Jesup & Lamont Agreement EXCLUSIVE FINDER'S AGREEMENT
Exhibit
4.15
Jesup
& Xxxxxx Agreement
EXCLUSIVE
FINDER'S AGREEMENT
This
Exclusive Finder's Agreement (this "Agreement") is made as of May 18, 2010,
between IceWeb, Inc., a Delaware Corporation (the "Company"), and Jesup &
Xxxxxx Securities Corp., a New York Corporation (the "Exclusive Finder"). The
Exclusive Finder and the Company agree:
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1.
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Engagement
of Exclusive Finder: The Company hereby engages the
Exclusive Finder, and the Exclusive Finder hereby accepts such engagement,
to act as the Company's Exclusive Finder with respect to sales by the
Company in a private placement transaction (the “Offering”) of up to $5
million aggregate principal amount of Equity, Equity-Related or Debt
Securities (the “Securities”) of the Company to the investors during the
term of this Agreement as set forth in Section
5.
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2.
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Offering
Procedures: The Exclusive Finder will introduce the
Company to investors who the Exclusive Finder reasonably believes to be
"accredited investors," as that term is defined in Rule 501 of Regulation
D promulgated under the Securities Act of 1933, as amended (the “1933 Act”),
with whom the Exclusive Finder has a pre-existing substantive relationship
(the “Offerees”).
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3.
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Exclusive
Finder's Compensation: In consideration for the services
rendered by the Exclusive Finder hereunder, the Company shall pay to the
Exclusive Finder, or cause the Exclusive Finder to be paid, compensation
as provided in this section within 3 days of the Company's receipt of
funds from the Offerees.
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(a)
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Cash Compensation: The
Company shall pay to the Exclusive Finder cash compensation equal to seven
percent (7%) of the gross Offering funds received in the Offering,
including any monies the Company has or will raise. Jesup shall receive at
the time of close a one percent (1%) non- accountable fee on all money
raised in the transaction.
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(b)
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Warrants: The
Exclusive Finder shall receive 70,000 warrants per million dollars raised
or 7% of shares issued whichever is greater. The warrant’s strike
shall equal the strike, expiration and registration rights of any
warrants sold to Offerees in the Offering, and if the Offering does
not provide for the issuance of warrants, then the warrants issued to
the Exclusive Finder shall have a strike price equal to the Offering
price of any Equity or Equity-Related Securities sold, have a
five-year term and cashless exercise after one year if the underlying
shares are not then registered. The warrant shares shall have
“piggyback” registration rights in any Private Offering, and will be
backed by registered shares for any Registration Offering. Jesup
& Xxxxxx Sec. Corp. will also be entitled to compensation set forth in
Section 3(a) resulting from any cash generated by the Company from the
exercise of any warrants issued to investors introduced to the Company by
the Exclusive Finder who participated in the
Offering.
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(c)
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If,
at any time prior to one year following the end of the Offering (the
“Term”) the Company directly or indirectly sells, in a private
transaction, any type of security to an investor with whom negotiations
were initiated by the Exclusive Finder during the Term, the Company shall
pay the Exclusive Finder the compensation to which it would be entitled
under paragraph 3 if the transaction had occurred during the
Term.
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4.
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For
purposes of determining the Exclusive Finder’s compensation under this
Section 3, the gross offering funds received in the Offering(s) shall
include any amounts paid to the Company by investors in respect to an
exercise or conversion of any of the Securities or Warrants, including the
value allocated to any securities not issued pursuant to a “cashless
exercise” or similar provision, whenever actually received by the
Company.
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5.
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Company
will be obligated to file a Registration Statement for this transaction
for this transaction within 45 days of the close, and use the best efforts
to get it effective in 90 days.
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Certain
Matters Relating to Exclusive Finder’s Duties:
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(a)
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The
Exclusive Finder’s responsibilities shall be limited to introducing
potential investors to the Company, and the Exclusive Finder shall not
have authority to offer or sell the Securities to any potential investor.
