EXHIBIT 4.5
April 8, 2003
Mr. Anthony Deasey
Executive Vice President
Finance and Administration
Chief Financial Officer
CELSION CORPORATION
10220-I Old Columbia Road
Columbia, MD 21046
Dear Tony:
This letter will serve as an agreement between Celsion Corporation (the
"Company") and Strategic Growth International, Inc. ("SGI") pursuant to which
the Company will, on the terms and conditions set forth herein, retain SGI to
serve as an investor relations consultant for the Company and SGI will serve in
such capacity for the Company.
1. DUTIES:
-------
(a) As an investor relations consultant, SGI will:
(i) Consult with the management of the Company from time to time,
as members of such management reasonably shall request, on investor relations
aspects of shareholder communications, arrange and conduct meetings with members
of the professional investment community (including, without limitation,
securities analysts and the financial press) and investor groups, communicate
the Company's corporate message, as the same shall be approved in advance by the
Company, to such audiences as the Company shall direct, and enhance the
Company's relations with the professional investment community (including,
without limitation, securities analysts and the financial press).
(ii) Assist the Company in developing and implementing a
comprehensive Investor Relations Program. The program will be designed to
achieve results-oriented goals and objectives.
(iii) Provide professional staff services as may be reasonably
required to help the Company carry out its investor relations programs and
objectives under the direction and subject to ultimate control and approval by
the Company, including, without limitation, providing services with respect to
the following:
(1) Developing a coordinated package of financial public
relations materials, including PowerPoint, fact sheet,
press releases, corporate package, etc.;
(2) Reviewing and advising on features and functionality of
the Company's website;
(3) Immediately introducing the Company to investment
business firms with the goal of fulfilling the Company's
financial needs;
(4) Assisting the Company in increasing the liquidity of the
Company's common stock, par value $0.01 per share
("Common Stock"), with the goal of co-ordinating with
the Amex Specialist and introducing the Company to
professionals in the investment community;
(5) Developing and encouraging institutional ownership in
the Common Stock;
(6) Assisting in initiating research coverage from reputable
institutional sales boutiques and small cap research
analysts;
(7) Creating financial media opportunities for the Company
as appropriate;
(8) Obtaining invitations for the Company to, and
coordinating participation by the Company in, financial
industry conferences;
(9) Coordinating all day-to-day investor relations
activities including, without limitation, press
releases, dissemination of information, earnings
conference calls, etc.; and
(10) Assisting the Company in creating, enhancing and
sustaining interest in the Common Stock in European
markets.
2
(b) Anything to the contrary contained herein notwithstanding, SGI
shall not have the authority to obligate or commit the Company in any manner
whatsoever and shall not hold itself out as having any other relationship with
the Company other than as a consultant for the limited purposes set forth
herein.
(c) SGI confirms that it and each of its officers, employees, agents
and affiliates will perform investor relations services as outlined above for
the Company which shall, at no time necessitate any such officer, employee,
agent or affiliate holding licenses and authorizations, including, without
limitation, licensure as a broker-dealer, finder, investment adviser or
otherwise, under and of the various state and federal securities or "blue sky"
laws.
2. CONFIDENTIALITY; LIMITATION ON LIABILITY
----------------------------------------
(a) Except as required by applicable law, SGI shall keep confidential
any and all material non-public information provided to it by or on behalf of
the Company, and shall not disclose such information to any third party, other
than such of its employees, affiliates, agents and advisors as SGI reasonably
determines to have a need to know in order to permit SGI to discharge its
obligations hereunder. Notwithstanding the expiration or termination of this
Agreement, SGI shall continue to keep confidential any and all material
non-public information or data about the Company that it learns during the
course of its engagement hereunder.
(b) The Company shall indemnify and hold harmless SGI from and against
any and all losses, claims, damages, expenses or liabilities which SGI may
reasonably and actually incur and which are proximately related to the use, by
SGI, of information, representations, reports or data furnished by the Company
to the extent that such information, representations, reports or data is
furnished or prepared by the Company and its use is specifically approved by the
Company in advance of such use. Without limiting the generality of the
foregoing, the Company shall have no indemnification obligation, and SGI shall
have no right to indemnification, in the event of any losses, claims, damages,
expenses or liabilities incurred thereby and which are related to the selective
use of any upon information, representations, reports or data furnished or
prepared by the Company. SGI shall indemnify and hold harmless the Company from
and against all losses, claims, damages, expenses or liabilities which the
Company may reasonably and actually incur which are proximately related to use,
by SGI, of information, representation reports or data furnished or prepared by
the Company other than as expressly permitted by this Section 2(b).
3
3. OUT-OF-POCKET-EXPENSES
----------------------
The Company will reimburse SGI for all reasonable out-of-pocket
disbursements, including travel expenses, meals with the professional investment
community, graphic design and printing, postage and long distance telephones
calls, made in the performance of its duties under this Agreement; provided,
however, that, any expenditure in excess of $250 shall be subject to
reimbursement only if approved, in writing in advance, by the Company and
provided further that the Company shall be obligated to make reimbursement only
upon receipt of documentation reasonably acceptable to it evidencing the
expenses for which reimbursement is sought.
