STRICTLY CONFIDENTIAL Intellipharmaceutics International Inc.
Exhibit 99.4
March
12, 2018
STRICTLY CONFIDENTIAL
▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
▇▇▇▇▇▇
Attn:
Isa Odidi, Ph.D., Chairman & Chief Executive
Officer
Dear
▇▇. ▇▇▇▇▇:
This
letter agreement (this “Agreement”) constitutes
the agreement between Intellipharmaceutics International Inc. (the
“Company”) and ▇.▇.
▇▇▇▇▇▇▇▇▇▇ & Co., LLC (“▇▇▇▇▇▇▇▇▇▇”), that
▇▇▇▇▇▇▇▇▇▇ shall, subject to the terms hereof, serve as the
exclusive agent in a registered direct offering (the
“Offering”) in the United
States of securities of the Company (the “Securities”) during the
Term (as hereinafter defined) of this Agreement. The terms of the
Offering and the Securities issued in connection therewith shall be
mutually agreed upon by the Company and ▇▇▇▇▇▇▇▇▇▇ and nothing
herein implies that ▇▇▇▇▇▇▇▇▇▇ 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
▇▇▇▇▇▇▇▇▇▇’▇ assistance in the Offering will be subject to
the satisfactory completion of such investigation and inquiry into
the affairs of the Company as ▇▇▇▇▇▇▇▇▇▇ deems appropriate under
the circumstances and to the receipt of all internal approvals of
▇▇▇▇▇▇▇▇▇▇ in connection with the transaction. The Company
expressly acknowledges and agrees that ▇▇▇▇▇▇▇▇▇▇’▇
involvement in the 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 ▇▇▇▇▇▇▇▇▇▇ to
purchase the Securities and does not ensure a successful Offering
of the Securities or the success of ▇▇▇▇▇▇▇▇▇▇ with respect to
securing any other financing on behalf of the Company. ▇▇▇▇▇▇▇▇▇▇
may retain other brokers, dealers, agents or underwriters on its
behalf in connection with the Offering.
Notwithstanding the
foregoing, ▇▇▇▇▇▇▇▇▇▇’▇ exclusivity shall not apply to, and
the Company shall not be prohibited from (and shall not be required
to pay any fee to ▇▇▇▇▇▇▇▇▇▇ or any other broker, dealer, agent or
other party engaged by ▇▇▇▇▇▇▇▇▇▇) 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,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ | 212.356.0500 |
▇▇▇.▇▇▇▇▇.▇▇▇
Member: FINRA/SIPC
directors or
employees of the Company and any affiliate thereof without the
involvement of any investment bank or other
broker-dealer.
A. Compensation;
Reimbursement. At the closing
of the Offering (“Closing”),
the Company shall compensate ▇▇▇▇▇▇▇▇▇▇ as
follows:
1.
Cash Fee. The Company shall pay to ▇▇▇▇▇▇▇▇▇▇ a cash fee,
or as to an underwritten Offering an underwriter discount, equal to
7.0% of the aggregate gross proceeds raised in the
Offering.
2.
Warrant
Coverage. The Company shall
issue to ▇▇▇▇▇▇▇▇▇▇ or its designees at the Closing, warrants (the
“▇▇▇▇▇▇▇▇▇▇
Warrants”) to purchase
that number of common shares of the Company equal to 5.0% of the
aggregate number of common shares placed in the Offering and issued
at 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 ▇▇▇▇▇▇▇▇▇▇ Warrants to be issuable
upon the closing of exercise of such option). The ▇▇▇▇▇▇▇▇▇▇
Warrants shall have the same terms as the warrants issued to
investors in the applicable Offering, except that such ▇▇▇▇▇▇▇▇▇▇
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 ▇▇▇▇▇▇▇▇▇▇ Warrants
shall be in a customary form reasonably acceptable to ▇▇▇▇▇▇▇▇▇▇
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 the Closing, the Company also agrees to pay ▇▇▇▇▇▇▇▇▇▇ (a)
$25,000 for non-accountable expenses of ▇▇▇▇▇▇▇▇▇▇ in connection
with the transaction and (b) up to $40,000 for invoiced fees and
expenses of legal counsel and other invoiced out-of-pocket
expenses; 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. ▇▇▇▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇▇▇▇ 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, ▇▇▇▇▇▇▇▇▇▇ 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 the 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, ▇▇▇▇▇▇▇▇▇▇ (or any affiliate designated
by ▇▇▇▇▇▇▇▇▇▇) 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, ▇▇▇▇▇▇▇▇▇▇ (or
any affiliate designated by ▇▇▇▇▇▇▇▇▇▇) shall have the right to act
as sole book-runner, sole manager, sole underwriter or sole
placement agent for such financing. If ▇▇▇▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇▇▇▇’▇ exclusive
engagement will begin on the date hereof and end on the earlier of
(i) thirty (30) days after the date hereof and (ii) consummation of
the Offering (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 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 ▇▇▇▇▇▇▇▇▇▇ its actual and
accountable out-of-pocket expenses related to an Offering
(including the reasonable fees and disbursements of
▇▇▇▇▇▇▇▇▇▇’▇ legal counsel); provided, however, that such
expenses shall not exceed $35,000 in the aggregate. During
▇▇▇▇▇▇▇▇▇▇’▇ engagement hereunder: (i) the Company will not,
and will not permit its representatives to, other than in
coordination with ▇▇▇▇▇▇▇▇▇▇, 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 ▇▇▇▇▇▇▇▇▇▇’▇
engagement hereunder, all inquiries, whether direct or indirect,
from prospective investors will be referred to ▇▇▇▇▇▇▇▇▇▇ and will
be deemed to have been contacted by ▇▇▇▇▇▇▇▇▇▇ 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 the Offering.
