1
XXXXXX XXXXX & COMPANY
INVESTMENT BANKING
EXHIBIT 10.9
October 20, 1999
Xxxxx Xxxx
Chairman of the Board
Sonus Communication Holdings Inc.
0000 Xxxxxx Xxxx., Xxxxx 0000
Xxxxxxxxx, XX 00000
Dear Xx. Xxxx:
The purpose of this letter is to confirm the understanding and agreement (the
"Agreement") between Xxxxxx Xxxxx & Co. ("HA") and Sonus Communication Holdings,
Inc. (or the "Company"), regarding the retention of HA by the Company as its
financial advisor for the purposes set forth herein. For purposes hereof,
references to the Company include any subsidiaries or affiliates thereof.
Under this Agreement, HA will provide merger and acquisition as well as
investment banking services to the Company as follows:
Investment Banking: On a non-exclusive basis, for a period of one year, renewing
automatically unless cancelled, HA will introduce the Company to persons,
whether individuals or entities, that may be suitable candidates for providing
the Company with debt, equity or lease financing. HA will introduce Sonus to
Investment banks, market makers, research firms, telecommunication partners and
other corporate and individuals who may be able to assist in the execution of
Xxxxx' business plans. If, at any time during the term of this Agreement, the
Company enters into an agreement with any persons or their affiliates introduced
by Xxxxxx Xxxxx & Co., pursuant to which the Company obtains debt, equity, lease
or other financing including a merger (the "Financing"), the Company will pay to
HA, in accordance with the formula set forth below.
Merger and Acquisitions. In addition, on a non-exclusive basis, HA may from time
to time introduce the Company to entities, that may be suitable candidates to
acquire The Company or to be acquired by The Company. If, at any time during the
term of this Agreement, the Company enters into an agreement with any persons or
their affiliates introduced by Xxxxxx Xxxxx & Co., pursuant to which the Company
completes a merger or makes an acquisition of another company (the "Financing"),
the Company will pay to HA, in accordance with the formula set forth below.
XXXXXX XXXXX & COMPANY
MEMBERS NASD & SIPC
000 XXXXXXXXX XX. SOUTH SALEM, NY 10590
TEL. 000-000-0000, FAX 000-000-0000, EMAIL: XXXXXXX@XXXXXXX.XXX
2
XXXXXX XXXXX & COMPANY
INVESTMENT BANKING
The Company agrees to pay the following fees to HA for its management, merger
and acquisition and investment banking services:
Retention: Upon signing this agreement, Sonus Communications will pay a retainer
of 500,000 warrants at $3.00 that shall vest according to the performance
criteria as follows: 100,000 warrants shall become exercisable upon the signing
of this Agreement, and 100,000 warrants shall vest for each $2 million of
financing completed by Xxxxxx Xxxxx up to $8 million of total financing..
Warrants may vest only during the first two years of this contract. Any Warrants
not vested at the end of two years shal be cancelled Vested Warrants shall be
exercisable for a period of five (5) years from date of issuance of the
Warrants. The terms of said warrants shall include piggyback registration rights
with underwriter cutback provisions; acceptable anti-dilution rights, and shall
provide for a "cashless" exercise provision in the event of exercise by HA These
shares shall include a two year good faith lock-up. In addition, upon completion
of a minimum raise of $1,000,000 by any party or parties, Sonus shall pay a
monthly retainer of $6,000 to HA.
1. In the event of an equity or equity-linked Financing consummated by a
source introduced to the Company by HA, a fee in an amount equal to 8% of
the Financing, payable upon the closing or closings of the Financing,
plus warrants to purchase 8% of the number of shares of common stock sold
in the Financing, at an initial exercise price equal to the sale price of
the common stock. This fee shall be reduced to 5% cash and 5% warrants
after the first $5,000,000 is raised in any single offering. In the event
of lease financing, the above fees will be reduced zero. of the amount of
the Financing. Said warrants shall be exercisable for a period of five
(5) years from date of issuance. The terms of said warrants shall include
piggyback registration rights; acceptable anti-dilution rights, and shall
provide for a "cashless" exercise provision in the event of exercise by
HA. In the event that HA introduces Sonus to an investment bank who
raises funds for the company, then Xxxxx shall raise no objections to HA
receiving a finders fee of 15% of any such fees to be payable by the
investment bank.
