EXHIBIT 4.5
GOLDPAC INVESTMENT PARTNERS LTD.
October 1, 2003
Celsion Corporation
10220-L Old Columbia Road
Columbia MD USA 21046
Attention: Dr. Augustine Y. Cheung
President and Chief Executive Officer
RE: CELSION CORPORATION--INTRODUCTION OF
STRATEGIC CANADIAN AND HONG KONG INVESTORS
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Dear Sir:
We refer to the various discussions with you recently and propose to act as an
advisor to Celsion Corporation (the "COMPANY") in respect of the introduction of
strategic investors in Canada and Hong Kong (the "ENGAGEMENT") on the terms and
conditions set forth in this letter agreement (this "AGREEMENT").
1. BACKGROUND INFORMATION
Based on our various discussions, we understand the following:
(A) The Company is a research and development company dedicated to
commercializing medical treatment systems, for cancer and
other diseases using focused heat technology delivered by
patented microwave technology,
(B) The Company currently is seeking up to US $8,000,000 through a
private placements abroad to fund its further development and
the commercialization of certain of its products
(collectively, the "FINANCING").
2. SCOPE OF SERVICES
Goldpac Investment Partners Ltd., a British Virgin Islands corporation
("GOLDPAC") shall act as an advisor to the Company with respect to potential
participation in the Financing by one or more investors in Canada and/or Hong
Kong. In its role as advisor, Goldpac will, at the request and subject to the
control of the Company, identify, on a "best efforts" basis, investors who are
residents of Canada and/or Hong Kong (or otherwise are non-resident aliens in
the United States) willing to make an aggregate investment of up to US $8.0
million pursuant to the Financing and facilitate meetings between such potential
investors and Company representatives. In addition, to the extent that the
Company deems necessary and appropriate and
so directs Goldpac, Goldpac will arrange road shows in Hong Kong and/or Canada
for such potential investors. All activities of Goldpac will be conducted
outside of the United States and all investors identified or contacted by
Goldpac will be either individuals who are neither U.S. citizens, nor resident
aliens of the U.S. or who are foreign (non-U.S.) corporations or other entities
not engaged in any U.S. trade or business ("PERMITTED INVESTORS"). Anything to
the contrary contained herein notwithstanding, Celsion shall have the right, in
its sole and absolute discretion, to reject any proposed investment from any
Permitted Investor for any reason or for no reason.
3. FEE STRUCTURE
As compensation for its services hereunder, Celsion shall compensate
Goldpac as follows:
(A) The Company shall pay to Goldpac a Success Fee, in U.S.
dollars, in an amount equal to seven and one half percent (8%)
of the purchase price of any securities of Celsion purchased
by Permitted Investors introduced to the Company by Goldpac.
(B) The Company will grant to Goldpac common stock purchase
warrants ("WARRANTS"), exercisable for a period of five (5)
years from the date of the final closing of the Financing, at
an exercise price equal to the price per common share paid by
the Permitted Investors. Goldpac shall be entitled to receive
Warrants to purchase eight (8) shares of the Company's Common
Stock, par value $0.01 per share, for each 100 shares acquired
in the Financing by each Permitted Investor introduced to the
Company by Goldpac pursuant hereto. Additionally, Goldpac
shall be entitled to receive Warrants to purchase eight (8)
shares of the Company's Common Stock, par value $0.01 per
share, for each warrant to purchase 100 shares acquired by
each Permitted Investor introduced to the Company by Goldpac
pursuant hereto.
4. TERM AND TERMINATION OF ENGAGEMENT
(A) Subject to Section 4(B) below, the Engagement will be for a
period of six (6) months commencing with the date of this
Agreement and will be subject to extension or renewal upon
mutual agreement by the parties.
(B) The Engagement may be terminated by the Company or by Goldpac
at any time, for any reason, upon written notice to that
effect to Goldpac or the Company, as the case may be;
provided, however, that Sections 3(A), 3(B), 7, 8 and 9 under
this Agreement shall survive any such termination and shall
remain in full force and effect.
