Exhibit 10.31
[Gruntal & Co. LLC Letterhead]
November 15, 2001
STRICTLY PRIVATE
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AND CONFIDENTIAL
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Xxxxxxx Xxxxxxx
President & CEO
Empyrean Bioscience, Inc.
00000 Xxxxxxxx Xxxx, Xxxxx X
Xxxxxxxxx, XX 00000
Dear Xx. Xxxxxxx:
This is to acknowledge and confirm the terms of our corporate finance
representation agreement (the "Agreement") as follows:
1. Empyrean Bioscience, Inc. (the "Company") hereby engages Gruntal & Co.,
LLC ("Gruntal"), and Gruntal hereby agrees to render services to the
Company, as its corporate finance advisor and investment banker on the
terms and for the services specified herein.
Gruntal agrees to provide general financial advice to the Company and
exclusively undertake transaction(s) with specific corporate and/or
institutional targets, as listed in Addendum I, which the Company and
Gruntal mutually agree upon to perform investment banking services,
including but not limited to public or private offerings of debt or
equity securities, acquisitions, mergers or the partial or complete
sale of the stock or assets of the Company or any of its divisions or
subsidiaries, joint ventures, strategic alliances or any other
financing transaction(s) and the preparation of any fairness opinions
required with respect to the Company in connection with any
transaction(s) or other matter. Gruntal retains the right to add
additional corporate and institutional targets to Addendum I, with the
prior written consent of the Company.
Xxxxxxx agrees to work with the Company in attempting to consummate
transactions for which the Company engages Gruntal. In that regard and
upon the Company's request, Xxxxxxx will endeavor to:
A. Assist the Company in its due diligence review of any investor
or company and other matters, if any, pertinent to a
transaction.
B. Assist in structuring and negotiating the transaction.
C. Undertake certain investigations and reviews with regard to
the possible rendering of an opinion as to the fairness, from
a financial point of view, of the consideration to be received
by the shareholders of the Company in a transaction where such
an opinion is required.
2. The term of this engagement (the "Engagement Period") shall be for a
period of six months commencing with the execution of this Agreement by
the Company (the "Effective Date").
3. The Company agrees to issue to Gruntal warrants to acquire a total of
500,000 shares of the Company's Common Stock. The issuance of these
warrants shall occur in two installments: (i) upon the signing of this
Agreement, the Company agrees to issue to Gruntal warrants to acquire
250,000 shares of the Company's Common Stock at an exercise price equal
to the closing price as of the day of execution of this Agreement, and
(ii) on February 15, 2002, the Company agrees to issue to Gruntal
additional warrants to acquire 250,000 shares of the Company's Common
Stock
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at an exercise price equal to the closing price as of the day of
execution of this Agreement. The warrants will be exercisable at any
time before the fifth anniversary of the date of execution of this
Agreement. The warrants shall, among other things: (i) be transferable
to officers, directors and employees of Gruntal, (ii) permit exercise
on a cashless basis, and (iii) contain such other terms as are
customarily included in warrants of this type. The Company will
register the shares issuable upon exercise of the Warrants.
4. In the event a sale of the Company is completed or a definitive
agreement for the sale of the Company is entered into during the term
of this Agreement or within 18 months following termination of this
Agreement, with a third party or third parties introduced to the
Company by Gruntal, the Company agrees to pay Gruntal a cash fee (the
"Success Fee") at closing equal to 5% of the total consideration
("Transaction Value") when paid to or received by either the Acquiror
or its shareholders, whether in cash or any other form of payment, up
to a total Transaction Value of $10 million; an additional 2-1/2% of
Transaction Value paid to or received by the Target in excess of $10
million and up to $20 million; and an additional 1.25% of Transaction
Value when paid to or received by the Target over $20 million.
Transaction Value shall include, but not be limited to, cash, stock,
notes, options, warrants, convertible securities, property, goods or
services contributed, the net value of current assets not sold,
dividends or any other distributions paid to stockholders at the time
of, or immediately preceding, the sale, payments for agreements not to
compete, consulting or employment agreements, contingent payments,
earn-outs or installment payments when received by or paid to the
Acquiror and/or its or their shareholders, plus any indebtedness that
is assumed or refinanced. Any securities issued in connection with a
sale for purposes of calculating the Transaction Value shall be valued
at fair market value in the case of equity securities, and at face
value or principal amount, in the case of debt securities. In no event,
however, will the Success Fee as determined by this paragraph 4 be less
than $500,000 with respect to a sale. The Company also agrees to share
with Gruntal one-half of any breakup fee negotiated between the Company
and the Acquiror.
