Attached files
| file | filename |
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| 8-K - SensiVida Medical Technologies, Inc. | v211195_8k.htm |
Exhibit
10.1
September
29,
2010
Mr. Jose
Mir
President
SensiVida
Medical Technologies, Inc.
150
Lucius Gordon Drive, Suite 110
West
Henrietta, NY 14586
|
Re:
|
Placement
Agent Agreement with J.P. Turner & Company,
LLC
|
Dear Mr.
Mir:
This
letter (the “Agreement”) is to set forth the terms and
conditions pursuant to which J.P. Turner & Company, L.L.C. (the “Agent”) shall, except as expressly noted to
the contrary herein, serve as, exclusive placement agent and financial advisor
in connection with the best efforts sale (the “Offering”) of new securities of SensiVida
Medical Technologies, Inc. (together with its affiliates and subsidiaries, the
“Company”), for purposes of execution of the
business plan, pursuant to all transaction documents that memorialize the
Offering to be offered only to accredited investors (the “PPM”).
The Offering will be on a reasonable best efforts basis and the
securities to be sold in Offering are expected to be convertible preferred stock
and warrants to purchase common shares (the “Securities”); however, the Company and Agent
(collectively, the “Parties”) can elect to offer different
securities. The gross proceeds to be received by the Company from the placement
of the Securities are estimated to be between $8,000,000 and $10,000,000 or any
another amount that is mutually agreed upon by the Parties.
The
Agent’s role will include: (a) identifying and offering the Securities to
purchasers who are “accredited investors” or “qualified institutional buyers”
(“Investor(s)”) under and as defined in the
Securities Act of 1933, as amended (the “Securities
Act”) (b) attempting, on a “best efforts”
basis to secure acceptable commitments from Investors to purchase the Securities
(c) coordinating the closing of sales of the Securities with Investors and the
Company, and (d) assembling co-placement agents and/or syndicate selling agents
who are FINRA members as the Agent deems appropriate (collectively, the “Services”). If the Company has a Closing (as
defined in Section 2.3), irrespective of the amount of such Closing, the Company
shall grant to Agent a 12 month exclusive first-right-of –refusal thereafter
(the “Success
Period”) to sell any new securities (debt,
equity, or combination of both), from the time of the final Closing of the
Offering and in accordance with Section 2.6. For the avoidance of doubt,
issuance of debt without equity features (equity features include, but may not
be limited to: conversion rights, warrants or capital stock) shall not be deemed
the sale of new securities.
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1.0
|
THE
PARTIES
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1.1 The
Company, with its principal office at 150 Lucius Gordon Drive, Suite 110, West
Henrietta, NY 14586.
1.2 The
Agent, with its principal office at 3060 Peachtree Road, 11th Floor,
Atlanta, GA, 30305.
1.3 The
persons executing this Agreement represent to each other that they have full and complete authority to do
so.
|
INVESTMENT
BANKING DIVISION
|
|
One
Buckhead Plaza ·
3060 Peachtree Road NW, iith Floor ·
Atlanta, Georgia 30305
|
|
www.jpturner.com
· (888)
578-8763 ·
(404) 479-8300 ·
Fax (866) 636-2536
|
|
Member
SIPC
|
SensiVida
Medical Technologies, Inc.
Placement
Agent Agreement
September
29, 2010
Page 2 of
8
+
|
2.0
|
THE
AGREEMENT
|
2.1 The
Company desires to sell Securities and arrange a capital facility through the
Agent to accredited and institutional investors (the “Investors”) and engage Agent as exclusive
financial representative to identify and solicit the Securities to the
Investors. The Offering shall be on terms and conditions satisfactory to the
Company and Company Counsel shall prepare the Memorandum for review and approval
by Agent’s compliance department prior to use thereof. If during the Term of the
Agreement, or at any time within 12 months after the termination of this
Agreement, all or any part of the Offering is placed with Investors as a result
of an introduction made through Agent to the Investors during the term of this
Agreement, either a single investor, several investors, or a related entity of
the investor (collectively the “Agent
Investors”),
the Company shall owe Agent the fees described herein. The Company, at
its sole discretion, can approve or decline any introduction to Agent Investors.
If the Company closes on any Offering transactions with an Agent Investor
introduced by Agent to Company pursuant to the terms of this Agreement, it shall
be understood that the Offering shall meet terms and conditions satisfactory to
the Company.
2.2 The
Offering shall be on terms and conditions satisfactory to the Company and should
all or any part of the Offering be placed with an Agent Investor, the Company
shall owe Agent the fees described herein. Should the Company have a Closing on
any introduced transactions under this Agreement, it shall be understood that
the Offering met terms and conditions satisfactory to the Company. Nothing in
this Agreement shall constitute an undertaking by the Agent to underwrite or
otherwise purchase the Securities offered in the Offering or any other
transaction that may be developed as an alternative.
2.3 A
Closing shall occur if any Securities have been purchased by an Agent Investor
(the “Closing”). If the Securities are purchased
through multiple fundings or stepped milestones, then each such separate funding
shall be deemed a Closing, and the fees shall be paid to the Agent at each
Closing. The total amount of the fee due to Agent shall be due and payable on
the date of each Closing and delivered to the Agent simultaneously with the
delivery of the funds to the Company. The Company shall be under no obligation
to consummate the Offering, except upon such terms as shall be acceptable to the
Company in its sole discretion.
2.4 The
term of this Agreement commences on the date that both parties have signed this
Agreement (the “Engagement
Date”) and shall continue for twelve (12)
months. (the “Term”) from the Engagement Date unless
earlier terminated in accordance with Section 4.2. Upon expiration of this
Agreement, Agent shall be entitled to receive all earned accrued compensation
(as described in Section 3 herein) and un-reimbursed expenses, if any. Upon the
final Closing, the Company shall negotiate and transact exclusively with Agent
regarding any sale of securities for an additional 12 months from the final
Closing.
2.5 The
Company represents and warrants to the Agent that with respect to the Offering:
(i) the Company has consulted its own legal counsel on all aspects of the
Offering; (ii) Agent has not made any representations to the Company to induce
it to execute this Agreement other than those expressly and directly made
herein; (iii) the Company has performed its own due diligence investigation and
had the opportunity to ask questions of the Agent, Agent Investors and their
respective management teams and analyze their responses; and (iv) the Company
has not relied on any information, representations or warranties of any
individual or entity, including without limitation the Agent, in connection with
the Offering but for those made directly, personally and expressly by the Agent
Investors in the definitive transaction documents memorializing the
Offering.
|
J.P.
