for a period of 24 months from the date of this Agreement

 

                                                                   Exhibit 10.5

                             H.J. Meyers & Co., Inc.
                             1895 Mount Hope Avenue
                            Rochester, New York 14620

                                 [CLOSING DATE]

ORION ACQUISITION CORP. II

1430 Broadway, 13th Floor
New York, New York 10018

Ladies and Gentlemen:

You have agreed that H.J. Meyers & Co., Inc. ("H.J. Meyers") may act as a finder
or financial consultant for you in various Transactions (as hereinafter
defined), in which Orion Acquisition Corp. II (the "Company") may be involved
for a period of 24 months from the date of this Agreement (the "Period").

        1.     DEFINITIONS.

        For the purposes of this Agreement:

               (a) A "Transaction" shall mean any transaction or series or
combination of transactions involving the Company, other than in the ordinary
course of trade or business, whereby, directly or indirectly, control of, or a
material interest in any businesses, assets or properties, is sold, purchased,
leased or otherwise transferred, including, without limitation, a sale, purchase
or exchange of capital stock or assets, a lease of assets with or without a
purchase option, a merger or consolidation, a tender or exchange offer, 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, a minority investment or any other similar transaction.

               (b) "Consideration" shall mean the total value of all cash,
securities, other property and any other consideration, including, without
limitation, any contingent, earned or other consideration paid or payable,
directly or indirectly, in connection with a Transaction and consideration shall
be determined at the closing. The value of any such securities (whether debt or
equity) or other property shall be determined as follows: (1) the value of
securities that are freely tradeable in an established public market shall be
the last closing market price of such securities prior to the public
announcement of the Transaction; and (2) the value of securities which are not
freely tradeable or which have no established public market, or if the
consideration consists of property other than securities, the value of such
securities or other property shall be the fair market value thereof as mutually
agreed by the Company and H.J. Meyers. Consideration shall also be deemed to
include any indebtedness, including, without limitation, pension liabilities,
guarantees and other obligations assumed, directly or indirectly, in connection
with, or which survives the closing of, a Transaction. If the consideration to
be paid is computed or payable in any foreign currency, the value of

such foreign currency shall, for the purposes hereof, be converted into U.S.
Dollars at the prevailing exchange rate on the dates on which such consideration
is payable.

        2.     H.J. MEYERS' FEE.

               (a) If during the Period H.J. Meyers brings to the Company an
opportunity for a proposed Transaction, then upon the consummation of any such
Transaction (but only if such consummation occurs within 36 months from the date
of this Agreement) the Company will pay to H.J. Meyers as a fee the amount
provided for in Paragraph 2(c) hereof; provided, however, that H.J. Meyers shall
be deemed to have brought an opportunity to the Company for purposes of this
Paragraph 2(a) only if the opportunity is at least briefly specifically
described in a writing (which need not identify the other parties) signed by
H.J. Meyers and received (with receipt acknowledged in writing by the Company)
prior to any negotiations between representatives of the Company and
representatives of the other party or parties to such Transaction, and such
writing signed by H.J. Meyers refers to the Company's obligations under this
Paragraph 2(a).

               (b) If during the Period an opportunity for a proposed
Transaction is brought to the Company by someone other than H.J. Meyers, and if
the Company in writing retains H.J. Meyers for consultation or other services in
connection therewith, then upon the consummation of that transaction, the
Company will pay H.J. Meyers as a fee the amount provided for in Paragraph 2(c)
hereof.

               (c) The amount to be paid by the Company to H.J. Meyers in any
case described in Paragraphs 2(a) or 2(b) hereof shall be calculated based on
the Consideration paid to or received by the Company (or its stockholders), as
follows: five percent (5%) of the first two million dollars ($2,000,000); two
percent (2%) of any consideration greater than two million dollars ($2,000,000)
and less than or equal to four million dollars ($4,000,000); and one percent
(1%) of any sums in excess of four million dollars ($4,000,000).

               (d) In addition to those fees payable to H.J. Meyers under the
provisions of Paragraph 2 hereof, the Company shall reimburse H.J. Meyers for
its out-of-pocket and incidental expenses incurred in connection with the
performance by H.J. Meyers of its duties under this Agreement. Such
reimbursement shall occur promptly as requested and shall include the fees and
expenses of H.J. Meyers' legal counsel and those of any advisor retained by H.J.
Meyers.

