OPCO Letterhead]
[OPCO
Letterhead]
October
8, 2008
Octavian
International Ltd.
Bury
House, 0-0 Xxxx Xxxxxx
Guildford,
Surrey
GU2
4AW
United
Kingdom
Attention:
Xxxxxx Xxxxxxxxxxxxxx, CEO
Dear
Sirs:
This
letter agreement (“Agreement”)
confirms the terms and conditions upon which Xxxxxxxxxxx & Co. Inc.
(“Xxxxxxxxxxx”)
has
introduced potential investors (“Investors”)
to
Octavian International Ltd. (the “Company”)
in
connection with a potential private placement of securities of the Company
(the
“Transaction”).
The
parties hereto expressly acknowledge that pursuant to this letter agreement
Xxxxxxxxxxx will not provide any other services except for introducing Investors
to the Company.
In
making
such introductions, Xxxxxxxxxxx will not be acting as your agent but as a finder
in connection with the Transaction. You hereby acknowledge, consent to, and
agree that Xxxxxxxxxxx is acting solely as finder with respect to this Agreement
and the transactions contemplated hereby, and none of Xxxxxxxxxxx or any of
its
affiliates or its or their respective officers, directors, employees,
representatives or agents (collectively, the “Representatives”)
shall
have any obligation or liability to the Company whatsoever in connection
herewith or with respect to the Transaction. You shall keep the terms and
provisions of this Agreement strictly confidential, and you will not disclose
the identity of Xxxxxxxxxxx or its Representatives without the prior written
consent of Xxxxxxxxxxx; provided that Xxxxxxxxxxx consents (i) to the disclosure
of the terms of this Agreement on a confidential basis to the Investors and
(ii)
the disclosure of this Agreement in the Current Report on Form 8-K filed with
the Securities and Exchange Commission following the Transaction (“Super
8-K”)
and
the inclusion of this Agreement as an Exhibit to the Super 8-K; provided, that
Xxxxxxxxxxx shall have the opportunity to comment on any such disclosure and
the
Company shall use commercially reasonable efforts to address such comments.
The
foregoing obligation of confidentiality shall cease with respect to any portion
of confidential information that has become public other than as a result of
the
breach of this Agreement by the Company. Notwithstanding the foregoing and
except as otherwise provided in (i) and (ii) above, the Company shall not
publicly disclose the name of Xxxxxxxxxxx, or include the name of Xxxxxxxxxxx
in
any filing with the Securities and Exchange Commission or any regulatory agency
or trading market or exchange, without the prior written consent of Xxxxxxxxxxx,
except: (a) as required by federal securities laws, rules, regulation or
judicial process or as otherwise permitted by Xxxxxxxxxxx and (b) to the extent
such disclosure is required by trading market or exchange rules or regulations,
in which case the Company shall provide Xxxxxxxxxxx with prior notice of such
disclosure and the Company shall use commercially reasonable effort to address
any comments of Xxxxxxxxxxx.
In
consideration of the foregoing, the Company agrees to pay Xxxxxxxxxxx a finder's
fee of: (1) (i) 8% of the gross proceeds raised from the Investors introduced
by
Xxxxxxxxxxx in connection with the Transaction other than Dynamic Decisions
Capital Management Ltd. (Dynamic); plus (ii) 4%of the gross proceeds raised
from
Dynamic, minus (2) $100,000.00 (the “Fee”). The Fee shall be payable upon the
closing of the Transaction from an escrow account to be established by the
Investors and the Company.
1
In
addition, Xxxxxxxxxxx shall have the right to purchase at the closing of the
Transaction, for $.01 each, warrants to purchase eight percent (8%) of the
securities represented by the securities sold and placed with Investors other
than Dynamic and four percent (4%) of the securities represented by the
securities sold and placed with Dynamic. The warrants will be exercisable after
one year, will have a cashless exercise option and will otherwise have the
same
terms as any warrants issued to the Investors in connection with this
Transaction.
Anything
herein to the contrary notwithstanding, you agree not to circumvent or attempt
to circumvent this Agreement in an attempt to deprive Xxxxxxxxxxx of any Fees
or
other remuneration.
You
agree
to the indemnification and reimbursement provisions set forth in Annex A hereto,
which is incorporated herein by reference and made a part hereof as if fully
set
forth below. Such indemnification obligations shall survive execution, delivery
and performance of this Agreement.