5. RESPONSIBILITIES OF THE COMPANY
In agreeing to the terms of this letter, the Company undertakes to:
(A) Bear and pay all of its own professional fees and
out-of-pocket expenses, such as the fees of legal and other
financial advisors and the expenses such as printing,
translation, photocopying and issuance of press releases, if
any;
(B) Provide Goldpac with, and allow Goldpac to disclose to
potential Permitted Investors, the same information that the
Company makes available to Sterling, including, without
limitation, such number of copies of the Private Placement
Package prepared in connection with the Financing as Goldpac
reasonably may request; and
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(C) Accept full responsibility for the accuracy of all information
and facts provided by the Company to Goldpac pursuant to
clause (B) above, and promptly notify Goldpac of any of any
material events or developments relating to the Company's
financial condition, business operation or prospects that have
not been previously disclosed to Goldpac.
6. REPRESENTATIONS AND WARRANTIES
(A) The Company hereby represents and warrants to Goldpac that, as
of the date hereof:
(1) The Company is a corporation duly organized, validly
existing and in good standing under the laws of the
State of Delaware. The Company has all necessary
corporate power and authority to own its assets and
to carry on its business as now being conducted and
presently proposed to be conducted. The Company is
duly qualified to do business as a foreign
corporation and is in good standing in each
jurisdiction in which its ownership or leasing of
assets, or the conduct of its business, makes such
qualification necessary, except where the failure to
be so qualified or in good standing would not have a
material adverse effect on the Company.
(2) The Company has all necessary corporate power and
authority to execute, deliver and carry out the terms
of this Agreement. All corporate action on the part
of the Company required for the lawful execution and
delivery of this Agreement has been taken. Upon
execution and delivery, this Agreement constitutes a
valid and binding obligation of the Company,
enforceable in accordance with its terms, except as
enforcement may be limited by insolvency and similar
laws affecting the enforcement of creditors' rights
generally and equitable; remedies, and except as the
indemnity Provisions or Section 7 this Agreement may
be limited by law.
(3) Neither the execution and delivery of, nor the
consummation by the Company of any transaction or
execution of any instrument contemplated by, this
Agreement has constituted or resulted in, or will
constitute or result in, a material default under or
breach or violation of any term or provision of the
Company's Bylaws, Certificate of Incorporation or of
any material contracts with third parties.
(B) Goldpac hereby represents and warrants to the Company that, as
of the date hereof:
(1) Goldpac is a corporation duly organized, validly
existing and in good standing under the laws of the
British Virgin Islands. Goldpac has all necessary
corporate power and authority to own its assets and
to carry on its business as now being conducted and
presently proposed to be conducted. Goldpac is duly
qualified to do business as a foreign corporation and
is in good standing in each jurisdiction in which its
ownership or leasing of assets, or the conduct of its
business, makes such qualification necessary, except
where the failure to be so qualified or in good
standing would not have a material adverse effect on
Goldpac.
(2) Goldpac has all necessary corporate power and
authority to execute, deliver and carry out the terms
of this Agreement. All corporate action on the part
of Goldpac required for the lawful execution and
delivery of this Agreement has been taken. Upon
execution and delivery, this Agreement constitutes a
valid and binding obligation of Goldpac, enforceable
in accordance with its terms, except as enforcement
may be limited by insolvency and similar laws
affecting the enforcement of creditors' rights
generally and equitable remedies, and except as the
indemnity provisions of Section 7
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of this Agreement may be limited by law.
(3) Neither the execution and delivery of, nor the
consummation by Goldpac of any transaction or
execution of any instrument contemplated by, this
Agreement, has constituted or resulted in, or will
constitute or result in, a material default under or
breach or violation of any term or provision of
Goldpac's Bylaws, Certificate of Incorporation, other
constitutive documents, or material contracts with
third parties, or of the laws of the United States or
any jurisdiction thereof or of any non-U.S.,
jurisdiction or any rules or regulations thereunder.
