EXHIBIT
10.5
RESTATED FINDER
AGREEMENT
Restated Finder And
Agreement ,
dated as of the 1st day of August, 2005 (the “
Restated Agreement ”), between Pacific Capsource,
Inc., (“ Finder ”), a Nevada Corporation,
with offices located at 1751 Greenwich, San Francisco, CA 94123,
and HepaLife Technologies, Inc . (“ Client
”), a Florida Corporation, with offices located at Suite 216,
1628 West 1st Avenue, Vancouver, B.C., V6J 1G1.
Finder and Client are
parties to a Finder Agreement dated as of the 15th day of June,
2005 (the “ Finder Agreement ”) as amended on
the 8th day of July, 2005 (the “ Amendment ”);
the Finder Agreement as amended and modified by, and together with
the Amendment, is referred to herein as the “ Original
Finder Agreement;” and
Finder and Client deem
it to be in their respective best interest to terminate, in its
entirety, the Original Finder Agreement and to restate their
understanding with respect to the subject matter thereof all on the
terms and conditions set forth herein.
Accordingly, in
consideration of the mutual promises made herein and for other good
and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the parties hereto agree as
follows:
1.
Purpose : This agreement applies specifically
to:
(i)
the termination of the
Original Finder Agreement;
(ii)
compensation related to
the relationship between Client and Fusion Capital Partners, LLC
(“ Fusion ”), which was introduced previously by
Finder to Client;
(iii)
Finder’s
engagement, on a non-exclusive basis, by Client, to obtain
financing from various other funding resources that Finder has
association or relationships with to be used for various Companies
controlled by or affiliated with Client (collectively, an “
Affiliated Company ”).
2.
Term : The term of this Restated Agreement shall be for
a period of 48 calendar months commencing on the date hereof and
terminating on August 1, 2009 (the “ Engagement Term
”). Except as otherwise specified in Section 4 hereof, any
funding resource introduced by Finder to Client or to an Affiliated
Company, without a previous relationship having existed between
and/or among Client, Affiliated Company and such funding resource,
shall be protected as to payment of fees under this Restated
Agreement.
3. Duties
of Finder : During the term of this Restated
Agreement, Finder and Finder’s affiliates shall seek to
provide introductions to various funds resources and institutions
that may have interest in providing Client or the various Companies
controlled by or affiliated with Client with various forms of
financing. Finder shall not be obligated to spend any
specific amount of time in so doing. It is agreed and
understood that Client may accept or reject any proposed funding
source or financing, in its sole discretion, for any reason or no
reason whatsoever.
4.
Compensation: (a) Subject to the provisions of
Section 4 (d) hereof, upon Client’s, or an Affiliated
Company’s obtainment of financing from Fusion during the
period commencing on the date hereof and continuing until the 4th
anniversary date of this Restated Agreement (the “
Compensation Term ”), Client shall be obligated to pay
Finder a diligence fee of 3% of all funds initially and
subsequently actually obtained and received by Client (or any such
Affiliated Company) from Fusion. Any fee due and
payable hereunder will be paid in arrears, on a monthly basis,
based on the actual funds received from Fusion during the prior 30
day period. Client agrees to provide Finder full disclosure of all
Fusion stock purchases each month at Finder’s request. No fee
is due and payable with respect to amounts received from Fusion,
and any financing arrangement entered into with Fusion, after the
Compensation Term.
(b) In addition, and
subject to Section 4(d) hereof, Finder shall be issued a one time
warrant compensation for 200,000 warrants exercisable over a
4 year term at a fixed price of 110% of the current share
price (for example if the shares were trading at $1.00 per share,
then warrants would be exercisable at $1.10 per share) based on the
average of the closing price per share for the 5 trading days
immediately prior to the original filing date of the registration
statement for the Fusion capital investment. Finder’s will
have piggy back registration rights exclusive, however, of any
registration statement filed in connection with any financing
arrangement entered into between or among, Client, an Affiliated
Company and Fusion, or any registration statement filed on Form S-8
and S-4.
(c) There are no
additional fees or compensation beyond these fees and warrants
outlined. Fees for any additional funding resources will be
negotiated separate and apart from this Restated Agreement and will
be reflected in a separate written agreement.
(d) Finder has
represented to Client that it is not a registered broker/dealer.
Accordingly, no fee due and payable under this Restated
Agreement to Finder shall actually be paid unless and until Finder
can reasonably demonstrate that it or an entity affiliated with the
principals of Finder is a registered broker dealer (a “
Registered Entity ”) or otherwise lawfully entitled to
receive such fee(s) in compliance with applicable state and federal
securities laws. If such fee is to be paid to an entity other
than a Registered Entity, Client, in its sole discretion, may
require Finder to deliver to Client an opinion of counsel,
reasonably satisfactory to Client, to the affect that the payment
of such fee will not constitute a violation of the Securities Laws
and that no third party rights or claims against Client may arise
from such payment. If Finder has not complied with the
conditions of this Section 4(d) on or prior to the expiration of
the Engagement Term, all fees due Finder hereunder shall be
forfeited as of such date, and Finder shall not be entitled to any
compensation whatsoever hereunder.
5. Finder
Introductions and Meeting Coordination : The
Client acknowledges that all introductions and meeting coordination
(written or oral) provided by Finder to the Client or its named
affiliates in connection with Finder’s engagement are
intended solely for the benefit and use of the Client or its named
affiliates in considering the transaction to which they relate, and
the Client agrees that no person or Affiliated Company shall be
entitled to make use of the introductions provided by Finder
hereunder. Company shall not make any public references to
Finder, or use