        3. PAYMENT. The fee due to H.J. Meyers hereunder shall be paid by the
Company in cash at the closing of the Transaction, without regard to whether the
Transaction involves payment in cash, stock or a combination of stock and cash,
or is made on an installment sales basis. By way of example, if the Transaction
involves securities of the acquiring entity (whether securities of the Company,
if the Company is the acquiring party, or securities of another entity, if the
Company is the selling party) having a value of $5,000,000, the cash
consideration to be paid by the Company to H.J. Meyers at closing shall be
$170,000.

                                      - 2 -

        4. INDEMNIFICATION. The Company hereby agrees to indemnify and hold
harmless H.J. Meyers, their respective directors, officers, controlling persons
(within the meaning of Section 15 of the Securities Act of 1933 or Section 20(a)
of the Securities Exchange Act of 1934), if any, (collectively, "Indemnified
Persons" and individually, and "Indemnified Person") from and against any and
all claims, liabilities, losses, damages and expenses incurred by any
Indemnified Person (including reasonable fees and disbursements of H.J. Meyers
and an Indemnified Person's counsel) which (A) are related to or arise out of
(i) actions taken or omitted to be taken (including any untrue statements made
or any statements omitted to be made) by the Company or (ii) actions taken or
omitted to be taken by an Indemnified Person with the Company's consent or in
conformity with the Company's instructions or the Company's actions or omissions
or (B) are otherwise related to or arise out of the performance by H.J. Meyers
of duties pursuant to this Agreement, and will reimburse H.J. Meyers and any
other Indemnified Person for all reasonable costs and expenses, including fees
of H.J. Meyers or an Indemnified Person's counsel, as they are incurred, in
connection with investigating, preparing for, or defending any action, formal or
informal claim, investigation, inquiry or other proceeding, whether or not in
connection with pending or threatened litigation, caused by or arising out of or
in connection with H.J. Meyers acting pursuant to this Agreement, whether or not
H.J. Meyers or any Indemnified Person is named as a party thereto and whether or
not any liability results therefrom. The Company will not, however, be
responsible for any claims, liabilities, losses, damages, or expenses pursuant
to clause (B) of the preceding sentence which are finally judicially determined
to have resulted primarily from H.J. Meyers' bad faith or gross negligence. The
Company also agrees that neither H.J. Meyers nor any other Indemnified Person
shall have any liability to the Company for or in connection with this Agreement
except for any such liability for claims, liabilities, losses, damages, or
expenses incurred by the Company which are finally judicially determined to have
resulted primarily from H.J. Meyers' bad faith or gross negligence. The Company
further agrees that the Company will not, without the prior written consent of
H.J. Meyers, settle or compromise or consent to the entry of any judgment in any
pending or threatened claim, action, suit or proceeding in respect of which
indemnification may be sought hereunder (whether or not H.J. Meyers or any
Indemnified Person is an actual or potential party to such claim, action, suit
or proceeding) unless such settlement, compromise or consent includes an
unconditional release of H.J. Meyers and each other Indemnified Person hereunder
from all liability arising out of such claim, action, suit or proceeding.

        In order to provide for just and equitable contribution, if a claim for
indemnification is made pursuant to these provisions but it is found in a final
judgment by a court of competent jurisdiction (not subject to further appeal)
that such indemnification is not available for any reason (except, with respect
to indemnification sought solely pursuant to clause (B) of the first paragraph
hereof, for the reasons specified in the second sentence thereof), even though
the express provisions hereof provide for indemnification in such case, then the
Company, on one hand, and H.J. Meyers, on the other hand, shall contribute to
such claim, liability, loss, damage or expense for which such indemnification or
reimbursement is held unavailable in such proportion as is appropriate to
reflect the relative benefits to the Company, on one hand, and H.J. Meyers, on
the other hand, in connection with the Transactions contemplated by this
Agreement, subject to the limitation that in any event H.J. Meyers' aggregate
contribution to all losses, claims, damages, liabilities and expenses to which
contribution is

                                      - 3 -

available hereunder shall not exceed the amount of fees actually received by
H.J. Meyers pursuant to this Agreement.

