Exhibit 10.59


 


February 1,
2005


 


Polar
Molecular Holding Corporation


4600
South Ulster Street Suite 940


Denver,
CO


80237


 


Attention:
Mr. Mark L. Nelson - Chairman and President


 


Dear
Sirs:


 


Further
to our discussions, Dominick & Dominick Securities Inc. (“Dominick”)
is pleased to outline the terms of an agreement with Polar Molecular Holding
Corporation (the “Corporation”) pursuant to which we have been engaged to act
as the Corporation’s agent (“Agent”) for the private placement offering of
units or such other equity or debt as may be agreed upon by the parties, as
well as sponsorship of the Corporation for listing on the TSX Venture Exchange.


 


	
  Issuer:

  	
   

  	
  Polar
  Molecular Holding Corporation (the “Corporation”).

  
	
   

  	
   

  	
   

  
	
  Agent:

  	
   

  	
  Dominick &
  Dominick Securities Inc. (the “Agent”) and such other members of a selling
  syndicate as may be agreed upon by the Corporation and Dominick.

  
	
   

  	
   

  	
   

  
	
  Nature
  of Offering:

  	
   

  	
  Reasonable
  Best Efforts.

  
	
   

  	
   

  	
   

  
	
  Offering:

  	
   

  	
  Up to
  US$7.0 million in units (“Units”) at a subscription price of $0.20 per Unit,
  each Unit consisting of one common share and one voting preference share (“Voting
  Preference Share”) of the Corporation, that will separate at Closing (each
  Voting Preference Share will automatically convert into one common share of
  the Corporation, upon the increase in the authorized common share capital of
  the Corporation, which is to be submitted to shareholders for approval and to
  be effective on or before April 15, 2005), subject to adjustment and
  conversion into a greater number of common shares in the circumstances
  described below under “Characteristics of Preferred Shares”.

  
	
   

  	
   

  	
   

  
	
  Offering Price:

  	
   

  	
  $0.20 per Unit.

  



 





















 


	
  Use of Proceeds:

  	
   

  	
  The proceeds will be used to reduce indebtedness, implement a marketing
  plan for the Corporation’s products and for general working capital.

  
	
   

  	
   

  	
   

  
	
  Offering Jurisdictions:

  	
   

  	
  Ontario, Alberta, British Columbia and such other jurisdictions in Canada
  as mutually agreed.

  
	
   

  	
   

  	
   

  
	
  Statutory Exemptions to

  	
   

  	
   

  
	
  be Relied Upon

  	
   

  	
  The Units will be sold in the Offering Jurisdictions pursuant to
  prospectus and registration exemptions for “accredited investors”.

  
	
   

  	
   

  	
   

  
	
  Qualification
  of 

  	
   

  	
   

  
	
  Securities
  Distributed:

  	
   

  	
  No
  prospectus will be filed to qualify the distribution of common shares or such
  other equity or debt securities issued pursuant to this Offering in the
  Offering Jurisdictions, provided at the time of Closing securities issued in
  the Offering qualify for a hold period terminating four months and one day
  from the Closing Date, pursuant to Multilateral Instrument 45-102 - Resale of
  Securities. The Corporation will file a Registration Statement qualifying the
  securities issued in this Offering for resale in the United States within 90
  days of Closing.

  
	
   

  	
   

  	
   

  
	
  Commission
  and 

  	
   

  	
   

  
	
  Sponsorship
  Fee:

  	
   

  	
  The
  Corporation shall pay Dominick (and such other members of a selling
  syndicate) (collectively, the “Agents”), from gross proceeds of the Offering,
  a cash commission fee equal to 10% of the gross proceeds of the Offering, and
  broker’s warrants to acquire that number of common shares as is equal to 10%
  of the number of common shares issued in connection with the Offering, at an
  exercise price equal to the Offering Price for a period of 24 months from
  Closing.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  The
  Corporation shall pay Dominick a Sponsorship Fee, upon listing on the TSX Venture
  Exchange, in an amount not less than $50,000, plus all disbursements.
  Particulars of the terms of Sponsorship will be set out in a Sponsorship
  Agreement.

