STRICTLY CONFIDENTIAL Intellipharmaceutics International Inc.
Exhibit
4.90
August 15,
2018
STRICTLY CONFIDENTIAL
00 Xxxxxxxxx
Xxxx
Xxxxxxx, Xxxxxxx
X0X 0X0
Xxxxxx
Attn: Isa Odidi,
Ph.D., Chairman & Chief Executive Officer
Dear Xx.
Xxxxx:
This letter
agreement (this “Agreement”) constitutes
the agreement between Intellipharmaceutics International Inc. (the
“Company”) and X.X.
Xxxxxxxxxx & Co., LLC (“Xxxxxxxxxx”), that
Xxxxxxxxxx shall, subject to the terms hereof, serve as the
exclusive agent or underwriter in any offering (each a
“Financing”) in the United
States of securities of the Company (the “Securities”) during the
Term (as hereinafter defined) of this Agreement and the exclusive
agent or advisor with respect to the solicitation with respect to
the Company’s outstanding warrants (each, a
“Warrant
Solicitation” and collectively with the Financing, an
“Offering”). The terms of
each Offering and the Securities issued in connection therewith
shall be mutually agreed upon by the Company and Xxxxxxxxxx and
nothing herein implies that Xxxxxxxxxx would have the power or
authority to bind the Company and nothing herein implies that the
Company shall have an obligation to issue any Securities. It is
understood that Xxxxxxxxxx’x assistance in an Offering will
be subject to the satisfactory completion of such investigation and
inquiry into the affairs of the Company as Xxxxxxxxxx deems
appropriate under the circumstances and to the receipt of all
internal approvals of Xxxxxxxxxx in connection with the
transaction. The Company expressly acknowledges and agrees that
Xxxxxxxxxx’x involvement in an Offering is strictly on a
reasonable best efforts basis and that the consummation of an
Offering will be subject to, among other things, market conditions.
The execution of this Agreement does not constitute a commitment by
Xxxxxxxxxx to purchase the Securities and does not ensure a
successful Offering of the Securities or the success of Xxxxxxxxxx
with respect to securing any other financing on behalf of the
Company. Xxxxxxxxxx may retain other brokers, dealers, agents or
underwriters on its behalf in connection with an
Offering.
Notwithstanding the
foregoing, Xxxxxxxxxx’x exclusivity shall not apply to, and
the Company shall not be prohibited from (and shall not be required
to pay any fee to Xxxxxxxxxx or any other broker, dealer, agent or
other party engaged by Xxxxxxxxxx) in respect of (i) the
Company’s existing at-the market securities program (as the
same may be amended, restated, supplemented, replaced or otherwise
modified from time to time), (ii) the Company incurring any
non-convertible indebtedness, (iii) the Company’s outstanding
convertible indebtedness (as the same may be amended, restated,
supplemented, replaced, refinanced or otherwise modified from time
to time) or (iv) the Company’s issuing and selling securities
in: (a) any strategic transactions (including without limitation
commercial relationships, consulting agreements, licenses,
partnerships, joint ventures, collaborations, mergers, acquisitions
or other business combinations or otherwise) the primary purpose of
which is not to raise capital and/or (b) any transaction with one
or more officers, directors or employees of the Company and any
affiliate thereof without the involvement of any investment bank or
other broker-dealer.
000 Xxxx Xxxxxx x Xxx Xxxx, Xxx Xxxx 00000 |
212.356.0500 | xxx.xxxxx.xxx
Member: FINRA/SIPC
A. Compensation;
Reimbursement. At the closing of each Offering (each a
“Closing”), the Company
shall compensate Xxxxxxxxxx as follows:
1.
Cash Fee. The Company shall pay to
Xxxxxxxxxx a cash fee, or as to an underwritten Offering an
underwriter discount, equal to 8.0% of the aggregate gross proceeds
raised in each Closing; provided, however, that such cash fee shall
be reduced to 7.0% of the aggregate gross proceeds raised in each
Closing of each non-public Offering and Warrant Solicitation
transaction.
2.
