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Exhibit 10.36
INVESTMENT BANKING AGREEMENT
This Investment Banking Agreement ("this Agreement") is entered into as
of December 4, 1998, by and between Osage Systems Group, Inc. with offices at
0000 Xxxx Xxxxxxxxx Xxxx, Xxxxx 000, Xxxxxxx, Xxxxxxx 00000 (hereinafter
referred to as "Osage") and American Maple Leaf Financial Corp. with offices at
Xxx Xxxx Xxxxxx Xxxxx, Xxxxx 000, Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000 (hereinafter
referred to as "AMLF").
WHEREAS, AMLF provides its clients with financial advisory services,
mergers and acquisitions advice, financial public relations, and consulting and
advisory services designed to inform interested parties as to the business,
products, management, marketing and financial potential of its clients;
WHEREAS, Osage, its successors, subsidiaries and affiliates
(collectively, the "Company") desire to raise capital, attract interest from
members of the financial community, and pursue strategic merger or acquisition
opportunities;
WHEREAS, the Company desires to publicize itself with the intention of
making its name and business better known ultimately to its shareholders, money
management firms, investors and brokerage firms; and
WHEREAS, AMLF desires to engage the Company as a client and is duly
qualified to enter into this Agreement.
NOW, THEREFORE, in consideration of the terms, covenants and conditions
herein and other valuable consideration, the receipt, adequacy and sufficiency
of which the parties hereby acknowledge, the parties hereto agree as follows:
1. Appointment. On a non-exclusive basis, the Company hereby appoints
AMLF as a financial advisor and hereby retains AMLF on the terms and conditions
of this Agreement. AMLF accepts such appointment and agrees to perform the
services identified below at any time upon the terms and conditions of this
Agreement.
2. Term. The term of this Agreement shall begin on the date hereof and
shall continue on a month-to-month basis until terminated by either party at any
time upon written notice to the other party. AMLF shall commence providing its
services to the Company immediately.
3. Corporate Finance Services.
(a) AMLF shall provide, on a non-exclusive basis, corporate
and financial advisory services to the Company. AMLF shall introduce the Company
to sources of capital and advise the Company with respect to offerings and/or
placements of its securities.
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(b) AMLF shall assist in establishing and advising the Company
with respect to interviews of Company officers by analysts, market makers,
broker-dealers and other members of the financial community.
(c) AMLF shall serve as a financial public relations advisor
to the Company. AMLF shall seek to make the Company, its management, its
products and services, and its financial situation and prospects, known to the
financial press and publications, broker-dealers, mutual funds, institutional
investors, market makers, analysts, investment advisors and other members of the
financial community as well as the financial media and the public generally.
AMLF shall advise the Company with respect to existing and potential market
makers, broker-dealers, underwriters and investors as well as act as the liaison
between the Company and such persons.
(d) In consideration for the advisory services provided by
AMLF, the Company shall (i) pay AMLF a monthly fee of $3,000 during the term of
this Agreement, payable on the fifteenth day of each month (in arrears for the
prior month); (ii) within 30 days from the date of this Agreement, issue AMLF
warrants to purchase 25,000 shares of Company common stock exercisable at $4.75
per share, which warrants shall expire two years from the date of issuance
thereof; (iii) 90 days from the date of this Agreement, provided this Agreement
remains in effect at that time, issue warrants to purchase 25,000 shares of
Company common stock exercisable at $4.75 per share, which warrants shall expire
two years from the date of issuance; and thereafter, (iv) for every $1 million
(or portion thereof above $1 million) of equity or subordinated debt raised by
the Company in a financing transaction through an underwriter or other financing
source introduced to the Company by AMLF during the term of this Agreement,
which financing transaction is completed within one year of the date of such
introduction to the Company, issue AMLF warrants to purchase an additional 5,000
shares of Company stock exercisable at a purchase price equal to the average
closing price of the Company's common stock on the principal exchange upon which
its shares trade for the ten (10) trading days prior to the closing of any such
financing transaction, which warrants shall expire two years from the date of
issuance thereof. For the purposes hereof, an "introduction to the Company"
shall be deemed to occur upon the Company's written acknowledgment of such
introduction by AMLF.
(e) Any warrants to be issued to AMLF pursuant to subparagraph
3(d) above shall contain those terms and be in form and substance substantially
similar to the warrant attached hereto as Exhibit "A".
4. Merger and Acquisition Services.
(a) AMLF shall, on a non-exclusive basis, identify and advise
the Company on potential Acquisition Transactions. For purposes of this
Agreement, the term "Acquisition Transaction" means (i) any merger,
consolidation, reorganization or other business combination pursuant to which
any business of a third party is combined with that of the Company or (ii) the
acquisition, directly or indirectly, by the Company of all or substantial
portion of the assets or equity of a third party by way of negotiated purchase.
