EXHIBIT 10.11
ADVISORY AGREEMENT
This ADVISORY AGREEMENT (this "Agreement"), effective as of
August 1, 2005, is by and between Valeo Partners LLC, and any of its affiliates,
having an address at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
(hereinafter referred to as "VALEO") and Cygene Laboratories, Inc., having
offices at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ (hereinafter referred to as
"CYGENE" or the "Company").
W I T N E S S E T H:
WHEREAS, CYGENE desires that it be able to call upon the knowledge and
experience of VALEO for strategic and investment advisory services;
WHEREAS, VALEO is willing to render such services to CYGENE on the
terms and conditions hereinafter set forth in this Agreement;
NOW, THEREFOR, in consideration of the mutual covenants and agreements
hereinafter set forth, the parties hereby agree as follows:
SECTION 1. TERM OF AGREEMENT. This Agreement shall be in effect for a
period of one (1) year from the date hereof and shall supersede the former
Advisory Agreement executed by both parties and dated July 3, 2004. The term of
this Agreement may be extended for consecutive periods of one year each upon the
written agreement of CYGENE and the VALEO.
SECTION 2. SERVICES. During the term of this Agreement, VALEO shall
provide CYGENE with financial and strategic advice and other forms of assistance
in connection with proposed transaction(s), which may involve advice and
assistance in connection with defining strategic and financial objectives,
financing strategies and capital raises, identifying potential acquisitions,
buyers or investors, assisting in the preparation of related materials for
distribution to such entities, reviewing financial information and assisting in
negotiations of the financial terms and structure of the aforementioned
activities.
VALEO, in its capacity as advisor, will perform the following financial
and strategic advisory services as CYGENE may reasonably request:
(a) VALEO will meet with the Company's management and familiarize
itself to the extent it reasonably deems necessary,
appropriate and feasible with the business, operations,
properties, financial condition and prospects of the Company
in order to better determine ways in which VALEO can
facilitate the Company's objectives;
(b) VALEO will advise and assist the Company in identifying and/or
evaluating various strategic alternatives that may be
available to the Company to enhance shareholder values,
including without limitation, a merger or consolidation or
other business combination involving the Company and one or
more third parties, a sale (whether or not the proposal
therefor is solicited or unsolicited) of the Company or a
significant portion of its equity securities, assets or
business to one or more third parties, a recapitalization or
restructuring of the Company (including divestitures,
spin-offs, split-offs and similar transactions), a liquidation
of the Company, an acquisition of all or a significant portion
of the assets or equity securities of another corporation or
other business entity, or such other form of transaction that
VALEO, after completing the familiarization process provided
for in subparagraph 2(a) hereof, believes may be of possible
interest to the Company (each a "Strategic Transaction"). If
the Company determines to consider or undertake one or more
Strategic Transactions, VALEO will advise and assist the
Company in considering the desirability of undertaking such
Strategic Transaction(s) and, if the Company believes such
Strategic Transaction(s) to be desirable, in structuring and
effecting such Strategic Transaction(s);
(c) VALEO will also advise and assist the Company in identifying
and/or evaluating various financial options available in the
public and private equity and debt markets including, but not
limited to, primary issuance of common stock of the Company
(each a "Financing Transaction"). If the Company determines to
consider or undertake one or more Financing Transactions,
VALEO will advise and assist the Company in considering the
desirability of undertaking such Financing Transaction(s) (a
Strategic Transaction and a Financing Transaction are
sometimes collectively hereinafter referred to as a
"Transaction");
(d) VALEO shall assist the Company and the Company shall cooperate
with VALEO in the preparation of a detailed set of financial
projections, pro forma financial projections to evaluate
certain Transaction(s), any Information Memoranda or similar
documents in connection with any Strategic or Financing
Transaction; and
(e) VALEO will render such other financial advisory and related
services as may from time to time be agreed upon by VALEO and
the Company; provided however that VALEO's services hereunder
shall not be full-time and shall not be exclusive to the
Company although VALEO will devote such business time,
attention, efforts, skill and ability as VALEO at its sole
discretion deems to be necessary.
If the Company requests VALEO to provide additional services not
otherwise contemplated by this Agreement, the Company and VALEO will enter into
an additional agreement which shall set forth the nature and scope of the
services, including without limitation, appropriate compensation, as mutually
agreed upon by the Company and VALEO.
SECTION 3. COMPENSATION. In consideration for the services performed in
connection with this Agreement, CYGENE will pay VALEO a monthly Advisory Fee
equal to $10,000 USD per month beginning August 1, 2005. In addition, CYGENE
shall issue to VALEO warrants to purchase 250,000 shares of the stock of CyGene
Laboratories, Inc. (▇▇▇▇.▇▇) at a $.25 strike price fully vesting upon 1-year
from the date of this agreement. The options will vest, monthly, on a pro-rated
basis.
