Jefferson Worldwide Group, Ltd.
Jefferson Worldwide Group, Ltd.0000
Xxxxx Xxxxxxx Xx., Xxxxx 000, Xxxx Xxxx Xxxxx, XX. 00000
Telephone/Fax:
000-000-0000 - Email: xxxxxxxxx@xxxxxxx.xxx
Xx.
Xxxxxx X. Xxxx, President and CEO,
Sovereign
Emerging Biomedical Fund, Inc.
000 Xxxxx
Xxxxxx, Xxxx Xxxxx, XX, 00000
November 23, 2008
Dear Xx.
Xxxx,
1)
Retention. This letter agreement (the “Agreement”) confirms
that Sovereign Emerging Biomedical Fund, Inc. (the “Company”), for adequate and
valid consideration, the receipt of which is hereby acknowledged, has engaged
Jefferson Worldwide Group Ltd. (“IB”) to act as financial advisor and
investment banker to the Company in connection with the structuring,
issuance and sale of equity and/or debt (the “Securities”) of the Company, as
set forth in this agreement It is presently planned that the Company will seek,
using the services of IB, underwriters or dealers (collectively, the
“Underwriters’) to purchase and sell in an underwritten and/or best efforts
public offering, and/or a private placement (the “Offering”) approximately $200
million dollars of the Company’s common stock, or such other amount as the
Company may determine (the “Transaction”). IB will not be one of the
Underwriters but will endeavor to help the Company find, negotiate and close
with appropriate Underwriters. IB gives no assurance to the Company that XX’s
efforts in this respect will be successful.
2) Information as to the
Company. In connection with IB’s activities hereunder, the
Company will furnish IB with all materials and information regarding the
business and financial condition of the Company that the Company believes are
relevant to the Transaction or which IB reasonably requests (all such
information so furnished being the “Information”), together with a draft of the
registration statement to be used to register the Securities with the Securities
and Exchange Commission under the Securities Act of 1933, as amended (the “Act”)
and the Investment Company Act of 1940, as well as relevant State securities
laws, and all related documents, including a confidential memorandum to
underwriters and dealers summarizing the Transaction (collectively, the
“Offering Materials” ). The Company recognizes and confirms that IB (a) will use
and rely solely on the Information, the Offering Materials and on information
available from generally recognized public sources without having independently
verified the same; (b) is authorized to transmit to any prospective participant
in the Transaction a copy or copies of the Offering Materials as well as the
forms of underwriting or dealer agreements, and any other legal documentation
considered necessary or advisable in connection with the Transaction, all of
which will be prepared or approved by the Company; and (c) does not and will not
assume responsibility for the accuracy or completeness of the Information, the
Offering Materials or such other information and documents.
3) Accuracy of Offering
Materials. The Company agrees that neither the Information nor
the Offering Materials will contain any untrue statement of a material fact or
omit to state a material fact necessary to make the statements therein, in light
of the circumstances under which they were made, not misleading. The
Company shall advise IB promptly of the occurrence of any event or any other
change prior to the closing of the Transaction which could reasonably be
expected to result in the Information or the Offering Materials containing any
untrue statement of a material fact or omitting to state any material fact
necessary to make the statements contained therein, in light of the
circumstances under which they were made, not misleading.
4) Use of Name and
Advice. The Company agrees that any reference to IB in any
release, communication, or other material is subject to IB’s prior written
approval, which may be given or withheld in its sole discretion, which will
expire immediately upon IB’s resignation or the termination of this
Agreement. .
5)
Compensation and
Indemnity. In payment for services rendered and to be rendered
hereunder by IB, the Company will either itself pay, or cause the Underwriters
to pay, IB at the closing of the Transaction, whether or not the offering is
underwritten, a fee equal to 1% of the gross sales price of the Securities sold
at that closing, without deduction or offset of any kind, for expenses or
otherwise, regardless of whether or not IB located the underwriters or the
purchasers. In addition, the Company will reimburse (or pay) IB’s reasonable
expenses of travel and lodging in connection with this engagement, where such
travel is approved by the Company in advance. XX may resign at any time and the
Company may terminate IB’s services for cause at any time, each by giving prior
written notice to the other. If this Agreement expires because the
Company terminates IB’s services for any reason, and subsequently, within one
year of the date of such termination, the Transaction (in the same or similar
form) closes, IB shall be entitled to receive at such closing the full
compensation provided for in this Section 5. If IB’s services
hereunder are terminated by the Company, or this Agreement expires, and the
Company completes a transaction similar to the Transaction contemplated herein
within one year of such termination or expiration, then the Company shall pay to
IB concurrently with the closing of such transaction the fees outlined in this
Section 5. In addition, the Company has engaged IB to arrange financing in
amounts and types to be determined, to be taken down prior to the closing of the
Transaction. If IB is instrumental in arranging any such financing, IB shall be
entitled to a fee from the Company at each closing equal to 5% of the amount
taken down. All amounts payable to IB pursuant to this Section 5 shall be
payable via wire transfer to an account designated by IB. No fee paid
or payable to IB shall be credited against any other fee paid or payable to IB.