         The foregoing right to indemnity and contribution shall be in addition
to any rights that H.J. Meyers and/or any other Indemnified Person may have at
common law or otherwise and shall remain in full force and effect following the
completion or any termination of this Agreement.

         It is understood that, in connection with this Agreement, H.J. Meyers
may also be engaged to act for the Company in one or more additional capacities,
embodied in one or more separate written agreements. This indemnification shall
apply to this Agreement, any such additional engagement(s) (whether written or
oral) and any modification of this Agreement or such additional engagement(s)
and shall remain in full force and effect following the completion or
termination of this Agreement or such additional engagements.

         5. CONFIDENTIALITY. Any advice, either oral or written, provided to the
Company by H.J. Meyers hereunder shall not be publicly disclosed or made
available to third parties without the prior written consent of H.J. Meyers. In
addition, H.J. Meyers may not be otherwise publicly referred to without its
prior consent.

         6. INFORMATION. In the event H.J. Meyers acts as finder or financial
advisor in a transaction, the Company will furnish H.J. Meyers with all
information concerning the Transaction which H.J. Meyers reasonably deems
appropriate and will provide H.J. Meyers with access to the Company's officers,
directors, accountants, counsel and other advisors. The Company represents and
warrants to H.J. Meyers that all such information concerning the Company and its
affiliates is and will be true and accurate in all material respects and does
not and will not contain any untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein not
misleading in light of the circumstance under which such statements are made.
The Company acknowledges and agrees that H.J. Meyers will be using and relying
upon such information supplied by the Company and its officers, agents and
others and any other publicly available information concerning the Company and
its affiliates and any prospective acquiror of the Company, its businesses or
assets without any independent investigation or verification thereof or
independent appraisal by H.J. Meyers of the Company and businesses or assets.

         7. FINDERS. The Company represents and warrants to H.J. Meyers that
there are no brokers, representatives or other persons which have an interest in
compensation due to H.J. Meyers from any Transaction in which H.J. Meyers has
acted as finder or financial advisor.

         8. ADVERTISEMENTS. H.J. Meyers shall have the right to place
advertisements in financial and other newspapers and journals at its own expense
describing its services to the Company hereunder in the event a transaction is
consummated.

         9. BINDING OBLIGATION. The Company represents and warrants to H.J.
Meyers that H.J. Meyers' engagement hereunder has been duly authorized and
approved by the Board of Directors of the Company and that this letter agreement
has been duly executed

                                      - 4 -

and delivered by the Company and constitutes a legal, valid and binding 
obligation of the Company.

        10. IN GENERAL. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York applicable to agreements made
and to be performed entirely within such State. This Agreement sets forth the
entire agreement and understanding between the undersigned with respect to its
subject matter and supersedes all prior discussions, agreements and
understandings of every kind and nature between them with respect thereto. This
Agreement shall inure to the benefit of, and be enforceable against, each of the
undersigned and their respective successors and assigns.

        Please sign this letter at the place indicated below, whereupon it will
constitute our mutually binding agreement with respect to the matters contained
herein.

                                            Very truly yours,

                                            H.J. Meyers & Co., Inc.

                                            By:
                                                ------------------------------
                                            Its

ACCEPTED AND AGREED TO:

Orion Acquisition Corp. II

By:
    ----------------------------
Its

                                      - 5 - 

Basic Info X:

Name: for a period of 24 months from the date of this Agreement
Type: the date of this Agreement
Date: June 14, 1996
Company: MEDIVATION, INC.
State: Delaware

Other info:

Organization:

  • Meyers & Co. , Inc. 1895 Mount Hope Avenue Rochester
  • Board of Directors of the Company
  • State of New York
  • Orion Acquisition Corp.

Location:

  • New York
  • U.S

Money:

  • two million dollars
  • $ 2,000,000
  • four million dollars
  • $ 4,000,000
  • $ 5,000,000
  • $ 170,000

Person:

  • Meyers

Percent:

  • five percent 5 %
  • two percent
  • 2 %
  • one percent
  • 1 %