Without limiting the generality of the foregoing,
Goldpac acknowledges and agrees that it is
responsible for compliance with all securities laws,
rules and regulations applicable to it or to the
Company or to the Company's securities by virtue of
the Financing, this Agreement or any agreement with
Permitted Investors entered into pursuant to or in
connection with this Agreement and Goldpac's
activities pursuant hereto and to the Engagement,
such rules and regulations to include, without
limitation any registration requirements applicable
to brokers, dealers, finders, issuer's agents or
others acting in a similar capacity.
7. INDEMNIFICATION AND CONTRIBUTION
(A) The Company will indemnify Goldpac and its officers,
directors, employees, authorized agents and representatives
(collectively, "Goldpac Representatives") against all claims,
damages, liability and litigation expenses (including
Goldpac's reasonable attorney fees and expenses) arising out
of the Company's activities hereunder, except as provided in
Section 7(B) below and to the extent that any claims, damages,
liability or expenses are found in a final judgment by a court
of competent jurisdiction to have resulted from Goldpac's
misconduct or negligence in performing the services described
above. The indemnity provisions contained in this Section 7(A)
will remain in full force and effect regardless of any
termination of this Agreement or the Engagement.
(B) Goldpac will indemnify the Company and its officers,
directors, employees, authorized agents and representatives
(collectively, "Company Representatives") against all claims,
damages, liability rind litigation expenses (including the
Company's reasonable attorney fees and expenses) arising out
of Goldpac's activities hereunder including, without
limitation, (i) any untrue statement or alleged untrue
statement of a material fact, made either orally or in writing
or any omission or alleged omission to state a material fact
by Goldpac or any Goldpac Representative in connection with
this Agreement or the Engagement, (ii) the failure of Goldpac
to comply with any laws of any jurisdiction applicable to it
by virtue of its activities pursuant this Agreement or the
Engagement or otherwise as contemplated by Section 6(B)(3)
hereof, or (iii) any violation of any securities laws, rules
and regulations applicable to Goldpac, to the Company or to
the Company's securities by virtue of this Agreement or any
agreement with any Permitted Investor entered into pursuant to
or in connection with this Agreement. The indemnity provisions
contained in this Section 7(B) will remain in full force and
effect regardless of any termination of this Agreement or the
Engagement.
(C) If for any reason the foregoing indemnity is unavailable to
Goldpac and the Goldpac Representatives on the one hand, or to
the Company and the Company Representatives on the other
(each, an "Indemnified Person") or is insufficient to hold the
Indemnified Person harmless, then the party required to
provide indemnification hereunder (the "Indemnifying Person")
shall contribute to the amount paid or payable to the
Indemnified Person as a result
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of such claims, liability, loss or damage in such proportion
as is appropriate to reflect not only the relative benefits
received by the Indemnifying Person on the one hand and the
Indemnified Person on the other, but also the relative fault
of the Indemnifying Person on the one hand, and Indemnified
Person on the other, that result in such losses, claims,
damages or liability, as well as any relevant suitable
considerations. The contribution provisions contained in this
Section shall remain in full force and effect regardless of
the termination of this Agreement or the Engagement.
8. CONFIDENTIALITY
All information and documents received by Goldpac or Goldpac
Representatives shall be used by Goldpac solely for the purposes described in
this Agreement and in furtherance of the Engagement shall be held in the
strictest confidence, except for such information and documents that are
available to the general public through no act or omission of Goldpac or the
Goldpac Representatives or are required to be disclosed by applicable law. With
respect to disclosures required by law, prior to making any such disclosure
Goldpac will provide the Company with a written opinion of Goldpac's counsel to
the effect that such disclosure is required and will use its best efforts to
provide the Company with sufficient time to seek a protective order or otherwise
preserve the confidentiality of the subject information. In all events, Goldpac
shall disclose only such information as its counsel advises it, in a written
opinion, is legally required to be disclosed. If the Engagement is terminated,
Goldpac, upon written request of the Company, shall return to the Company all
documents concerning the Company received by Goldpac or the Goldpac
Representatives or developed or created by Goldpac or the Goldpac
Representatives on the basis of or containing information obtained from the
Company, except for documents that are or solely contain information then
available to the general public through no act of Goldpac or the Goldpac
Representatives.