Warrant Coverage. The Company shall
issue to Xxxxxxxxxx or its designees at each Closing, warrants (the
“Xxxxxxxxxx
Warrants”) to purchase that number of common shares of
the Company equal to 6.0% of the aggregate number of common shares
(or common share equivalents) placed in the Offering and issued at
each Closing (and if the Offering includes a
“greenshoe” or “additional investment”
option component, such number of common shares underlying such
additional option component, with the additional Xxxxxxxxxx
Warrants to be issuable upon the closing of exercise of such
option); provided, however, that such warrant coverage shall be
reduced to 5.0% in connection with each non-public Offering and
Warrant Solicitation transaction. If the Securities included in on
Offering are convertible, the Xxxxxxxxxx Warrants shall be
determined by dividing the gross proceeds raised in such Offering
divided by the Offering Price (as defined hereunder). The
Xxxxxxxxxx Warrants shall have the same terms as the warrants
issued to investors in the applicable Offering, except that such
Xxxxxxxxxx Warrants shall have an initial exercise price equal to
125% of the offering price per share (or unit, if applicable) in
the applicable Offering and if such offering price is not
available, the market price of the common shares on the date an
Offering is commenced (such price, the “Offering Price”). If no
warrants are issued to investors in an Offering, the Xxxxxxxxxx
Warrants shall be in a customary form reasonably acceptable to
Xxxxxxxxxx and the Company, have a term of five (5) years and an
exercise price equal to 125% of the Offering Price.
3.
Expense Allowance. Out of the proceeds
of each Closing, the Company also agrees to pay Xxxxxxxxxx (a) a
management fee equal to 1.0% of the gross proceeds raised in each
Financing; (b) $35,000 for non-accountable expenses of Xxxxxxxxxx
in connection with a Financing (to be reduced to $25,000 in
connection with each non-public Offering and Warrant Solicitation
transaction) and (c) up to $100,000 for invoiced fees and expenses
of legal counsel and other invoiced out-of-pocket expenses incurred
in a Financing (to be reduced to $40,000 in connection with each
non-public Offering and Warrant Solicitation transaction); plus the
additional reimbursable amount payable by the Company pursuant to
Paragraph D.3 below; provided, however, that such reimbursement
amount in no way limits or impairs the indemnification and
contribution provisions of this Agreement.
4.
Tail Fee. Xxxxxxxxxx shall be entitled
to compensation under clauses (1) and (2) hereof, calculated in the
manner set forth therein, with respect to any public or private
offering or other financing or capital-raising transaction of any
kind (“Tail
Financing”) to the extent that such financing or
capital is provided to the Company by investors whom Xxxxxxxxxx had
contacted during the Term or introduced to the Company during the
Term, if such Tail Financing is consummated at any time within the
12-month period following the expiration or termination of this
Agreement. Upon the Company’s request, Xxxxxxxxxx shall
promptly provide a list to the Company of any such
investors.
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5.
Right of First Refusal. Provided that
an Offering has occurred, if within the 10-month period following
consummation of an Offering, the Company or any of its subsidiaries
(a) decides to finance or refinance any indebtedness (other than
the Company’s outstanding convertible indebtedness (as the
same may be amended, restated, supplemented, replaced, refinanced
or otherwise modified from time to time)), using a manager or
agent, Xxxxxxxxxx (or any affiliate designated by Xxxxxxxxxx) shall
have the right to act as sole book-runner, sole manager, sole
placement agent or sole agent with respect to such financing or
refinancing; or (b) decides to raise funds by means of a public
offering or a private placement of equity or debt securities using
an underwriter or placement agent, Xxxxxxxxxx (or any affiliate
designated by Xxxxxxxxxx) shall have the right to act as sole
book-runner, sole manager, sole underwriter or sole placement agent
for such financing. If Xxxxxxxxxx or one of its affiliates decides
to accept any such engagement, the agreement governing such
engagement will contain, among other things, provisions for
customary fees for transactions of similar size and nature and the
provisions of this Agreement, including indemnification, which are
appropriate to such a transaction. Notwithstanding anything to the
contrary contained herein, this right of first refusal must be
exercised by Xxxxxxxxxx within five (5) business days of written
notice from the Company of its intention to seek a transaction
described in (a) or (b) above. Notwithstanding anything herein to
the contrary, this provision shall not apply to the Company’s
existing at-the-market program, as amended from time to time after
the date hereof.