TURNER &
COMPANY, LLC / INVESTMENT BANKING DIVISION
|
|
One
Buckhead Plaza ·
3060 Peachtree Road NW, iith Floor ·
Atlanta, Georgia 30305
|
|
www.jpturner.com
· (888)
578-8763 ·
(404) 479-8300 ·
Fax (866) 636-2536
|
|
Member
SIPC
|
SensiVida
Medical Technologies, Inc.
Placement
Agent Agreement
September
29, 2010
Page 3 of
8
2.6 If
a Closing occurs with any Agent Investors and if the Company proposes a sale of
any securities (debt or equity or combination thereof), during the Success
Period, the Company shall grant Agent a first-right-of-refusal to be the
exclusive lead placement agent of the offering commenced during the term hereof
or the Success Period (a “Follow-On
Offering”). The Company agrees that it will
provide Agent written notice of its desire to complete a Follow-On Offering and
the terms proposed therefor (the date of delivery of the notice being the
“Proposal Date” and the terms therof being the “Proposed Follow-On Terms”) give
Agent sixty (60) days to complete the Follow-On-Offering (the “Follow-On
Offering Period”) from the date that Company delivers
the offering materials it deems necessary for the Follow-On Offering, provided
that Agent delivers written notice to the Company agreeing to serve as lead
placement agent for the Follow-On-Offering within 10 days following the Proposal
Date . If for whatever reason Agent chooses not to be the exclusive lead
placement agent of the Follow-On Offering, the Company will offer to make Agent
a selected dealer of the Follow-On Offering and grant it an allotment of 30% of
the securities offered in the Follow-On Offering to its clients and guarantee
Agent fees and commissions at a rate equal to 70% of the rate of fees and
commissions paid to the lead placement agent for the Follow-On Offering on the
gross dollars raised by Agent
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3.0
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THE
FEES AND PROVISIONS
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3.1 The
Company shall pay to Agent a non refundable retainer of fifty thousand dollars
($50,000) (the “Retainer”). Twenty five thousand dollars
($25,000) will be due and payable upon execution of this Agreement and the
remaining balance of twenty five thousand dollars ($25,000) plus any unpaid
expenses will be due and payable upon due diligence approval by Agent and the
drafting of the PPM. The Retainer will be non-refundable and allocated for
expenses for the Offering which include, but are not limited to: due diligence,
travel and lodging, planning and coordination, legal, and implementation of the
Services (the “Offering
Expenses”). The Company acknowledges that the
Retainer may not adequately cover all Offering Expenses and agrees to replenish
the retainer to a certain amount mutually agreed upon by Company and Agent and
prepay and reimburse Agent for other Offering Expenses which will include
administrative time. The Retainer will not be received against or considered
pre-payment of fees earned (as described in Sections 3.2, 3.3, 3.4, and 3.7)
with regards to the Offering.
3.2 Upon
the initial closing the Company shall issue to Agent a non-refundable retainer
warrant to purchase up to four hundred fifty thousand (450,000) common shares
(the “Initial
Retainer Warrant”) with an exercise price equal to the
initial conversion price of the Securities issued in the Offering and a term of
five (5) years from the date of issuance. Upon issuance of the Retainer
Warrants, the Retainer Warrants shall immediately vest in favor of the Agent, be
fully paid, non-assessable, and free of any restrictions on transfer other than
compliance with applicable securities laws for the transfer of privately issued
securities. The Retainer Warrants shall have a cashless exercise
provision.
3.3 The
Company shall pay Agent a cash fee (the “Offering
Fee”) equal to sixteen percent (16.00%) of
the gross proceeds of the Offering as received by the Company from Agent
Investor. The Offering Fee is equal to the sum of a ten percent (10.00%) selling
concession, three percent (3.00%) management fee, and a three percent (3.00%)
non-accountable expense fee.
3.4 The
Company shall also issue Agent a warrant to purchase a number of the Company’s
shares of common stock (the “Common
Stock”), equal in number to sixteen percent
(16.00%) of the gross proceeds provided by the Offering (the “Placement
Agent Warrant”) as received by the Company from the
Agent Investors. The Placement Agent Warrant shall have an exercise price equal
to the initial conversion price of the Securities issued in the offering (the
“Strike
Price”). The Company shall also pay Agent a
cash fee equal to seven percent (7.00%) of the gross proceeds as received by the
Company from exercising of the Agent Investor’s warrants, if any (the “Warrant
Solicitation Fee”).
|
J.P.
TURNER &
COMPANY, LLC / INVESTMENT BANKING DIVISION
|
|
One
Buckhead Plaza ·
3060 Peachtree Road NW, iith Floor ·
Atlanta, Georgia 30305
|
|
www.jpturner.com
· (888)
578-8763 ·
(404) 479-8300 ·
Fax (866) 636-2536
|
|
Member
SIPC
|
SensiVida
Medical Technologies, Inc.
Placement
Agent Agreement
September
29, 2010
Page 4 of
8
3.5 Upon
issuance of the Placement Agent Warrant, the Placement Agent Warrant shall
immediately vest in favor of the Agent, be fully paid, non-assessable, and free
of any restrictions on transfer, except for restrictions on transfer for
privately placed securities pursuant to applicable securities laws. The
Placement Agent Warrant and Retainer Warrants (collectively, the “Warrant”) shall be issued to Agent in the form
of a warrant agreement (the “Warrant
Agreement”), which shall be in a form and
content reasonably satisfactory to the Company and to Agent and its counsel. The
Warrant Agreement shall provide for, among other provisions, the above terms and
the following: (1) The Agent will be granted the exact Registration Rights that
are provided to the Agent Investor in the Offering (2) The Warrant shall expire
five (5) years after the date that the Warrant Agreement is issued (3) The
Warrant shall have customary anti-dilution provisions for stock dividends,
splits, mergers, and sale of substantially all assets of the Company (4) Agent
may exercise the Warrant at any time after signing the Warrant Agreement and the
Company agrees to deliver the underlying common shares to the Agent within 7
days (5) The Warrant shall contain a “Cashless Exercise” provision that goes
into effect if there is not an effective registration statement for the
underlying common shares 6 months after the closing of the transaction (6) The
Company shall reserve, and at all times have available, a sufficient number of
shares of its common stock to be issued upon the exercise of the Warrant and (7)
The Company shall grant unlimited “piggy back” registration rights, at the
Company’s expense, to include the common shares underlying the Warrant in any
registration statement filed by the Company under the Securities Act of 1933, as
amended (the “Act”) relating to an underwriting of the sale of shares of common
stock or other security of the Company, except to the extent such shares could
be transferred and sold without restriction under Rule 144 promulgated under the
Act, and provided that such shares are exercisable pursuant to the Cashless
Exercise provisions set forth above.
3.6
The Warrant and the Agent Shares shall be issued to
J.P. Turner Partners, LP
and mailed to the following address:
J.P.