Exclusive Finder shall not use any general solicitation or general
advertising within the meaning of the applicable securities laws in
connection with any offering. The Exclusive Finder shall have
no responsibility to participate or assist in any negotiations between any
potential investor and the Company. The Exclusive Finder will have no
responsibility to act, and the parties contemplate that the Exclusive
Finder will not act, as a broker or dealer with respect to the offer or
sale of the Securities. Further, the Exclusive Finder shall have no
responsibility for fulfilling any SEC reporting or filing requirements as
relates to the Company provided however, Exclusive Finder agrees to
provide Company with reasonable assistance related to any registration,
qualification or other requirements of applicable securities laws and
other regulatory matters, upon request of the
Company.
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(b)
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The
Exclusive Finder agrees to introduce the Company to Offerees only in
states in which the Exclusive Finder has been advised by the Company that
offers and sales of Securities can be legally made by the
Company.
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(c)
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The
Exclusive Finder shall perform its duties under this Agreement in a manner
consistent with the instructions of the Company. Such performance shall
include, but not be limited to, the delivery to each Offeree a current
copy of the Private Placement Memorandum, Subscription Agreement and any
Offering Questionnaire and/or similar documents provided to the Exclusive
Finder by the Company, as such documents may be amended from time to time
by the Company and delivered to the Exclusive Finder. The Exclusive Finder
shall consecutively number each copy of the Private Placement Memorandum
(which will include the first letter of the Exclusive Finder’s name or
other identifying xxxx sufficient to designate an Offeree introduced by
the Exclusive Finder); keep a log of when and to whom each copy of the
Private Placement Memorandum is given, with the Private Placement
Memorandum numbers; maintain a copy of any written information the
Exclusive Finder obtains regarding the suitability of each Offeree; and
only use the Private Placement Memorandum in introducing Offerees to the
Company. The Exclusive Finder shall provide this log and all such written
information to the Company at any time and promptly upon request of the
Company at the termination of this Agreement. The Company shall, promptly
following execution of this Agreement, provide the Exclusive Finder with a
written list of prospective Offerees that the Company does not want the
Exclusive Finder to contact. The Exclusive Finder agrees to not contact
the persons on such list, and the Exclusive Finder shall not be entitled
to the compensation set forth in Section 3 with respect to any investment
made by such person in the Company’s
Securities.
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(d)
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The
Exclusive Finder is and will hereafter act as an independent contractor
and not as an employee of the Company and nothing in this Agreement shall
be interpreted or construed to create any employment, partnership, joint
venture, or other relationship between the Exclusive Finder and the
Company. The Exclusive Finder will not hold itself out as having, and will
not state to any person that the Exclusive Finder has, any relationship
with the Company other than as an independent contractor. The Exclusive
Finder shall have no right or power to find or create any liability or
obligation for or in the name of the Company or to sign any documents on
behalf of the Company.
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6.
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Right
of First Refusal. In consideration for the Finder acting
as the finder in connection with the proposed offering, the Company hereby
grants the Finder a right of first refusal to serve as the Company’s
financial advisor and investment banker in connection with any financial
transaction for a period of 1 year from the closing of the
transaction. In the event the company advises the Finder that
it desires to effect any financial transaction, the Company and the Finder
will negotiate in good faith the terms of the Finder’s engagement in a
separate agreement which would set forth, among other matters,
compensation for the Finder based upon customary fees for the services
provided.
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7.
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Termination
of Agreement. Either party may terminate this Agreement by
notifying the other party in writing upon a material breach by that other
party, unless such breach is curable and is in fact cured within 15 days
after such notice. This Agreement will otherwise terminate upon
completion or termination of the Offering. Notwithstanding the foregoing,
the Company or Finder may terminate this Agreement following ninety (90)
days after the date hereof upon written notice. Notwithstanding
the foregoing, all provisions of this Agreement other than section 1, 2
and 3 shall survive the termination of this Agreement with respect to
Offerees who the Exclusive Finder introduces to the Company prior to any
termination with respect to the Offering. The Exclusive Finder shall be
entitled to compensation under section 3 based on investments made by such
Offerees prior to the termination of this Agreement or at any time within
one year thereafter.
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8.
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Indemnification.
