EXHIBIT 10.3
XXXXXX, XXXXXXXX & COMPANY, INC.
000 Xxxxxxx Xxxxxx - 00xx Xxxxx - Xxx Xxxx, XX 00000
Telephone: 000-000-0000 - Facsimile: 000-000-0000
Xxxxx Xxxxxxxxxx
Executive Director
By Email and Post Confidential
October 7, 2002
Xx. Xxxx X. Nano
President and CEO
Competitive Technologies, Inc.
0000 Xxxxxxx Xxxx
Xxxxxxxxx, XX 00000
Re: Letter Agreement for Financial Advisor, Investment Banker &
Placement Agent
Dear Xxxx:
This letter agreement (the "Letter Agreement") sets forth the
terms and conditions upon which Xxxxxx, Houghton & Company, Inc.
and Xxxxxx, Xxxxxxxx Securities, Inc., and their affiliates
(collectively, "BHC" or the "Advisor") are hereby retained on an
exclusive basis as financial advisor, investment banker and
placement agent for Competitive Technologies, Inc., its
subsidiaries and affiliates (collectively, "CTT" or the
"Company") to provide Services (defined below) in connection with
the Company's proposed Transaction (defined below). This Letter
Agreement sets forth the agreement between the parties as
follows:
As used in this Letter Agreement, Transaction shall mean any
transaction involving on a best efforts basis, the sale and
purchase of equity or debt issued by the Company (a
"Transaction"). In the event that CTT decides to engage in a
mergers and acquisition transaction, CTT may engage the Advisor
as its representative in such transaction under and pursuant to a
separate engagement letter mutually acceptable to the parties.
It is understood that CTT has the right to accept or reject any
Transaction arranged by the Advisor on behalf of CTT.
A. Responsibilities and Services
The Advisor shall perform the following specific services,
on a best efforts basis as requested by and at the direction
of the Company:
1. provide a general business and financial analysis of CTT,
including transaction feasibility analysis, valuation of the
Company's strategic and non-strategic assets, strategic plans and
fund-raising alternatives;
2. evaluate and analyze warrant grants for executive
compensation, and provide guidance with regard to valuation
methodology of such warrants and/or stock grants and the
accounting treatment thereof.
3. advise and assist in the preparation of any necessary
descriptive memorandum and offering material to be used in
connection with the proposed Transaction, which documentation may
be used to assist the Advisor in attracting and negotiating with
potential investors, and which documentation shall be the
property of the Company;
4. consult as to the strategy and process for identifying and
initiating discussions with the various investors, lenders and
strategic partners that CTT considers appropriate to participate
in the Transaction, and to so identify such third parties and,
upon prior approval of the Company, initiate such discussions;
5. advise CTT as to the possible terms, form and structure of
the Transaction to be negotiated and thereafter assist CTT in its
negotiations until such time as the Transaction is closed; and
6. assist and support the Company, on an ongoing basis, with
regard to its strategic business plans and positioning the
Company to maximize its shareholder value.
The Company agrees that all inquiries, indications of
interest or offers received by the Company prior to this
date or at any time during the period of this Letter
Agreement with respect to the Transaction shall be referred
promptly to the Advisor and therefore shall be considered
applicable to this Letter Agreement during the period of the
Advisor's engagement pursuant to this Letter Agreement.
B. Compensation to the Advisor
1. Advisory Fee
CTT agrees to pay BHC a monthly fee of $10,000 payable
upon the signing of this Letter Agreement and
subsequently on the first day of the month thereafter
(the "Advisory Fee") until expiration or termination of
this Letter Agreement pursuant to paragraph C below.
2. Placement Fee
If a Transaction is consummated, the Company will pay
in full to the Advisor a "Placement Fee" in cash at the
initial and all subsequent closing(s) of the
Transaction as follows:
a. Upon the placement of all forms of equity, including shares
of preferred stock, the Advisor will be paid a placement fee of
5.0% of the total value of the placement. For purposes of this
subparagraph B.2.a., "total value of the placement" shall mean
the fair market value of the gross proceeds received from the
purchasers of the equity sold in such Transaction.
b. Upon placement of subordinated term debt, the Advisor will
be paid a placement fee of 5% of amounts so raised.
c. Upon the placement of senior debt, the Advisor will be paid
a placement fee of 1.75% of the amount raised.
If requested by CTT, the Advisor and its legal advisors
will be in attendance at all closings of Transactions,
and, to the extent practicable, the Advisor will be
given at least one week's written notice of any such
closing(s).
3. Warrants
At the closing of a Transaction arranged by the
Advisor, the Company shall grant to the Advisor five-
year warrants (the "Warrants") to purchase a number of
shares of the Company's equity equal to 5.0% of the
total amount raised in the Transaction. The Warrants
shall have an exercise price equal to 110% of the price
per share of the Company's equity expressly or
implicitly paid by investors associated with the
corresponding Transaction, and the Warrants terms shall
contain customary terms (including, without limitation,
anti-dilution provisions for stock splits, stock
dividends, merger and other recapitalization
transactions; registration rights; etc.).