Turner Partners, LP
Attention:
Patrick J. Power
3060
Peachtree Road, 11th
Floor
Atlanta,
GA 30305
Phone:
404.479.8300
Fax:
888.704.7512
3.7 The
Agent is also entitled to certain compensation in the event of a Control
Transaction (as defined below). If the Company executes a letter of intent to
conduct a Control Transaction or consummates a Control Transaction with any
party (irrespective of whether Placement Agent introduced such person to the
Company) before the earlier of the last Closing and the termination date of this
Agreement, then, the Company shall pay the Agent a cash fee of 2% of
the Control Transaction consideration received upon the closing of such Control
Transaction. In addition, if the Company executes a letter of intent to conduct
a Control Transaction or consummates a Control Transaction following the Closing
within one year thereafter with a third party introduced to the Company as a
result of the efforts of the Agent, then the Company shall pay the Agent a cash
fee of 2% of the Control Transaction consideration received upon the closing of
such Control Transaction, provided that, to the extent requested by the Company,
the Agent shall be required to provide customary financial advisory services” in
connection with such Control Transaction in consideration for such cash fee. For
purposes hereof, a “Control Transaction” shall mean any transaction or series or
combination of transactions, whereby, directly or indirectly, control of, or a
majority interest in, the Company or all or substantially all of its businesses,
assets or properties, is sold, leased or otherwise transferred, including,
without limitation, a sale or exchange of capital stock or assets, a lease of
assets with or without a purchase option, a merger or consolidation, a leveraged
buy-out, a restructuring, a recapitalization, a repurchase of capital stock, an
extraordinary dividend or distribution (whether cash, property, securities or a
combination thereof), a liquidation, the formation of a joint venture or
partnership or any other similar transaction; provided, however, that the
Offering shall not constitute a Control Transaction hereunder. Notwithstanding
the foregoing, none of the following shall be deemed to be a Control
Transaction: (i) the issuance of any securities in the Offering or upon
conversion or exercise of securities issued in the Offering; (ii) the issuance
of any securities in a transaction in which Agent is acting as a placement
agent, financial advisor or underwriter to the Company or is otherwise receiving
a fee hereunder; or (iii) the issuance of any securities in any registered
public offering.
|
J.P.
TURNER &
COMPANY, LLC / INVESTMENT BANKING DIVISION
|
|
One
Buckhead Plaza ·
3060 Peachtree Road NW, iith Floor ·
Atlanta, Georgia 30305
|
|
www.jpturner.com
· (888)
578-8763 ·
(404) 479-8300 ·
Fax (866) 636-2536
|
|
Member
SIPC
|
SensiVida
Medical Technologies, Inc.
Placement
Agent Agreement
September
29, 2010
Page 5 of
8
3.8 The
Company will establish escrow arrangements that are commercially reasonable with
a nationally recognized escrow agent that is approved by the Agent. The Company
shall include a covenant within the escrow agreement that requires the Agent to
be paid all of its fees described within this Agreement either from the funds
held in escrow pending the Closing or directly from the Agent Investors in
accordance with the following wiring instructions:
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Account
Name:
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J.P.
Turner & Company, L.L.C.
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Bank:
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Bank
of America – Atlanta, GA
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Address:
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1500
Buford Highway
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Buford,
GA 30518
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||
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Phone:
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(770)
497-3011
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Fax:
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(770)
945-6112
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|
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ABA
Routing #:
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026009593
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Account
#:
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0033-4329-6904
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3.9 If
at any time within 12 months of a final Closing, the Company raises additional
capital from an Agent Investors, the Company shall pay the Agent all fees as
described in Section 3 and based upon the new gross dollars received by the
Company from the Agent Investor.
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4.0
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OTHER
EXPENSES AND BREAK-UP FEE
|
4.1 The
Company will pay or cause to be paid all costs and expenses incident to the
Offering, including, without limitation (i) preparing, printing, or otherwise
reproducing, and mailing, the disclosure PPM, and other appropriate documents,
and any amendments or supplements thereto, (ii) registering or qualifying the
Securities for offer and sale in the applicable states, as specified by Agent,
or obtaining exemptions there from, (iii) all taxes, if any, on the issuance of
the Securities, (iv) any necessary travel and lodging expenses, including, but
not limited to, due diligence, meetings, road shows, as well as clerical
overtime, which shall upon sufficient notification be paid directly by the
Company to Agent; (v) all costs of the Company’s counsel and Agent’s counsel
associated with the transactions contemplated by this Agreement; and (vi) all
other expenses related to the Private Placement. The Company also agrees to
replenish the Retainer and reimburse Agent for expenses it may incur in
performance of Services which may include, but are not limited to: independent
due diligence, postage, teleconference calls, capital conferences, travel and
lodging, and any other expenses related to the Private Placement.
4.2 If
the Company, at any time, decides to terminate, abandon or not conti ue to
diligently and timely pursue the Offering, the Company must pay the Agent all
accrued and unpaid expenses including all its legal costs plus fifty thousand
United States Dollars ($50,000) as a break-up fee (the “Break-up
Fee”).
|
J.P.
TURNER &
COMPANY, LLC / INVESTMENT BANKING DIVISION
|
|
One
Buckhead Plaza ·
3060 Peachtree Road NW, iith Floor ·
Atlanta, Georgia 30305
|
|
www.jpturner.com
· (888)
578-8763 ·
(404) 479-8300 ·
Fax (866) 636-2536
|
|
Member
SIPC
|
SensiVida
Medical Technologies, Inc.
Placement
Agent Agreement
September
29, 2010
Page 6 of
8
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5.0
|
OTHER
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5.1 The
Company covenants and agrees to provide Agent with copies of all press releases,
quarterly and annual financial statements, and other material public
information.
5.2 The
Company will provide the Agent with all information reasonably requested by it
for the purpose of rendering the services including, but not limited to:
reasonable access to the Company’s executive management, board of directors, and
the Company’s counsel; all financial statements, cost analysis, projections, and
budgets; copies of all management, consulting, and D&O agreements; an
updated D&O questionnaire, complete disclosure on any current or pending
legal proceeding on the Company and its management team; and business, market,
and product plans. Agent agrees to keep confidential any and all material
non-public information provided under this Agreement, except for disclosures to
potential Agent Investors that have executed a confidentiality agreement in
favor of the Company to hold such information confidential unless and until it
becomes publicly disclosed.
5.3 The
Agent will, in performing the services, be entitled to rely on and assume,
without investigation or verification or any obligation or duty to do so, the
accuracy and completeness of all public information released by the
Company.
