FORM OF ADVISORY AGREEMENT Cantor Fitzgerald & Co. New York, New York 10022
Exhibit
10.17
FORM
OF
ADVISORY AGREEMENT
Cantor
Xxxxxxxxxx & Co.
000
Xxxx
00xx Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
January
26, 2007
Aethrion
Center
00
Xx.
Xxxxxxxxxxxx Xxxxxx
000
00
Xxxxxxxx, Xxxxxx
Attention:
Xxxxxxxxx X. Xxxxxx, Chief Executive Officer
Gentlemen:
This
will
confirm the terms under which Cantor Xxxxxxxxxx & Co. (“Cantor”) has been
retained by Euroseas Ltd. (the “Company”).
1. Cantor
has been engaged to advise the Company in connection with the proposed public
offering of its common stock (the “Offering”). In connection with Cantor’s
activities on the Company’s behalf, Cantor has familiarized itself with the
business operations, properties, financial condition and prospects of the
Company. Cantor’s services are expected to include customary advice and
assistance to the Company with all aspects of preparation for a public
offering.
2. For
its
services hereunder, the Company shall pay Cantor an advisory fee of 0.5% of
the
gross proceeds of the Offering, including any proceeds from the exercise of
any
over-allotment option, subject to the receipt by the Company of the net proceeds
of the Offering. The advisory fee shall be due and payable upon the receipt
by
the Company of the net proceeds of the Offering. Cantor may also act as an
underwriter of the Offering and will receive compensation, reimbursement of
expenses and indemnification in such capacity pursuant to, and set forth solely
in, a separate Underwriting Agreement to be entered into by the Company, Cantor
and the other underwriters.
3. This
Agreement does not constitute a commitment or undertaking on the part of Cantor
to provide or underwrite any part of the Offering and does not constitute any
representation, warranty or agreement that the Offering will be completed.
In
addition, the Company agrees that it will not hold Cantor liable or responsible
in the event that the Offering is not completed for any reason whatsoever,
including, but not limited to, an adverse change in the financial or security
markets and/or a lack of interest by potential investors in the Offering.
Notwithstanding anything to the contrary contained herein, this Agreement does
not constitute a commitment or undertaking on the part of the Company to
complete the Offering and the Company shall have the right to not proceed with
the Offering at any time and for any reason.
4. The
Company agrees to indemnify Cantor in connection with its services hereunder
in
accordance with the indemnification provisions (the "Indemnification
Provisions") attached to this Agreement, which Indemnification Provisions are
incorporated herein and made a part hereof and which shall survive any
termination of this Agreement.
5. The
validity and interpretation of this Agreement shall be governed by, and
construed and enforced in accordance with, the laws of the State of New York.
The Company irrevocably (a) submits to the jurisdiction of any court of the
State of New York or the United States District Court for the Southern District
of the State of New York for the purpose of any suit, action, or other
proceeding arising out of this Agreement, or any of the agreements or
transactions contemplated hereby (each, a “Proceeding”), (b) agrees that all
claims in respect of any Proceeding may be heard and determined in any such
court, (c) waives, to the fullest extent permitted by law, any immunity from
jurisdiction of any such court or from any legal process therein, (d) agrees
not
to commence any Proceeding other than in such courts, and (e) waives, to the
fullest extent permitted by law, any claim that such Proceeding is brought
in an
inconvenient forum.
The
Company hereby irrevocably designates Xxxxxx & Xxxxxx LLP, Xxx Xxxxxxx Xxxx
Xxxxx, Xxx Xxxx, X.X. 00000 (212) 574-1200 as agent upon whom process against
the Company may be served in New York City.
6. The
benefits of this Agreement shall inure to the parties hereto, their respective
successors and permitted assigns and to the indemnified parties hereunder and
their respective successors and permitted assigns and representatives, and
the
obligations and liabilities assumed in this Agreement by the parties hereto
shall be binding upon their respective successors and permitted assigns. Neither
party may assign this Agreement without the consent of the other.
EACH
OF
THE COMPANY AND CANTOR (ON ITS OWN BEHALF AND, TO THE EXTENT PERMITTED BY LAW,
ON BEHALF OF ITS RESPECTIVE EQUITY HOLDERS AND CREDITORS) HEREBY WAIVES ANY
RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY CLAIM BASED UPON, ARISING
OUT OF OR IN CONNECTION WITH THIS AGREEMENT AND THE ASSIGNMENT CONTEMPLATED
HEREBY.
8. This
Agreement embodies the entire agreement and understanding of the parties hereto
and supersedes any and all prior agreements, arrangements and understanding
relating to the matters provided for herein. No waiver or amendment hereto
shall
be binding or effective unless the same is set forth in writing signed by a
duly
authorized representative of each party. If it is found in a final judgement
by
a court of competent jurisdiction (not subject to further appeal) that any
term
or provision hereof is invalid or unenforceable, (a) the remaining terms and
provisions hereof shall be unimpaired and shall remain in full force and effect
and (b) the invalid or unenforceable provision or term shall be replaced by
a
term or provision that is valid and enforceable and that comes closest to
expressing the intention of such invalid or unenforceable term or
provision.