4. Fairness Opinion Fee
Upon delivery of any Fairness Opinion required by CTT,
CTT shall pay the Advisor a fixed fee of $80,000. Each
Fairness Opinion rendered will be covered by separate
agreements between BHC and CTT.
5. Expenses
CTT agrees to reimburse the Advisor monthly for
all reasonable, documented out-of-pocket expenses
incurred in connection with providing the services
outlined in this Letter Agreement. The Advisor shall
not incur expenses, including expenses of third party
service providers, which exceed $2,000 per month
without CTT's prior written approval.
C. Terms of Engagement
The engagement of the Advisor pursuant to the terms of this
Letter Agreement shall be effective for 6 months from the
date of CTT's acceptance of this Letter Agreement, and may
be extended by CTT by written notice to the Advisor. This
Letter Agreement may be terminated, at any time after 90
days from the date hereof, by either the Advisor or CTT upon
30 days written notice to the other party. Effective as of
the date of this Letter Agreement and until the expiration
of a period of 12 months from the date of the expiration or
termination of this Letter Agreement, the Advisor will be
paid all fees outlined above should CTT consummate a
Transaction offered by any party (1) introduced to CTT by
the Advisor or with which CTT or the Advisor on behalf of
CTT has held discussions during the period of the Advisor's
engagement pursuant to this Letter Agreement and (2) which
was identified by Advisor on a written list limited to
parties described in clause 1 above and delivered to the
Company at the time of termination or expiration of this
Letter Agreement.
D. Obligations and Third Party Fees
The obligation of the Company to pay any fees or expenses
set forth herein shall not be assigned, delegated, or
transferred to any other person or entity without the prior
written consent of the Advisor.
The Company understands and agrees that the Advisor will not
be responsible for the payment of any fees, commissions,
expenses, or other charges claimed by or payable to any
financial or other advisor, or any other person or entity
used or retained by the Company or any of its affiliates or
any prospective or actual merger partner or capital
provider. The Company also understands and agrees that the
Advisor will not be responsible for the payment of any
legal, accounting, printing or other costs incurred by the
Company in connection herewith.
E. Indemnification Provision
Because the Advisor will be acting on behalf of CTT, CTT
agrees to the indemnification provision (the
"Indemnification Provision") attached to this Letter
Agreement as Annex A and incorporated herein in its
entirety.
F. Arbitration
Notwithstanding anything to the contrary contained herein,
any controversy or claim arising out of or relating to this
Letter Agreement or the breach thereof, shall be settled by
arbitration in New York City before a referee in accordance
with the rules of the National Association of Securities
Dealers ("NASD") and the results of the arbitration shall be
final and binding on the parties; judgment upon the award
rendered by the arbitrator may be entered in any New York
court having jurisdiction thereof.
G. Additional Terms
Notwithstanding anything to the contrary contained herein,
the provisions concerning confidentiality, indemnification,
contribution and the obligation to pay fees and reimburse
expenses contained herein and in the Indemnification
Provision shall survive any expiration or termination of the
Letter Agreement or the engagement of the Advisor pursuant
to the terms of the Letter Agreement.
During the term of the Letter Agreement, the Company will
apprise the Advisor in a timely manner of material matters
relevant to the Company's business and financial condition.
For 12 months following the expiration or termination of the
Letter Agreement, the Company will notify the Advisor of any
Transaction with any person or entity on the list provided
by Advisor to the Company pursuant to paragraph C of this
Letter Agreement at least one week before the closing of
such Transaction whenever practicable and promptly whenever
not so practicable.
The Company represents and warrants that to the best of its
knowledge no information which it furnishes to the Advisor,
including the Company's financial statements, contains any
untrue statement of a material fact or omits to state a
material fact necessary in order to make the statements
contained herein or therein, in light of the circumstances
under which they were made, not misleading, and all
forecasts are and will be based on reasonable assumptions.
CTT acknowledges that the Advisor (i) will be using and
relying on information available from CTT and generally
recognized public sources (the "Information") without having
independently verified the same; and (ii) does not assume
responsibility for the accuracy or completeness of the
Information.
The Advisor agrees that any information supplied by and
created in conjunction with the Company will be considered
property of the Company and that any summaries or analyses
by Advisor of any of such information created by the Advisor
including, but not limited to, financial and valuation
models needed for analysis of the Transactions shall be
considered confidential information of the Company and shall
be treated as such under this paragraph. The Advisor agrees
to keep any information with respect to CTT and this Letter
Agreement (including the summaries and analyses described
above) confidential and shall not disclose or make use
thereof except in connection with services hereunder for the
Company, unless disclosure is required by applicable law or
judicial process (and then only after prior written notice
to the Company), any information is or becomes generally
available to the public, or any information was or becomes
available to the Advisor on a non-confidential basis from a
source other than the Company or its representatives. No
party to this Letter Agreement will be identified or
referred to in any release or communication prepared by any
other party to this Letter Agreement or any of its
affiliates or associates without the first party's prior
written consent.
This Letter Agreement constitutes the entire agreement
between the parties with respect to the subject matter
hereof, supersedes all prior agreements, may not be amended
or modified except in writing executed by CTT and the
Advisor, and shall be governed by and construed in
accordance with the laws of the State of New York. This
Letter Agreement shall be binding upon and shall inure to
the benefit of the parties hereto and their respective
successors and permitted assigns.
