FEE SHARING AGREEMENT
Exhibit
99.1
THIS FEE
SHARING AGREEMENT (this “Agreement”) is dated
as of 24 September, 2008, by and between PRIVATE TRADING SYSTEM PLC (“PTS”) and
its subsidiaries of ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇; DEMATCO INC
(“DEMATCO”) and its subsidiaries of ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇ (together the “Parties”).
RECITALS
A. PTS
operates an electronic trading platform known as “PETS” which can be
used in the trading of products based upon Senior Life Settlement
Policies (“SLSPs”).
B. DEMATCO
intends to acquire either as principal or as agent on behalf of third party
customers), in successive tranches in amounts to be determined, SLSPs and wishes
to convert such Policies into electronic form and thereafter produce other
products based upon the SLSPs and introduce them to a recognized exchange and
trade them.
C. The
Parties now wish to work together to exploit the opportunities arising from the
SLSPs and products based upon them so as to trade such products on
PETS.
AGREEMENT
NOW,
THEREFORE, in consideration of the premises and the mutual covenants contained
herein, and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the Parties hereby agree as
follows:
1. Term. Except
as otherwise expressly provided herein, this Agreement shall commence as of the
date hereof and shall continue until 24 September, 2013 (the “Term”), and
thereafter be renewable on terms to be mutually agreed.
2. Services Provided.
The Parties will provide the following services :
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DEMATCO
will introduce its clients to PTS as the provider of an electronic
platform for trading SLSP’s in real
time.
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PTS
will list the SLSP’s on its PETS trading platform and will provide the
trading mechanism for the SLSPs to be transacted between buyers and
sellers of the SLSP’s
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3. Fees. The Parties
will share fees on the following basis:
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A.
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DEMATCO
will charge its customers fees based upon the face value of the SLSPs and
other products in two stages and DEMATCO hereby agrees that it will pay to
PTS i) ten percent (10%) of the initial fee paid to DEMATCO by
its customers; and ii) twenty percent (20%) of the completion fee paid to
DEMATCO by its customers.
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B.
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PTS
will charge its customers fees based upon the face value of the SLSPs and
other products that it lists on PETS and commissions based upon the
transaction value of SLSPs and other products traded on PETS and PTS
hereby agrees that it will pay to DEMATCO twenty percent (20%) of such
fees and commissions as arise on the SLSPs and other products introduced
to PTS by DEMATCO.
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4. Force Majeure/Regulatory
Approval. Any failure, in whole or in part, by either of the
Parties to perform its obligations hereunder shall be excused to the extent that
such failure is caused by (a) any circumstance which is not within its
reasonable control, including, without limitation, any act of God, flood, fire,
explosion, labor dispute, riot, civil disorder, accident, war or act of
terrorism (such circumstance being hereinafter referred to as, a “Force Majeure Event”)
or (b) any failure by either of the Parties from obtaining all required
regulatory approvals to perform the services hereunder or as a result of any
applicable and conflicting regulations, statutory or otherwise, which such laws
or regulations shall prevail to the extent necessary to avoid conflict (such
failure being hereinafter referred to as, a “Regulatory Event”
and, together with a Force Majeure Event, a “Termination
Event”). If affected by a Termination Event, the affected
Party shall give prompt written notice of such Termination Event to the other
Party. The time for performance by the affected Party of those
obligations affected by the Termination Event shall be extended by the number of
working days which the affected Party, acting with reasonable diligence and in
good faith, is prevented from performing hereunder. In the event of a
Termination Event, the Term shall be extended the same number of days as the
duration of the Termination Event.
5. Representations and
Warranties of DEMATCO.
(a) Authorization. DEMATCO
is duly and legally authorized to enter into this Agreement and has complied
with all laws, rules, regulations, charter provisions and bylaws to which it may
be subject and that the undersigned representative is authorized to act on
behalf of and bind DEMATCO to the terms of this Agreement.
