Exhibit 6.22
iCapital Finance, Inc.
--------------------------------------------------------------------------------
0000 Xxxx Xxxxxx Xxxxx 0000 Xxxxxx XX 00000 Voice 000.000.0000 Fax 000.000.0000
INVESTMENT BANKING SERVICES AGREEMENT
-------------------------------------
This Investment Banking Services Agreement (the "Agreement") is entered
this 5th day of March, 2003 by and between iCapital Finance, Inc.
("Consultant"), a California corporation, and Biofield Corp. (OTC BB: BZET)
("Client" or "Company"), a Delaware corporation, with reference to the
following:
Preliminary Statement
---------------------
A. The Client desires to be assured of the association and services of
the Consultant in order to avail itself of the Consultant's
experience, skills, abilities, knowledge, and background to facilitate
long range strategic planning, and to advise the Client in business
and/or financial matters and is therefore willing to engage the
Consultant upon the terms and conditions set forth herein.
B. Consultant desires to be assured, and Client desires to assure
Consultant, that, if Consultant associates with Client and allocates
its resources necessary to provide Client the aforementioned services,
that Consultant will be paid the consideration described herein and
said consideration will be nonrefundable, regardless of the
circumstances except for Consultant's willful malfeasnace, gross
negligence, fraud, misappropriation, embezzlement, and after ten (10)
days prior written notice without cure, Consultant's default,
violation of or failure to perform any provision of this Agreement,
and therefore Consultant agrees to be engaged and retained by the
Client on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing preliminary statement,
and of the mutual promises hereinafter set forth and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
1. Engagement. Client hereby engages Consultant on a non-exclusive basis,
and Consultant hereby accepts the engagement to become a financial consultant to
the Client and to render such advice, consultation, information, and services to
the Directors and/or Officers of the Client regarding general financial and
business matters including, but not limited to:
a. Reorganizations, reverse mergers, divestitures, and due
diligence studies;
b. Capital sources and the formation of financial transactions;
c. Banking methods and systems;
d. Guidance and assistance in available alternatives to
maximize shareholder value;
e. Periodic preparation and distribution of research reports
and information to the broker/dealer and investment banking
community.
It is expressly understood that Consultant shall have no power to bind
Client to any contract or obligation or to transact any business in Client's
name or on behalf of Client in any manner.
It is expressly understood and agreed by Client that, in reliance upon
Client's representations, warranties and covenants contained herein, immediately
upon execution and delivery of this Agreement by Client, Consultant is setting
aside and allocating for the benefit of Client valuable resources (including,
without limitation, capital and reservation of work schedules of employees)
required to fulfill Consultant's obligations hereunder and in doing so,
Consultant will necessarily forebear from undertaking other opportunities and
commitments (that would result in enrichment to Consultant) in order to be
available to provide Client the services contemplated by this Agreement.
2. Term. The term ("Term") of this Agreement shall commence on the date
hereof and continue for twelve (12) months. The Agreement may be extended upon
agreement by both parties, unless or until the Agreement is terminated. Either
party may cancel this Agreement upon five (5) days written notice in the event
either party violates any material provision of this Agreement and fails to cure
such violation within five (5) days of written notification of such violation
from the other party. Such cancellation shall not excuse the breach or
non-performance by the other party or relieve the breaching party of its
obligation incurred prior to the date of cancellation, including, without
limitation, the obligation of Client to pay the nonrefundable consideration
described in paragraph 4a. hereof.
35
3. Due Diligence. The Client shall supply and deliver to the Consultant
all information relating to the Client Company's business as may be reasonably
requested by the Consultant to enable the Consultant to make an assessment of
Client's company and business prospects and provide the consulting services
described herein.
4. Compensation and Fees. As consideration for Consultant entering into
this Agreement, Client agrees to pay and deliver to Consultant the following
consideration, which consideration is considered fully earned and nonrefundable
regardless of the circumstances except for Consultant's willful malfeasnace,
gross negligence, fraud, misappropriation or embezzlement, and after ten (10)
days prior written notice without cure, Consultant's default, violation of or
failure to perform any provision of this Agreement:
a. Client shall issue certificates representing an aggregate of
twenty-five thousand ($25,000) dollars worth [calculated at
the average opening price during the preceding 30 days in
the OTC market, as reported in the electronic edition of The
New York Times] of common stock (the "Shares"). Common Stock
of the Client, BZET, as described herein, payable to the
Consultant, shall be registered coincident with the X-0, X-0
or any other applicable filing, currently or hereinafter
under preparation by the Client.