Please confirm that the foregoing is in accordance with your
understanding by signing and returning to Xxxxxx, Xxxxxxxx &
Company, Inc. the enclosed duplicate of this Letter Agreement.
It is a distinct privilege to be working with you on this
important project. We look forward to developing a long term and
mutually successful relationship with your company.
Sincerely yours,
XXXXXX, HOUGHTON & COMPANY, INC. and XXXXXX, XXXXXXXX SECURITIES,
INC.
By:/s/ Xxxxx Xxxxxxxxxx Dated: October 7, 2002
Name:Xxxxx Xxxxxxxxxx Title: Executive Director
By:/s/ Xxxxxx Xxxxxxxx Dated: October 7, 2002
Name:Xxxxxx Xxxxxxxx Title: President
Agreed and Accepted by
COMPETITIVE TECHNOLOGIES, INC.
By:/s/ Xxxx X. Nano Date: October 7, 2002
Name: Xxxx X. Nano Title: President and CEO
ANNEX A
INDEMNIFICATION PROVISION
CTT, INC. ("CTT" or the "Company") agrees to indemnify and hold
harmless Xxxxxx, Houghton & Company, Inc., and its affiliates,
Private Corporate Advisors, Inc., Xxxxxx Xxxxxxxx Securities,
Inc., (collectively "BHC") and their respective directors,
officers, employees, agents and each such person or entity, if
any, who controls BHC or any of its affiliates within the meaning
of the Securities Exchange Act of 1934 (BHC and all above-
described entities or persons being an "Indemnified Party") from
and against any and all losses, claims, damages, liabilities, and
expenses whatsoever, joint or several (including all reasonable
fees of counsel and other expenses incurred by an Indemnified
Party in connection with the preparation for or defense of any
claim, action, or proceeding, whether or not resulting in
liability), as incurred, to which such Indemnified Party may
become subject under any applicable Federal or state law, or
otherwise, relating to or arising out of any proposed or
consummated transaction covered by the Letter Agreement, except
that the Company will not be liable hereunder to the extent that
any loss, claim, damage, liability or expense is found in a final
judgment by an arbitrator or a court to have resulted primarily
from an Indemnified Party's gross negligence or willful
malfeasance in the performance of its services described in the
Letter Agreement.
The Company and BHC agree that if any indemnification or
reimbursement sought pursuant to the preceding paragraph is
finally judicially determined to be unavailable (except by reason
of the gross negligence or willful malfeasance of BHC or its
controlling person, directors, officers, employees or agents, as
the case may be), then the Company and BHC shall contribute to
the Liabilities for which such indemnification or reimbursement
is held unavailable in such proportions as is appropriate to
reflect (a) the relative benefits to the Company on the one hand,
and BHC on the other hand, in connection with the transaction to
which such indemnification or reimbursement relates, (b) the
relative fault of the parties, and (c) other equitable
considerations; provided, however, that in no event shall the
amount to be contributed by BHC exceed the amount of the fees
actually received by BHC hereunder. In connection with any claim
for contribution, CTT agrees that it shall not require BHC to
contribute any amount in excess of the amount of fees received by
BHC pursuant to this Letter Agreement.
CTT and BHC mutually agree to notify each other promptly of the
assertion against it or any other person of any claim or the
commencement of any action, proceeding or investigation relating
to any activity or transaction contemplated by this Letter
Agreement.
XXXXXX, XXXXXXXX & COMPANY, INC.
000 Xxxxxxx Xxxxxx - 00xx Xxxxx - Xxx Xxxx, XX 00000
Telephone: 000-000-0000 - Facsimile: 212-753-7730
July 10, 2003
By Email and Post
Confidential
Mr. John Nano
President and CEO
Competitive Technologies, Inc.
0000 Xxxxxxx Xxxx
Xxxxxxxxx, XX 00000
RE: Extension Agreement to Letter Agreement Dated October 7, 2002
Dear Xxxx:
This letter will serve as an extension agreement (the "Extension
Agreement") to Xxxxxx, Xxxxxxxx & Company, Inc.'s ("BHC") Letter
Agreement with Competitive Technologies, Inc. ("CTT") dated
October 7, 2002. This Extension Agreement shall be for a period
of six (6) months from the date of execution of this Extension
Agreement and thereafter will be subject to a 30 day termination
notice by either Party.
Sincerely yours,
XXXXXX, HOUGHTON & COMPANY, INC. and XXXXXX, XXXXXXXX SECURITIES,
INC.
By: /s/ Xxxxxx Xxxxxxxx Dated: July 10, 2003
Name: Xxxxxx Xxxxxxxx Title: President
By: /s/ Xxxxx Xxxxxxxxxx Dated: July 10, 2003
Name: Xxxxx Xxxxxxxxxx Title: Executive
Director
Agreed and Accepted by
COMPETITIVE TECHNOLOGIES, INC.
By: /s/ Xxxx Nano Dated: July 10, 2003
Name: Xxxx Nano Title: President and CEO
