Exhibit 10.12
INVESTMENT ADVISORY AGREEMENT
This Investment Advisory Agreement made this 14th day of February 2005 is
between Applied DNA Sciences, Inc., a Nevada corporation located at ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇ 9009 ("APDNAS"), and First London
Finance, Ltd. ("FLF"), located at The Akara Building, 24 ▇▇ ▇▇▇▇▇▇ St., Wickhams
Cay I, Road Town, Tortola, British Virgin Islands and supersedes the previous
Investment Advisory Agreement between APDNAS and FLF of 8th December 2004.
APDNAS and FLF agree as follows:
I. ENGAGEMENT
APDNAS hereby engages and retains FLF as its non-exclusive Investment
Adviser to perform the services (as that term is defined in III. Below,
hereafter referred to as the "Services") and FLF accepts such appointment
on the terms and subject to the conditions hereinafter set forth and agrees
to use its best efforts in providing such Services.
II. INDEPENDENT CONTRACTOR
A. FLF shall be, and in all respects be deemed to be, an independent
contractor in the performance of its duties hereunder, any law of any
jurisdiction to the contrary.
B. FLF shall not, by reason of this Agreement or the performance of the
Services, be or be deemed to be, an employee, agent, partner,
co-venture or controlling person of APDNAS, and FLF shall not have any
power to enter into any agreement on behalf of or otherwise bind
APDNAS.
C. FLF shall not have or be deemed to have fiduciary obligations or
duties to APDNAS and shall be free to pursue for their own account (or
for the account of others) such activities, employments, ventures,
businesses and other pursuits as they at their sole discretion, may
elect.
D. Notwithstanding the above provision, FLF shall not pursue for its own
account (or for the account of others) such activities, employments,
ventures, businesses, financing, debt/equity funding, investment
advisory and/or brokerage services that are or may be perceived to be
a conflict with FLF's obligations under this Agreement or be adverse
to APDNAS' interests or the proposed business plans of APDNAS.
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III. SERVICES
A. Advise and assist APDNAS to raise up to Twenty-Seven Million U.S.
dollars ($27,000,000.00) through the sale of units ("Units") and
exercise of warrants.
B. Assist APDNAS in efforts to seek additional business/business
relationships that will be of benefit to APDNAS.
C. Advise APDNAS and/or any of its affiliates in its negotiations with
one or more individuals, broker-dealers, placement agents, firms or
entities (the "Candidate(s)") who may have an interest in providing
capital or in pursuing a "Business Combination" with APDNAS. As used
in this Agreement, the term "Business Combination" shall be deemed to
mean any form of merger, acquisition (of assets or Intellectual
Property), joint venture, licensing agreement, product sales and/or
marketing, distribution, combination and/or consolidation, etc.
involving APDNAS and/or any of its affiliates and any other entity. As
used herein, the term "investment" shall include the contribution of
anything of value by a candidate introduced by FLF to APDNAS its
subsidiaries or affiliates.
D. Devote such time and best effort to the affairs of APDNAS as is
reasonable and adequate to render the consulting services contemplated
by this agreement as well as may reasonably be requested by APDNAS.
FLF is not responsible for the performance of any services, which may
be rendered hereunder without APDNAS providing the necessary
information in writing prior thereto, nor shall FLF include any
services that constitute the rendering of any legal opinions or
performance of work that is in the ordinary purview of the Certified
Public Accountant. FLF cannot guarantee results on behalf of APDNAS
but shall pursue all reasonable avenues available through its network
of contacts that FLF hereby represents it has established and that are
capable of providing the funding levels and types contemplated by this
agreement. At such time as an interest is expressed by a third party
in APDNAS' needs, FLF shall notify APDNAS and advise it as to the
source of such interest and any terms and conditions of such interest.