5. In the event a Financing Transaction is completed or a definitive
commitment relating thereto is entered into during the term of this
Agreement, or within 12 months following the termination of this
Agreement with a third party or third parties introduced to the Company
by Gruntal, the Company shall pay Gruntal a fee (the "Financing Fee")
equal to 8% of the aggregate gross proceeds of any equity capital
issued by the Company (both common and preferred), 3% of the aggregate
gross proceeds of any subordinated debt financing issued by the Company
and 1.5% of the aggregate proceeds of any bank financing issued by the
Company. Furthermore, should Gruntal arrange private equity financing,
issued by the Company, the Company shall pay Gruntal an additional fee
in the form of five year warrants to purchase 10% of the number of
shares sold or of the amount of equity financing arranged at the same
price as the equity financing arranged.
6. In the event that the Company asks Xxxxxxx to render a Fairness Opinion
("Opinion") as to the fairness of the consideration paid in a sale to
the acquiror's shareholders, Gruntal shall be paid a fee of no less
than $250,000 at the time Gruntal renders the Opinion. The nature and
scope of Xxxxxxx's study for the purpose of delivering the Opinion
shall be such as it considers appropriate. The form of Gruntal's
Opinion shall be such as it considers appropriate and may state in
substance, among other things, that it is given in reliance on the
accuracy and completeness of the Information furnished to us. It is
understood that the Opinion may be included in its entirety in any
proxy statement or other document distributed to shareholders of the
Acquiror in connection with a sale. However, no summary of or excerpt
from Xxxxxxx's Opinion may be used, and no public reference (other than
as provided in the preceding sentence) to Gruntal's Opinion may be made
except with our prior approval, which shall not be unreasonably
withheld.
7. Any fees not paid when due will accrue interest to the extent permitted
by applicable law, at a rate of 12% per year and the Company will be
responsible for all legal fees incurred by Gruntal in collecting such
fees.
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8. The Company will reimburse Gruntal for reasonable out-of-pocket
expenses incurred in connection with its representation and services
hereunder (including without limitation fees and disbursements of
counsel and all travel, lodging, meal and other out-of-pocket
expenses). Such expenses shall not exceed $10,000 without the prior
written consent of the Company, which shall not be unreasonably
withheld. Reimbursement for out-of-pocket expenses shall be paid by the
Company within ten (10) days of receipt of invoice from Gruntal. The
Company's obligation to Gruntal for reimbursement of out-of-pocket
expenses will survive any cancellation of this Agreement.
9. Indemnification is incorporated by reference to Addendum II.
10. The benefits of this Agreement shall inure to the parties hereto and
their respective successors and assigns, and the obligations and
liabilities assumed in this Agreement shall be binding upon the parties
hereto and their respective successors and assigns. Notwithstanding
anything contained herein to the contrary, the Company shall not assign
to an unaffiliated third party any of its rights or obligations
hereunder without the express written consent of Gruntal.
11. Any dispute between the parties to this Agreement shall be settled by
arbitration before the facilities of the New York Stock Exchange, Inc.
or the National Association of Securities Dealers, Inc. in the City of
New York and will be conducted pursuant to applicable federal laws, the
laws of the State of New York, without regard to conflicts of laws, and
the rules of the selected arbitral facility. The parties understand
that the award of the arbitrators, or of a majority of them, will be
final and that a judgement upon any award rendered may be entered in
any court having jurisdiction.
12. Either the Company or Gruntal may terminate this Agreement at any time
after 30 days from the date of acceptance of the Agreement. In the
event of such termination, the Company shall pay Gruntal fees earned
through the date of such termination ("Termination Date") as well as
afterwards pursuant to any provision of Sections 3, 4, 5 or 6 hereof,
together with all expense reimbursements due under the terms of Section
8. All such fees and reimbursements due to Gruntal pursuant to the
immediately preceding sentence shall be paid to Gruntal on or before
the Termination Date (in the event such fees and reimbursements are
earned or owed as of the Termination Date) or upon the closing any
transaction or any applicable portion thereof (in the event such fees
are due pursuant to the terms of Sections 3, 4, 5 or 6 above).
Notwithstanding anything expressed or implied herein to the contrary,
the terms and provisions of Sections 3, 4, 5, 7, 8, 9, 10 and 11 shall
survive the termination of this Agreement for any reason. Any
termination of this Agreement shall not affect the Company's obligation
to indemnify Gruntal and certain related entities as provided in
Addendum II.
13. All notices provided hereunder shall be given in writing and either
delivered personally or by overnight courier service or sent by
certified mail, return receipt requested, if to Gruntal, to Xxx Xxxxxxx
Xxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000, Attention: Xx. Xxxxxx
Xxxxxxx; and if to the Company, to Empyrean Bioscience, Inc. 00000
Xxxxxxxx Xxxx Xxxx, Xxxxx X, Xxxxxxxxx, Xxxx 00000, Attn: Xx. Xxxxxxx
Xxxxxxx.
14. The Company represents and warrants to Gruntal that Xxxxxxx Xxxxxxx is
the Chief Executive Officer of the Company and is authorized on behalf
of the Company to execute the Agreement and to consummate the potential
transaction(s) described herein, and the execution of this Agreement
will not conflict with or breach the certificate or articles of
incorporation or by-laws of the Company or any agreement to which the
Company is a party.