(b) Binding
Obligations. Assuming due authorization, execution and
delivery by each other party hereto, this Agreement and all of the obligations
of DEMATCO hereunder are the legal, valid and binding obligations of DEMATCO,
enforceable in accordance with the terms of this Agreement, except as such
enforcement may be limited by bankruptcy, insolvency, reorganization or other
similar laws affecting the enforcement of creditors' rights generally and by
general equity principles (regardless of whether such enforcement is considered
in a proceeding in equity or at law).
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(c) No Breach or
Default. The execution and delivery of this Agreement and the
performance of its obligations hereunder by DEMATCO will not conflict with any
provision of any law or regulation to which DEMATCO is subject or by which any
of its assets may be bound or conflict with or result in a breach of or
constitute a default under any of the terms, conditions or provisions of any
agreement or instrument to which DEMATCO is a party or by which it or any of its
assets may be bound, or any order or decree applicable to DEMATCO.
(d) Assistance of Third
Parties. DEMATCO hereby agrees, acknowledges, confirms and
understands that (except as otherwise provided herein) PTS shall not have any
responsibility or liability to DEMATCO arising out of or related to any
third-party’s failure to assist or cooperate with DEMATCO. Except as otherwise
provided herein, the risks attendant to the potential failure or refusal of
third-parties to assist or cooperate with DEMATCO and/or PTS in the transactions
contemplated hereby shall be borne by DEMATCO.
(e) No Actions. There is
no proceeding, action, investigation or litigation pending or threatened against
the DEMATCO which, individually or in the aggregate, may have a material adverse
effect on this Agreement or any action taken or to be taken in connection with
the DEMATCO’s obligations contemplated herein, or which would be likely to
impair materially the DEMATCO’s ability to perform under the terms of this
Agreement.
(f) The SLSPs
are
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i.
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freely
tradable and not subject to any claim by any
third-party;
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ii.
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when
converted into electronic form by DEMATCO, will be traded on behalf of
DEMATCO through the electronic trading system operated by PTS or a
subsidiary thereof, or on a recognised Stock
Exchange;
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iii.
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attributed
unique identification numbers; and
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iv.
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contain
a detailed description of the terms and conditions of each such SLSPS
Policy or group of SLSPS Policies is provided and all such descriptions
are kept current to reflect any change in those terms and
conditions.
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6. Representations and
Warranties of PTS.
(a) Authorization. PTS
is duly and legally authorized to enter into this Agreement and has complied
with all laws, rules, regulations, charter provisions and bylaws to which it may
be subject and that the undersigned representative is authorized to act on
behalf of and bind PTS to the terms of this Agreement.
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(b) Binding
Obligations. Assuming due authorization, execution and
delivery by each other party hereto, this Agreement and all of the obligations
of PTS hereunder are the legal, valid and binding obligations of PTS,
enforceable in accordance with the terms of this Agreement, except as such
enforcement may be limited by bankruptcy, insolvency, reorganization or other
similar laws affecting the enforcement of creditors' rights generally and by
general equity principles (regardless of whether such enforcement is considered
in a proceeding in equity or at law).
(c) No Breach or
Default. The execution and delivery of this Agreement and the
performance of its obligations hereunder by PTS will not conflict with any
provision of any law or regulation to which PTS is subject or by which any of
its assets may be bound or conflict with or result in a breach of or constitute
a default under any of the terms, conditions or provisions of any agreement or
instrument to which PTS is a party or by which it or any of its assets may be
bound, or any order or decree applicable to PTS.
(d) No Actions. There is
no proceeding, action, investigation or litigation pending or threatened against
the PTS which, individually or in the aggregate, may have a material adverse
effect on this Agreement or any action taken or to be taken in connection with
the PTS’s obligations contemplated herein, or which would be likely to impair
materially the PTS’s ability to perform under the terms of this
Agreement.