B. Term
and Termination of Engagement; Exclusivity. The term of
Xxxxxxxxxx’x exclusive engagement will begin on the date
hereof and end on the earlier of (i) five (5) months after the date
hereof and (ii) consummation of the Financing (the
“Term”). Notwithstanding
anything to the contrary contained herein, the Company agrees that
the provisions relating to the payment of fees, reimbursement of
expenses, right of first refusal, tail, indemnification and
contribution, confidentiality, conflicts, independent contractor
and waiver of the right to trial by jury will survive any
termination or expiration of this Agreement. Notwithstanding
anything to the contrary contained herein, the Company has the
right to terminate the Agreement for cause in compliance with FINRA
Rule 5110(f)(2)(D)(ii). The exercise of such right of termination
for cause eliminates the Company’s obligations with respect
to the provisions relating to the tail fees and right of first
refusal. Notwithstanding anything to the contrary contained in this
Agreement, in the event that an Offering pursuant to this Agreement
shall not be carried out for any reason whatsoever during the Term,
the Company shall be obligated to pay to Xxxxxxxxxx its actual and
accountable out-of-pocket expenses related to an Offering
(including the reasonable fees and disbursements of
Xxxxxxxxxx’x legal counsel); provided, however, that such
expenses shall not exceed $50,000 in the aggregate. During
Xxxxxxxxxx’x engagement hereunder: (i) the Company will not,
and will not permit its representatives to, other than in
coordination with Xxxxxxxxxx, contact or solicit institutions,
corporations or other entities or individuals as potential
purchasers of the Securities and (ii) the Company will not pursue
any financing transaction which would be in lieu of an Offering.
Furthermore, the Company agrees that during Xxxxxxxxxx’x
engagement hereunder, all inquiries, whether direct or indirect,
from prospective investors will be referred to Xxxxxxxxxx and will
be deemed to have been contacted by Xxxxxxxxxx in connection with
an Offering. Additionally, except as set forth herein, the Company
represents, warrants and covenants that no brokerage or
finder’s fees or commissions are or will be payable by the
Company or any subsidiary of the Company to any broker, financial
advisor or consultant, finder, placement agent, investment banker,
bank or other third-party with respect to an Offering.
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C. Information;
Reliance. The Company shall furnish, or cause to be
furnished, to Xxxxxxxxxx all information reasonably requested by
Xxxxxxxxxx for the purpose of rendering services hereunder and
conducting due diligence (all such information being the
“Information”). In
addition, the Company agrees to make available to Xxxxxxxxxx upon
reasonable request from time to time the officers, directors,
accountants, counsel and other advisors of the Company. The Company
recognizes and confirms that Xxxxxxxxxx (a) will use and rely on
the Information, including any documents provided to investors in
an Offering (the “Offering Documents” which
shall include any Purchase Agreement (as defined below) and
applicable prospectus, and on information available from generally
recognized public sources in performing the services contemplated
by this Agreement without having independently verified the same;
(b) does not assume responsibility for the accuracy or completeness
of the Offering Documents or the Information and such other
information; and (c) will not make an appraisal of any of the
assets or liabilities of the Company. Upon reasonable request, the
Company will meet with Xxxxxxxxxx or its representatives to discuss
all information relevant for disclosure in the Offering Documents
and will cooperate in any investigation undertaken by Xxxxxxxxxx
thereof, including any document included or incorporated by
reference therein. At the Closing, at the request of Xxxxxxxxxx,
the Company shall deliver such legal letters (including negative
assurance letters), opinions, comfort letters, officers’ and
secretary certificates and good standing certificates, all in form
and substance reasonably satisfactory to Xxxxxxxxxx and its counsel
as is customary for such Offering. Xxxxxxxxxx shall be a third
party beneficiary of any representations, warranties, covenants and
closing conditions made by the Company in any Offering Documents,
including representations, warranties, covenants and closing
conditions made to any investor in an Offering.
D. Related
Agreements. At each Offering, the Company shall enter into
the following additional agreements:
1.
Underwritten Offering. If an Offering
is an underwritten Offering, the Company and Xxxxxxxxxx shall enter
into a customary underwriting agreement in form and substance
satisfactory to Xxxxxxxxxx and its counsel.
2.