  
	
   

  	
   

  	
   

  
	
  Work Fees:

  	
   

  	
  The corporation shall
  pay Dominick 1,000,000 common shares for advisory services rendered to
  prepare for the above stated financing.

  
	
   

  	
   

  	
   

  
	
  Holdover
  Provision:

  	
   

  	
  If any
  person or party or affiliate or associate of such person or party is
  introduced by Dominick, to the Corporation or any of its insiders or
  affiliates, prior to termination of this agreement and with whom discussions
  have been initiated (other than existing shareholders of the Corporation),
  and a transaction subsequently closes with such person or party or affiliate
  or associate of such person or party, within a period of one year after
  termination of this agreement, the Corporation shall pay to Dominick an
  amount in cash equal to 10% of the gross proceeds raised,

  



 





















 


	
   

  	
   

  	
  and
  broker’s warrants to acquire that number of common shares as is equal to 10%
  of the gross proceeds raised, at an exercise price equal to current market
  price of the shares at the time of such closing, for a period of 24 months
  from such closing. Dominick will provide to the Corporation a list of
  investors with whom discussions have been initiated.

  
	
   

  	
   

  	
   

  
	
  Right of First Refusal:

  	
   

  	
  If the Offering is completed, the
  Corporation shall grant a right of first refusal to Dominick to act as lead
  underwriter or agent in respect of any subsequent public offering or private
  placement of equity in Canada or the United States by the Corporation, or any
  of its subsidiaries or affiliates for a period of eighteen (18) months from
  Closing, subject to Dominick and the Corporation, acting reasonably, agreeing
  on the terms and conditions thereof.

  
	
   

  	
   

  	
   

  
	
  Characteristics
  of Preferred Shares

  	
   

  	
  Each Voting Preference
  Share will automatically convert into one common share of the Corporation on
  the date that the authorized common share capital of the Corporation is
  increased to permit the conversion of all outstanding Voting Preference Shares.
  If the authorized common share capital is not increased to permit the
  automatic conversion of all outstanding Voting Preference Shares into the
  corresponding number of Common Shares on or before April 15, 2005, the
  Corporation will register the outstanding Voting Preference Shares for
  quotation on OTCBB on or before May 31, 2005 and the outstanding Voting
  Preference Shares will automatically convert, effective as of March 31,
  2005, into 1.1 common shares in the capital stock of the Corporation upon the
  increase in the Corporation’s authorized common share capital. The Voting
  Preference Shares will have the same attributes as the common shares, save
  and except that any Voting Preference Shares outstanding on or after
  April 30, 2005 will participate on liquidation, dissolution, windup or
  dividend distribution of the Corporation on the basis of 1.1 common shares
  for each Voting Preference Share held. If the Voting Preference Shares are to
  be registered on or before June 30, 2005, and registration of the Voting
  Preference Shares does not occur by that date, each Voting Preference Share
  will be automatically convertible thereafter into an additional 0.1 Common
  Shares for each calendar month that such shares remain unregistered prior to
  conversion. By way of example, should the authorized common share capital of
  the Corporation not be increased to authorize the conversion of all of the
  outstanding Voting Preference Shares into Common Shares and should the
  outstanding Voting Preference Shares not be registered for quotation on the
  OTCBB by October 15, 2005, each Voting Preference Share would be
  convertible, until November 15, 2005, into 1.5 Common Shares, and 1.6
  Common Shares thereafter.

  



 





















 


	
  Costs
  and Expenses:

  	
   

  	
  Reasonable
  costs and expenses of the Offering, whether or not the Offering is completed,
  shall be paid by the Corporation including (i) reasonable costs and
  expenses of the Agent(s); and (ii) reasonable costs and expenses of
  Agent(s)’ legal counsel.

  
	
   

  	
   

  	
   

  
	
  Closing
  Date:

  	
   

  	
  On or
  about February 25, 2005 or such other date as mutually agreed upon.

  
	
   

  	
   

  	
   

  
	
  Listing:

  	
   

  	
  The
  corporation shall make all efforts to list on the TSX Venture Exchange within
  3 months of closing.

