Exhibit 10.24
SBI USA
A member of Softbank Investment Group
December 18, 2002
Biophan Technologies, Inc.
000 Xxxxxx Xxxxxx Xxxxx
Xxxx Xxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx
Chief Executive Officer
Re: Advisory Agreement
Gentlemen:
We are pleased to set forth the terms of the retention of SBI USA, LLC
("SBI USA" or the "Advisor") by Biophan Technologies, Inc. (the "Company").
1. The Advisor will assist the Company as its nonexclusive financial
advisor through Investment Banking Services and Introductions to Certain
Parties relevant to the Company's stock. All other corporate finance services
shall be negotiated under separate agreements.
(a) Investment Banking Services: In such capacity, the Advisor shall be
available for advice, and shall advise the Company with respect to
such financial matters as the Company shall from time to time
request, including matters relating to: capital raising, whether
from institutional and other investors or lenders or from the
private placement of debt instruments or equity securities; public
offerings of debt or equity; structure of debt or equity financings;
acquisitions and other business ventures; stockholder and securities
dealer relations; and general investor relations
(b) Introduction to Certain Parties: In such capacity, Advisor will
provide introductions to Broker-Dealers, Market Makers, or small
Institutional Investors with a focus on relevant industries and/or
securities. This will be facilitated, in part, by a domestic road
show.
(c) Corporate Profile: In such capacity, the Advisor shall prepare a
corporate profile from publicly available information for use in the
Company's investor relations program.
2. As compensation for services described in Section 1, the Company
shall pay, or cause to be paid, a one time advisory fee (the "Advisory Fee")
of $5,000.00 in cash to the Advisor at the completion of the first road show.
The Advisor shall also be issued common stock purchase warrants under
mutually agreeable terms between the Advisor and the Company.
a division of First Securities USA, Inc., member NASD/SIPC
Biophan Technologies, Inc.
Page 2
3. The Company agrees to promptly reimburse the Advisor, upon request
from time to time, for documented out-of-pocket expenses incurred by the
Advisor (including fees and disbursements of counsel, and of other
consultants and advisors retained by the Advisor) in connection with the
matters contemplated by this Agreement, provided, however, that any single
expense item greater than $500.00, and total expenses for any month in excess
of one thousand dollars ($1,000.00) shall require prior approval of the
Company. A summary of expenses incurred will be submitted on a monthly basis
to the company for payment upon receipt.
4. In connection with the Advisor's activities on the Company's behalf,
the Company will cooperate with the Advisor and will, upon request, furnish
the Advisor with all material information and data concerning the Company, to
the extent available to the Company (the "Information"), and will provide the
Advisor with access to the Company's officers, directors, employees,
independent accountants, and legal counsel. Prior to receiving any
Information, Advisor agrees to execute a confidentiality agreement in a form
mutually satisfactory to the Company and Advisor. The Company represents and
warrants that all Information (a) made available to the Advisor by the
Company or (b) contained in any filing by the Company with any court or
governmental regulatory agency, commission, or instrumentality will, at all
times during the period of the engagement of the Advisor hereunder, be
complete and correct in all material respects and will not contain any untrue
statement of a material fact or omit to state a material fact necessary in
order to make the statements therein not misleading. The Company further
represents and warrants that any projections provided by it to the Advisor
will have been prepared in good faith and will be based upon assumptions
which, in light of the circumstances under which they are made, are
reasonable. The Company acknowledges and agrees that, in rendering its
services hereunder, the Advisor will be using and relying on the Information
(and information available from public sources and other sources deemed
reliable by the Advisor) without independent verification thereof by the
Advisor or independent appraisal by the Advisor of any of the Company or the
Company's assets. Any advice rendered by the Advisor pursuant to this
Agreement may not be disclosed publicly without the Advisor's prior written
consent.
5. The Company agrees to indemnify the Advisor in accordance with the
indemnification provisions (the "Indemnification Provisions") attached as
Exhibit "A" to this Agreement, which Indemnification Provisions are
incorporated herein and made a part hereof.
6. The term of this Agreement shall commence on the date hereof and
expire on December 31, 2003. Notwithstanding the foregoing, either party
hereto may terminate this Agreement at any time upon written notice, without
liability or expenses incurred or continuing obligation, except as otherwise
set forth in this Section 6. Such termination shall be effective 30 days from
the date of the receipt of the written notice. Neither termination of this
Agreement nor completion of the assignment contemplated hereby shall affect:
(i) any compensation earned by the Advisor up to the effective date of
termination or completion, as the case may be, (ii) any compensation to be
earned by the Advisor after termination pursuant to paragraph 2 hereof, (iii)
the reimbursement of expenses incurred by the Advisor up to the date of
termination or completion, as the case may be, (iv) the provisions of
Sections 3 to 10, inclusive, of this Agreement, and (v) the attached
Indemnification Provisions which are incorporated herein, all of which shall
remain operative and in full force and effect.
7. Intentionally Deleted
Biophan Technologies, Inc.
Page 3
8. The validity and interpretation of this Agreement shall be governed
by the law of the State of New York applicable to agreements made and to be
fully performed therein, without reference to conflicts of laws. The Company
irrevocably submits to the jurisdiction of any court of the State of New York
located in Monroe county or the United States District Court located in
Monroe county for the purpose of any suit, action, or other proceeding
arising out of this Agreement, or any of the agreements or transactions
contemplated hereby, which is brought by or against the Company, and (i)
hereby irrevocably agrees that all claims in respect of any such suit,
action, or proceeding may be heard and determined in any such court and (ii)
to the extent that the Company has acquired, or hereafter may acquire any
immunity from jurisdiction of such court or from any legal process therein,
the Company hereby waives, to the fullest extent permitted by law, such
immunity. The Company hereby waives, and agrees not to assert in any such
suit, action, or proceeding, in each case, to the fullest extent permitted by
applicable law, any claim that (a) the Company is not personally subject to
the jurisdiction of any such court, (b) the Company is immune from any legal
process (whether through service or notice, attachment prior to judgment,
attachment in aid of execution, execution, or otherwise) with respect to the
Company's property, or (c) any such suit, action, or proceeding is brought in
an inconvenient forum.