7. Indemnification. From
and after the date hereof, each Party shall defend, indemnify and hold harmless
the other or its respective agents, affiliates, employees, contractors,
officers, directors and representatives against and from any and all liability
for, and from and against any and all losses or damages such Party may suffer as
a result of any claim or threatened claim that such party shall incur or suffer
as a result of: (a) any act or omission of such Party’s agents, affiliates,
employees, contractors, officers, assignees, directors and representatives in
connection with such Party’s obligations under this Agreement; (b) the breach or
inaccuracy of any of such Party’s representations or warranties as set forth in
this Agreement; or (c) the breach of any of such Party’s covenants as set forth
in this Agreement; provided however, that such Party shall not be liable to any
other party or such party’s agents for any portion of any of the foregoing
amounts resulting from such other party’s breach of this Agreement, or the
willful malfeasance, bad faith or gross negligence of the such other party or
its agents.
8. Entire Agreement;
Modification. This Agreement constitutes the entire and
complete agreement between the parties hereto with respect to the subject matter
hereof and supersedes and replaces all prior agreements, commitments,
communications, representations and understandings, both written and oral,
between the parties with respect to the subject matter hereof. This
Agreement may not be amended, supplemented, or otherwise modified except by a
written agreement executed by each of the parties.
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9. Survival. The
provisions set forth in Sections 5 6, and 7 shall survive the termination of
this Agreement.
10. Notices. All
notices, requests, demands, claims and other communications required or
permitted to be given or made hereunder must be in writing and, unless expressly
agreed otherwise, by e-mail at latest email address, or if an email is not
practical or is returned, then by post. Any notice, request, demand,
claim, or other communication hereunder shall be deemed duly given and received
(a) if personally delivered, when so delivered, (b) if mailed, three
(3) business days after having been sent by registered or certified mail, return
receipt requested, postage prepaid and addressed to the intended recipient as
set forth below, (c) if sent through an overnight delivery service in
circumstances to which such service guarantees next day delivery, the next
Business Day following being so sent, and (d) if sent by electronic
facsimile or email, once such notice or other communication is transmitted to
the fax number specified below and the appropriate printed confirmation of
transmission is received, provided that such notice or other communication is
promptly thereafter mailed in accordance with the provisions of clause (b)
above or sent by overnight delivery service in accordance with clause (c)
above:
| (a) If to DEMATCO Inc, addressed to: |
| ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ | |||
| ▇▇▇▇▇ ▇▇▇ | |||
| ▇▇▇▇▇▇ | |||
| ▇▇ ▇▇▇▇▇ | |||
| Or | |||
| ▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇ | |||
| ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ | |||
| ▇▇▇▇▇ ▇▇▇ ▇▇▇ | |||
| Attn: ▇ ▇ ▇▇▇▇▇▇▇ | |||
| Email: ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇.▇▇▇ | |||
| Fax: ▇-▇▇▇-▇▇▇-▇▇▇▇ or ▇▇-▇▇▇▇-▇▇▇▇▇▇ |
| (b) If to PRIVATE TRADING SYSTEMS plc, addressed to: |
| Private Trading Systems PLC | |||
| ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ | |||
| ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ | |||
| Attn: ▇ ▇ ▇▇▇▇▇ | |||
| Email: ▇▇▇▇▇▇▇@▇▇▇▇.▇▇▇ or ▇▇▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇.▇▇.▇▇ | |||
| Fax: ▇▇▇ ▇▇▇▇ ▇▇▇▇ |
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Either
party may give any notice, request, demand, claim or other communication
hereunder using any other means (including, without limitation, electronic
mail), but no such notice, request, demand, claim or other communication shall
be deemed to have been duly given or received unless and until it actually is
received by the party for which it is intended and the notifying party can
provide evidence of such actual receipt. Either party may change its
address or fax number for the receipt of notices, requests, demands, claims and
other communications hereunder by giving the other party notice of such change
in the manner herein set forth.
11. Assignments; Successors; No
Third-Party Rights. Neither party may assign any of its rights
or delegate or cause to be assumed any of its obligations under this Agreement
without the prior written consent of the other party. Subject to the
preceding sentence, this Agreement shall apply to, be binding in all respects
upon and inure to the benefit of the successors and permitted assigns of the
parties. Nothing expressed or referred to in this Agreement shall be
construed to give any Person other than the parties hereto any legal or
equitable right, remedy or claim under or with respect to this Agreement or any
provision of this Agreement, except such rights as shall inure to a successor or
permitted assign pursuant to this Section 11.
