RODMAN & RENSHAW
Exhibit
1.1
XXXXXX
& XXXXXXX
May 8,
2009
Xx.
Xxxxxxx X. Xxxxxx M.D.
Chief
Executive Officer
Hemispherx
Biopharma, Inc.
One Penn
Center
0000 XXX
Xxxxxxxxx
Xxxxxxxxxxxx,
XX 00000
Dear Xx.
Xxxxxx:
The
purpose of this letter agreement (the “Agreement”) is to authorize Xxxxxx &
Xxxxxxx, LLC (“Xxxxxx”) to contact one or more institutional investors to
explore the degree of interest, if any, of such investors in providing funding
to Hemispherx Biopharma, Inc. or its affiliates (the “Company”). This
authorization shall be exclusive to Xxxxxx for a period of 30
days. The Company may terminate Xxxxxx’x authorization to contact
investors hereunder at any time upon a 3-day written notice. If the
Company chooses to accept any funding, on terms to be mutually agreed upon by
the Company and any such investor(s), then the Company shall pay to Xxxxxx the
fees set forth below if there is any funding of the Company (a “Financing”)
within 6 months of the date of the termination or expiration of this Agreement
by any investors with which Xxxxxx arranged a conference call or a meeting for
the Company during the term of this Agreement.
In
consideration of the services rendered by Xxxxxx under this Agreement, the
Company agrees to pay Rodman a cash fee payable immediately upon the closing of
any portion of the Financing equal to 5.5% of the aggregate proceeds raised or
committed in such Financing from such investors, plus 5.5% warrant
coverage. In addition, but only if a Financing is consummated, the
Company agrees to reimburse Xxxxxx at closing for all reasonable travel and
other out-of-pocket expenses incurred in connection with Xxxxxx’x engagement,
including the fees and expenses of Xxxxxx’x counsel, not to exceed $25,000
without prior written approval by the Company.
The
Company hereby makes to Xxxxxx each of the representations and warranties made
by the Company to the Purchasers in the Securities Purchase Agreement, to be
entered into in connection with the Financing, as though restated in their
entirety herein.
The
Company hereby agrees to the indemnification and other agreements set forth in
the Indemnification Provisions attached hereto as Addendum A, the
provisions of which are incorporated herein by reference and shall survive the
termination or expiration of this Agreement.
This
Agreement shall be governed by and construed in accordance with the laws of the
State of New York, without regard to conflicts of law principles. Any
dispute arising out of this Agreement shall be adjudicated in the courts of the
State of New York or in the federal courts sitting in the Southern District of
New York, and each of the parties hereto agrees that service of process upon it
by registered or certified mail at its address set forth herein shall be deemed
adequate and lawful. Any rights to trial by jury with respect to any
such dispute are hereby waived by Xxxxxx and the Company. The Company shall
indemnify Xxxxxx against any liabilities arising under the Securities Act of
1933, as amended, attributable to any information supplied or omitted to be
supplied to any investor by the Company pursuant to this
Agreement. The Company acknowledges and agrees that Xxxxxx is not and
shall not be construed as a fiduciary of the Company and shall have no duties or
liabilities to shareholders or creditors of the Company or any other person by
virtue of this Agreement or the retention of Xxxxxx hereunder, all of which are
hereby expressly waived. This Agreement may be modified only in
writing signed by the party to be charged hereunder.
If the foregoing correctly sets forth
our agreement, please sign below and return a copy of this letter to
us.
Very
truly yours,
Xxxxxx & Xxxxxxx, LLC 1251 Avenue
of the Xxxxxxxx, 00xx Xxxxx, Xxx Xxxx, XX
00000
Tel: 000 000 0000
Fax: 000 000 0000 xxx.xxxx.xxx Member: FINRA,
SIPC
XXXXXX
& XXXXXXX, LLC
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By:
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s/
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Name:
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Title:
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Agreed
to and accepted
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as
of the date first written
above:
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HEMISPHERX
BIOPHARMA, INC.
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By:
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s/
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Xx.
Xxxxxxx X. Xxxxxx M.D.