9. The benefits of this Agreement shall inure to the respective
successors and assigns of the parties hereto and of the indemnified parties
hereunder and their successors and assigns and representatives, and the
obligations and liabilities assumed in this Agreement by the parties hereto
shall be binding upon their respective successors and assigns.
Notwithstanding the forgoing, the Advisor may not assign its obligations to
perform under this Agreement without the prior written consent of the
Company, in its sole discretion.
10. For the convenience of the parties, any number of counterparts of
this Agreement may be executed by the parties hereto. Each such counterpart
shall be, and shall be deemed to be, an original instrument, but all of such
counterparts taken together shall constitute one and the same Agreement. This
Agreement may not be modified or amended, except in writing signed by the
parties hereto.
11. This Agreement replaces and terminates the Letter Agreement executed
by SBI E2Capital (USA) LTD and Biophan Technologies, Inc. dated July 2, 2002
(the "Prior Agreement"). SBI E2-Capital (USA), LTD also acknowledges and
agrees that the warrants issued to it pursuant to the Prior Agreement be and
hereby cancelled.
Biophan Technologies, Inc.
Page 4
If the foregoing correctly sets forth the understanding we have heretofore
reached, please sign and return the enclosed copy of this letter. If this
Letter of Intent is not signed by December 31, 2002, and an extension has not
been mutually agreed upon in writing by the Company and the Advisor, this
Letter of Intent will be considered void. By accepting this letter, the
Company agrees to keep this letter and all terms confidential and not to
"shop" it with any other Advisor or underwriters.
Very truly yours,
SBI USA, a division of FIRST SECURITIES USA, INC.
By: By:
Xxxxxx Xxxxxxx Xxxxxxx X. Xxxxxx
Managing Director Chairman and President
SBI E2-Capital (USA), Ltd
with respect to paragraph 11 only
By:
Xxxx Xxxx
Managing Director
Confirmed and Agreed to this day of December, 2002:
BIOPHAN TECHNOLOGIES, INC.
By
Name
Title:
Biophan Technologies, Inc.
Page 5
INDEMNIFICATION PROVISIONS
The Advisor will be acting on behalf of Biophan Technologies, Inc. (the
"Company") in connection with the services or matters that are the subject of
the Agreement to which this Exhibit A is attached. Accordingly, the Company
agrees to indemnify and hold harmless the Advisor and their respective
affiliates, their respective directors, officers, agent, and employees and
affiliates, and each other person, if any, controlling any such Advisor or
any of their respective affiliates (collectively the "Indemnified Persons"),
from and against any losses, claims, damages, liabilities or expenses (or
actions, including shareholder actions, in respect thereof) related to or
arising out of such engagement or the Advisor's role in connection therewith,
and will reimburse the Indemnified Persons for all reasonable expenses
(including out-of-pocket expenses and Advisor's counsel fees and expenses) as
they are incurred by the Indemnified Persons in connection with
investigating, preparing or defending any such action or claim, whether or
not in connection with pending or threatened litigation in which any Advisor
or any Indemnified Person is a party. The Company will not, however, be
responsible to any particular Advisor for any losses, claims, damages,
liabilities, or expenses which are finally judicially determined to have
resulted primarily from such Advisor's willful misconduct or bad faith. The
Company also agrees that none of the Indemnified Persons shall have any
liability to the Company for or in connection with the services or matters
pertaining to the Agreement except for any such liability for losses, claims,
damages, liabilities or expenses incurred by the Company that results
primarily from any Advisor's willful misconduct or bad faith. If the forgoing
indemnity is unavailable or insufficient to hold the Indemnified Persons
harmless, then the Company shall contribute to the amount paid or payable by
the Indemnified Persons, in respect of the Indemnified Persons, for losses,
claims, damages, liabilities, or expenses in such proportion as appropriately
reflects the relative benefits received by, and fault of, the Company, on the
one hand and the Indemnified Persons, on the other, in connection with the
matters as to which such losses, claims, damages, liabilities or expenses
relate and other equitable consideration; provided, however, the Company
agrees that the aggregate contribution of all Indemnified Persons shall in
all cases be not more than the amount of fees actually received by the
Advisor for their services. It is hereby further agreed that the relative
benefits to the Company on the one hand and the Indemnified Persons on the
other with respect to any transaction contemplated by the Agreement shall be
deemed to be in the same proportion as (i) the total value of the transaction
bears to (ii) the fees actually paid to the Advisor with respect to such
transaction. The foregoing Agreement shall be in addition to any rights that
any Advisor or any Indemnified Person may have at common law or otherwise.
The Company hereby consents to personal jurisdiction and service and venue in
any court in which any claim which is subject to this Agreement is brought
against any Advisor or any other Indemnified Person. If any action,
proceeding, or investigation is commenced as to which an Indemnified Person
demands indemnification, the Indemnified Person shall have the right to
retain counsel of its own choice to represent it, the Company shall pay the
reasonable fees and expenses of such counsel, and such counsel shall to the
extent consistent with its professional responsibilities cooperate with the
Company and any counsel designated by the Company; provided that the Company
shall not be responsible for the fees and expenses of more than one counsel.