The acceptance and consumption of any transaction is subject to
acceptance of the terms and conditions by APDNAS. It is understood
that a portion of the compensation paid hereunder is being paid by
APDNAS to retain FLF to remain available to advise it on transactions
on an as-needed basis. Further FLF shall advise APDNAS prior to making
any and all contacts it intends to make in performance of this
agreement in order to assure full coordination with APDNAS and
approval by APDNAS of such potential funding source.
E. APDNAS and FLF hereby confirm their express written intent that FLF
shall only be required to devote such time to the performance of the
Services as is reasonable to properly discharge its responsibilities
under this Agreement.
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F. FLF will advise APDNAS in structuring, seeking and issuing the
documents related to the financing.
G. FLF shall act as a non-exclusive Investor Relations Advisor to APDNAS
for as long as this Agreement remains in force
H. In conjunction with the Services, FLF agrees to:
1. Be available to the officers of APDNAS at such mutually agreed
upon place during normal business hours for reasonable periods of
time, subject to reasonable advance notice and mutually
convenient scheduling, for the purpose of advising and assisting
APDNAS in the preparation of such reports, summaries, corporate
and/or transaction profiles, due diligence packages and/or other
material and documentation as shall be necessary, in the opinion
of FLF, to properly present APDNAS to other entities and
individuals that could be of benefit to APDNAS; 2. Make itself
available for telephone conferences with the principal financial
sales and/or operating officer(s) of APDNAS during normal
business hours; 3. Advise APDNAS' management in corporate
finance, structuring the nature, extent and other parameters of
any private or other offer(s) to be made to Candidate(s); 4.
Advise APDNAS' management in evaluating proposals and
participating in negotiations with Candidate(s); 5. Advise APDNAS
regarding company operations, staffing, strategy, and other
issues related to building shareholder value as APDNAS may
reasonably request, consistent with the provisions of this
Agreement; 6. Introduce APDNAS to banking and investment firms
qualified, capable and interested in finding funding for the
APDNAS; 7. Introduce APDNAS to investor relations firms that may
assist APDNAS in communicating with its shareholders, the media
and other interested parties. 8. Introduce the APDNAS to firms
qualified, capable and interested in converting the APDNAS' SEC
filings and proxy statements into an ▇▇▇▇▇(R) format for
submission.
IV. EXPENSES
It is expressly agreed and understood that FLF's compensation as provided
in this Agreement does include normal and reasonable out-of-pocket
expenses. FLF will be entitled to reimbursement of its business expenses,
as described herein APDNAS shall reimburse the pre-approved expenses of FLF
and such amounts shall not be deducted from any fees described in Section V
below titled, "COMPENSATION."
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A. The disbursements of expense money to FLF, and its affiliates will be
paid by APDNAS for the prior approved expenses. It is agreed that
APDNAS will pay all out-of-pocket pre-approved expenses incurred in
connection with this engagement.
B. FLF shall not incur any expense exceeding Five Hundred US Dollars (US
$500.00) without prior written consent from APDNAS.
C. APDNAS hereby agrees to compensate FLF promptly upon receipt of an
approved expense invoice from FLF. Whenever feasible, FLF will request
advance payment of previously approved expenses.
D. APDNAS hereby agrees that FLF's employees may:
1. Travel in business class on all international flights and either
business class or first class on U.S. domestic flights of more
than two hours duration;
2. Stay at Hyatt, Marriott, Sheraton, Hilton or equivalent hotel for
overnight stays.
V. COMPENSATION
In consideration for Financial Consulting and Investor relations services
provided to the APDNAS (the " Services"), as set forth at Section III A
through H, above), APDNAS agrees that FLF shall be entitled to compensation
as follows:
A. A monthly Investment Advisory Fee of Ten Thousand US Dollars (US
$10,000.00) USD ("Investment Advisory Fee") shall be paid for a period
of one (1) year to FLF for the SERVICES described in III. above. The
period may be extended in annual increments, as mutually agreed in
writing by the parties. The Investment Advisory Fee shall be paid on
the first of each month, commencing 1 December, 2004. The fee shall
continue to be paid monthly in advance until this Agreement expires. .