The Company and the Exclusive Finder each shall indemnify and defend the
other and the other’s affiliates, directors, officers, employees, agents,
consultants, attorneys, accountants and other representatives (each an
“Indemnified
Person”) and shall hold each Indemnified Person harmless, to the
fullest extent permitted by law, from and against any and all claims,
liabilities, losses, damages and expenses (including reasonable attorney’s
fees and costs), as they are incurred, in connection with the Offering,
resulting from the indemnifying party’s negligence, bad faith or willful
misconduct in connection with the Offering, any material violation by the
indemnifying party (not caused by an Indemnified Person) of Federal or
state securities laws in connection with the Offering, or any breach by
the indemnifying party of this Agreement. In case any litigation or
proceeding shall be brought against any Indemnified Person under this
section, the indemnifying party shall be entitled to assume the defense of
such litigation or proceeding with counsel of the indemnifying party’s
choice at its expense (in which case the indemnifying party shall not be
responsible for the fees and expenses of any separate counsel retained by
such Indemnified Person, except in the limited circumstances described
below in this section); provided, however, that such counsel shall be
reasonably satisfactory to the Indemnified Person. Notwithstanding the
indemnifying party’s election to assume the defense of such litigation or
proceeding (a) such Indemnified Person shall have the right to employ
separate counsel and to participate in the defense of such litigation or
proceeding, and (b) the indemnifying party shall bear the reasonable fees,
costs and expenses of separate counsel if (but only if) the use of counsel
selected by the indemnifying party to represent such Indemnified Person
would present such counsel with a conflict of interest under applicable
laws or rules of professional
conduct.
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9.
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Confidentiality
of Offeree Information. The Company acknowledges that the identity
of the Offerees, and all confidential information about Offerees received
by the Company from an Offeree or the Exclusive Finder, is confidential
information of the Exclusive Finder and may not be shared with any other
person without the consent of the Exclusive Finder except to the extent
that disclosure is required to meet with a governmental or regulatory
request for information.
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10.
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Notices.
Any notice, consent, authorization or other communication to be given
hereunder shall be in writing and shall be deemed duly given and received
when delivered personally, when transmitted by fax, three days after being
mailed by first class mail, or one day after being sent by a nationally
recognized overnight delivery service, charges and postage prepaid,
properly addressed to the party to receive such notice, at the following
address or fax number for such party (or at such other address or fax
number as shall hereafter be specified by such party by like
notice):
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(a)
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If
to the Company,
to:
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Xxxx X.
Xxxxxxxxxx
CEO,
Chairman
IceWeb,
Inc.
00000
Xxxx Xx.
Xxxxxxxx,
XX 00000
Phone:
(000) 000-0000
Email: xxxxxxxxxxx@xxxxxx.xxx
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(b)
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If
to the Exclusive
Finder, to:
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Xxxx
Xxxxxxx
Sr.
Managing Director
Co-Head
Investment Banking
000
Xxxxxxxxxx Xxxxxx, 00xx
Xxxxx
Xxx
Xxxxxxxxx, XX 00000
Phone:
(000) 000-0000
Fax:
(000)
000-0000
E-Mail:
xxxxxxxx@xxxxxxxxxxx.xxx
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11.
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Company
to Control Transactions. The prices,
terms and conditions under which the Company shall offer or sell any
Securities shall be determined by the Company in its sole
discretion. The Company shall have the authority to control all
discussions and negotiations regarding any proposed or actual offering or
sale of Securities. Nothing in this Agreement shall obligate
the Company to actually offer or sell any Securities or consummate any
transaction. The Company may terminate any negotiations or
discussions at any time and reserves the right not to proceed with any
offering or sale of Securities. Compensation pursuant to this
Agreement shall only be paid to the Exclusive Finder in the event of an
actual Closing of the Offering to an Offeree introduced by Exclusive
Finder. Notwithstanding the foregoing, an otherwise acceptable
offer introduced by the Finder shall not be rejected in favor of another
investor solely on the basis of obverting a fee otherwise earned by the
Finder.
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12.