2. In the event of a merger or acquisition consummated by a source
introduced to the Company by HA, a fee in the amount of 3% shall be
payable to HA. In any event, if within one year after termination of this
agreement, or any time while this agreement is in effect, The Company is
acquired by another entity not introduced by HA and HA works on such
transaction, HA shall be paid 1% of the transaction value.
In addition to any fees that may be payable to HA under this Agreement, the
Company agrees to reimburse HA, for its reasonable out of-pocket expenses up to
$1,500.00 per month incurred (pass-through only in connection with the services
rendered by HA hereunder, including, without limitation, travel and lodging,
data and word processing, graphics and communication charges, research costs,
and courier services and fees). HA will, on a monthly basis, provide the Company
with information regarding the expenses incurred. Compensation for any
additional professional services (e.g. legal or consulting) contracted for by
HA, to be performed for the benefit of the Company by outside parties, is the
responsibility of the Company and will be paid directly by the Company to such
party. HA will not contract for such services without the prior approval of the
Company
3
XXXXXX XXXXX & COMPANY
INVESTMENT BANKING
with regard to both the nature of the service and a reasonable estimate
of the cost of such service. The Company understands that it is customary for
the company to pay the investors reasonable attorney's fees directly out of
escrow, and agrees to do.
All cash payments under this Agreement shall be made in U.S. dollars and without
withholding or deduction of any tax, assessment or other governmental charge
(collectively, 'Tax"), unless required by law.
The Company will furnish or cause to be furnished to HA such information as HA
believes appropriate to its assignment (all such information so furnished being
the "Information"). The Company recognizes and confirms that HA; (a) will use
and rely primarily on the Information 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 Information and
such other information, (c) is entitled to rely upon the Information without
independent verification and (d) will not make an appraisal of any assets in
connection with its assignment.
Except as contemplated by the terms hereof or as required by applicable law or
legal process, HA shall keep confidential all material non-public information
provided to it by or at the request of the Company, and shall not disclose such
information to any third party or to any of its employees or advisors except to
those persons who have a need to know such information in connection with HA's
performance of its responsibilities hereunder. HA agrees that any confidential
information will not be used in connection with any other engagement of HA
whether during the term of this engagment or for a period of five years after
the conclusion of this Agreement.
The Company acknowledges and agrees that HA has been retained to act as
financial advisor to the Company. In such capacity, HA shall act as an
independent contractor, and any duties of HA arising out of its engagement
pursuant to this Agreement shall be owed solely to the Company. The Company
agrees to indemnify HA in accordance with the indemnification agreement attached
as Exhibit A.
Except as required by applicable law, any advice to be provided by HA under this
Agreement shall not be disclosed publicly or made available to third parties
without the prior written consent of HA. In addition, HA may not be otherwise
publicly referred to without its prior written consent. All services, advice and
information and reports provided by HA to the Company in connection with this
assignment shall be for the sole benefit of the Company and shall not be relied
upon by any other person.
The term of HA's engagement hereunder shall extend for one year from the date
above first writtern (the "Expiration Date") and will be automatically renewed
on a monthly basis until canceled in writing by either party. HA's engagement
hereunder may be terminated upon 10 days written notice without cause by either
the Company or HA at any time after the Expiration Date. Notwithstanding the
foregoing, the provisions relating to the payment of fees and expenses accrued
through the date of termination, the
4
XXXXXX XXXXX & COMPANY
INVESTMENT BANKING
status of HA as an independent contractor, the confidentiality requirements and
the limitation on to whom HA shall owe any duties will survive any such
termination, and any such termination shall not affect the Company's obligations
under the indemnification agreement. HA will be entitled to the fees set forth
above in the event that at any time prior to the expiration of 12 months after
such termination (or the expiration of HA's engagement hereunder) a Financing is
consummated or merger or acquisition and: i) there was contact by or through HA
or its affiliates with the other party to the Financing, or an affiliate thereof
regarding Financing during the period of the engagement; or ii) any materials,
presentations or analyses prepared by HA are provided to the other party prior
to consummation of a Financing.