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C. Information;
Reliance. The Company shall
furnish, or cause to be furnished, to ▇▇▇▇▇▇▇▇▇▇ all information
reasonably requested by ▇▇▇▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇▇▇▇
upon reasonable request from time to time the officers, directors,
accountants, counsel and other advisors of the Company. The Company
recognizes and confirms that ▇▇▇▇▇▇▇▇▇▇ (a) will use and rely on
the Information, including any documents provided to investors in
the 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 ▇▇▇▇▇▇▇▇▇▇ or its representatives to discuss all
information relevant for disclosure in the Offering Documents and
will cooperate in any investigation undertaken by ▇▇▇▇▇▇▇▇▇▇
thereof, including any document included or incorporated by
reference therein. At the Closing, at the request of ▇▇▇▇▇▇▇▇▇▇,
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 ▇▇▇▇▇▇▇▇▇▇ and its counsel
as is customary for such Offering. ▇▇▇▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇▇▇▇ shall enter into
a customary underwriting agreement in form and substance
satisfactory to ▇▇▇▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇▇▇▇. ▇▇▇▇▇▇▇▇▇▇ 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 the
Offering, the Company and ▇▇▇▇▇▇▇▇▇▇ shall enter into an escrow
agreement with a third party escrow agent, which may also be
▇▇▇▇▇▇▇▇▇▇’▇ clearing agent, pursuant to which
▇▇▇▇▇▇▇▇▇▇’▇ compensation and expenses shall be paid from the
gross proceeds of the Securities sold. If the Offering is settled
in whole or in part via delivery versus payment
(“DVP”), ▇▇▇▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇▇▇▇
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 ▇▇▇▇▇▇▇▇▇▇ 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 the
Offering, ▇▇▇▇▇▇▇▇▇▇ shall have the right to disclose its
participation in such Offering, including, without limitation, the
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, ▇▇▇▇▇▇▇▇▇▇ will keep strictly
confidential (and not disclose) all non-public information
concerning the Company provided to ▇▇▇▇▇▇▇▇▇▇. 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 ▇▇▇▇▇▇▇▇▇▇ of this provision, (b) was
known or became known by ▇▇▇▇▇▇▇▇▇▇ prior to the Company’s
disclosure thereof to ▇▇▇▇▇▇▇▇▇▇, (c) becomes known to ▇▇▇▇▇▇▇▇▇▇
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 ▇▇▇▇▇▇▇▇▇▇, (d) is disclosed by the Company to a third party
without restrictions on its disclosure or (e) is independently
developed by ▇▇▇▇▇▇▇▇▇▇. In no event shall any information be used
by ▇▇▇▇▇▇▇▇▇▇ for any purpose other than in connection with
▇▇▇▇▇▇▇▇▇▇’▇ activities on behalf of the Company in respect
of the Offering. In the event that ▇▇▇▇▇▇▇▇▇▇ is legally required
to make disclosure of any such information, ▇▇▇▇▇▇▇▇▇▇ will give
notice to the Company prior to such disclosure, to the extent that
▇▇▇▇▇▇▇▇▇▇ can practically do so or unless such notice would
violate applicable law, rule or regulation, legal or regulatory
process or professional standard. ▇▇▇▇▇▇▇▇▇▇’▇ obligations of
confidentiality hereunder shall extend to its officers, directors,
employees, agents and representatives. References to ▇▇▇▇▇▇▇▇▇▇ in
this paragraph shall be deemed to include ▇▇▇▇▇▇▇▇▇▇ 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 the 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 ▇▇▇▇▇▇▇▇▇▇ as Offering agent, the Company hereby agrees to
indemnify and hold harmless ▇▇▇▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇▇▇▇, or (B) otherwise relate to or arise out
of ▇▇▇▇▇▇▇▇▇▇’▇ activities on the Company’s behalf
under ▇▇▇▇▇▇▇▇▇▇’▇ 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