Best Efforts Offering. If an Offering
is on a best efforts basis, the sale of Securities to the investors
in the Offering will be evidenced by a purchase agreement
(“Purchase
Agreement”) between the Company and such investors in
a form reasonably satisfactory to the Company and Xxxxxxxxxx.
Xxxxxxxxxx shall be a third party beneficiary with respect to the
representations and warranties included in the Purchase Agreement.
Prior to the signing of any Purchase Agreement, officers of the
Company with responsibility for financial affairs will be available
to answer inquiries from prospective investors.
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3.
Escrow and Settlement. In respect of an
Offering, the Company and Xxxxxxxxxx shall enter into an escrow
agreement with a third party escrow agent, which may also be
Xxxxxxxxxx’x clearing agent, pursuant to which
Xxxxxxxxxx’x compensation and expenses shall be paid from the
gross proceeds of the Securities sold. If an Offering is settled in
whole or in part via delivery versus payment (“DVP”), Xxxxxxxxxx shall
arrange for its clearing agent to provide the funds to facilitate
such settlement. The Company shall bear the cost of the escrow
agent and shall reimburse Xxxxxxxxxx for the actual out-of-pocket
cost of such clearing agent settlement and financing, if any, which
cost shall not exceed $10,000.
4.
FINRA Amendments. Notwithstanding
anything herein to the contrary, in the event that Xxxxxxxxxx
determines that any of the terms provided for hereunder shall not
comply with a FINRA rule, including but not limited to FINRA Rule
5110, then the Company shall agree to amend this Agreement (or
include such revisions in the final agreement) in writing upon the
request of Xxxxxxxxxx to comply with any such rules; provided that
any such amendments shall not provide for terms that are less
favorable to the Company than are reflected in this
Agreement.
E. Confidentiality.
In the event of the consummation or public announcement of an
Offering, Xxxxxxxxxx shall have the right to disclose its
participation in such Offering, including, without limitation, an
Offering at its cost of “tombstone” advertisements in
financial and other newspapers and journals. Except as contemplated
by the terms hereof or as required by applicable law, Xxxxxxxxxx
will keep strictly confidential (and not disclose) all non-public
information concerning the Company provided to Xxxxxxxxxx. No
obligation of confidentiality will apply to information that: (a)
is in the public domain as of the date hereof or hereafter enters
the public domain without a breach by Xxxxxxxxxx of this provision,
(b) was known or became known by Xxxxxxxxxx prior to the
Company’s disclosure thereof to Xxxxxxxxxx, (c) becomes known
to Xxxxxxxxxx from a source other than the Company, and other than
by the breach of an obligation of confidentiality owed to the
Company and known to Xxxxxxxxxx, (d) is disclosed by the Company to
a third party without restrictions on its disclosure or (e) is
independently developed by Xxxxxxxxxx. In no event shall any
information be used by Xxxxxxxxxx for any purpose other than in
connection with Xxxxxxxxxx’x activities on behalf of the
Company in respect of an Offering. In the event that Xxxxxxxxxx is
legally required to make disclosure of any such information,
Xxxxxxxxxx will give notice to the Company prior to such
disclosure, to the extent that Xxxxxxxxxx can practically do so or
unless such notice would violate applicable law, rule or
regulation, legal or regulatory process or professional standard.
Xxxxxxxxxx’x obligations of confidentiality hereunder shall
extend to its officers, directors, employees, agents and
representatives. References to Xxxxxxxxxx in this paragraph shall
be deemed to include Xxxxxxxxxx and its affiliates, directors,
managers, partners, members, officers, employees, accountants,
attorneys, advisors and agents who were in privy to the
Company’s confidential information. The foregoing
confidentiality covenants shall remain in full force and effect
whether or not an Offering contemplated by this engagement letter
is completed and shall survive the termination of this engagement
letter for a period of one year thereafter.
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F.
Indemnity.
1.