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Confidentiality
of Company Information. The Exclusive Finder, and its officers,
directors, employees and agents shall maintain in strict confidence and
not copy, disclose or transfer to any other party (1) all confidential
business and financial information regarding the Company and its
affiliates, including without limitation, projections, business plans,
marketing plans, product development plans, pricing, costs, customer,
vendor and supplier lists and identification, channels of distribution,
and terms of identification of proposed or actual contracts and (2) all
confidential technology of the Company. In furtherance of the foregoing,
the Exclusive Finder agrees that it shall not transfer, transmit,
distribute, download or communicate, in any electronic, digitized or other
form or media, any of the confidential technology of the Company. The
foregoing is not intended to preclude the Exclusive Finder from utilizing,
subject to the terms and conditions of this Agreement, the Private
Placement Memorandum and/or other documents prepared or approved by the
Company for use in the Offering.
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All
communications regarding any possible transactions, requests for due diligence
or other information, requests for facility tours, product demonstrations or
management meetings, will be submitted or directed to the Company, and the
Exclusive Finder shall not contact any employees, customers, suppliers or
contractors of the Company or its affiliates without express
permission. Nothing in this Agreement shall constitute a grant of
authority to the Exclusive Finder or any representatives thereof to remove,
examine or copy any particular document or types of information regarding the
Company, and the Company shall retain control over the particular documents or
items to be provided, examined or copied. If the Offering is not consummated, or
if at any time the Company so requests, the Exclusive Finder and its
representatives will return to the Company all copies of information regarding
the Company in their possession.
The
provisions of this Section shall survive any termination of this
Agreement.
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13.
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Press
Releases, Etc. The Company shall control all press releases or
announcements to the public, the media or the industry regarding any
offering, placement, transaction or business relationship involving the
Company or its affiliates. Except for communication to Offerees in
furtherance of this Agreement and the provision of the Private Placement
Memorandum, the Exclusive Finder will not disclose the fact that
discussions or negotiations are taking place concerning a possible
transaction involving the Company, or the status or terms and conditions
thereof. Nothing
herein shall preclude the Exclusive Finder from disclosing to prospective
Offerees the existence and terms of it Consulting Agreement with the
Company. Notwithstanding
the foregoing, the Company agrees to issue a press release prior to the
opening of the market on the business day following the Company’s receipt
of executed agreements binding Offerees to purchase Securities in at least
the amount of the minimum Offering (if there is any such minimum) setting
forth the material terms of the Offering. Notwithstanding the
foregoing, the Finder shall have the right to refer to any successful
Offering in its Pitchbook or other
advertising.
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14.
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Due
Diligence:
Neither the Company, nor any of its directors, officers or
shareholders, should, in any way rely on the Exclusive Finder to perform
any due diligence with respect to the Company. It is expressly
understood and agreed that to the extent due diligence is conducted; it
will be conducted by the investors.
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15.
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Expenses,
Etc. The compensation described in Section 3 of this Agreement
shall be the Exclusive Finder’s sole compensation for all of its services
and efforts to the Company and its affiliates, in connection with any
offering or placement of Securities. Notwithstanding the foregoing,
however, while the Exclusive Finder shall pay all of its own costs and
expenses exceeding ten thousand ($10,000) in carrying out its activities
hereunder; the Company will reimburse the Exclusive Finder for the first
$10,000 of aforementioned expenses after they have been incurred by the
Exclusive Finder, and an itemized accounting has been provided to the
Company. The Company further agrees to reimburse for legal expenses not to
exceed $25,000. The Exclusive Finder shall be exclusively
responsible for any compensation, fees, commissions or payments of its
employees, agents representatives, co-Exclusive Finders or other persons
or entities utilized by it in connection with its activities on behalf of
the Company, and the Exclusive Finder will indemnify and hold harmless the
Company and its affiliates from the claims of any such persons or
entities.
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16.
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Compliance
with Laws. The Exclusive Finder represents and warrants that it is
a duly registered broker/dealer and in good standing with the SEC, FINRA
and the State of New York and has and shall maintain such registrations as
well as all other necessary licenses and permits to conduct its activities
under this Agreement, which it shall conduct in compliance with applicable
federal and state laws relating to a private placement under Regulation D
of the 1933 Act. The Exclusive Finder represents that it is not a party to
any other agreement, which would conflict with or interfere with the terms
and conditions of this Agreement.
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17.