5.4 Any
arrangements made by the Company with any broker or other persons with whom the
Company is or may be involved are the total responsibility of the Company. Upon
payment made by the Company to Agent of Agent’s fee, Agent will hold the Company
free and harmless from any and all claims, liabilities, commissions, fees, or
expenses in connection with the transaction from any party who alleges a
relationship with or through Agent and the Agent Investors.
5.5 The
Company shall supply to Agent, logos, trademarks, slogans, and similar designs
of itself and all subsidiaries and agrees to Agent’s perpetual use thereafter in
“Tombstones” that reflect the Agent’s fundraising efforts to the extent such
Offering has been publicly disclosed.
5.6 Following
the initial Closing, the Company agrees to attend the annual J.P. Turner &
Company Investment Banking Conference (April 2010) and also one other capital
conference selected by the Agent during the 12 month period following the last
Closing. The estimated cost for each conference is approximately $15,000. The
Company agrees to pay of all of Agent’s pre-approved and “reasonable” expenses
for each conference, which will include, but is not limited to, acceptable
lodging and travel, printing of material, postage, and any other cost that Agent
may incur in introducing the Company at the conferences.
5.7 In
the event of any dispute between the Company and Agent arising under or pursuant
to the terms of this Agreement, or any matters arising under the terms of this
Agreement, the same shall be settled only by arbitration through FINRA Dispute
Resolution in Fulton County, State of Georgia, in accordance with the Code of
Arbitration Procedure published by FINRA Dispute Resolution. The determination
of the arbitrators shall be final and binding upon the Company and Agent and may
be enforced in any court of appropriate jurisdiction. This Agreement shall be
construed by and governed exclusively under the laws of the State of Georgia,
without regard to its conflicts of law provisions.
|
J.P.
TURNER &
COMPANY, LLC / INVESTMENT BANKING DIVISION
|
|
One
Buckhead Plaza ·
3060 Peachtree Road NW, iith Floor ·
Atlanta, Georgia 30305
|
|
www.jpturner.com
· (888)
578-8763 ·
(404) 479-8300 ·
Fax (866) 636-2536
|
|
Member
SIPC
|
SensiVida
Medical Technologies, Inc.
Placement
Agent Agreement
September
29, 2010
Page 7 of
8
5.8 The
Company agrees to indemnify and hold harmless Agent and each person, if any, who
controls Agent within the meaning of the Act, its officers, employees, agents,
and the Agent’s counsel (collectively, the “Agent and
its Personnel”) from and against any losses, claims,
damages or liabilities, joint or several (which shall, for all purposes of this
Agreement, include, but not be limited to, all reasonable costs of defense,
investigation and collection and all reasonable attorneys’ fees), to which Agent
and its Personnel may become subject, under the Act or otherwise, insofar, as
such losses, claims, damages or liabilities (or actions in respect thereof); (i)
arising out of or are based upon any untrue statement or alleged untrue
statement of any material fact made by the Company its officers, employees,
agents, and the legal counsel; (ii) arising out of or are based upon any
omission or alleged omission of material fact necessary to make any statement
not misleading, made by the Company its officers, employees, agents, and its
legal counsel; (iii) arising in any manner out of or in connection with the
performing of services by Agent hereunder, providing such losses, claims,
damages or liabilities are not the result of Agent’s and/or its Personnel’s own
malfeasance gross negligence or willful misconduct; and (iv) arising out of or
based upon any violation of the representations and warranties of the Agent
Investor, providing Agent and/or its Personnel were unaware of such
violations.
5.9 If
any clause or provision of this Agreement is illegal, invalid or unenforceable
under applicable present or future Laws effective during the Term, the remainder
of this Agreement shall not be affected. In lieu of each clause or provision of
this Agreement that is illegal, invalid or unenforceable, there shall be added
as a part of this Agreement a clause or provision as nearly identical as may be
possible and as may be legal, valid and enforceable. In the event any clause or
provision of this Agreement is illegal, invalid or unenforceable as aforesaid
and the effect of such illegality, invalidity or unenforceability is that either
party no longer has the substantial benefit of its bargain under this Agreement
and a clause or provision as nearly identical as may be possible cannot be
added, then, in such event, such party may in its discretion cancel and
terminate this entire Agreement provided such party exercises such right within
a reasonable time after such occurrence.
5.10 The
parties agree and acknowledge that they have jointly participated in the
negotiation and drafting of this Agreement and that this Agreement has been
fully reviewed and negotiated by the parties and their respective counsel. In
the event of an ambiguity or question of intent or interpretation arises, this
Agreement shall be construed as if drafted jointly by the parties and no
presumptions or burdens of proof shall arise favoring any party by virtue of the
authorship of any of the provisions of this Agreement.
5.11 This
Agreement may not be modified, amended, supplemented, canceled or discharged,
except by written instrument executed by all parties. No failure to exercise,
and no delay in exercising, any right, power or privilege under this Agreement
shall operate as a waiver, nor shall any single or partial exercise of any
right, power or privilege hereunder preclude the exercise of any other right,
power or privilege. No waiver of any breach of any provision shall be deemed to
be a waiver of any preceding or succeeding breach of the same or any other
provision, nor shall any waiver be implied from any course of dealing between
the parties. To be effective, all waivers must be in writing, signed by both
parties. The rights and remedies of the parties under this Agreement are in
addition to all other rights and remedies, at law or equity, that they may have
against each other except as may be specifically limited herein.
5.12 This
Agreement contains the entire agreement between Agent and the Company concerning
the introduction of Agent Investors to the Company and correctly sets forth the
rights and duties of each of the parties to each other concerning that matter as
of this date. Any agreement or representation concerning the subject matter of
this Agreement or the duties of Agent to the Company in relation thereto, not
set forth in this Agreement, is null and void.
5.13 The
Parties agree that any amendment or modification to the Agreement shall be by
written instrument only and must be executed by a representative, with complete
authority, from Company and Agent.
|
J.P.
TURNER &
COMPANY, LLC / INVESTMENT BANKING DIVISION
|
|
One
Buckhead Plaza ·
3060 Peachtree Road NW, iith Floor ·
Atlanta, Georgia 30305
|
|
www.jpturner.com
· (888)
578-8763 ·
(404) 479-8300 ·
Fax (866) 636-2536
|
|
Member
SIPC
|
September
29,
2010
Mr. Jose
Mir
President
SensiVida
Medical Technologies, Inc.
150
Lucius Gordon Drive, Suite 110
West
Henrietta, NY 14586
|
Re:
|
Placement
Agent Agreement with J.P. Turner & Company,
LLC
|
Dear Mr.