In connection with
the Company’s engagement of Xxxxxxxxxx hereunder, the Company
hereby agrees to indemnify and hold harmless Xxxxxxxxxx and its
affiliates, and the respective controlling persons, directors,
officers, members, shareholders, agents and employees of any of the
foregoing (collectively the “Indemnified Persons”),
from and against any and all claims, actions, suits, proceedings
(including those of shareholders), damages (excluding indirect,
special and consequential damages), liabilities and expenses
incurred by any of them (including the reasonable fees and expenses
of one counsel for all Indemnified Persons in the same
jurisdiction, other than to the extent the applicable Indemnified
Persons use separate counsel for conflict of interest reasons), as
incurred, (collectively a “Claim”), that are (A)
related to or arise out of (i) any actions taken or omitted to be
taken (including any untrue statements made or any statements
omitted to be made in the Offering Documents) by the Company, or
(ii) any actions taken or omitted to be taken by any Indemnified
Person in connection with the Company’s engagement of
Xxxxxxxxxx, or (B) otherwise relate to or arise out of
Xxxxxxxxxx’x activities on the Company’s behalf under
Xxxxxxxxxx’x engagement, and the Company shall reimburse any
Indemnified Person for all expenses (including the reasonable fees
and expenses of one counsel for all Indemnified Persons in the same
jurisdiction, other than to the extent the applicable Indemnified
Persons use separate counsel for conflict of interest reasons) as
incurred by such Indemnified Person in connection with
investigating, preparing or defending any such claim, action, suit
or proceeding, whether or not in connection with pending or
threatened litigation in which any Indemnified Person is a party.
The Company will not, however, be responsible for any Claim that is
finally judicially determined to have resulted from fraud, gross
negligence or willful misconduct of any person seeking
indemnification for such Claim. The Company further agrees that no
Indemnified Person shall have any liability to the Company for or
in connection with the Company’s engagement of Xxxxxxxxxx
except for any Claim incurred by the Company as a result of such
Indemnified Person’s fraud, gross negligence or willful
misconduct.
2.
The Company further
agrees that it will not, without the prior written consent of
Wainwright, settle, compromise or consent to the entry of any
judgment in any pending or threatened Claim in respect of which
indemnification may be sought hereunder (whether or not any
Indemnified Person is an actual or potential party to such Claim),
unless such settlement, compromise or consent includes an
unconditional, irrevocable release of each Indemnified Person from
any and all liability arising out of such Claim.
3.
Promptly upon
receipt by an Indemnified Person of notice of any complaint or the
assertion or institution of any Claim with respect to which
indemnification is being sought hereunder, such Indemnified Person
shall notify the Company in writing of such complaint or of such
assertion or institution but failure to so notify the Company shall
not relieve the Company from any obligation it may have hereunder,
except and only to the extent such failure causes actual harm to
the Company, results in the forfeiture by the Company of
substantial rights or defenses or results in any material increase
in the obligation which the Company has under this indemnity. If
the Company is requested by such Indemnified Person, the Company
will assume the defense of such Claim, including the employment of
counsel reasonably satisfactory to such Indemnified Person and the
payment of the reasonable fees and expenses of such counsel. In the
event, however, that legal counsel to such Indemnified Person
reasonably determines that having common counsel would present such
counsel with a conflict of interest or if the defendant in, or
target of, any such Claim, includes an Indemnified Person and the
Company, and legal counsel to such Indemnified Person reasonably
concludes that there may be legal defenses available to it or other
Indemnified Persons different from or in addition to those
available to the Company, then such Indemnified Person may employ
its own separate counsel to represent or defend him, her or it in
any such Claim and the Company shall pay the reasonable fees and
expenses of such counsel; provided, however, that in no event shall
the Company be responsible to pay the fees and expenses of more
than one firm of attorneys representing Indemnified Persons in the
same jurisdiction, other than to the extent the applicable
Indemnified Persons use separate counsel for conflict of interest
reasons. Notwithstanding anything herein to the contrary, if the
Company fails timely or diligently to defend, contest, or otherwise
protect against any Claim, the relevant Indemnified Person shall
have the right, but not the obligation, to defend, contest,
compromise, settle, assert crossclaims, or counterclaims or
otherwise protect against the same, and shall be fully indemnified
by the Company therefor, including without limitation, for the
reasonable fees and expenses of its counsel and all amounts paid as
a result of such Claim or the compromise or settlement thereof. In
addition, with respect to any Claim in which the Company assumes
the defense, the Indemnified Person shall have the right to
participate in such Claim and to retain his, her or its own counsel
therefor at his, her or its own expense. The Company shall not be
liable for any settlement of any action effected without its prior
written consent (which consent shall not be unreasonably withheld,
delayed or conditioned).