4. RECORDS AND RECORDING-KEEPING
-----------------------------
SGI will maintain accurate and complete records of all (a) expenditures
made; (b) time expended; and (c) all activities undertaken and contacts made, on
behalf of the Company. Without limiting the generality of the foregoing or of
Section 3 hereof, the Company shall seek prior written authorization for any and
all projects and operating activities on behalf of the Company.
5. COMPENSATION AND RELATED MATTERS
--------------------------------
(a) Subject to early termination of this Agreement pursuant to Section
7 and to the provisions of Section 8(b) hereof, commencing on April 8, 2003 (the
"Commencement Date") and continuing until October 8, 2004, the Company will pay
SGI a monthly retainer fee of $10,000.00 (the "Retainer Fee") for services under
this Agreement.
(b) In addition, the Company shall grant SGI warrants (the "Warrants")
to purchase up to 850,000 shares of the Company Common Stock (the "Warrant
Shares") at an exercise price of $0.44 per share. Such Warrants to purchase
350,000 Warrant Shares (the "Commencement Warrants") shall fully vest on the
Commencement Date, and Warrants to purchase 250,000 Warrant Shares (the
"Follow-On Warrants") shall vest on each of the nine (9) month anniversary
(January 8, 2004) and the fifteen month (15) anniversary (July 8, 2004) of the
Commencement Date. Notwithstanding the foregoing and subject to Section 7 and
Section 8(b) hereof, (i) in the event that the Company shall issue notice of its
intent to terminate this Agreement pursuant to Section 7 hereof on or after
October 1, 2003 but no later than January 8, 2004, then the Follow-On Warrants
to purchase 500,000 Warrant Shares shall not vest and all such Follow-On
Warrants shall be null and void and the Company shall have no further obligation
with respect thereto and (ii) in the event that the Company shall issue notice
of its intent to terminate this
4
Agreement on or after January 8, 2004 but no later than July 8, 2004, then the
Follow-On Warrants to purchase 250,000 Warrant Shares that otherwise would vest
on the fifteen (15) month anniversary of the Commencement Date shall not vest
and such Follow-On Warrants shall be null and void and the Company shall have no
further obligation with respect thereto. All Warrants shall have a term of five
(5) years from the Commencement Date. The Warrants Shares shall be subject to
piggyback registration rights for a period of six (6) years from the
Commencement Date, which piggyback registration rights shall be on customary
terms and subject to customary conditions and limitations and such Warrant
Shares shall be transferable and assignable by SGI, provided that, prior to any
such assignment or transfer, and as a condition precedent thereto, SGI shall
provide to the Company an opinion of counsel reasonably acceptable to the
Company, which opinion shall be in form and substance reasonable acceptable to
the Company, to the effect that such assignment or transfer conforms to the
registration requirements of the Securities Act of 1933, as amended, and any
applicable state securities or "blue sky" laws or is being made pursuant to
valid exemptions therefrom. In the event of a stock dividend, stock split or
reverse stock split, the number of shares of Common Stock underlying the
Warrants shall be adjusted proportionately.
(c) SGI will not, and will ensure that any permitted transferee of any
Warrants or Warrant Shares will not, during the term of this Agreement, or
within the thirty (30) day period prior to any exercise of a Warrant (whether or
not during the term of this Agreement), sell, offer to sell, solicit offers to
buy, dispose of, loan, pledge, or grant any right with respect to (such acts
being referred to collectively as a "Disposition") any Common Stock of the
Company, nor will SGI engage, or permit any permitted transferee to engage, in
any hedging or other transaction which is designed to or could reasonably be
expected to lead to or result in a Disposition of Common Stock of the Company by
the SGI, such permitted transferee or any other person or entity. Such
prohibited hedging or other transactions would include, without limitation,
effecting any short sale or having in effect any short position (whether or not
such sale or position is against the box and regardless of when such position
was entered into) or any purchase, sale or grant of any right (including without
limitation any put or call option) with respect to the Common Stock of the
Company or with respect to any security (other than a broad-based market basket
or index) that includes, relates to or derives any significant part of its value
from the Common Stock of the Company. Anything herein to the contrary
notwithstanding, any Disposition by SGI or any permitted transferee shall comply
in all respects with the requirements and limitations imposed by the Securities
Exchange Act of 1934, as amended and the rules and regulations promulgated
thereunder.
5
6. TERMS OF PAYMENT
----------------
SGI shall bill monthly, in advance, for the Retainer Fee due pursuant
to Section 4(a) hereof. Expenses, together with supporting documentation
therefor, shall be billed in the calendar month following the month in which
such expenses are incurred. Billed amounts shall be due within ten (10) days
following receipt of the invoice with respect thereto.