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CEO
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2
ADDENDUM
A
INDEMNIFICATION
PROVISIONS
In connection with the engagement of
Xxxxxx & Xxxxxxx, LLC (“Xxxxxx”) Hemispherx Biopharma,
Inc. (the “Company”) pursuant to
a letter agreement dated May 8, 2009, between the Company and Xxxxxx, as it may
be amended from time to time in writing (the “Agreement”), the
Company hereby agrees as follows:
1.
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To
the extent permitted by law, the Company will indemnify Xxxxxx and its
affiliates, stockholders, directors, officers, employees and controlling
persons (within the meaning of Section 15 of the Securities Act of 1933,
as amended, or Section 20 of the Securities Exchange Act of 1934, as
amended) against all losses, claims, damages, expenses and liabilities, as
the same are incurred (including the reasonable fees and expenses of
counsel), relating to or arising out of its activities hereunder or
pursuant to the Agreement, except to the extent that any losses, claims,
damages, expenses or liabilities (or actions in respect thereof) are found
in a final judgment (not subject to appeal) by a court of law to have
resulted primarily and directly from any indemnified person’s willful
misconduct or gross negligence or from untrue statements or omissions made
in reliance upon and conformity with information supplied in writing by
Xxxxxx or its agents specifically for inclusion in the Registration
Statement or any prospectus (including supplements) referred to in Section
2.A of the Agreement.
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2.
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Promptly
after receipt by Xxxxxx of notice of any claim or the commencement of any
action or proceeding with respect to which Xxxxxx is entitled to indemnity
hereunder, Xxxxxx will notify the Company in writing of such claim or of
the commencement of such action or proceeding, and the Company will assume
the defense of such action or proceeding and will employ counsel
reasonably satisfactory to Xxxxxx and will pay the fees and expenses of
such counsel. Notwithstanding the preceding sentence, Xxxxxx
will be entitled to employ counsel separate from counsel for the Company
and from any other party in such action if counsel for Xxxxxx reasonably
determines that it would be inappropriate under the applicable rules of
professional responsibility for the same counsel to represent both the
Company and Xxxxxx. In such event, the reasonable fees and
disbursements of no more than one such separate counsel will be paid by
the Company. The Company will have the exclusive right to
settle the claim or proceeding provided that the Company will not settle
any such claim, action or proceeding without the prior written consent of
Xxxxxx, which will not be unreasonably
withheld.
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3.
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The
Company agrees to notify Xxxxxx promptly of the assertion against it or
any other person of any claim or the commencement of any action or
proceeding relating to a transaction contemplated by the
Agreement.
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4.
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If
for any reason the foregoing indemnity is unavailable to Xxxxxx or
insufficient to hold Xxxxxx harmless, then the Company shall contribute to
the amount paid or payable by Xxxxxx as a result of such losses, claims,
damages or liabilities in such proportion as is appropriate to reflect not
only the relative benefits received by the Company on the one hand and
Xxxxxx on the other, but also the relative fault of the Company on the one
hand and Xxxxxx on the other that resulted in such losses, claims, damages
or liabilities, as well as any relevant equitable
considerations. The amounts paid or payable by a party in
respect of losses, claims, damages and liabilities referred to above shall
be deemed to include any legal or other fees and expenses incurred in
defending any litigation, proceeding or other action or
claim. Notwithstanding the provisions hereof, Xxxxxx’x share of
the liability hereunder shall not be in excess of the amount of fees
actually received, or to be received, by Xxxxxx under the Agreement
(excluding any amounts received as reimbursement of expenses incurred by
Xxxxxx) and the Company’s share of the liability hereunder shall not be in
excess of the total net proceeds received by the Company from the sale of
the Shares pursuant to this
Agreement.
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3
5.
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These
Indemnification Provisions shall remain in full force and effect whether
or not the transaction contemplated by the Agreement is completed and
shall survive the termination of the Agreement, and shall be in addition
to any liability that the Company might otherwise have to any indemnified
party under the Agreement or
otherwise.
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XXXXXX
& XXXXXXX, LLC
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By:
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s/
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Name:
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Title:
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Accepted
and Agreed to as of
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the
date first written above:
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HEMISPHERX
BIOPHARMA, INC.
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By:
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s/
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Name:
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Title:
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