Mir:
This
letter (the “Agreement”) is to set forth the terms and
conditions pursuant to which J.P. Turner & Company, L.L.C. (the “Agent”) shall, except as expressly noted to
the contrary herein, serve as, exclusive placement agent and financial advisor
in connection with the best efforts sale (the “Offering”) of new securities of SensiVida
Medical Technologies, Inc. (together with its affiliates and subsidiaries, the
“Company”), for purposes of execution of the
business plan, pursuant to all transaction documents that memorialize the
Offering to be offered only to accredited investors (the “PPM”). The Offering will be on a
reasonable best efforts basis and the securities to be sold in Offering are
expected to be convertible preferred stock and warrants to purchase common
shares (the “Securities”); however, the Company and Agent
(collectively, the “Parties”) can elect to offer different
securities. The gross proceeds to be received by the Company from the placement
of the Securities are estimated to be between $8,000,000 and $10,000,000 or any
another amount that is mutually agreed upon by the Parties.
The
Agent’s role will include: (a) identifying and offering the Securities to
purchasers who are “accredited investors” or “qualified institutional buyers”
(“Investor(s)”) under and as defined in the Securities Act of
1933, as amended (the “Securities
Act”) (b) attempting, on a “best efforts”
basis to secure acceptable commitments from Investors to purchase the Securities
(c) coordinating the closing of sales of the Securities with Investors and the
Company, and (d) assembling co-placement agents and/or syndicate selling agents
who are FINRA members as the Agent deems appropriate (collectively, the “Services”). If the Company has a Closing (as
defined in Section 2.3), irrespective of the amount of such Closing, the Company
shall grant to Agent a 12 month exclusive first-right-of –refusal thereafter
(the “Success
Period”) to sell any new securities (debt,
equity, or combination of both), from the time of the final Closing of the
Offering and in accordance with Section 2.6. For the avoidance of doubt,
issuance of debt without equity features (equity features include, but may not
be limited to: conversion rights, warrants or capital stock) shall not be deemed
the sale of new securities.
|
1.0
|
THE
PARTIES
|
1.1 The
Company, with its principal office at 150 Lucius Gordon Drive, Suite 110, West
Henrietta, NY 14586.
1.2 The
Agent, with its principal office at 3060 Peachtree Road, 11th Floor,
Atlanta, GA, 30305.
1.3 The
persons executing this Agreement represent to each other that they have full and complete authority to do
so.
|
INVESTMENT
BANKING DIVISION
|
|
One
Buckhead Plaza ·
3060 Peachtree Road NW, iith Floor ·
Atlanta, Georgia 30305
|
|
www.jpturner.com
· (888)
578-8763 ·
(404) 479-8300 ·
Fax (866) 636-2536
|
|
Member
SIPC
|
SensiVida
Medical Technologies, Inc.
Placement
Agent Agreement
September
29, 2010
Page 2 of
8
+
|
2.0
|
THE
AGREEMENT
|
2.1 The
Company desires to sell Securities and arrange a capital facility through the
Agent to accredited and institutional investors (the “Investors”) and engage Agent as exclusive
financial representative to identify and solicit the Securities to the
Investors. The Offering shall be on terms and conditions satisfactory to the
Company and Company Counsel shall prepare the Memorandum for review and approval
by Agent’s compliance department prior to use thereof. If during the Term of the
Agreement, or at any time within 12 months after the termination of this
Agreement, all or any part of the Offering is placed with Investors as a result
of an introduction made through Agent to the Investors during the term of this
Agreement, either a single investor, several investors, or a related entity of
the investor (collectively the “Agent
Investors”), the Company shall owe Agent the
fees described herein. The Company, at its sole discretion, can approve or
decline any introduction to Agent Investors. If the Company closes on any
Offering transactions with an Agent Investor introduced by Agent to Company
pursuant to the terms of this Agreement, it shall be understood that the
Offering shall meet terms and conditions satisfactory to the
Company.
2.2 The
Offering shall be on terms and conditions satisfactory to the Company and should
all or any part of the Offering be placed with an Agent Investor, the Company
shall owe Agent the fees described herein. Should the Company have a Closing on
any introduced transactions under this Agreement, it shall be understood that
the Offering met terms and conditions satisfactory to the Company. Nothing in
this Agreement shall constitute an undertaking by the Agent to underwrite or
otherwise purchase the Securities offered in the Offering or any other
transaction that may be developed as an alternative.
2.3 A
Closing shall occur if any Securities have been purchased by an Agent Investor
(the “Closing”). If the Securities are purchased
through multiple fundings or stepped milestones, then each such separate funding
shall be deemed a Closing, and the fees shall be paid to the Agent at each
Closing. The total amount of the fee due to Agent shall be due and payable on
the date of each Closing and delivered to the Agent simultaneously with the
delivery of the funds to the Company. The Company shall be under no obligation
to consummate the Offering, except upon such terms as shall be acceptable to the
Company in its sole discretion.
2.4 The
term of this Agreement commences on the date that both parties have signed this
Agreement (the “Engagement
Date”) and shall continue for twelve (12)
months. (the “Term”) from the Engagement Date unless
earlier terminated in accordance with Section 4.2. Upon expiration of this
Agreement, Agent shall be entitled to receive all earned accrued compensation
(as described in Section 3 herein) and un-reimbursed expenses, if any. Upon the
final Closing, the Company shall negotiate and transact exclusively with Agent
regarding any sale of securities for an additional 12 months from the final
Closing.
2.5 The
Company represents and warrants to the Agent that with respect to the Offering:
(i) the Company has consulted its own legal counsel on all aspects of the
Offering; (ii) Agent has not made any representations to the Company to induce
it to execute this Agreement other than those expressly and directly made
herein; (iii) the Company has performed its own due diligence investigation and
had the opportunity to ask questions of the Agent, Agent Investors and their
respective management teams and analyze their responses; and (iv) the Company
has not relied on any information, representations or warranties of any
individual or entity, including without limitation the Agent, in connection with
the Offering but for those made directly, personally and expressly by the Agent
Investors in the definitive transaction documents memorializing the
Offering.
|
J.P.
TURNER &
COMPANY, LLC / INVESTMENT BANKING DIVISION
|
|
One
Buckhead Plaza ·
3060 Peachtree Road NW, iith Floor ·
Atlanta, Georgia 30305
|
|
www.jpturner.com
· (888)
578-8763 ·
(404) 479-8300 ·
Fax (866) 636-2536
|
|
Member
SIPC
|
SensiVida
Medical Technologies, Inc.