The Company acknowledges that HA may, at its option and expense, place an
announcement in such newspapers and periodicals as it may choose, stating that
HA has acted as the financial advisor to the Company. HA agrees that the Company
will have the right to approve the form of such announcement.
This Agreement (including the attached indemnification) embodies the entire
agreement and understanding between the parties hereto and supersedes all prior
agreements and understandings relating to the subject matter hereof. 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,
which will remain in full force and effect. No waiver, amendment or other
modification of this Agreement shall be effective unless in writing and signed
by each party to be bound thereby. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York applicable to
contracts executed in and to be performed in that state.
Please confirm that the foregoing correctly sets forth our agreement by signing
and returning to HA the duplicate copy of this Agreement and the indemnification
agreement attached hereto as Exhibit A by the close of business on November 5,
1999.
Very truly yours,
By
--------------------------
Xxxxx Xxxxxx
Xxxxxx Xxxxx Co.
Accepted and Agreed
By
----------------------------
Xxxxx Xxxx
Chairman of the Board
Sonus Communication Holdings, Inc.
5
XXXXXX XXXXX & COMPANY
INVESTMENT BANKING
This SCHEDULE A is a part of and is incorporated into that certain letter
agreement, dated October 5th, 1999 (the "Agreement"), by and between Sonus
Communications Inc.,a Delaware corporation (with its wholly-owned subsidiaries
collectively, the "Company"), and Xxxxxx Xxxxx & Co. (the "Placement Agent").
Capitalized terms used herein and not otherwise defined shall have the
respective meanings provided in the Agreement.
The Company agrees to indemnify and hold harmless the Placement Agent, its
affiliates and each person controlling the Placement Agent (within the meaning
of Section 15 of the Securities Act), and the directors, officers, agents and
employees of the Placement Agent, its affiliates and each such controlling
person (the Placement Agent, and each such entity or person, an "Indemnified
Person") from and against any losses, claims, damages, judgments, assessments,
costs and other liabilities (collectively, the "Liabilities"), and shall
reimburse each Indemnified Person for all fees and expenses (including the
reasonable fees and expenses of one counsel for all Indemnified Persons, except
as otherwise expressly provided herein) (collectively, the "Expenses") as they
are incurred by an Indemnified Person in investigating, preparing, pursuing or
defending any claim, action, proceeding or investigation, whether or not any
Indemnified Person is a party thereto (collectively, the "Actions"), (i) caused
by, or arising out of or in connection with, any untrue statement or alleged
untrue statement of a material fact contained in any offering documents prepared
by the Company (including any amendments thereof and supplements thereto) (the
"Offer Documents") or by any omission or alleged omission to state therein a
material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading (other than untrue
statements or alleged untrue statements in, or omissions or alleged omissions
from, information relating to an Indemnified Person furnished in writing by or
on behalf of such Indemnified Person expressly for use in the Offer Documents)
or (ii) otherwise arising out of or in connection with advice or services
rendered or to be rendered by any Indemnified Person pursuant to the Agreement,
the transactions contemplated thereby or any Indemnified Person's actions or
inactions in connection with any such advice, services or transactions;
provided, however, that, in the case of clause (ii) only, the Company shall not
be responsible for any Liabilities or Expenses of any Indemnified Person that
have resulted primarily from any Indemnified Person's (x) gross negligence, bad
faith or willful misconduct in connection with any of the advice, actions,
inactions or services referred to above or (y) use of any offering materials or
information concerning the Company in connection with the offer or sale of the
Securities in the Transaction which were not authorized for such use by the
Company and which use constitutes negligence, bad faith or willful misconduct.
The Company also agrees to reimburse each Indemnified Person for all Expenses as
they are incurred in connection with enforcing such Indemnified Person's rights
under the Agreement, which includes this SCHEDULE A.