Since IB will be acting on behalf of the Company as set forth in this Agreement,
and as an integral part of the consideration of the services to be rendered
hereunder, the Company shall indemnify IB and certain other Indemnified Persons
(as defined in Schedule A hereto) in accordance with Schedule A. The
Company shall not initiate any action or proceeding against IB or any other
Indemnified Person in connection with this engagement or the Transaction unless
such action or proceeding is based solely upon the gross negligence or willful
misconduct of IB or any such Indemnified Person. IB and the
Indemnified Persons shall not be deemed agents or fiduciaries of the Company,
and IB will not have the authority to legally bind the Company. IB
will not make an appraisal or valuation of any assets or liabilities of the
Company in connection with its services hereunder.
6)
Conditions. It is understood that the execution of this
Agreement shall not be deemed or construed as to obligate IB to purchase or to
place any of the Securities
7) Survival of Certain
Provisions. The indemnity and contribution agreements
contained in Schedule A to this Agreement and Sections 2-6, 11-16 and this
Section 7 of this Agreement shall remain operative and in full force and effect
regardless of the completion of the Transaction, (c) the resignation of IB or
any termination of IB’s services or (d) any amendment, expiration or termination
of this Agreement. This Agreement shall be binding upon, and shall inure to the
benefit of, any successors, assigns, heirs and personal representatives of IB
and the Indemnified Persons.
8)
Notices. Notice given pursuant to any of the provisions of
this Agreement shall be in writing and shall be mailed or delivered (a) if to
the Company, at the address set forth above, and (b) if to IB, at the offices of
IB at Suite 000, 0000 Xxxxx Xxxxxxx Xxxxx, Xxxx Xxxx Xxxxx, XX
00000.
9)
Counterparts. This Agreement may be executed
simultaneously in two or more counterparts, each of which shall be deemed
an original, but all of which shall constitute one and the same
instrument.
10)
Assignment. This Agreement may not be assigned by either party
hereto without the prior written consent of the other, to be given in the sole
discretion of the party from whom such consent is being
requested. Any attempted assignment of this Agreement made without
such consent shall be void and of no effect, at the option of the non-assigning
party.
11) Third Party
Beneficiaries. This Agreement has been and is made solely for
the benefit of the Company, IB and the other Indemnified Persons referred to in
Schedule A hereof and their respective successors, permitted assigns, heirs and
personal representatives, and no other person shall acquire or have any right
under or by virtue of this Agreement.
12) Arbitration. The
parties agree that any dispute, claim or controversy directly or indirectly
relating to or arising out of this Agreement, the termination or validity
hereof, any alleged breach of this Agreement or the engagement contemplated
hereby (any of the foregoing, a “Claim”) shall be
submitted to JAMS/ENDISPUTE, or its successor, in Miami, Florida (or, if it has
no office there at the time, in Atlanta, Georgia), for mediation; and if the
matter is not resolved through mediation, then it shall be submitted for final
and binding arbitration in front of a panel of three arbitrators with
JAMS/ENDISPUTE under the JAMS/ENDISPUTE Comprehensive Arbitration Rules and
Procedures (with each of IB and the Company choosing one arbitrator, and the
chosen arbitrators choosing the third arbitrator). The arbitrators
shall, in their award, allocate all of the costs of the arbitration (and the
mediation, if applicable), including the fees of the arbitrators and the
reasonable attorneys’ fees of the prevailing party, against the party who did
not prevail. The award in the arbitration shall be final and binding.
The arbitration shall be governed by the Federal Arbitration Act, 9 U.S.C.
§§1–16, and judgment upon the award rendered by the arbitrators may be entered
by any court having jurisdiction thereof. The Company and IB agree and consent
to personal jurisdiction, service of process and venue in any federal or state
court within the State of Florida in connection with any action brought to
enforce an award in arbitration.
13)
Headings. The
section headings in this Agreement have been inserted as a matter of convenience
of reference and are not part of this Agreement.
14) Amendment;
Waiver. This Agreement may not be modified or amended except
in a writing duly executed by the parties hereto. No waiver by either
party of any breach of any provision of this Agreement shall be deemed a waiver
of any similar or any other provision of this Agreement at the same or any prior
or subsequent time. To be effective, a waiver must be set forth in
writing signed by the waiving party and must specifically refer to this
Agreement and the provision being waived.
15)
Term. Except as provided herein, this Agreement shall run from
the date of this letter to the end of four years thereafter, unless extended by
mutual consent of the parties (the “Term”).