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B. In addition, APDNAS agrees to issue to FLF Eight Hundred and Fifty
Thousand (850,000) shares of APDNAS' common stock to be issued on or
about 1st February 2005 and Four Hundred Thousand shares of APDNAS'
common stock to be issued on 31st December 2005 (hereinafter referred
to as the "Company Shares"). APDNAS hereby agrees to review the
Services performed by FLF every six (6) months for the duration of
this contract and may issue additional shares to FLF, as may be deemed
appropriate by the parities to this Agreement.
C. The Company Shares issued shall be Registered in the SB-2 Registration
to be filed by APDNAS on 15th February, 2005. FLF agrees to a "Lock-up
Agreement" under which the registered Company Shares shall not be
eligible for sale until 31st December, 2005.
VI. REPRESENTATIONS, WARRANTIES AND COVENANTS
The parties hereby represent, warrant and covenant that:
A. The execution, delivery and performance of this Agreement, in the time
and manner herein specified, will not conflict with, result in a
breach of, or constitute a default under any existing agreement,
indenture, or other instrument to which either APDNAS or FLF is a
party or by which either entity may be bound or affected.
B. APDNAS hereby irrevocably agrees not to circumvent, directly or
indirectly, the intent of this Agreement, to avoid payment of fees in
any transaction with any corporation, partnership, entity, or
individual, introduced by FLF to APDNAS, in connection with any
project, any loans or collateral, or other transaction involving any
products, transfers or services, or addition, renewal extension,
rollover, amendment, renegotiations, new contracts, parallel
contracts/agreements, or third party assignments thereof.
C. FLF agrees to adhere to an understanding of Confidentiality,
Non-Circumvention and Non-Competition and be bound thereby as
expressed in a separate written agreement delivered concurrently
herewith.
D. APDNAS and FLF have full legal authority to enter into this Agreement
and to perform the same in the time and manner contemplated.
E. The individuals whose signatures appear below are authorized to sign
this Agreement on behalf of their respective organizations.
F. APDNAS will co-operate with FLF, and will promptly provide FLF with
all reasonably requested information in order for FLF to perform its
Services pursuant to this Agreement.
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VII TERM AND TERMINATION
A. The term of this Agreement shall expire on 7th December 2006, unless
extended in writing by both APDNAS and FLF.
VIII CONFIDENTIAL DATA
A. FLF shall not divulge to others, any trade secret or confidential
information, knowledge, or data concerning or pertaining to the
business and affairs of APDNAS, obtained by FLF as a result of its
engagement hereunder, unless authorized, in writing by APDNAS. Upon
termination of this Agreement for any reason FLF agrees to return all
information to APDNAS.
B. APDNAS shall not divulge to others, any trade secret or confidential
information, knowledge, or data concerning or pertaining to the
business and affairs of FLF, obtained by APDNAS as a result of its
engagement hereunder, unless authorized, in writing, by FLF.
C. FLF shall be required in the performance of its duties to divulge to
APDNAS or any officer, director, agent or employee of APDNAS, any
secret or confidential information, knowledge, or data concerning any
other person, firm or entity (including, but not limited to, any such
persons, firm or entity which may be a competitor or potential
competitor of APDNAS), which FLF may have or be able to obtain
otherwise than as a result of the relationship established by this
Agreement.
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IX OTHER MATERIAL TERMS AND CONDITIONS
D. Piggy-Back Registration Rights. If, at any time commencing after the
date hereof, the APDNAS proposes to register any shares of common
stock of the APDNAS under the Securities Act of 1933, as amended,
(other than pursuant to a Form ▇-▇, ▇▇▇▇ ▇-▇ or any other successor
form of limited purpose), the APDNAS shall include the FLF Shares
under such registration statement and pay for all such registration
costs and expenses of FLF.