▇▇▇▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇▇▇▇ is the Indemnified Person),
the Company and ▇▇▇▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇▇▇▇ on the other, in connection with
▇▇▇▇▇▇▇▇▇▇’▇ engagement referred to above, subject to the
limitation that in no event shall the amount of ▇▇▇▇▇▇▇▇▇▇’▇
contribution to such Claim exceed the amount of fees actually
received by ▇▇▇▇▇▇▇▇▇▇ from the Company pursuant to
▇▇▇▇▇▇▇▇▇▇’▇ engagement. The Company hereby agrees that the
relative benefits to the Company, on the one hand, and ▇▇▇▇▇▇▇▇▇▇
on the other, with respect to ▇▇▇▇▇▇▇▇▇▇’▇ 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
▇▇▇▇▇▇▇▇▇▇ is engaged to render services bears to (b) the fee paid
or proposed to be paid to ▇▇▇▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇▇▇▇ has been retained only by
the Company, that ▇▇▇▇▇▇▇▇▇▇ is providing services hereunder as an
independent contractor (and not in any fiduciary or agency
capacity) and that the Company’s engagement of ▇▇▇▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇▇▇▇,
no one other than the Company is authorized to rely upon this
Agreement or any other statements or conduct of ▇▇▇▇▇▇▇▇▇▇, 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 ▇▇▇▇▇▇▇▇▇▇ to the Company in
connection with ▇▇▇▇▇▇▇▇▇▇’▇ 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. ▇▇▇▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇▇▇▇.
7
H. Limitation
of ▇▇▇▇▇▇▇▇▇▇’▇ Liability to the Company. ▇▇▇▇▇▇▇▇▇▇ and the Company further agree that
neither ▇▇▇▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇▇▇▇ and that
are finally judicially determined to have resulted solely from
fraud, gross negligence or willful misconduct of
▇▇▇▇▇▇▇▇▇▇.
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 ▇▇▇▇▇▇▇▇▇▇ 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
▇▇▇▇▇▇▇▇▇▇, at the address set forth on the first page hereof,
e-mail: ▇▇▇▇▇▇▇@▇▇▇▇▇.▇▇▇, Attention: Head of Investment Banking,
and if sent to the Company, to the address set forth on the first
page hereof, e-mail: ▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇,
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.
8
K. Conflicts.
The Company acknowledges that ▇▇▇▇▇▇▇▇▇▇ and its affiliates may
have and may continue to have investment banking and other
relationships with parties other than the Company pursuant to which
▇▇▇▇▇▇▇▇▇▇ may acquire information of interest to the Company.
▇▇▇▇▇▇▇▇▇▇ 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
▇▇▇▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇▇▇▇ and the Company. This Agreement shall be binding upon
and inure to the benefit of both ▇▇▇▇▇▇▇▇▇▇ and the Company and
their respective assigns, successors, and legal representatives.
This Agreement constitutes the entire agreement of ▇▇▇▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇▇▇▇’▇ existing rights
pursuant to that certain Engagement Agreement dated as of October
10, 2017 by and between the company and ▇▇▇▇▇▇▇▇▇▇ 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.
*********************
9
In
acknowledgment that the foregoing correctly sets forth the
understanding reached by ▇▇▇▇▇▇▇▇▇▇ and the Company, please sign in
the space provided below, whereupon this letter shall constitute a
binding Agreement as of the date indicated above.
Very
truly yours,
▇.▇.
▇▇▇▇▇▇▇▇▇▇ & CO., LLC
By:
/s/ ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇
Name:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title:
Chief Operating Officer
Accepted
and Agreed:
By:
/s/ Dr. Isa
Odidi___________________________________
Name:
Dr. Isa Odidi
Title:
Chief Executive Officer
10