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(b) In connection with a proposed Acquisition Transaction,
AMLF's advisory services will include the following: (i) assistance in the
evaluation of a third party from a financial point of view, (ii) assistance and
advice with respect to the form and structure of the Acquisition Transaction and
the financing thereof, (iii) conducting discussions and negotiations regarding
an Acquisition Transaction and (iv) providing related advice and assistance as
the Company may reasonably request in connection with a Acquisition Transaction.
(c) If, during the term of this Agreement or within one year
thereafter, an Acquisition Transaction is consummated with a third party
introduced to the Company by AMLF during the term of this Agreement, the Company
will pay AMLF a transaction fee upon the closing of such Acquisition Transaction
equal to (i) 5% of the first $1,000,000 of the Consideration paid or payable in
connection with such Acquisition Transaction; (ii) 4% of the next $1,000,000 of
the Consideration paid or payable in connection with such Acquisition
Transaction; (iii) 3% of the next $1,000,000 of the Consideration paid or
payable in connection with such Acquisition Transaction; (iv) 2% of the next
$1,000,000 of the Consideration paid or payable in connection with such
Acquisition Transaction; and (v) 1% of the remaining Consideration paid or
payable in connection with such Acquisition Transaction. For the purposes
hereof, an "introduction to the Company" shall only be deemed to occur upon the
Company's written acknowledgment of such introduction by AMLF.
(d) For the purposes of subparagraph 4(c) of this Agreement,
the term "Consideration" means the aggregate value of cash, securities, notes or
other property, paid or payable by the Company to the third party target,
acquiree or seller in connection with an Acquisition Transaction. The value of
such Consideration shall be determined as follows:
(i) the value of securities or other property shall
be the fair market value as the parties hereto mutually agree upon
at the date of the closing of the Acquisition Transaction; and
(ii) notes shall be valued at face value.
(e) If the Consideration payable in an Acquisition Transaction
includes contingent or escrow payments to be calculated by reference to
uncertain future occurrences, such as future financial or business performance,
then the transaction fee relating to such contingent or escrow Consideration
shall be payable at the earlier of the (i) payment of such Consideration or (ii)
time that the amount of such Consideration can be determined; however, the
amount of such additional transaction fees shall be computed as if such
additional Consideration was originally included within the total Consideration
paid at the closing of the Acquisition Transaction.
5. Reimbursement of Expenses. The Company shall, upon reasonable
request and submission of written invoices, reimburse AMLF for its reasonable
out-of-pocket expenses incurred in connection with AMLF's provision of services
under this Agreement, to the extent of expenses of $250 per item or aggregate
expenses of $2,500, and thereafter all such expenses shall only be reimbursed if
pre-approved by the Company in writing.
6. Additional Duties of the Company.
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(a) As reasonably requested by AMLF, the Company shall supply
AMLF, on a regular and timely basis, with relevant approved data and information
about the Company, its management, its products and its operations.
(b) The Company shall, upon request supply AMLF with full and
complete copies of all of its filings with the SEC, as well as all data and
information supplied to any analysts, broker-dealers, market makers or other
members of the financial community; and all products/services brochures, sales
materials and similar materials.
(c) The Company shall promptly notify AMLF of the filing of
any registration statement or private placement memorandum for the sale of the
Company's securities and of any other event which imposes any restrictions on
publicity.
(d) The Company shall contemporaneously notify AMLF if any
information or data being supplied to AMLF has not been generally released or
promulgated.
7. Indemnification by the Company.
If, in connection with any services or matters that are the
subject of this Agreement, AMLF becomes involved in any capacity in any action
or legal proceeding, the Company agrees to reimburse AMLF for the reasonable
legal fees and disbursements of counsel and other expenses (including the cost
of investigation and preparation) incurred by AMLF. The Company also agrees to
indemnify and hold AMLF harmless against any losses, claims, damages or
liabilities, joint or several, to which AMLF may become subject in connection
with the services which are the subject of this Agreement; provided, however,
that the Company shall not be liable under the foregoing indemnity agreement in
respect of any loss, claim, damage or liability to the extent that a court
having jurisdiction shall have determined by a final judgment that such loss,
claim, damage or liability primarily resulted from the willful misfeasance or
gross negligence of AMLF. The provisions of this paragraph shall survive the
expiration of the term of this Agreement. The Company's agreements in this
paragraph shall, upon the same terms an conditions, extend to and inure to the
benefit of each person, if any, who may be deemed to control AMLF.
8. Representation and Indemnification by AMLF.
(a) AMLF represents that it has full legal authority to
perform the services as required by this Agreement.