15. The Agreement sets forth the entire understanding of the parties
relating to the subject matter hereof, and supersedes and cancels any
prior communications, understandings and agreements between the
parties. This Agreement cannot be modified, or changed, nor can any of
its provisions be waived, except by written agreement signed by all
parties.
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Please confirm that the foregoing is in accordance with your understanding by
signing and returning this letter to Xxxxxxx and keeping a duplicate for your
files. This Agreement shall be effective after your acceptance below and its
receipt by Gruntal at its address set forth on this letter.
Very truly yours,
GRUNTAL & CO., L.L.C.
Xxxxxx X. Xxxxxxx
Managing Director
Xxxxxx and accepted to as of
the 19th day of November, 2001.
EMPYREAN BIOSCIENCE, INC.
By:
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Xxxxxxx Xxxxxxx
President & CEO
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Addendum I
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Addendum II - Indemnification
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The Company hereby agrees to indemnify and hold harmless Gruntal and
its affiliates, and the respective directors, officers, partners, controlling
persons (within the meaning of Section 15 of the Securities Act of 1933 or
Section 20 of the Securities Exchange Act of 1934), agents, counsel and
employees of Gruntal or any of its affiliates (Gruntal and each such other
person or entity being referred to individually as an "Indemnified Person" and,
collectively, as "Indemnified Persons"), to the full extent lawful, from and
against any and all claims, liabilities, losses, damages, penalties, judgments,
awards and expenses incurred by any Indemnified Person (including fees and
disbursements of counsel, which counsel shall be selected by Gruntal) which (A)
relate to or arise out of (i) actions taken or omitted to be taken (including
any untrue statements made or alleged to have been made or any statements
omitted or alleged to have been omitted, whether in connection with the
Information or any other oral or written statements) by the Company, its
affiliates, directors, employees or agents, or (ii) actions taken or omitted to
be taken by an Indemnified Person with the Company's consent or in conformity
with its instructions or its actions or omissions, or (B) otherwise relate to or
arise out of Gruntal's activities on the Company's behalf in connection with the
engagement. In addition, the Company will reimburse Gruntal and any other
Indemnified Person for all costs and expenses, including counsel fees and
disbursements, as they are incurred, in connection with investigating, preparing
and defending any action, formal or informal claims, investigation, inquiry or
other proceeding, whether or not in connection with pending or threatened
litigation, caused by or arising out of or in connection with Xxxxxxx acting
pursuant to the letter of intent whether or not Gruntal or any Indemnified
Person is named as a party thereto and whether or not any liability results
therefrom. The Company will not, however, be responsible for any claim,
liabilities, losses, damages or expenses pursuant to clause (B) of the preceding
sentence which are finally judicially determined by a court of competent
jurisdiction (not subject to further review) to have resulted primarily from
Xxxxxxx's willful misconduct or gross negligence. The Company also agrees that
neither Xxxxxxx nor any other Indemnified Person shall have any liability to the
Company for or in connection with such engagement except for any such liability
for claims, liabilities, losses, damages, or expenses incurred by the Company
which is finally judicially determined to have resulted primarily from Gruntal's
willful misconduct or gross negligence.
In order to provide for just and equitable contribution, if a claim for
indemnification is made pursuant to these provisions but it is found in a final
judgment by a court of competent jurisdiction (not subject to further appeal)
that such indemnification is not available for any reason even though the
express provisions hereof provide for indemnification in such case, then the
Company, on the one hand, and Gruntal on the other hand, shall contribute to
such claim, liability, loss, damage or expense for which such indemnification or
reimbursement is held unavailable in such proportion as is appropriate to
reflect the relative benefits to the Company, on the one hand, and Gruntal on
the other hand, in connection with the actions contemplated by the engagement,
subject to the limitation that in any event the aggregate contribution of
Gruntal and all Indemnified Persons to all losses, claims, damages, liabilities
and expenses to which contribution is available hereunder shall not exceed the
amount of fees actually received by Gruntal pursuant to the Engagement Letter.
The foregoing right to indemnity and contribution shall be in addition
to any rights that Gruntal or any other indemnified Person may have at common
law or otherwise and shall remain in full force and effect following the
completion or any termination of Gruntal's engagement and shall be binding on
and inure to the benefit of the successors, assigns, heirs and personal
representatives of the company and Gruntal and any other Indemnified Party. The
Company hereby consents to personal jurisdiction and to service and venue in any
court in which any claim which is subject to this is brought against Gruntal or
any other Indemnified Person and in any court in which Gruntal or another
indemnified Person brings such a claim against the Company. Neither termination
nor completion of the engagement of Gruntal referred to above shall affect these
provisions, which shall remain operative and in full force and effect.
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