Placement
Agent Agreement
September
29, 2010
Page 3 of
8
2.6 If
a Closing occurs with any Agent Investors and if the Company proposes a sale of
any securities (debt or equity or combination thereof), during the Success
Period, the Company shall grant Agent a first-right-of-refusal to be the
exclusive lead placement agent of the offering commenced during the term hereof
or the Success Period (a “Follow-On
Offering”). The Company agrees that it will
provide Agent written notice of its desire to complete a Follow-On Offering and
the terms proposed therefor (the date of delivery of the notice being the
“Proposal Date” and the terms therof being the “Proposed Follow-On Terms”) give
Agent sixty (60) days to complete the Follow-On-Offering (the “Follow-On
Offering Period”) from the date that Company delivers
the offering materials it deems necessary for the Follow-On Offering, provided
that Agent delivers written notice to the Company agreeing to serve as lead
placement agent for the Follow-On-Offering within 10 days following the Proposal
Date . If for whatever reason Agent chooses not to be the exclusive lead
placement agent of the Follow-On Offering, the Company will offer to make Agent
a selected dealer of the Follow-On Offering and grant it an allotment of 30% of
the securities offered in the Follow-On Offering to its clients and guarantee
Agent fees and commissions at a rate equal to 70% of the rate of fees and
commissions paid to the lead placement agent for the Follow-On Offering on the
gross dollars raised by Agent
|
3.0
|
THE
FEES AND PROVISIONS
|
3.1 The
Company shall pay to Agent a non refundable retainer of fifty thousand dollars
($50,000) (the “Retainer”). Twenty five thousand dollars
($25,000) will be due and payable upon execution of this Agreement and the
remaining balance of twenty five thousand dollars ($25,000) plus any unpaid
expenses will be due and payable upon due diligence approval by Agent and the
drafting of the PPM. The Retainer will be non-refundable and allocated for
expenses for the Offering which include, but are not limited to: due diligence,
travel and lodging, planning and coordination, legal, and implementation of the
Services (the “Offering
Expenses”). The Company acknowledges that the
Retainer may not adequately cover all Offering Expenses and agrees to replenish
the retainer to a certain amount mutually agreed upon by Company and Agent and
prepay and reimburse Agent for other Offering Expenses which will include
administrative time. The Retainer will not be received against or considered
pre-payment of fees earned (as described in Sections 3.2, 3.3, 3.4, and 3.7)
with regards to the Offering.
3.2 Upon
the initial closing the Company shall issue to Agent a non-refundable retainer
warrant to purchase up to four hundred fifty thousand (450,000) common shares
(the “Initial
Retainer Warrant”) with an exercise price equal to the
initial conversion price of the Securities issued in the Offering and a term of
five (5) years from the date of issuance. Upon issuance of the Retainer
Warrants, the Retainer Warrants shall immediately vest in favor of the Agent, be
fully paid, non-assessable, and free of any restrictions on transfer other than
compliance with applicable securities laws for the transfer of privately issued
securities. The Retainer Warrants shall have a cashless exercise
provision.
3.3 The
Company shall pay Agent a cash fee (the “Offering
Fee”) equal to sixteen percent (16.00%) of
the gross proceeds of the Offering as received by the Company from Agent
Investor. The Offering Fee is equal to the sum of a ten percent (10.00%) selling
concession, three percent (3.00%) management fee, and a three percent (3.00%)
non-accountable expense fee.
3.4 The
Company shall also issue Agent a warrant to purchase a number of the Company’s
shares of common stock (the “Common
Stock”), equal in number to sixteen percent
(16.00%) of the gross proceeds provided by the Offering (the “Placement
Agent Warrant”) as received by the Company from the
Agent Investors. The Placement Agent Warrant shall have an exercise price equal
to the initial conversion price of the Securities issued in the offering (the
“Strike
Price”). The Company shall also pay Agent a
cash fee equal to seven percent (7.00%) of the gross proceeds as received by the
Company from exercising of the Agent Investor’s warrants, if any (the “Warrant
Solicitation Fee”).
|
J.P.
TURNER &
COMPANY, LLC / INVESTMENT BANKING DIVISION
|
|
One
Buckhead Plaza ·
3060 Peachtree Road NW, iith Floor ·
Atlanta, Georgia 30305
|
|
www.jpturner.com
· (888)
578-8763 ·
(404) 479-8300 ·
Fax (866) 636-2536
|
|
Member
SIPC
|
SensiVida
Medical Technologies, Inc.
Placement
Agent Agreement
September
29, 2010
Page 4 of
8
3.5 Upon
issuance of the Placement Agent Warrant, the Placement Agent Warrant shall
immediately vest in favor of the Agent, be fully paid, non-assessable, and free
of any restrictions on transfer, except for restrictions on transfer for
privately placed securities pursuant to applicable securities laws. The
Placement Agent Warrant and Retainer Warrants (collectively, the “Warrant”) shall be issued to Agent in the form
of a warrant agreement (the “Warrant
Agreement”), which shall be in a form and
content reasonably satisfactory to the Company and to Agent and its counsel. The
Warrant Agreement shall provide for, among other provisions, the above terms and
the following: (1) The Agent will be granted the exact Registration Rights that
are provided to the Agent Investor in the Offering (2) The Warrant shall expire
five (5) years after the date that the Warrant Agreement is issued (3) The
Warrant shall have customary anti-dilution provisions for stock dividends,
splits, mergers, and sale of substantially all assets of the Company (4) Agent
may exercise the Warrant at any time after signing the Warrant Agreement and the
Company agrees to deliver the underlying common shares to the Agent within 7
days (5) The Warrant shall contain a “Cashless Exercise” provision that goes
into effect if there is not an effective registration statement for the
underlying common shares 6 months after the closing of the transaction (6) The
Company shall reserve, and at all times have available, a sufficient number of
shares of its common stock to be issued upon the exercise of the Warrant and (7)
The Company shall grant unlimited “piggy back” registration rights, at the
Company’s expense, to include the common shares underlying the Warrant in any
registration statement filed by the Company under the Securities Act of 1933, as
amended (the “Act”) relating to an underwriting of the sale of shares of common
stock or other security of the Company, except to the extent such shares could
be transferred and sold without restriction under Rule 144 promulgated under the
Act, and provided that such shares are exercisable pursuant to the Cashless
Exercise provisions set forth above.
3.6 The
Warrant and the Agent Shares shall be issued to J.P. Turner Partners, LP and
mailed to the following address:
J.P.
Turner Partners, LP
Attention:
Patrick J. Power
3060
Peachtree Road, 11th
Floor
Atlanta,
GA 30305
Phone:
404.479.8300
Fax:
888.704.7512
3.7 The
Agent is also entitled to certain compensation in the event of a Control
Transaction (as defined below). If the Company executes a letter of intent to
conduct a Control Transaction or consummates a Control Transaction with any
party (irrespective of whether Placement Agent introduced such person to the
Company) before the earlier of the last Closing and the termination date of this
Agreement, then, the Company shall pay the Agent a cash fee of 2% of the Control
Transaction consideration received upon the closing of such Control Transaction.