7. TERM AND TERMINATION
The term of this Agreement shall commence on the date hereof and shall
continue for a period of eighteen (18) months thereafter. Notwithstanding the
foregoing, from and after October 1, 2003, the Company has the right to
terminate this Agreement upon ninety (90) days prior written notice to SGI,
subject to the provisions of Section 5(b) hereof, concerning vesting and
cancellation of Follow-On Warrants.
8. OTHER TERMS OF THE AGREEMENT
----------------------------
(a) Any notice or other communication between parties hereto shall be
sufficiently given if delivered by hand, sent by certified or registered mail,
postage prepaid or by reputable overnight delivery service, or faxed and
confirmed, if to the Company, addressed to it at Celsion Corporation, 10220-I
Columbia Road, Columbia, MD 21046, or if to SGI, addressed to it at Strategic
Growth International, Inc. 150 East 52nd Street, 22nd Floor, New York, New York
10022. Such notice or other communication shall be deemed to be given, if
delivered by hand or sent by facsimile, on the day of such delivery or facsimile
transmission, if sent by overnight delivery service, on the business day next
succeeding the date of dispatch and, if sent by certified or registered mail, on
the fifth (5th) business day following the date of dispatch.
(b) If SGI shall cease to do business, the provisions hereof relating
to duties thereof and compensation thereof by the Company shall thereupon cease
to be in effect, except for the Company's obligation of payment for services
rendered prior thereto. Without limiting the generality of the foregoing, upon
such a cessation of business, any Warrants not yet vested shall be null and void
and the Company shall have no further obligation with respect thereto.
(c) This Agreement and the rights of either party hereunder may not be
assigned, including without limitation assignments by operation of law or
otherwise, without the written consent of the other party and shall be binding
upon and shall inure to the benefit of the parties hereto and their respective
permitted assigns.
6
(d) This Agreement shall be construed and interpreted in accordance
with the laws of the State of Maryland, without giving effect to principles of
conflicts of laws thereof.
(e) Nothing contained in this Agreement shall be construed to
constitute or render SGI as a partner, employee or agent of the Company, it
being intended that SGI is, and shall remain, an independent contractor.
(f) This Agreement and the rights hereunder may not be assigned by
either party (except by operation of law) and shall be binding upon and inure to
the benefit of the parties and their respective successors, assigns and legal
representatives.
(g) In the event that any one or more of the provisions contained in
this Agreement, or the application thereof to any person(s) or in any
circumstance(s), shall, for any reason, be found by a court of competent
jurisdiction to be invalid, illegal or unenforceable, such court shall have the
power, and hereby is directed, to substitute for or limit such provision(s) in
order as closely as possible to effectuate the original intent of the parties
with respect to such invalid, illegal or unenforceable provision(s) and to
enforce such substituted provision(s) or, if such substitution or limitation is
not possible, to deem such provision(s) to be deleted from this Agreement as if
never included herein. Subject to the foregoing, the invalidity, illegality or
unenforceability of any one or more of the provisions contained herein shall not
affect the validity of any other provision of this Agreement.
(h) None of the terms of this Agreement shall be deemed to be waived or
modified except by an express agreement in writing signed by each of the parties
hereto. The failure of either party at any time to require performance by the
other party of any provision hereof shall, in no way, affect the full right to
require such performance at any time thereafter and the waiver by either party
of a breach of any provision hereof shall not be deemed or to be a waiver of any
succeeding breach of such provision or as a waiver of the provision itself.
(i) As the context requires, any word used herein in the singular shall
extend to and include the plural, any word used herein in the plural shall
extend to and include the singular, and any word used in either gender or in the
neuter shall extend to and include the other gender or be neutral.
7
(j) The headings contained in this Agreement are for convenience of
reference of the parties only, shall not be deemed to be a part of this
Agreement and shall not be referred to in connection with the construction or
interpretation of this Agreement.
(k) This Agreement may be executed in counterparts, each of which when
executed and delivered shall be deemed to be an original and all of which
counterparts taken together shall constitute but one and the same instrument.
This Agreement shall become binding when one or more counterparts taken together
shall have been executed and delivered (which deliveries may be by facsimile) by
all of the parties.
(l) This Agreement embodies the entire agreement and understanding
between the Company and SGI with respect to the subject matter hereof and
supersedes any and all negotiations, prior discussions and preliminary and prior
agreements and understandings related to such subject matter.
* * * * *
8
Please confirm agreement to the above by endorsing all three (3) copies
and returning two (2) copies to SGI.
AGREED TO AND ACCEPTED BY:
ATTEST: STRATEGIC GROWTH INTERNATIONAL,
By: /s/ Richard C. Cooper
- ------------------------------------ --------------------------
[SEAL] Print Name: Richard C. Cooper
-----------------
Title: Chairman
----------------------
ATTEST: CELSION CORPORATION
By: /s/Anthony P. Deasey
- ------------------------------------- ----------------------------
[SEAL] Print Name: Anthony P. Deasey
-------------------
Title: Executive Vice President
------------------------
9