Upon receipt by an Indemnified Person of actual notice of an Action against such
Indemnified Person with respect to which indemnity may be sought under the
Agreement, such Indemnified Person shall promptly notify the Company in writing;
provided that failure by any Indemnified Person so to notify the Company shall
not relieve the Company from any liability which the Company may have on account
of this indemnity or otherwise to such Indemnified Person, except to the extent
the Company shall have been prejudiced by such failure. The Company shall, if
requested by the Placement Agent, assume the defense of any such Action
including the employment of counsel reasonably satisfactory to the Placement
Agent, which counsel may also be counsel to the Company. Any Indemnified Person
shall have the right to employ separate counsel in any such action and
participate in the defense thereof, but the fees and expenses of such counsel
shall be at the expense of such Indemnified Person unless: (i) the Company has
failed promptly to assume the defense and employ counsel or (ii) the named
parties to any such Action (including any impleaded parties) include such
Indemnified Person and the Company, and such Indemnified Person shall have been
advised in the reasonable opinion of counsel that there is an actual conflict of
interest that prevents the counsel selected by the Company from representing
both the Company (or another client of such counsel) and any Indemnified Person;
provided that the Company shall not in such event be responsible hereunder for
the fees and expenses of more than one firm of separate counsel for all
Indemnified Persons in connection with any Action or related Actions, in
addition to any local counsel. The Company shall not be liable for any
settlement of any Action effected without its written consent (which shall not
be unreasonably withheld). In addition, the Company shall not, without the prior
written
6
XXXXXX XXXXX & COMPANY
INVESTMENT BANKING
consent of the Placement Agent (which shall not be unreasonably withheld),
settle, compromise or consent to the entry of any judgment in or otherwise seek
to terminate any pending or threatened Action in respect of which
indemnification or contribution may be sought hereunder (whether or not such
Indemnified Person is a party thereto) unless such settlement, compromise,
consent or termination includes an unconditional release of each Indemnified
Person from all Liabilities arising out of such Action for which indemnification
or contribution may be sought hereunder. The indemnification required hereby
shall be made by periodic payments of the amount thereof during the course of
the investigation or defense, as such expense, loss, damage or liability is
incurred and is due and payable.
In the event that the foregoing indemnity is unavailable to an Indemnified
Person other than because of the proviso at the end of paragraph 2 above or
otherwise in accordance with the Agreement, the Company shall contribute to the
Liabilities and Expenses paid or payable by such Indemnified Person in such
proportion as is appropriate to reflect (i) the relative benefits to the
Company, on the one hand, and to the Placement Agent and any other Indemnified
Person, on the other hand, of the matters contemplated by the Agreement or (ii)
if the allocation provided by the immediately preceding clause is not permitted
by applicable law, not only such relative benefits but also the relative fault
of the Company, on the one hand, and the Placement Agent and any other
Indemnified Person, on the other hand, in connection with the matters as to
which such Liabilities or Expenses relate, as well as any other relevant
equitable considerations; provided that in no event shall the Company contribute
less than the amount necessary to ensure that all Indemnified Persons, in the
aggregate, are not liable for any Liabilities and Expenses in excess of the
amount of fees actually received by the Placement Agent pursuant to the
Agreement. For purposes of this paragraph, the relative benefits to the Company,
on the one hand, and to the Placement Agent on the other hand, of the matters
contemplated by the Agreement shall be deemed to be in the same proportion as
(a) the total value paid or contemplated to be paid to or received or
contemplated to be received by the Company in the transaction or transactions
that are within the scope of the Agreement, whether or not any such transaction
is consummated, bears to (b) the fees paid to the Placement Agent under the
Agreement. Notwithstanding the above, no person guilty of fraudulent
misrepresentation within the meaning of Section 11(f) of the Securities Act of
1933, as amended, shall be entitled to contribution from a party who was not
guilty of fraudulent misrepresentation.
The Company also agrees that no Indemnified Person shall have any liability
(whether direct or indirect, in contract or tort or otherwise) to the Company
for or in connection with advice or services rendered or to be rendered by any
Indemnified Person pursuant to the Agreement, the transactions contemplated
thereby or any Indemnified Person's actions or inactions in connection with any
such advice, services or transactions except for Liabilities (and related
Expenses) of the Company that have resulted primarily from such Indemnified
Person's gross negligence, bad faith or willful misconduct in connection with
any such advice, actions, inactions or services.
The reimbursement, indemnity and contribution obligations of the Company set
forth herein shall apply to any modification of the Agreement and shall remain
in full force and effect regardless of any termination of, or the completion of
any Indemnified Person's services under or in connection with, the Agreement.