Please
sign and return an original and one copy of this letter to the undersigned to
indicate your acceptance of the terms set forth herein, whereupon this letter
and your acceptance shall constitute a binding agreement between the Company and
IB as of the date first above written.
Sincerely,
JEFFERSON
WORLDWIDE GROUP, LTD.
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By
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/s/
Xxxxxxxx X. Xxxxxxxx
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Name:
Xxxxxxxx X. Xxxxxxxx
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Title: President
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Accepted
and Agreed:
SOVEREIGN
EMERGING BIOMEDICAL FUND, INC.
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By
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Name:
Xxxxxx X. Xxxx
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Title:
President and CEO
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SCHEDULE A
Reference
is hereby made to the engagement letter to which this Schedule A is attached
between IB and the Company (as it may be amended from time to time in accordance
with the terms thereof), (the “Agreement”). Unless otherwise noted,
all capitalized terms used herein shall have the meanings set forth in the
Agreement.
Since IB
will be acting on behalf of the Company in connection with the transactions
contemplated by the Agreement, and as part of the consideration for the
agreement of IB to furnish its services pursuant to such Agreement, the Company
agrees to indemnify and hold harmless IB and its officers and directors, as well
as its counsel and employees (IB and each such other persons being referred to
as an “Indemnified Person”), to the fullest extent lawful, from and against all
claims, liabilities, losses, damages and expenses (or actions or threatened
actions in respect thereof), as incurred, related to or arising out of or in
connection with actions taken or omitted to be taken by the Company, its
affiliates, its employees or its agents,) pursuant to the terms of, or in
connection with services rendered pursuant to, the Agreement or any Transaction
or proposed transaction contemplated thereby, or such person’s role in
connection therewith, provided, however, that the Company shall not be
responsible for any losses, claims, damages, liabilities or expenses of any
Indemnified Person to the extent, and only to the extent, that it is finally
judicially determined that they are due solely to such Indemnified Person’s
gross negligence or willful misconduct, and/or (iii) any untrue statement or
alleged untrue statement of a material fact contained in any of the Information
or the Offering Materials, or arising out of or based upon any omission or
alleged omission of a material fact required to be stated therein or necessary
to make the statements therein not misleading.
The
Company shall not settle or compromise or consent to the entry of any judgment
in or otherwise seek to terminate any pending or threatend action, claim, suit
or proceeding in which any Indemnified Person is or could be a party and as to
which indemnification or contribution could have been sought by such Indemnified
Person hereunder (whether or not such Indemnified Person is a party thereto),
unless such Indemnified Person has given its prior written consent or the
settlement, compromise, consent or termination includes an express
unconditional release of such Indemnified Person, satisfactory in form and
substance to such Indemnified Person, from all losses, claims, damages or
liabilities arising out of such action, claim, suit or proceeding.
In
addition, the Company agrees to reimburse the Indemnified Persons for all
expenses (including, without limitation, fees and expenses of counsel) as they
are incurred in connection with investigating, preparing, defending or settling
any action or claim for which indemnification or contribution may be sought by
the Indemnified Person, whether or not in connection with litigation in which
any Indemnified Person is a named party. If any of IB’s personnel
appears as witnesses, are deposed or are otherwise involved in the defense of
any action against IB, the Company or the Company’s officers, managers or
directors, the Company will pay IB (i) with respect to each day that one of IB’
professional personnel appears as a witness or is deposed and/or (ii) with
respect to each day that one of IB’ professional personnel is involved in the
preparation therefore, (a) a fee normal in the industry for each such person
with respect to each appearance as a witness or for a deposition and (b) at a
rate per hour normal in the industry for each hour of preparation of each such
person for any such appearance; and the Company will reimburse IB for all
reasonable expenses incurred by IB by reason of any of its personnel being
involved, or likely to be involved, in any such action.
The
indemnity, contribution and expense reimbursement obligations set forth herein
(i) shall be in addition to any liability the Company may have to any
Indemnified Person at common law or otherwise, (ii) shall survive the expiration
of the Term, (iii) shall apply to any modification of IB’s engagement and
shall remain in full force and effect following the completion or termination of
the Agreement, (iv) shall remain operative and in full force and effect
regardless of any investigation made by or on behalf of IB or any other
Indemnified Person and (v) shall be binding on any successor or assign of the
Company and successors or assigns to the Company’s business and assets. If the
Company enters into any agreement or arrangement with respect to, or effects,
any proposed sale, exchange, dividend or other distribution or liquidation of
all or a significant portion of its assets in one or a series of transactions or
any significant recapitalization or reclassification of its outstanding
securities, the Company shall provide for the assumption of its obligations
under this Agreement by another party satisfactory to IB.