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4.
The Company agrees
that if any indemnity sought by an Indemnified Person hereunder is
held by a court to be unavailable for any reason then (whether or
not Xxxxxxxxxx is the Indemnified Person), the Company and
Xxxxxxxxxx shall contribute to the Claim for which such indemnity
is held unavailable in such proportion as is appropriate to reflect
the relative benefits to the Company, on the one hand, and
Xxxxxxxxxx on the other, in connection with Xxxxxxxxxx’x
engagement referred to above, subject to the limitation that in no
event shall the amount of Xxxxxxxxxx’x contribution to such
Claim exceed the amount of fees actually received by Xxxxxxxxxx
from the Company pursuant to Xxxxxxxxxx’x engagement. The
Company hereby agrees that the relative benefits to the Company, on
the one hand, and Xxxxxxxxxx on the other, with respect to
Xxxxxxxxxx’x engagement shall be deemed to be in the same
proportion as (a) the total value paid or proposed to be paid or
received by the Company pursuant to the applicable Offering
(whether or not consummated) for which Xxxxxxxxxx is engaged to
render services bears to (b) the fee paid or proposed to be paid to
Xxxxxxxxxx in connection with such engagement.
5.
The Company’s
indemnity, reimbursement and contribution obligations under this
Agreement (a) shall be in addition to, and shall in no way limit or
otherwise adversely affect any rights that any Indemnified Person
may have at law or at equity and (b) shall be effective whether or
not the Company is at fault in any way.
G. Limitation
of Engagement to the Company. The Company acknowledges that
Xxxxxxxxxx has been retained only by the Company, that Xxxxxxxxxx
is providing services hereunder as an independent contractor (and
not in any fiduciary or agency capacity) and that the
Company’s engagement of Xxxxxxxxxx is not deemed to be on
behalf of, and is not intended to confer rights upon, any
shareholder, owner or partner of the Company or any other person
not a party hereto as against Xxxxxxxxxx or any of its affiliates,
or any of its or their respective officers, directors, controlling
persons (within the meaning of Section 15 of the Securities Act or
Section 20 of the Securities Exchange Act of 1934, as amended (the
“Exchange
Act”)), employees or agents. Unless otherwise
expressly agreed in writing by Xxxxxxxxxx, no one other than the
Company is authorized to rely upon this Agreement or any other
statements or conduct of Xxxxxxxxxx, and no one other than the
Company is intended to be a beneficiary of this Agreement. The
Company acknowledges that any recommendation or advice, written or
oral, given by Xxxxxxxxxx to the Company in connection with
Xxxxxxxxxx’x engagement is intended solely for the benefit
and use of the Company’s management and directors in
considering a possible Offering, and any such recommendation or
advice is not on behalf of, and shall not confer any rights or
remedies upon, any other person or be used or relied upon for any
other purpose. Xxxxxxxxxx shall not have the authority to make any
commitment binding on the Company. The Company, in its sole
discretion, shall have the right to reject any investor introduced
to it by Xxxxxxxxxx.
H. Limitation
of Xxxxxxxxxx’x Liability to the Company. Xxxxxxxxxx
and the Company further agree that neither Xxxxxxxxxx nor any of
its affiliates or any of its their respective officers, directors,
controlling persons (within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act), employees or
agents shall have any liability to the Company, its security
holders or creditors, or any person asserting claims on behalf of
or in the right of the Company (whether direct or indirect, in
contract, tort, for an act of negligence or otherwise) for any
losses, fees, damages, liabilities, costs, expenses or equitable
relief arising out of or relating to this Agreement or the services
rendered hereunder, except for losses, fees, damages, liabilities,
costs or expenses that arise out of or are based on any action of
or failure to act by Xxxxxxxxxx and that are finally judicially
determined to have resulted solely from fraud, gross negligence or
willful misconduct of Xxxxxxxxxx.
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I. Governing
Law. 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 fully performed therein. Any disputes
that arise under this Agreement, even after the termination of this
Agreement, will be heard only in the state or federal courts
located in the City of New York, State of New York. The parties
hereto expressly agree to submit themselves to the jurisdiction of
the foregoing courts in the City of New York, State of New York.