In addition, if the Company executes a letter of intent to conduct a Control
Transaction or consummates a Control Transaction following the Closing within
one year thereafter with a third party introduced to the Company as a result of
the efforts of the Agent, then the Company shall pay the Agent a cash fee of 2%
of the Control Transaction consideration received upon the closing of such
Control Transaction, provided that, to the extent requested by the Company, the
Agent shall be required to provide customary financial advisory services in
connection with such Control Transaction in consideration for such cash fee. For
purposes hereof, a “Control Transaction” shall mean any transaction or series or
combination of transactions, whereby, directly or indirectly, control of, or a
majority interest in, the Company or all or substantially all of its businesses,
assets or properties, is sold, leased or otherwise transferred, including,
without limitation, a sale or exchange of capital stock or assets, a lease of
assets with or without a purchase option, a merger or consolidation, a leveraged
buy-out, a restructuring, a recapitalization, a repurchase of capital stock, an
extraordinary dividend or distribution (whether cash, property, securities or a
combination thereof), a liquidation, the formation of a joint venture or
partnership or any other similar transaction; provided, however, that the
Offering shall not constitute a Control Transaction hereunder. Notwithstanding
the foregoing, none of the following shall be deemed to be a Control
Transaction: (i) the issuance of any securities in the Offering or upon
conversion or exercise of securities issued in the Offering; (ii) the issuance
of any securities in a transaction in which Agent is acting as a placement
agent, financial advisor or underwriter to the Company or is otherwise receiving
a fee hereunder; or (iii) the issuance of any securities in any registered
public offering.
|
J.P.
TURNER &
COMPANY, LLC / INVESTMENT BANKING DIVISION
|
|
One
Buckhead Plaza ·
3060 Peachtree Road NW, iith Floor ·
Atlanta, Georgia 30305
|
|
www.jpturner.com
· (888)
578-8763 ·
(404) 479-8300 ·
Fax (866) 636-2536
|
|
Member
SIPC
|
SensiVida
Medical Technologies, Inc.
Placement
Agent Agreement
September
29, 2010
Page 5 of
8
3.8
The Company will establish escrow arrangements that are commercially
reasonable with a nationally recognized escrow agent that is approved by the
Agent. The Company shall include a covenant within the escrow agreement that
requires the Agent to be paid all of its fees described within this Agreement
either from the funds held in escrow pending the Closing or directly from the
Agent Investors in accordance with the following wiring
instructions:
|
Account
Name:
|
J.P.
Turner & Company, L.L.C.
|
|
|
Bank:
|
Bank
of America – Atlanta, GA
|
|
|
Address:
|
1500
Buford Highway
|
|
|
Buford,GA
30518
|
||
|
Phone:
|
(770)
497-3011
|
|
|
Fax:
|
(770)
945-6112
|
|
|
ABA
Routing#:
|
026009593
|
|
|
Account
#:
|
0033-4329-6904
|
3.9
If at any time within 12 months of a final Closing, the Company raises
additional capital from an Agent Investors, the Company shall pay the Agent all
fees as described in Section 3 and based upon the new gross dollars received by
the Company from the Agent Investor.
|
4.0
|
OTHER
EXPENSES AND BREAK-UP FEE
|
4.1 The
Company will pay or cause to be paid all costs and expenses incident to the
Offering, including, without limitation (i) preparing, printing, or otherwise
reproducing, and mailing, the disclosure PPM, and other appropriate documents,
and any amendments or supplements thereto, (ii) registering or qualifying the
Securities for offer and sale in the applicable states, as specified by Agent,
or obtaining exemptions there from, (iii) all taxes, if any, on the issuance of
the Securities, (iv) any necessary travel and lodging expenses, including, but
not limited to, due diligence, meetings, road shows, as well as clerical
overtime, which shall upon sufficient notification be paid directly by the
Company to Agent; (v) all costs of the Company’s counsel and Agent’s counsel
associated with the transactions contemplated by this Agreement; and (vi) all
other expenses related to the Private Placement. The Company also agrees to
replenish the Retainer and reimburse Agent for expenses it may incur in
performance of Services which may include, but are not limited to: independent
due diligence, postage, teleconference calls, capital conferences, travel and
lodging, and any other expenses related to the Private Placement.
4.2 If
the Company, at any time, decides to terminate, abandon or not conti ue to
diligently and timely pursue the Offering, the Company must pay the Agent all
accrued and unpaid expenses including all its legal costs plus fifty thousand
United States Dollars ($50,000) as a break-up fee (the “Break-up
Fee”).
|
J.P.
TURNER &
COMPANY, LLC / INVESTMENT BANKING DIVISION
|
|
One
Buckhead Plaza ·
3060 Peachtree Road NW, iith Floor ·
Atlanta, Georgia 30305
|
|
www.jpturner.com
· (888)
578-8763 ·
(404) 479-8300 ·
Fax (866) 636-2536
|
|
Member
SIPC
|
SensiVida
Medical Technologies, Inc.
Placement
Agent Agreement
September
29, 2010
Page 6 of
8
|
5.0
|
OTHER
|
5.1 The
Company covenants and agrees to provide Agent with copies of all press releases,
quarterly and annual financial statements, and other material public
information.
5.2 The
Company will provide the Agent with all information reasonably requested by it
for the purpose of rendering the services including, but not limited to:
reasonable access to the Company’s executive management, board of directors, and
the Company’s counsel; all financial statements, cost analysis, projections, and
budgets; copies of all management, consulting, and D&O agreements; an
updated D&O questionnaire, complete disclosure on any current or pending
legal proceeding on the Company and its management team; and business, market,
and product plans. Agent agrees to keep confidential any and all material
non-public information provided under this Agreement, except for disclosures to
potential Agent Investors that have executed a confidentiality agreement in
favor of the Company to hold such information confidential unless and until it
becomes publicly disclosed.
5.3 The
Agent will, in performing the services, be entitled to rely on and assume,
without investigation or verification or any obligation or duty to do so, the
accuracy and completeness of all public information released by the
Company.
5.4 Any
arrangements made by the Company with any broker or other persons with whom the
Company is or may be involved are the total responsibility of the Company. Upon
payment made by the Company to Agent of Agent’s fee, Agent will hold the Company
free and harmless from any and all claims, liabilities, commissions, fees, or
expenses in connection with the transaction from any party who alleges a
relationship with or through Agent and the Agent Investors.
5.5 The
Company shall supply to Agent, logos, trademarks, slogans, and similar designs
of itself and all subsidiaries and agrees to Agent’s perpetual use thereafter in
“Tombstones” that reflect the Agent’s fundraising efforts to the extent such
Offering has been publicly disclosed.