  
	
   

  	
   

  	
   

  
	
  Termination:

  	
   

  	
  This agreement shall terminate at
  5:00 pm (Toronto Time) on March 31, 2005, unless this agreement is
  extended by the mutual agreement of the parties.

  
	
   

  	
   

  	
   

  
	
  Indemnity:

  	
   

  	
  In consideration of the Agent
  entering into this letter of engagement, the Company shall indemnify the
  Agent(s) in accordance with the terms of Schedule “A” hereto, which
  schedule forms part of this letter of engagement. This indemnity shall
  be in addition to, and not in substitution of, any other liabilities the
  Corporation may have to the Agent. The indemnity will apply to all services
  provided by the Agent in connection with, or otherwise related to, the
  Offering.

  



 


Conditions
Precedent:


 


The
above Offering is subject, but not limited to, the following:


 


a)                                      completion of due diligence to the satisfaction of the
Agent and its legal counsel;


 


b)                                     execution of a standard form agency agreement and
Sponsorship Agreement between the Corporation and the Agent; and


 


c)                                      approval of the terms and conditions of the Offering by
all of the appropriate regulatory authorities.


 





















 


We would
ask that you if the foregoing is in accordance with your understanding and is
agreed to by yourself, that you kindly confirm your acceptance by enclosing the
duplicate copy and returning same to the undersigned as soon as possible.


 


 


	
  Yours very truly,

  
	
   

  
	
  DOMINICK &
  DOMINICK SECURITIES INC.

  
	
   

  
	
  /s/ P.
  Margolis

  	
   

  
	
  P.
  Margolis

  
	
   

  
	
   

  
	
  Agreed
  and accepted this 2nd day of February, 2005. POLAR MOLECULAR CORPORATION

  
	
   

  
	
  /s/ Mark L. Nelson

  	
   

  
	
  Mark L. Nelson

  
			



 





















 


Schedule “A”

Form of Indemnity


 


In
consideration for Dominick and Dominick Securities Inc. (the “Agent”) (and any
other agent in a selling syndicate, with the Agent and members of a selling
syndicate referred to collectively as the “Agents”) accepting the engagement
(the “Engagement”) described in the letter of engagement (the “Letter of
Engagement”) to which this Schedule “A” is attached, Polar Molecular
Holding Corporation (the “Corporation”) agrees to indemnify and save the
Agent(s) and its or their respective affiliates, directors, officers,
employees, partners, agents, advisors and shareholders (collectively, the “Indemnified
Parties” and individually, an “Indemnified Party”) from and against any and all
losses, claims, actions, suits, proceedings, damages, liabilities or expenses
of whatsoever nature or kind (excluding loss of profits), including the aggregate
amount paid in reasonable settlement of any actions, suits, proceedings,
investigations or claims and the reasonable fees, disbursements and taxes of
their counsel in connection with any action, suit, proceeding, investigation or
claim that may be made or threatened against any Indemnified Party or in
enforcing this indemnity (collectively, the “Claims”) to which an Indemnified
Party may become subject or otherwise involved in any capacity insofar as the
Claims relate to, are caused by, result from, arise out of or are based upon,
directly or indirectly, the Engagement whether performed before or after the
Corporation’s execution of the Letter of Engagement and to reimburse each
Indemnified Party forthwith, upon demand, for any legal or other expenses reasonably
incurred by such Indemnified Party in connection with any Claim.


 


The
Corporation also agrees that no Indemnified Party will have any liability
(either direct or indirect, in contract or tort or otherwise) to the
Corporation or any person asserting claims on the Corporation’s behalf or in
right for or in connection with the Engagement, except to the extent that any
losses, expenses, claims, actions, damages or liabilities incurred by the
Corporation are determined by a court of competent jurisdiction in a final
judgment that has become non-appealable to have resulted from the gross
negligence or willful misconduct of such Indemnified Party.