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Continuity
In the event of disruption of employment of Xxxx Xxxxxxx with Jesup &
Xxxxxx Sec. Corp., all benefits of this agreement will adhere to Xxxx
Xxxxxxx.
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18.
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Assignment
Prohibited. No assignment of this Agreement shall be
made without the prior written consent of the other
party.
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19.
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Amendments. Neither
party may amend this Agreement or rescind any of its existing provisions
without the prior written consent of the other
party.
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20.
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21.
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Waiver. Neither
Exclusive Finder’s nor the Company’s failure to insist at any time upon
strict compliance with this Agreement or any of its terms nor any
continued course of such conduct on their part shall constitute or be
considered a waiver by Exclusive Finder or the Company of any of their
respective rights or privileges under this
Agreement.
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22.
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Severability.
If any provision herein is or should become inconsistent with any present
or future law, rule or regulation of any sovereign government or
regulatory body having jurisdiction over the subject matter of this
Agreement, such provision shall be deemed to be rescinded or modified in
accordance with such law, rule or regulation. In all other
respects, this Agreement shall continue to remain in full force and
effect.
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23.
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Counterparts. This
Agreement may be executed in one or more counterparts, each of which shall
be deemed an original, and will become effective and binding upon the
parties at such time as all of the signatories hereto have signed a
counterpart of this Agreement. All counterparts so executed
shall constitute one Agreement binding on all of the parties hereto,
notwithstanding that all of the parties are not signatory to the same
counterpart. Each of the parties hereto shall sign a sufficient
number of counterparts so that each party will receive a fully executed
original of this Agreement.
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24.
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Entire
Agreement. This Agreement and all other agreements and
documents referred herein constitutes the entire agreement between the
Company and the Exclusive Finder. No other agreements,
covenants, representations or warranties, express or implied, oral or
written, have been made by any party hereto to any other party concerning
the subject matter hereof. All prior and contemporaneous
conversations, negotiations, possible and alleged agreements,
representations, covenants and warranties concerning the subject matter
hereof are merged herein. This is an integrated
Agreement.
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25.
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Arbitration. The parties
agree that this Agreement and all controversies which may arise between
the Exclusive Finder and the Company, whether occurring prior, on or
subsequent to the date of this Agreement, will be determined by
arbitration. The parties understand
that:
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(a)
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Arbitration
is final and binding on the
parties.
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(b)
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The
parties are waiving their right to seek remedies in court, including the
right to a jury trial.
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(c)
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Pre-arbitration
discovery is generally more limited than and different from court
proceedings.
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(d)
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The
arbitrators’ award is not required to include factual findings or legal
reasoning and any party’s right to appeal or to seek modification or
rulings by the arbitrators is strictly
limited.
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(e)
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The
panel of arbitrators will typically include a minority of arbitrators who
were or are affiliated with the securities
industry.
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The
parties agree that any arbitration under this Agreement will be held at the
facilities of and before an Arbitration Panel appointed by the National
Association of Securities Dealers, Inc. (“FINRA”), or if the FINRA refuses to
accept jurisdiction, then before JAMS/ENDISPUTE in New York, New
York. The award of the arbitrators, or of the majority of them, will
be final, and judgments upon the award may be entered in any court, state or
federal, having jurisdiction. The parties hereby submit themselves
and their personal representatives to the jurisdiction of any state or federal
court for the purpose of such arbitration and entering such
judgment.
Any
forbearance to enforce an agreement to arbitrate will not constitute a waiver of
any rights under this Agreement except to the extent stated herein.
THIS
AGREEMENT IS GOVERNED BY A PRE-DISPUTE ARBITRATION CLAUSE CONTAINED IN PARAGRAPH
23 OF THIS AGREEMENT
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Jesup
& Xxxxxx Securities Corp. (the “Exclusive Finder”)
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By:
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/s/ Xxxx
Xxxxxxx
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Xxxx
Xxxxxxx
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Title:
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Sr.
Managing Director
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Co-Head
Investment Banking
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IceWeb,
Inc. (the “Company”)
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By:
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/s/ Xxxx X.
Lucky
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Xxxx
X. Lucky
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Chief
Financial Officer
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