The
parties hereto agree that, prior to the Company accepting any investment by
an
Investor identified by Xxxxxxxxxxx, each will use their commercially reasonable
efforts to have such Investor sign the letter attached as Annex B (or a letter
otherwise suitable to Xxxxxxxxxxx) informing such Investor that Xxxxxxxxxxx
is
merely acting as a finder in connection with the Transaction. Executed copies
of
each such letter obtained by the Company shall be provided to Xxxxxxxxxxx
promptly following their execution.
This
Agreement and all rights and obligations hereunder shall be binding upon and
inure to the benefit of each party's successors, but may not be assigned without
the prior written consent of the other party hereto which shall not be
unreasonably withheld. This Agreement constitutes the entire understanding
of
the Parties with respect to the subject matter hereof.
This
letter agreement will be governed by and construed in accordance with the laws
of the State of New York applicable to agreements made and to be fully performed
therein. The Company irrevocably submits to the jurisdiction of any court of
the
State of New York located in the City and County of New York or in the United
States District Court for the Southern District of New York for the purpose
of
any suit, action or other proceeding arising out of this letter agreement or
our
engagement hereunder. Each of the Company and Xxxxxxxxxxx hereby waives any
right it may have to a trial by jury in respect of any claim brought by or
on
behalf of either party based upon, arising out of or in connection with this
letter agreement, our engagement hereunder or the transactions contemplated
hereby. All fees and expenses payable hereunder will be payable in U.S. dollars
in cash.
The
Company hereby irrevocably consents to the service of process in any proceeding
by the mailing of copies of such process to the Company at its address set
forth
above.
Nothing
contained herein shall limit or prohibit either the Company or Xxxxxxxxxxx
from
complying with any laws it may be subject to with respect to the Transaction
or
otherwise.
Either
party may terminate this letter agreement at any time upon written notice to
the
other party provided that (i) the provisions with respect to confidentiality
and
indemnification shall survive such termination, (ii) the Company’s obligation to
pay any Fee and grant any warrants triggered prior to such termination shall
survive such termination, and (iii) if prior to November 1, 2009 (the “Tail
Period”), the Company reaches an agreement in principal for the sale of
securities of the Company to any Investor(s) which Xxxxxxxxxxx contacted
regarding the Transaction, the Company shall (a) pay Xxxxxxxxxxx the Fee with
respect to the gross proceeds received by the Company from such Investor out
of
the closing of such transaction and (b) xxxxx Xxxxxxxxxxx the warrants described
above with respect to the gross proceeds received by the Company from such
Investor out of the closing of such transaction (provided, however, that the
Company’s obligation to grant such warrants shall only apply with respect to the
first $20 million of gross proceeds raised from Investors during the term of
this Agreement or as contemplated by the Tail Period above). Upon termination
of
this Agreement and upon the request of the Company, Xxxxxxxxxxx shall supply
the
Company with a list of any Investors that it contacted regarding the Transaction
prior to the termination of this Agreement.
2
Please
confirm your agreement with the above by signing below and returning this letter
to me by fax at (000) 000-0000 (with the assigned counterpart copy followed
by
overnight courier).
|
Very
truly yours,
|
|
|
XXXXXXXXXXX
& CO. INC.
|
|
|
By:________________________________
|
|
|
Xxxxx
Xxxxxxxx
|
|
|
Managing
Director
|
|
|
Accepted
and Agreed:
|
|
|
Octavian
International Ltd.
|
|
|
|
|
|
By:________________________________
|
|
|
Xxxxxx
Xxxxxxxxxxxxxx
|
|
|
Chief
Executive Officer
|
3
ANNEX
A
The
Company agrees to indemnify and hold harmless Xxxxxxxxxxx and its affiliates
and
their respective former and present directors, officers, employees, agents
and
controlling persons (each such person, including Xxxxxxxxxxx, an "Indemnified
Party") to the fullest extent permitted by law from and against any losses,
claims, damages and liabilities, joint or several (collectively, the "Damages"),
to which such Indemnified Party may become subject in connection with or
otherwise relating to or arising from any transaction contemplated by this
letter agreement, and will reimburse each Indemnified Party for all fees and
expenses (including the fees and expenses of counsel) (collectively, "Expenses")
as incurred in connection with investigating, preparing, pursuing or defending
any threatened or pending claim, action, proceeding or investigation
(collectively, the "Proceedings") arising therefrom, whether or not such
Indemnified Party is a formal party to such Proceeding and in enforcing this
letter agreement; provided
that the
Company will not be liable to any such Indemnified Party to the extent that
any
Damages are found in a final non-appealable judgment by a court of competent
jurisdiction to have resulted solely from the gross negligence or willful
misconduct of the Indemnification Party seeking indemnification hereunder.