E. Provisions. Neither termination nor completion of the assignment shall
affect the provisions of this Agreement, and the Indemnification
Provisions, attached at Schedule "A" and hereby made part of this
Agreement, which shall remain operative and in full force and effect.
F. Additional Instruments. Each of the parties shall from time to time,
at the request of others, execute, acknowledge and deliver to the
other party any and all further instruments that may be reasonably
required to give full effect and force to the provisions of this
Agreement.
G. Entire Agreement. Each of the parties hereby covenants that this
Agreement is intended to and does contain and embody herein all of the
understandings and Agreements, both written or oral, of the parties
with respect to the subject matter of this Agreement, and that there
exists no oral agreement or understanding expressed or implied
liability, where the absolute, final and unconditional character and
nature of this Agreement shall be in any way invalidated, empowered or
affected. There are no representations, warranties or covenants other
than those set forth herein.
H. Laws of Nevada. This Agreement shall be deemed to be made in, governed
by and interpreted under and construed in all respects in accordance
with the laws of Nevada, irrespective of the country or place of
domicile or residence of either party. The FLF and APDNAS hereby agree
that any legal proceedings, suits or arbitrations filed by either
party must be filed and adjudicated in Nevada, USA.
I. Assignments. The benefits of the 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; provided that the rights and obligations of
APDNAS and FLF under this Agreement may not be assigned or delegated
without the prior written consent of APDNAS or FLF, as the case may
be, and any such purported assignment shall be null and void.
J. Originals. This Agreement may be executed in any number of
counterparts, each of which so executed shall be deemed an original
and constitute one and the same agreement. Facsimile copies with
signatures shall be given the same legal effect as an original.
K. Addresses of Parties. Each party shall at all times keep the other
informed of its principal place of business if different from that
stated herein, and shall promptly notify the other of any change,
giving the address of the new place of business or residence.
L. Notices. All notices that are required to be or may be sent pursuant
to the provision of this Agreement shall be sent by certified mail,
return receipt requested, by facsimile or by overnight package
delivery service to each of the parties at the address appearing
herein, and shall count from the date of receipt of the delivery
service or confirmation of facsimile receipt or by a validated air
▇▇▇▇. Addresses for facsimile are as follows: For FLF: attention ▇▇▇▇
▇▇▇▇▇▇, Agent, ▇▇▇-▇▇▇-▇▇▇▇. For APDNAS : attention ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇,
President and ▇▇▇▇▇ ▇▇▇▇▇, COO, ▇▇▇-▇▇▇-▇▇▇▇.
M. Modification and Waiver. A modification or waiver of any of the
provisions of this Agreement shall be effective only if made in
writing and executed with the same formality as this Agreement. The
failure of any party to insist upon strict performance of any of the
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provisions of this Agreement shall not be construed as a waiver of any
subsequent default of the same or similar nature or of any other
nature.
X. Attorney's Fees If any arbitration, litigation, action, suit, or other
proceeding is instituted to remedy, prevent or obtain relief from a breach
of this Agreement, in relation to a breach of this Agreement or pertaining
to a declaration of rights under this Agreement, the prevailing party will
recover all such party's reasonable attorneys' fees incurred in each and
every such action, suit or other proceeding, including any and all appeals
or petitions there from. As used in this Agreement, attorneys' fees will be
deemed to be the reasonable legal fees and services performed in connection
with the matters involved, including those related to any appeal or the
enforcement of any judgment calculated on the basis of the reasonable fee
charged by attorneys performing such services.
WHEREOF, on the dates of their respective signatures, each party has executed
this Agreement.
APPROVED AND AGREED: APPROVED AND AGREED:
First London Finance, Ltd. Applied DNA Sciences, Inc.
/s/ ▇. ▇▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
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By: ▇. ▇▇▇▇▇▇▇▇ By: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
President
/s/ ▇. ▇▇▇▇▇▇
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By: ▇. ▇▇▇▇▇▇ 14th February, 2005
General Attorneys Date of execution
14th February, 2005
Date of execution
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