2
9. This
Agreement does not create, and shall not be construed as creating rights
enforceable by any person or entity not a party hereto, except those entitled
thereto by virtue of the Indemnification Provisions hereof. The Company
acknowledges and agrees that Cantor: (a) is being retained to assist the Company
in connection with the Offering, (b) is not being retained to advise the Company
as to the underlying business decision to consummate any transaction and (c)
is
acting as an independent contractor and is not and shall not be construed as
a
fiduciary for the Company. The Company also agrees that Cantor shall not have
any liability (including without limitation, liability for any losses, claims,
damages, obligations, penalties, judgments, awards, liabilities, costs, expenses
or disbursements) in contract, tort or otherwise to the Company, or to any
person claiming through the Company, in connection with the engagement of Cantor
pursuant to this Agreement and the matters contemplated hereby, except to the
extent any such liability is found in a final judgment by a court of competent
jurisdiction (not subject to further appeal) to have resulted primarily and
directly from the gross negligence or willful misconduct of Cantor.
10. Cantor
is
engaged in securities brokerage activities, as well as providing investment
banking and financial services. In the course of its activities, Cantor or
its
affiliates may hold long or short positions, and may trade or otherwise effect
transactions for its own account or the accounts of customers in debt or equity
securities or senior loans of the Company.
11. The
Company has all requisite corporate power and authority to enter into this
Agreement. This Agreement has been duly and validly authorized by all necessary
corporate action on the part of the Company and constitutes a legal, valid
and
binding agreement of the Company, enforceable in accordance with its terms.
12. For
the
convenience of the parties, any number of counterparts of this Agreement may
be
executed by the parties hereto. Each such counterpart shall be, and shall be
deemed to be, an original instrument, but all such counterparts taken together
shall constitute one and the same Agreement. Delivery of a signed counterpart
of
this Agreement by telecopier or facsimile transmission shall constitute valid
and sufficient delivery thereof.
If
the
foregoing correctly sets forth our Agreement, please sign the enclosed copy
of
this letter in the space provided and return it to us.
| Very truly yours, | ||
| Cantor Xxxxxxxxxx & Co. | ||
| |
|
|
| By: | ||
|
Name: Title: |
||
Confirmed
and agreed to
as
of the
date first above written:
By:________________________
Name:
Xxxxxxxxx X. Xxxxxx
Title:
Chief Executive Officer
3
INDEMNIFICATION
PROVISIONS
The
Company agrees to indemnify and hold harmless Cantor, to the fullest extent
permitted by law, from and against any and all losses, claims, damages,
obligations, assessments, penalties, judgments, awards, and other liabilities
(collectively, “Liabilities”), and will fully reimburse Cantor for any and all
reasonable fees, costs, expenses and disbursements (collectively, “Expenses”),
as and when incurred, of investigating, preparing or defending any claim,
action, suit, proceeding or investigation in connection with any pending or
threatened litigation or arbitration against Cantor (collectively, “Actions”)
(including any and all reasonable legal and other reasonable Expenses in giving
testimony or furnishing documents in response to a subpoena or otherwise),
directly or indirectly, caused by, relating to, based upon, arising out of
or in
connection with (a) any act or omission by Cantor in connection with the
Offering, or (b) any untrue statement or alleged untrue statement of a material
fact contained in, or omissions or alleged omissions from, any filing with
the
U.S. Securities and Exchange Commission or any other governmental agency or
similar statements or omissions in or from any information furnished by the
Company to Cantor or any other person in connection with the Offering;
provided,
however,
such
indemnity agreement shall not apply to any portion of any such Liability or
Expense to the extent it is found in a final judgment by a court of competent
jurisdiction (not subject to further appeal) to have resulted primarily and
directly from the gross negligence or willful misconduct of Cantor, in which
event the Company shall be reimbursed any amounts advanced by it hereunder.
Notwithstanding anything to the contrary contained herein, the Company shall
not
be obligated hereunder to indemnify Cantor for any liability arising out of
or
based upon any untrue statement or alleged untrue statement of a material fact
contained in, or omissions or alleged omissions from, any filing with the U.S.
Securities and Exchange Commission or any other governmental agency, if such
untrue statement or alleged untrue statement or omission or alleged omission
is
made in reliance upon and in conformity with written information furnished
to
the Company by Cantor in connection with the Offering.
If
any
Action is commenced, as to which Cantor proposes to demand indemnification,
it
shall notify the Company with reasonable promptness; provided,
however,
that
any failure by Cantor to notify the Company shall not relieve the Company from
its obligations hereunder except to the extent that, such omission results
in
the forfeiture of substantive rights or defenses by the Company. Cantor shall
have the right to retain counsel of its own choice to represent it. The Company
shall be liable for any settlement of any claim against Cantor made with the
Company’s written consent, which consent shall not be unreasonably withheld. The
Company shall not, without the prior written consent of Cantor, settle or
compromise any claim, or permit a default or consent to the entry of any
judgment in any Action in respect of which indemnification may be sought
hereunder, unless such settlement, compromise or consent includes an
unconditional release of Cantor from all liability arising out of such
Action.
In
order
to provide for just and equitable contribution, if a claim for indemnification
pursuant to these Indemnification Provisions is made but it is found in a final
judgment by a court of competent jurisdiction (not subject to further appeal)
that such indemnification may not be enforced in such case, even though the
express provisions hereof provide for indemnification in such case, then the
Company, on the one hand, and Cantor, on the other hand, shall contribute to
the
Liabilities and Expenses to which the indemnified persons may be subject in
accordance with the relative benefits received by the Company, on the one hand,
and Cantor, on the other hand, and also the relative fault of the Company,
on
the one hand, and Cantor, on the other hand, in connection with the statements,
acts or omissions which resulted in such Liabilities and Expenses and the
relevant equitable considerations shall also be considered. No person found
liable for a fraudulent misrepresentation shall be entitled to contribution
from
any person who is not also found liable for such fraudulent misrepresentation.
Neither
termination nor completion of the engagement of Cantor referred to above shall
affect these Indemnification Provisions which shall remain operative and in
full
force and effect.
