as an element of its costs, and not its
damages, reasonable attorneys' fees to be fixed by the court.
GOVERNING LAW California, without giving effect to the principles of
conflicts of law thereof.
_____________________________________________________
Agreed and Accepted:
MIV THERAPEUTICS, INC. TRILOGY CAPITAL PARTNERS, INC.
By /S/ XXXX X. XXXXXXX By /S/ X.X. XXXXXXXXX
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Xxxx X. Xxxxxxx, President and X.X. Xxxxxxxxx, President
Chief Executive Officer
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EXHIBIT A
INDEMNIFICATION PROVISIONS
MIV Therapeutics, Inc. (the "COMPANY"), unconditionally, absolutely and
irrevocably agrees to and shall defend, indemnify and hold harmless Trilogy
Capital Partners, Inc. ("TRILOGY") and its past, present and future directors,
officers, affiliates, counsel, shareholders, employees, agents, representatives,
contractors, successors and assigns (Trilogy and such persons are collectively
referred to as the "INDEMNIFIED PERSONs") from and against any and all losses,
claims, costs, expenses, liabilities and damages (or actions in respect thereof)
arising out of or related to this Agreement, and any actions taken or omitted to
be taken by an Indemnified Party in connection with this Agreement ("INDEMNIFIED
CLAIM"). Without limiting the generality of the foregoing, such indemnification
shall cover losses, claims, costs, expenses, liabilities and damages imposed on
or incurred by the Indemnified Persons, directly or indirectly, relating to,
resulting from, or arising out of any misstatement of fact or omission of fact,
or any inaccuracy in any information provided or approved by the Company in
connection with the engagement, including information in any SEC filing, press
release, website, marketing material or other document, whether or not the
Indemnified persons relied thereon or had knowledge thereof. In addition, the
Company agrees to reimburse the Indemnified Persons for legal or other expenses
reasonably incurred by them in respect of each Indemnified Claim at the time
such expenses are incurred. Notwithstanding the foregoing, the Company shall not
be obligated under the foregoing for any loss, claim, liability or damage which
is finally determined to have resulted primarily from the willful misconduct,
bad faith or gross negligence of the Indemnified Person.
If any proceeding shall be brought or asserted under these provisions against an
Indemnified Person in respect of which indemnity may be sought under these
provisions from the Company, the Indemnified Person shall give prompt written
notice of such proceeding to the Company who shall assume the defense thereof,
including the employment of counsel reasonably satisfactory to the Indemnified
Person (or if more than one, Trilogy), and the payment of all reasonable
expenses; provided that any delay or failure to notify the Company shall relieve
the Company of its obligations hereunder only to the extent, if at all, that it
is materially prejudiced by reason of such delay or failure. In no event shall
any Indemnified Person be required to make any expenditure or bring any cause of
action to enforce the Company's obligations and liability under and pursuant to
the indemnifications set forth in these provisions. The Indemnified Person shall
have the right to employ separate counsel in any of the foregoing proceedings
and to participate in the defense thereof, but the fees and expenses of such
counsel shall be at the expense of the Indemnified Person unless; (i) the
Company has agreed to pay such fees and expenses; or (ii) the indemnified Person
shall in good faith determine that there exists actual or potential conflicts of
interest which make representation by the same counsel inappropriate and the
Company refuses to provide separate counsel. In the event that the Company,
within five days after notice of any such proceeding, fails to assume the
defense thereof, the Indemnified Persona shall have the right to undertake the
defense, compromise or settlement of such proceeding,
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for the account of the Company, subject to the right of the Company to assume
the defense of such proceeding with counsel reasonably satisfactory to the
Indemnified Person at any time prior to the settlement, compromise or final
determination thereof by reimbursing the Indemnified Person for all fees and
costs incurred to date. Anything in these provisions to the contrary
notwithstanding, the Company shall not, without the prior written consent of
Trilogy (if Trilogy is an Indemnified Person) or the Indemnified Person if
Trilogy is not an Indemnified Person, settle or compromise any proceeding or
consent to the entry of any judgment with respect to any proceeding; provided,
however, that the Company may, without the Indemnified Person's prior written
consent, settle or compromise any such proceeding or consent to entry of any
judgment with respect to any such proceeding that requires solely the payment of
money damages by the Indemnified Person and that includes as an unconditional
term thereof, the release by the claimant or the plaintiff of the Indemnified
Person from all liability in respect of such proceeding.
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