5.6 Following
the initial Closing, the Company agrees to attend the annual J.P. Turner &
Company Investment Banking Conference (April 2010) and also one other capital
conference selected by the Agent during the 12 month period following the last
Closing. The estimated cost for each conference is approximately $15,000. The
Company agrees to pay of all of Agent’s pre-approved and “reasonable” expenses
for each conference, which will include, but is not limited to, acceptable
lodging and travel, printing of material, postage, and any other cost that Agent
may incur in introducing the Company at the conferences.
5.7 In
the event of any dispute between the Company and Agent arising under or pursuant
to the terms of this Agreement, or any matters arising under the terms of this
Agreement, the same shall be settled only by arbitration through FINRA Dispute
Resolution in Fulton County, State of Georgia, in accordance with the Code of
Arbitration Procedure published by FINRA Dispute Resolution. The determination
of the arbitrators shall be final and binding upon the Company and Agent and may
be enforced in any court of appropriate jurisdiction. This Agreement shall be
construed by and governed exclusively under the laws of the State of Georgia,
without regard to its conflicts of law provisions.
|
J.P.
TURNER &
COMPANY, LLC / INVESTMENT BANKING DIVISION
|
|
One
Buckhead Plaza ·
3060 Peachtree Road NW, iith Floor ·
Atlanta, Georgia 30305
|
|
www.jpturner.com
· (888)
578-8763 ·
(404) 479-8300 ·
Fax (866) 636-2536
|
|
Member
SIPC
|
SensiVida
Medical Technologies, Inc.
Placement
Agent Agreement
September
29, 2010
Page 7 of
8
5.8 The
Company agrees to indemnify and hold harmless Agent and each person, if any, who
controls Agent within the meaning of the Act, its officers, employees, agents,
and the Agent’s counsel (collectively, the “Agent and
its Personnel”) from and against any losses, claims, damages or
liabilities, joint or several (which shall, for all purposes of this Agreement,
include, but not be limited to, all reasonable costs of defense, investigation
and collection and all reasonable attorneys’ fees), to which Agent and its
Personnel may become subject, under the Act or otherwise, insofar, as such
losses, claims, damages or liabilities (or actions in respect thereof); (i)
arising out of or are based upon any untrue statement or alleged untrue
statement of any material fact made by the Company its officers, employees,
agents, and the legal counsel; (ii) arising out of or are based upon any
omission or alleged omission of material fact necessary to make any statement
not misleading, made by the Company its officers, employees, agents, and its
legal counsel; (iii) arising in any manner out of or in connection with the
performing of services by Agent hereunder, providing such losses, claims,
damages or liabilities are not the result of Agent’s and/or its Personnel’s own
malfeasance gross negligence or willful misconduct; and (iv) arising out of or
based upon any violation of the representations and warranties of the Agent
Investor, providing Agent and/or its Personnel were unaware of such
violations.
5.9 If
any clause or provision of this Agreement is illegal, invalid or unenforceable
under applicable present or future Laws effective during the Term, the remainder
of this Agreement shall not be affected. In lieu of each clause or provision of
this Agreement that is illegal, invalid or unenforceable, there shall be added
as a part of this Agreement a clause or provision as nearly identical as may be
possible and as may be legal, valid and enforceable. In the event any clause or
provision of this Agreement is illegal, invalid or unenforceable as aforesaid
and the effect of such illegality, invalidity or unenforceability is that either
party no longer has the substantial benefit of its bargain under this Agreement
and a clause or provision as nearly identical as may be possible cannot be
added, then, in such event, such party may in its discretion cancel and
terminate this entire Agreement provided such party exercises such right within
a reasonable time after such occurrence.
5.10 The
parties agree and acknowledge that they have jointly participated in the
negotiation and drafting of this Agreement and that this Agreement has been
fully reviewed and negotiated by the parties and their respective counsel. In
the event of an ambiguity or question of intent or interpretation arises, this
Agreement shall be construed as if drafted jointly by the parties and no
presumptions or burdens of proof shall arise favoring any party by virtue of the
authorship of any of the provisions of this Agreement.
5.11 This
Agreement may not be modified, amended, supplemented, canceled or discharged,
except by written instrument executed by all parties. No failure to exercise,
and no delay in exercising, any right, power or privilege under this Agreement
shall operate as a waiver, nor shall any single or partial exercise of any
right, power or privilege hereunder preclude the exercise of any other right,
power or privilege. No waiver of any breach of any provision shall be deemed to
be a waiver of any preceding or succeeding breach of the same or any other
provision, nor shall any waiver be implied from any course of dealing between
the parties. To be effective, all waivers must be in writing, signed by both
parties. The rights and remedies of the parties under this Agreement are in
addition to all other rights and remedies, at law or equity, that they may have
against each other except as may be specifically limited herein.
5.12 This
Agreement contains the entire agreement between Agent and the Company concerning
the introduction of Agent Investors to the Company and correctly sets forth the
rights and duties of each of the parties to each other concerning that matter as
of this date. Any agreement or representation concerning the subject matter of
this Agreement or the duties of Agent to the Company in relation thereto, not
set forth in this Agreement, is null and void.
5.13 The
Parties agree that any amendment or modification to the Agreement shall be by
written instrument only and must be executed by a representative, with complete
authority, from Company and Agent.
|
J.P.
TURNER &
COMPANY, LLC / INVESTMENT BANKING DIVISION
|
|
One
Buckhead Plaza ·
3060 Peachtree Road NW, iith Floor ·
Atlanta, Georgia 30305
|
|
www.jpturner.com
· (888)
578-8763 ·
(404) 479-8300 ·
Fax (866) 636-2536
|
|
Member
SIPC
|
SensiVida
Medical Technologies, Inc.
Placement
Agent Agreement
September
29, 2010
Page 8 of
8
If the
foregoing is in accordance with your understanding, kindly confirm your
acceptance by signing and returning the Agreement, which will thereupon
constitute an agreement between us.
|
Yours
very truly,
|
|
|
/s/ Patrick
J. Power
|
|
|
Patrick
J. Power
|
|
|
Managing
Director, Investment Banking
|
|
|
J.P.
Turner & Company,
LLC
|
Accepted
and approved this 1st day of October , 2010
|
By:
|
/s/ Jose
Mir
|
|
|
Mr.
Jose Mir
|
||
|
President
|
||
|
SensiVida
Medical Technologies, Inc.
|
||
|
J.P.
TURNER &
COMPANY, LLC / INVESTMENT BANKING DIVISION
|
|
One
Buckhead Plaza ·
3060 Peachtree Road NW, iith Floor ·
Atlanta, Georgia 30305
|
|
www.jpturner.com
· (888)
578-8763 ·
(404) 479-8300 ·
Fax (866) 636-2536
|
|
Member
SIPC
|