The parties hereto expressly waive any rights they may have to
contest the jurisdiction, venue or authority of any court sitting
in the City and State of New York. In the event of the bringing of
any action, or suit by a party hereto against the other party
hereto, arising out of or relating to this Agreement, the party in
whose favor the final judgment or award shall be entered shall be
entitled to have and recover from the other party the costs and
expenses incurred in connection therewith, including its reasonable
attorneys’ fees. Any rights to trial by jury with respect to
any such action, proceeding or suit are hereby waived by Xxxxxxxxxx
and the Company.
J. Notices.
All notices hereunder will be in writing and sent by certified
mail, hand delivery, overnight delivery or fax, if sent to
Xxxxxxxxxx, at the address set forth on the first page hereof,
e-mail: xxxxxxx@xxxxx.xxx, Attention: Head of Investment Banking,
and if sent to the Company, to the address set forth on the first
page hereof, e-mail: xxxxxxxx@xxxxxxxxxxxxxxxxxxxx.xxx,
Attention: Chief Financial Officer. Notices sent by certified mail
shall be deemed received five days thereafter, notices sent by hand
delivery or overnight delivery shall be deemed received on the date
of the relevant written record of receipt, notices delivered by fax
shall be deemed received as of the date and time printed thereon by
the fax machine and notices sent by e-mail shall be deemed received
as of the date and time they were sent.
K. Conflicts.
The Company acknowledges that Xxxxxxxxxx and its affiliates may
have and may continue to have investment banking and other
relationships with parties other than the Company pursuant to which
Xxxxxxxxxx may acquire information of interest to the Company.
Xxxxxxxxxx shall have no obligation to disclose such information to
the Company or to use such information in connection with any
contemplated transaction.
L. Anti-Money
Laundering. To help the United States government fight the
funding of terrorism and money laundering, the federal laws of the
United States require all financial institutions to obtain, verify
and record information that identifies each person with whom they
do business. This means Xxxxxxxxxx must ask the Company for certain
identifying information, including a government-issued
identification number (e.g., a U.S. taxpayer identification number)
and such other information or documents that Xxxxxxxxxx considers
appropriate to verify the Company’s identity, such as
certified articles of incorporation, a government-issued business
license, a partnership agreement or a trust
instrument.
M. Miscellaneous.
The Company represents and warrants that it has all requisite power
and authority to enter into and carry out the terms and provisions
of this Agreement and the execution, delivery and performance of
this Agreement does not breach or conflict with any agreement,
document or instrument to which it is a party or bound. This
Agreement shall not be modified or amended except in writing signed
by Xxxxxxxxxx and the Company. This Agreement shall be binding upon
and inure to the benefit of both Xxxxxxxxxx and the Company and
their respective assigns, successors, and legal representatives.
This Agreement constitutes the entire agreement of Xxxxxxxxxx and
the Company with respect to the subject matter hereof and
supersedes any prior agreements with respect to the subject matter
hereof; provided, however, that Xxxxxxxxxx’x existing rights
pursuant to those certain Engagement Agreement dated as of October
10, 2017 and as of March 12, 2018 by and between the company and
Xxxxxxxxxx shall survive the execution of this Agreement. If any
provision of this Agreement is determined to be invalid or
unenforceable in any respect, such determination will not affect
such provision in any other respect, and the remainder of the
Agreement shall remain in full force and effect. This Agreement may
be executed in counterparts (including facsimile or electronic
counterparts), each of which shall be deemed an original but all of
which together shall constitute one and the same
instrument.
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In acknowledgment
that the foregoing correctly sets forth the understanding reached
by Xxxxxxxxxx and the Company, please sign in the space provided
below, whereupon this letter shall constitute a binding Agreement
as of the date indicated above.
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Very truly yours,
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X.X.
XXXXXXXXXX & CO., LLC
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By:
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/s/ Xxxxxx
Xxxxxxx
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Name:
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Xxxxxx
Xxxxxxx
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Title:
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Chief Operating
Officer
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Accepted and
Agreed:
By:
/s/ Xxxxxx Patient
Name: Xxxxxx
Patient
Title: Chief
Financial Officer
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