In addition, CYGENE agrees to pay VALEO the following fees:
(i) For any and all debt, mezzanine or non-equity Financing
Transaction(s) the Company engages in and that are originated
by VALEO, the Company agrees to pay VALEO a Debt Capital
Advisory Fee for such Transaction(s) equal to:
a. 5.00% of the first $10,000,000 in Transaction Value;
b. 4.00% of the Transaction Value from $10,000,001 to
$20,000,000;
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c. 3.00% of the Transaction Value from $20,000,001 to
$30,000,000;
d. 2.00% of the Transaction Value from $30,000,001 to
$40,000,000; and
e. 1.00% of the Transaction Value above $40,000,000.
The Debt Capital Advisory Fee shall be paid in cash or
certified or bank check upon the closing date of a Transaction
if, during the term of this engagement or within 12 months
thereafter, a Transaction is consummated or an agreement is
entered into that subsequently results in a Transaction;
provided that this Debt Capital Advisory Fee shall be due to
VALEO only if the parties to the Transaction were directly or
indirectly introduced to CyGene by VALEO. VALEO may elect to
receive up to fifty percent (50.00%) of the Debt Capital
Advisory Fee in ownership stock or warrants of CYGENE in lieu
of cash.
(ii) For any and all equity, hybrid or equity-linked Financing
Transaction(s) the Company engages in and that are originated
by VALEO, the Company agrees to pay VALEO an Equity Capital
Advisory Fee for such Transaction(s) equal to:
a. 5.00% of the first $10,000,000 in Transaction Value;
b. 4.00% of the Transaction Value from $10,000,001 to
$20,000,000;
c. 3.00% of the Transaction Value from $20,000,001 to
$30,000,000;
d. 2.00% of the Transaction Value from $30,000,001 to
$40,000,000; and
e. 1.00% of the Transaction Value above $40,000,000.
The Equity Capital Advisory Fee shall be paid in cash or
certified or bank check upon the closing date of a Transaction
if, during the term of this engagement or within 12 months
thereafter, a Transaction is consummated or an agreement is
entered into that subsequently results in a Transaction;
provided that this Equity Capital Advisory Fee shall be due to
VALEO only if (A) the parties to the Transaction were directly
or indirectly introduced to CyGene by VALEO, or (B) VALEO at
the Company's request, provided substantive advisory services
concerning the structuring of the deal. VALEO may elect to
receive up to fifty percent (50.00%) of the Equity Capital
Advisory Fee in ownership stock or warrants of CYGENE in lieu
of cash.
(iii) If the event takes the form of a Strategic Transaction that
has been originated by VALEO, or if VALEO, at the Company's
request, provided substantive advisory services concerning the
structuring of a deal, CYGENE agrees to pay VALEO a
Transaction Fee equal to two and one half (2.5) percent of the
Transaction Value (as defined below), payable in cash and/or
CYGENE's common stock upon the closing date of a Strategic
Transaction if, during the term of this engagement or within
12 months thereafter, a Strategic Transaction is consummated
or an agreement is entered into that subsequently results in a
Strategic Transaction. This Transaction Fee shall be due to
VALEO only if (A) the parties to the Transaction were directly
or indirectly introduced to CyGene by VALEO, or (B) Valeo at
the Company's request, provided substantive advisory services
concerning the structuring of the deal.
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As used in this Agreement, "Transaction Value" means the total
value (on the date of payment) of all consideration (including cash,
securities or other property) paid or received or to be paid or
received, directly or indirectly, in connection with a Transaction with
respect to the assets of the Target(s), plus the principal amount of
any debt (including capitalized leases) of the Target(s) outstanding or
assumed, refinanced or extinguished in connection with a Transaction,
and amounts payable in connection with a Transaction with respect to
employment or consulting agreements, agreements not to compete or
similar arrangements. Fees on amounts paid into escrow will be payable
upon the release of such funds. Fees relating to contingent payments
other than escrowed amounts will be calculated based on the present
value of the reasonably expected maximum amount of such contingent
payments as determined in good faith by the CYGENE and VALEO prior to
the closing of the Transaction, utilizing a discount rate equal to the
prime rate published in the THE WALL STREET JOURNAL on the last
business day preceding the closing of the Transaction.