-AND-
b. Consultant will receive an additional one hundred
twenty-five thousand ($125,000) dollars should BZET receive
a minimum of $3,000,000 in funding, acceptable in whole or
in any part by BZET, for the Financing from any contacts
introduced to BZET by Consultant ("Contacts"). In the event
that more than $1,000,000 in funding, but less than
$3,000,000 in funding, is completed from any Contact to
BZET, all such pro-rata success fee payments made to
Consultant on the funded portions shall be deemed to be all
that Consultant is entitled to earn on the portion(s) funded
to BZET by the Contact.
The Shares, when issued to Consultant, will be duly authorized, validly
issued and outstanding, fully paid and nonassessable and will not be subject to
any liens or encumbrances. Securities shall be issued to Consultant in
accordance with a mutually acceptable plan of issuance as to relieve securities
or Consultant from restrictions upon transferability of shares in compliance
with applicable registration provisions or exemptions.
After careful review and extensive discussions and negotiations between
Client and Consultant and their advisors, Client agrees that, when received by
Consultant, the consideration described in subparagraph "a" above shall be
nonrefundable regardless of the circumstances except for Consultant's willful
malfeasance, gross negligence, fraud, misappropriation or embezzlement, and
after ten (10) days prior written notice without cure, Consultant's default,
violation of or failure to perform any provision of this Agreement, whether
foreseen or unforeseen upon execution and delivery of this Agreement. Client
further acknowledges and agrees that said consideration is earned by Consultant:
(1) upon Client's execution and delivery of the Agreement and prior to the
provision of any service hereunder; (2) in part, by reason of Consultant's
agreement to make its resources available to serve Client and as further
described in the Preliminary Statement and elsewhere herein; and (3) regardless
of whether Client seeks to terminate this Agreement prior to consultant's
delivery of any services hereunder. If Client takes any action to terminate this
Agreement or to recover any consideration paid or delivered by Client to
Consultant other than by reason of Consultant's gross negligence or willful
misconduct, Consultant shall be entitled to all available equitable remedies,
consequential and incidental damages and reasonable attorneys' fees and costs
incurred as a result thereof, regardless of whether suit is filed and regardless
of whether Client or Consultant prevails in any such suit.
5. A. Representations, Warrants and Covenants of Client. The Client
represents, warrants and covenants to the Consultant as follows:
a. The Client has the full authority, right, power and legal
capacity to enter into this Agreement and to consummate the
transactions which are provided for herein. The execution of
this Agreement by the Client and its delivery to the
Consultant, and the consummation by it of the transactions
which are contemplated herein have been duly approved and
authorized by all necessary action by the Client's Board of
Directors and no further authorization shall be necessary on
the part of the Client for the performance and consummation
by the Client of the transactions which are contemplated by
this Agreement.
b. The business and operations of the Client have been and are
being conducted in all material respects in accordance with
all applicable laws, rules and regulations of all
authorities which affect the Client or its properties,
assets, businesses or prospects. The performance of this
Agreement shall not result in any breach of, or constitute a
default under, or result in the imposition of any lien or
36
encumbrance upon any property of the Client or cause an
acceleration under any arrangement, agreement or other
instrument to which the Client is a party or by which any of
its assets are bound. The Client has performed in all
respects all of its obligations which are, as of the date of
this Agreement, required to be performed by it pursuant to
the terms of any such agreement, contract or commitment.
5. B. Representations,Warrants and Covenants of the Consultants. The
Consultants represents, warrants and covenants to the Company as follows:
A. The Consultant has the full authority, right, power and
legal capacity to enter into this Agreement and to consummate the transactions
which are provided for herein.
B. The business and operations of the Consultant have been and
are being conducted in all material respects in accordance with all applicable
laws, rules and regulations of all authorities which affect the Consultant or
its properties, assets, businesses or prospects. The performance of this
Agreement shall not result in any breach of, or constitute a default under, or
result in the imposition of any lien or encumbrance upon any property of the
Consultant or cause an acceleration under any arrangement, agreement or other
instrument to which the Consultant is a party or by which any of its assets are
bound. The Consultant has performed in all respects all of its obligations which
are, as of the date of this Agreement, required to be performed by it pursuant
to the terms of any such agreement, contract or commitment.