12. Waiver; Remedies
Cumulative. The rights and remedies of the parties hereunder
are cumulative and not alternative. Neither any failure nor any delay
by either party in exercising any right, power or privilege under this Agreement
or any of the documents referred to in this Agreement shall operate as a waiver
of such right, power or privilege, and no single or partial exercise of any such
right, power or privilege shall preclude any other or further exercise of such
right, power or privilege or the exercise of any other right, power or
privilege. To the maximum extent permitted by applicable law, (a) no
claim or right arising out of this Agreement or any of the documents referred to
in this Agreement can be discharged by one party, in whole or in part, by a
waiver or renunciation of the claim or right unless made in writing and signed
by the other party, (b) no waiver that may be given by a party shall be
applicable except in the specific instance for which it is given, and (c) no
notice to or demand on one party shall be deemed to be a waiver of any
obligation of that party or of the right of the party giving such notice or
demand to take further action without notice or demand as provided in this
Agreement or the documents referred to in this Agreement.
13. Governing
Law. This Agreement shall be governed in all respects,
including as to validity, interpretation and effect, by English law without
regard to conflicts-of-laws principles that would require the application of any
other law.
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14. Forum for Disputes;
Costs. Each party hereby agrees to the exclusive jurisdiction
of the English Courts with respect to any claim or cause of action arising under
or relating to this Agreement, and waives personal service of any and all
process upon it, and consents that all services of process be made by registered
or certified mail, return receipt requested, directed to it at its address as
set forth in Section
10 hereof, and service so made shall be deemed to be completed when
received. Each party hereby waives any objection based on forum non conveniens and
waives any objection to venue of any action instituted
hereunder. Nothing in this Section 13 shall
affect the right of either party to serve legal process in any other manner
permitted by applicable law. If any Proceeding is brought in
connection with this Agreement, the prevailing party shall be entitled to
recover reasonable attorneys’ fees, accounting fees, and other costs incurred in
that Proceeding, in addition to any other relief to which it may be
entitled.
THE
PARTIES HEREBY WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY PROCEEDING ARISING OUT OF
OR RELATING TO THIS AGREEMENT OR ANY OF THE CONTEMPLATED TRANSACTIONS, WHETHER
NOW EXISTING OR HEREAFTER ARISING, AND WHETHER SOUNDING IN CONTRACT, TORT OR
OTHERWISE. THE PARTIES AGREE THAT ANY OF THEM MAY FILE A COPY OF THIS
SECTION 13 WITH
ANY COURT AS WRITTEN EVIDENCE OF THE KNOWING, VOLUNTARY AND BARGAINED-FOR
AGREEMENT AMONG THE PARTIES IRREVOCABLY TO WAIVE TRIAL BY JURY AND THAT ANY
PROCEEDING WHATSOEVER BETWEEN THEM RELATING TO THIS AGREEMENT OR ANY OF THE
CONTEMPLATED TRANSACTIONS SHALL INSTEAD BE TRIED IN A COURT OF COMPETENT
JURISDICTION BY A JUDGE SITTING WITHOUT A JURY.
15. Execution of
Agreement. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original copy and all of
which, when taken together, shall be deemed to constitute one and the same
agreement. The exchange of copies of this Agreement and of signature
pages by facsimile transmission shall constitute effective execution and
delivery of this Agreement as to the parties and may be used in lieu of the
original Agreement for all purposes. Signatures of the parties
transmitted by facsimile shall be deemed to be their original signatures for all
purposes.
THE
REMAINDER OF THIS PAGE HAS BEEN LEFT BLANK DELIBERATELY
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IN
WITNESS WHEREOF, the parties have executed this Agreement as of the date first
written above.
| DEMATCO INC. | |||
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By:
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/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ | ||
| Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ | |||
| Title: Chief Executive Officer | |||
| PRIVATE TRADING SYSTEMS PLC | |||
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By:
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/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ | ||
| Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ | |||
| Title: Chief Executive Officer |
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