SECTION 4. EXPENSES. CYGENE will promptly reimburse VALEO for all
reasonable expenses incurred by VALEO in connection with its role hereunder,
which may include, but shall not be limited to, applicable travel, legal,
accounting, and due diligence related expenses, provided that the incurrence of
such expenses has been approved in advance by CyGene.
SECTION 5. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇. VALEO recognizes that in the course of its
duties hereunder, VALEO may receive from CYGENE or others information which may
be considered "material, nonpublic information" concerning a public company that
is subject to the reporting requirements of the Securities and Exchange Act of
1934, as amended. VALEO agrees NOT to:
(a) Buy or sell any security, option, bond or warrant while in
possession of material, nonpublic information received from CYGENE or others in
connection herewith;
(b) Provide CYGENE with information with respect to any public
company that may be considered material, nonpublic information; or
(c) Provide any person with material, nonpublic information,
received from CYGENE, including any relative, associate or other individual.
SECTION 6. REPRESENTATIONS OF VALEO. VALEO represents that there are no
binding agreements to which it is a party or by which it is bound, forbidding or
restricting its activities herein. In addition, during the term of this
Agreement, VALEO consents to the use of its name in various reports, brochures
or other documents produced by or on behalf of or CYGENE.
SECTION 7. SURVIVAL. The provisions of this Agreement relating to
confidentiality and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ shall survive any termination or expiration
hereof for three years.
SECTION 8. VALEO NOT AN EMPLOYEE. CYGENE and the VALEO hereby
acknowledge and agree that VALEO shall perform the services hereunder as an
independent contractor and not as an employee of CYGENE.
SECTION 9. INDEMNIFICATION. CYGENE shall defend and indemnify VALEO in
its capacity as an advisor to CYGENE against any and all claims, judgments,
damages, liabilities, costs and expenses (including reasonable attorney's fees)
arising out of, based upon or related to the VALEO's performance of services
hereunder, except to the extent that such claims arise out of willful
misfeasance or gross negligence, and subject to the provisions of Section 4.
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SECTION 10. MISCELLANEOUS.
(a) Severability Of Provisions. If any provision of this
Agreement shall be declared by a court of competent jurisdiction to be invalid,
illegal or incapable of being enforced in whole or in part, the remaining
conditions and provisions or portions thereof shall nevertheless remain in full
force and effect and enforceable to the extent they are valid, legal and
enforceable, and no provision shall be deemed dependent upon any other covenant
or provision unless so expressed herein.
(b) Entire Agreement; Modification. This Agreement is the
entire agreement of the parties relating to the subject matter hereof and
thereof, and the parties hereto and thereto have made no agreements,
representations or warranties relating to the subject matter of this Agreement
which are not set forth herein or therein. No amendment or modification of this
Agreement shall be valid unless made in writing and signed by each of the
parties hereto.
(c) Binding Effect. The rights, benefits, duties and
obligations under this Agreement shall inure to, and be binding upon, the
Company, its successors and assigns, and upon VALEO. This Agreement constitutes
a personal service agreement, and the performance of VALEO's obligations
hereunder may not be transferred or assigned by VALEO and any such purported
transfer or assignment shall null and void ab initio.
(d) Third Party Beneficiaries. This Agreement is for the
benefit of the parties hereto and their permitted successors and assigns, and is
not intended to confer upon any other person or entity, any rights or remedies
hereunder.
(e) Non-Waiver. The failure of either party to insist upon the
strict performance of any of the terms, conditions and provisions of this
Agreement shall not be construed as a waiver or relinquishment of future
compliance therewith, and said terms, conditions and provisions shall remain in
full force and effect. No waiver of any term or condition of this Agreement on
the part of either party shall be effective for any purpose whatsoever unless
such waiver is in writing and signed by such party.
(f) Governing Law. This Agreement shall be governed by, and
construed and interpreted in accordance with, the laws of the State of New York
without regard to such State's principles of conflict of laws. The parties
irrevocably and unconditionally agree that any action whatsoever arising out of
this Agreement and/or the rights of the parties hereto or hereunder (the
"Actions") shall be brought only in the courts located in New York County in the
State of New York. Each party irrevocably and unconditionally waives any
objection it may have to the venue of any Action brought in such courts or to
the convenience of the forum. Final judgment in any such Action shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment, a
certified or true copy of which shall be conclusive evidence of the fact and the
amount of any indebtedness or liability of any party therein described.
(g) Headings. The headings of the Sections are inserted for
convenience of reference only and shall not affect any interpretation of this
Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this
Agreement by proper person thereunto duly authorized.
CYGENE LABORATORIES, INC.
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By: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: CEO
Date: August 1, 2005
VALEO PARTNERS LLC
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By: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Title: Partner
Date: August 1, 2005
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