(b) AMLF agrees to indemnify and hold the Company harmless
from and against any and all losses, claims, costs, expenses, damages or
obligations it may incur as a result of, arising from, or in connection with any
violations by AMLF or any of its affiliates of any federal or state securities
laws resulting from AMLF's activities under the term of this Agreement.
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9. Relationship of Parties. AMLF is an independent contractor
responsible for compensation of its agents, employees and representatives, as
well as all applicable withholding therefrom and taxes thereon (including
unemployment compensation) and all workers' compensation insurance. This
Agreement does not establish any partnership, joint venture, or other business
entity or association between the parties, and neither party is intended to have
any interest in the business or property of the other.
10. Non-Disclosure of Confidential Information.
(a) AMLF acknowledges that it is the policy of the Company to maintain
as secret and confidential all valuable information heretofore or hereafter
acquired, developed or used by the Company in relation to its business,
operations, employees and customers which may give the Company a competitive
advantage in its industry (all such information is hereinafter referred to as
"Confidential Information"). The parties recognize that, by reason of its
duties, AMLF may acquire Confidential Information. AMLF recognizes that all such
Confidential Information is the property of the Company. In consideration of the
Company entering into this Agreement, AMLF agrees that:
(i) it shall never, directly or indirectly, publicly
disseminate or otherwise disclose any Confidential Information obtained during
the term of this Agreement without the prior written consent of the Company,
unless and until such information is otherwise known to the public generally or
is not otherwise secret and confidential, it being understood that the
obligation created by this subparagraph shall survive the termination of this
Agreement; and
(ii) during the term of this Agreement, AMLF shall exercise
all diligent precautions to protect the integrity of any of the Company's
documents embodying Confidential Information and upon termination of its
engagement, it shall return all such documents (and copies thereof) in its
possession or control.
(b) AMLF further agrees that any non-public information concerning the
Company that it acquires or receives, directly or indirectly, shall remain in
strict confidence, and all press releases and other disclosures to the public or
to any of the third parties relating to the transactions contemplated by this
Agreement will be subject to the prior approval of the Company, other than such
disclosure AMLF or the Company is obligated to provide by law, court order,
regulatory requirement or under applicable SEC regulations.
11. Disclaimer by AMLF. AMLF makes no representation that (a) the price
of the Company's publicly-traded securities will increase, (b) any person will
purchase securities in the Company as a result of this Agreement, or (c) any
investor will lend money to or invest in or with the Company.
12. Non-Assignability. The rights, obligations and benefits established
by this Agreement shall not be assignable by either party hereto except with the
consent of the other. This Agreement shall, however, be binding upon and shall
inure to the benefit of the parties and their successors.
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13. Compliance and Governing Law. AMLF, together with its agents and
associates, shall take all necessary, appropriate and reasonable steps to
provide the services in accordance with both the securities laws of the United
States and the several states, pursuant to the rules and regulations promulgated
thereunder. The terms and provisions of this Agreement shall be governed by and
construed under the laws of the Commonwealth of Pennsylvania.
14. Forum Designation. Any action or proceeding brought by either party
against the other party relating in any way to this Agreement or the subject
matter hereof shall be brought exclusively in the competent state and federal
courts located in Philadelphia, Pennsylvania, and the parties hereto consent to
the exclusive jurisdiction of such courts in respect of such action or
proceeding.
15. Notice. Notice hereunder shall be in writing and shall be deemed to
have been given (a) at the time when deposited for mailing in a receptacle under
the control of the United States Postal Service by registered or certified mail;
or (b) at the time deposited with a reputable overnight courier for overnight
delivery; each addressed to the respective party at the address of such party
first above written or at such other address as such party may fix by notice
given pursuant to this paragraph.
16. No Other Agreements. This Agreement supersedes all prior
understandings, written or oral, and constitutes the entire Agreement between
the parties hereto with respect to the subject matter hereof. No waiver,
modification or termination of this Agreement shall be valid unless in writing
signed by each of the parties hereto.
17. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original, and all of which
together shall constitute one and the same Agreement. This Agreement may be
executed and delivered via electronic facsimile transmission with the same force
and effect as if it were executed and delivered by the parties simultaneously in
the presence of one another.
IN WITNESS WHEREOF, the parties hereto have set their hands and seals
the day and year first above written.
Osage Systems Group, Inc.
By: /s/ Xxxx X. Xxxxxxxxxx
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Xxxx X. Xxxxxxxxxx, Chief Executive Officer
American Maple Leaf Financial Corp.
By: /s/Xxxxxx Xxxxx
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Xxxxxx Xxxxx, Managing Director
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