The
Company also agrees that no Indemnified Party will have any liability (whether
direct or indirect, in contract, tort or otherwise) to the Company or any person
asserting claims on behalf of the Company arising out of or in connection with
any transactions or other matters contemplated by this letter agreement except
to the extent that any Damages are found in a final non-appealable judgment
by a
court of competent jurisdiction to have resulted solely from the gross
negligence or willful misconduct of the Indemnified Party.
The
Company agrees not to enter into any waiver, release or settlement of any
Proceeding (whether or not Xxxxxxxxxxx or any other Indemnified Party is a
formal party to such Proceeding) in respect of which indemnification may be
sought hereunder without the prior written consent of Xxxxxxxxxxx (which consent
will not be unreasonably withheld), unless such waiver, release or settlement
(i) includes an unconditional release of Xxxxxxxxxxx and each Indemnified Party
from all liability arising out of such Proceeding and (ii) does not contain
any
factual or legal admission by or with respect to any Indemnified Party or any
adverse statement with respect to the character, professionalism, expertise
or
reputation of any Indemnified Party or any action or inaction of any Indemnified
Party.
The
indemnity and reimbursement obligations of the Company hereunder will be in
addition to any liability which the Company may otherwise have to any
Indemnified Party and will be binding upon and inure to the benefit of any
successors, assigns, heirs and personal representatives of the Company or an
Indemnified Party.
4
ANNEX
B
October
[
], 2008
[name
of
Investor]
[address]
Attn:
[
]
Dear
Sirs:
Octavian
International Ltd. (the “Company”) has previously indicated to Xxxxxxxxxxx &
Co. Inc. (“Xxxxxxxxxxx”) its interest in raising capital. As you (the
“Purchaser”) are aware, Xxxxxxxxxxx has referred you to the Company and,
therefore, Xxxxxxxxxxx may receive a finder’s fee from the Company if you make
an investment in the Company. You hereby acknowledge that Xxxxxxxxxxx has not
provided any services to you or advice to you in connection therewith, except
for introducing you to the Company, and that Xxxxxxxxxxx acted merely as a
finder exclusively in the proposed transaction.
Further,
the undersigned hereby agrees and confirms that: (i) the Purchaser is an
“accredited investor” as defined in Rule 501 under the Securities Act of 1933,
as amended; (ii) the decision to participate in the offering by the Company
has
been made by the Purchaser and the Purchaser confirms that it has undertaken
an
independent analysis of the merits and risks of an investment in the Company,
based on the Purchaser’s own financial circumstances; (iii) the Purchaser has
had the opportunity to receive information from the Company, and to ask
questions of, and receive answers from, the Company, concerning such
information; (iv) the Purchaser has not relied upon Xxxxxxxxxxx in negotiating
the terms of its investment in the Company’s securities; (v) in making a
decision to purchase the securities, the Purchaser has not received or relied
upon any investment advice or recommendation from Xxxxxxxxxxx; (vi) the
Purchaser hereby acknowledges that from time to time, Xxxxxxxxxxx or one if
its
affiliates, as a result of the nature of its business, may possess material
non-public information not known to the Purchaser, including (without
limitation) information (the “Confidential Information”) regarding the business,
assets, liabilities, results of operations, financial condition or competitors
of the Company, and that such Confidential Information, if it had been
disclosed, might affect the decision to invest or the price at which the
undersigned would be willing to purchase the Shares. The Purchaser hereby
represents and agrees that it has not requested and will not request that
Xxxxxxxxxxx or any of its affiliates to disclose to the undersigned, the
undersigned’s representatives or any other party any such Confidential
Information, and that none of Xxxxxxxxxxx, or any of its affiliates will have
any liability to the undersigned as a result of such
non-disclosure.
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Very
truly yours,
|
|
|
XXXXXXXXXXX
& CO. INC.
|
|
|
Agreed
and Accepted on this
|
|
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_______
day of _________ 2008
|
|
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PURCHASER
|
|
|
[corporate
name]
|
|
|
By:__________________________
|
|
|
Name:
|
|
|
Title:
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5