 


In
the event and to the extent that a court of competent jurisdiction in a final judgment
that has become non-appealable determines that an Indemnified Party was grossly
negligent or guilty of willful misconduct in connection with a Claim in respect
of which the Corporation has advanced funds to the Indemnified Party pursuant
to this indemnity, such Indemnified Party will reimburse such funds to the
Corporation and thereafter this indemnity will not apply to such Indemnified
Party in respect of such Claim. The Corporation agrees to waive any right the
Corporation might have of first requiring the Indemnified Party to proceed
against or enforce any other right, power, remedy or security or claim payment
from any other person before claiming under this indemnity.


 


In
case any action, suit, proceeding or claim is brought against an Indemnified
Party or an Indemnified Party has received notice of the commencement of any
investigation in respect of which indemnity may be sought against the
Corporation, the Indemnified Party will give the Corporation prompt written
notice of any such action, suit, proceeding, claim or investigation of which
the Indemnified Party has knowledge and the Corporation will undertake the
investigation and defense thereof on behalf of the Indemnified Party, including
the prompt employment of counsel acceptable to the Indemnified Parties affected
and the payment of all expenses. Failure by the Indemnified Party to so notify
will not relieve the Corporation of its obligation of indemnification hereunder
unless (and only to the extent that) such failure results in forfeiture by the
Corporation of substantive rights or defenses.


 





















 


No admission of
liability and no settlement, compromise or termination of any action, suit,
proceeding, claim, or investigation will be made without the Corporation’s
consent and the consent of the Indemnified Parties affected, such consents not
to be unreasonably withheld. Notwithstanding that the Corporation will
undertake the investigation and defense of any Claim, an Indemnified Party will
have the right to employ separate counsel with respect to any Claim and
participate in the defense thereof, but the fees and expenses of such counsel
will be at the expense of the Indemnified Party unless:


 


(a)                                  employment of such counsel has been authorized in
writing by the Corporation;


 


(b)                                 the Corporation has not assumed the defense of the
action within a reasonable period of time after receiving notice of the claim;


 


(c)                                  the named parties to any such claim include both the
Corporation and the Indemnified Party and the Indemnified Party will have been
advised by counsel to the Indemnified Party that there may be a conflict of
interest between the Corporation and the Indemnified Party; or


 


(d)                                 there are one or more defenses available to the
Indemnified Party which are different from or in addition to those available to
the Corporation;


 


in
which case such fees and expenses of such counsel to the Indemnified Party will
be for the Corporation’s account. The rights accorded to the Indemnified
Parties hereunder will be in addition to any rights an Indemnified Party may
have at common law or otherwise.


 


If
for any reason the foregoing indemnification is unavailable (other than in
accordance with the terms hereof) to the Indemnified Parties (or any of them)
or is insufficient to hold them harmless, the Corporation will contribute to
the amount paid or payable by the Indemnified Parties as a result of such
Claims in such proportion as is appropriate to reflect not only the relative
benefits received by the Corporation or the Corporation’s shareholders on the
one hand and the Indemnified Parties on the other, but also the relative fault
of the parties and other equitable considerations which may be relevant.
Notwithstanding the foregoing, the Corporation will in any event contribute to
the amount paid or payable by the Indemnified Parties as a result of such Claim
any amount in excess of the fees actually received by the Indemnified Parties
hereunder.


 


The
Corporation hereby constitutes Dominick as trustee for each of the other
Indemnified Parties of the Corporation’s covenants under this indemnity with
respect to such persons and Dominick agrees to accept such trust and to hold
and enforce such covenants on behalf of such persons.


 


The
Corporation agrees to reimburse the Agent(s) monthly for the time spent by the
Agent(s)’ personnel in connection with any Claim at their normal per diem
rates. The Corporation also agrees that if any action, suit, proceeding or
claim is brought against, or an investigation commenced in respect of the
Corporation or the Corporation and the Agent(s) and personnel of either of the
Agent(s) are required to testify, participate or respond in respect of or in
connection with the Engagement, such Agent(s) will have the right to employ its
own counsel in connection therewith and the Corporation will reimburse such
Agent(s) monthly for the time spent by its personnel in connection therewith at
their normal per diem rates together with such disbursements and reasonable
out-of-pocket expenses as may be incurred, including fees and disbursements of
such Agent(s)’ counsel.