C. The execution, delivery and performance of this Agreement:
(i) does not violate any agreement or undertaking to which the Consultant is a
party or by which the Consultant may be bound and (ii) shall not result in the
imposition of any restrictions or obligations upon the Consultant other than the
restrictions and obligations imposed by this Agreement.
D. The execution and delivery by the Consultant of this
Agreement and the performance by the Consultant of its obligations hereunder and
thereunder will not violate any provision of law, any order of any court or
other agency of government, and will not result in a material breach of or
constitute (with due notice or lapse of time or both) a material default under
any provision of any agreement or other instrument to which the Consultant, or
any of its properties or assets, is bound.
E. The Consultant has not entered into and is not subject to
any agreement, including, but not limited, to any employment, noncompete,
confidentiality or work product agreement which would (i) prohibit the execution
of this Agreement, (ii) prohibit its engagement as a Consultant by the Company,
or (iii) affect any of the provisions of, or its obligations pursuant to this
Agreement.
F. The receipt of the Common Stock by the Consultant is for the
Consultant's own account, is for investment purposes only, and is not view to,
nor for offer or sale in connection with, the distribution the Common Stock. The
Consultant is not participating and does not have a participation in any such
distribution or the underwriting of any such distribution.
G. The Consultant has no present intention of creating a market
or participating or assisting in the creation of a market or in the promotion of
a market for any securities of the Company.
H. The Consultant has no present intention of selling or
otherwise disposing of the Common Stock.
I. The Consultant is aware that no federal or state
governmental authority has made any finding or determination as to the fairness
of an investment in the Common Stock, or any recommendation or endorsement with
respect thereto.
J. The Consultant is able to bear the economic risk of the
investment in the Common Stock for an indefinite period of time, including the
risk of total loss of such investment and the Consultant recognizes that an
investment in the Common Stock involves a high degree of risk. The Consultant
understands that the Common Stock has not been registered under the Securities
Act of 1933, as amended (the "Securities Act") or the securities laws of any
state and, therefore, cannot be sold unless they subsequently are registered
under the Securities Act and any applicable state securities laws or exemptions
from registration thereunder are available. The Consultant further understand
that only the Company can take action to register the Common Stock.
K. The Consultant is an "accredited investor" as that term is
defined in Rule 501(a) of Regulation D promulgated under the Securities Act.
37
L. The Consultant has such knowledge and experience in
financial, investing and business matters as to be capable of evaluating the
risks and merits of an investment in the Common Stock and protecting the
Consultant's interests in connection with an investment in the Common Stock.
M. The Consultant was not contacted by the Company or its
representatives for the purpose of investing in any securities of the Company
issued hereby through any advertisement, article, mass mailing, cold call,
notice or any other communication published in any newspaper, magazine, or
similar media or broadcast over television or radio, or any seminar or meeting
whose attendees were invited by any general advertising.
N. The Consultant has had access to and an opportunity to
inspect all relevant information relating to the Company sufficient to enable
the Consultant to evaluate the merits and risks of its receipt of the Common
Stock hereunder. The Consultant also has had the opportunity to ask questions of
officers of the Company and has received satisfactory answers respecting, and
has obtained such additional information as the Consultant has desired
regarding, the business, financial condition and affairs of the Company.
O. It shall not be a defense to a suit for damages for any
misrepresentation or breach of covenant or warranty that the Company knew or had
reason to know that any representation, warranty or covenant in this Agreement
or furnished or to be furnished to the Company contained untrue statements.
P. No representation or warranty of the Consultants which is
contained in this Agreement, or in a writing furnished or to be furnished
pursuant to this Agreement, contains or shall contain any untrue statement of a
material fact, omits or shall omit to state any material fact which is required
to make the statements which are contained herein or therein, in light of the
circumstances pursuant to which they were made, not misleading.
Q. All representations, warranties and covenants made in or in
connection with this Agreement shall continue in full force and effect during
and after the Term of this Agreement, it being agreed and understood that each
of such representations, warranties and covenants is of the essence of this
Agreement and the same shall be binding upon the Consultant and inure to the
Consultant, its successors and assigns.
6. Exclusivity; Performance; Confidentiality. The services of Consultant
hereunder shall not be exclusive, and Consultant and its agents may perform
similar or different services for other persons or entities whether or not they
are competitors of Client. The Consultant agrees that it will, at all times,
faithfully and in a professional manner perform all of the duties that may be
reasonably required of the Consultant pursuant to the terms of this Agreement.