9. GENERAL
(A) This Agreement shall be governed by the laws of the State of
Maryland governing contracts made and to be performed in such
state without giving effect to the principles of conflicts of
law.
(B) This Agreement shall be assignable by either party only upon
the prior written consent of the other party, provided,
however, that any such assignment (including, without
limitation, any assignment of any of the Warrants issuable
pursuant to Section 3(B) hereof) shall comply in all respects
with applicable US and other securities laws. Subject to the
foregoing, this Agreement shall be binding upon, and shall
inure to the benefit of, the parties hereto and their
respective representatives and permitted successors and
assignees.
(C) In the event that any one or more of the provisions contained
in this Agreement, or the application thereof to any person(s)
or under any circumstance(s), shall, for any reason, be found
by a regulatory body or court of competent jurisdiction to be
invalid, illegal or unenforceable, such regulatory body or
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 this Agreement generally and to so enforce
such substituted provision(s). 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.
(D) This Agreement represents the entire understanding of the
parties pertaining to the subject matter hereof and supersedes
any and all prior agreements, understandings, negotiations and
discussions, whether written or oral, between the parties with
respect to such subject matter.
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(E) No amendment, supplement, modification, waiver, termination,
rescission, discharge or cancellation of this Agreement or any
provision hereof shall be binding unless in writing and
executed by each of the parties hereto. No waiver of any
provision hereof or any default hereunder shall be deemed to
be, or shall constitute, a waiver of any other such provision
or default (whether or not similar) and no such. waiver shall
constitute a continuing waiver unless expressly so provided.
(F) Captions to and headings of the various provisions hereof are
solely .for the convenience of the parties, are not a part of
this agreement, and shall not be used for the interpretation
of or determination of the validity of this Agreement or any
term or provision hereof.
(G) Notices or other communications required or contemplated
hereby or in connection herewith shall be deemed adequately
given if in writing and delivered in person or by recognized
international courier for first possible delivery or facsimile
transmission (in the case of courier, notice to be deemed
received on the date following the date of delivery contracted
for and in the case of facsimile transmission on the date
following confirmation of successful transmission) or mailed
by certified mail, postage prepaid and return receipt
requested (such notice to be deemed received on the earlier of
the date of actual receipt or the fifth (5th) business day
following dispatch) as follows:
CELSION CORPORATION
Celsion Corporation
10220-L Old Columbia Road
Columbia, MD USA 21046
Attention: Chief Financial Officer
Facsimile No. (410) 290-5394
GOLDPAC:
Goldpac Investment Partners Ltd.
Yaminj Building Market Sq.
Road Town Tortola
British Virgin Island
Attention: Mr. Joseph Tai
Facsimile No. 604 484 3225
or any other addresses of which either party shall notify the
other party in writing in accordance with the terms hereof.
(H) As the context requires, any term used herein in the singular
shall extend to and include the plural, any term used in the
plural shall extend to and include the singular and any term
used in either gender or the neuter shall extend to and
include each gender or be neutral.
(I) This Agreement may be executed in counterparts, each of which
when so executed and delivered shall constitute an original,
but all of such counterparts taken together shall constitute
one and the same instrument.
We very much look forward to being of service to you and should be
grateful if you could signify your agreement and acceptance of the above terms
of Engagement by signing and returning the enclosed copy of
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this letter to us. Should you have any queries or require any further
explanation, please do not hesitate to contact the undersigned at 604-483-8878.
Agreed and accepted by:
For and on behalf of For and on behalf of
Goldpac Investment Partners Ltd. Celsion Corporation
/s/Joe Tai /s/Augustine Y. Cheung
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Signature Signature
Joe Tai Augustine Y. Cheung
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Print Name Print Name
Managing Director President and CEO
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Title Title
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