Consultant shall be required to expend only such time as is necessary to service
Client in a commercially reasonable manner. The Consultant does not guarantee
that its efforts will have any impact upon the Client's business or that there
will be any specific result or improvement from the Consultant's efforts.
Consultant acknowledges and agrees that confidential and valuable information
proprietary to Client and obtained during its engagement by the Client, shall
not be, directly or indirectly, disclosed without the prior express written
consent of the Client, unless and until such information is otherwise known to
the public generally or is not otherwise secret and confidential.
7. Independent Contractor. In its performance hereunder, Consultant and
its agents shall be an independent contractor. Consultant shall complete the
services required hereunder according to his own means and methods of work,
shall be in the exclusive charge and control of Consultant and which shall not
be subject to the control or supervision of Client, except as to the results of
the work. Client acknowledges that nothing in this Agreement shall be construed
to require Consultant to provide services to Client at any specific time, or in
any specific place or manner. Payments to consultant hereunder shall not be
subject to withholding taxes or other employment taxes as required with respect
to compensation paid to an employee.
8. Arbitration and Fees. Any controversy or claim arising out of or
relating to this Agreement, or breach thereof, may be resolved by mutual
agreement; or if not, shall be settled in accordance with the Arbitration rules
of the American Arbitration Association in Irvine, California. Any decision
issued therefrom shall be binding upon the parties and shall be enforceable as a
judgment in any court of competent jurisdiction. The prevailing party in such
arbitration or other proceeding shall be entitled, in addition to such other
relief as many be granted, to a reasonable sum as and for attorney's fees in
such arbitration or other proceeding which may be determined by the arbitrator
or other officer in such proceeding. If collection is required for any payment
not made when due, the creditor shall collect statutory interest and the cost of
collection, including attorney's fees whether or not court action is required
for enforcement. The prevailing party in any such proceeding shall also be
entitled to reasonable attorneys' fees and costs in connection all appeals of
any judgment.
9. Notices. Any notice or other communication required or permitted
hereunder must be in writing and sent by either (i) certified mail, postage
prepaid, return receipt requested and First Class mail; or (ii) overnight
38
delivery with confirmation of delivery; or (iii) facsimile transmission with an
original mailed by first class mail, postage prepaid, addressed as follows:
If to the Client: Biofield Corp.
Attention: Xxxx Xxxxxxxx
0000 Xxxx Xxxxx Xxxxx Xxx. X
Xxxxxxxxxx, XX. 00000
Facsimile No.: (000) 000-0000
If to Consultant: iCapital Finance, Inc.
Attention: Xxxxxxx Xxxxxxxxx
0000 Xxxx Xxxxxx, Xxxxx #0000
Xxxxxx, XX 00000
Facsimile No.: (000) 000-0000
or in each case to such other address and facsimile number as shall have last
been furnished by like notice. If mailing is impossible due to an absence of
postal service, and other methods of sending notice are not otherwise available,
notice shall be hand-delivered to the aforesaid addresses. Each notice or
communication shall be deemed to have been given as of the date so mailed or
delivered, as the case may be; provided, however, that any notice sent by
facsimile shall be deemed to have been given as of the date sent by facsimile if
a copy of such notice is also mailed by first class mail on the date sent by
facsimile; if the date of mailing is not the same as the date of sending by
facsimile, then the date of mailing by first class mail shall be deemed to be
the date upon which notice given.
10. Additional Provisions. No waiver of any of the provisions of this
Agreement shall be deemed or shall constitute a waiver of any other provision
and no waiver shall constitute a continuing waiver. No waiver shall be binding
unless executed in writing by the party making the waiver. No supplement,
modification, or amendment of this Agreement shall be binding unless executed in
writing by all parties. This Agreement constitutes the entire agreement between
the parties and supersedes any prior agreements or negotiations. There are no
third party beneficiaries of this Agreement. This Agreement shall be governed by
and construed in accordance with the internal laws of the State of California,
regardless of laws of conflicts.
11. Counterparts. This Agreement may be executed simultaneously in one or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
12. Preliminary Statement. The Preliminary Statement is incorporated
herein by this reference and made a material part of this Agreement.
IN WITNESS WHEREOF, the parties hereto have entered into this Agreement on
the date first written above.
"Client"
------
Biofield Corp.
Signature: _________________________________
Print name: _______________________________
Print title: ______________________________
"Consultant"
----------
iCapital Finance, Inc.
Signature: _________________________________
Print name: _______________________________
Print title: ______________________________
39
