1
EXHIBIT 10.19
[SOUNDVIEW TECHNOLOGY GROUP LOGO]
One Embarcadero Center
Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
TEL: 000-000-0000
FAX: 000-000-0000
WEBSITE: XXX.XXXXXXXXX.XXX
February 10, 2000
PERSONAL AND CONFIDENTIAL
Xx. Xxxx Xxxxxxx
Co-Chief Executive Officer
Tricord Systems, Inc.
0000 Xxxxxxxxx Xxxxxxxxx
Xxxxx 00
Xxxxxxxx, XX 00000
Dear Xxxx:
This letter agreement ("Agreement") outlines the terms upon which SoundView
Technology, Inc. ("SoundView" or the "Agent") is to be engaged by Tricord
Systems, Inc. (the "Company") to act as exclusive Agent in connection with the
private placement (the "Offering") of one or more equity, equity-related or
equity-linked securities (the "Securities") to be issued by the Company. It is
currently contemplated that the Offering will approximate $20.0 million.
1. SERVICES
If the Company and the Agent jointly determine that it is advisable, the
Company, with the Agent's assistance, will prepare a confidential offering
memorandum (the "Memorandum"), which will contain (a) a description of the
Company and its business, assets, prospects and management; (b) the terms and
conditions of the Offering and of the Securities; and (c) audited financial
statements and certain Company projections. If necessary, the Company will
updated the Memorandum prior to completion of the Offering. The Agent shall be
entitled to rely on the accuracy and completeness of all information provided
by the Company, including information incorporated by reference in the
Memorandum. Additionally, representatives of the Company shall be available to
answer questions of, and to provide additional information to, any potential
investors.
The Agent agrees to use its reasonable best efforts to complete the private
placement of the Securities. The terms of the Offering shall be subject to
mutual agreement of the Company and each investor in the Offering. The Agent
will contact potential investors (provided that the Company approves such
potential investors prior to contact), assist in the negotiation and the
structuring of the investment in the Company, and provide related services that
the Agent deems advisable and reasonable that may facilitate the successful
completion of the Offering. The Agent will conduct all sales and solicitation
efforts in a manner consistent with your intent that the
2
Xx. Xxxx Xxxxxxx [SOUNDVIEW TECHNOLOGY GROUP LOGO]
Tricord Systems, Inc.
February 10, 2000
Page 2
Offering be an exempt transaction pursuant to the Securities Act of 1933, as
amended (the "Act"). The Agent may decline to participate in the Offering if it
determines that the completion of the Offering is impractical, undesirable or
not advisable.
The Offering will be sold pursuant to a purchase agreement which shall (i)
contain customary representations and covenants on behalf of the Company, (ii)
provide for the delivery by the Company's counsel of customary opinions
addressed to the investors and the Agent and pertaining to Rule 10b-5 under the
Securities Exchange Act and to the availability of an exemption from the
registration provisions of the Securities Act, (iii) provide for delivery to
the Agent of a comfort letter from the Company's certified public accountants
with respect to financial information that is contained in the Memorandum, (iv)
contain such other terms and conditions as shall be agreed to by the Company
and the investors, and (v) contain customary representations and warranties of
the purchasers of such securities. The Company agrees that with regard to any
escrow arrangements utilized in connection with this offering, all bank
accounts which contain investor funds will be maintained at a "bank" within the
meaning of Section 3(a)(6) of the Securities Exchange Act of 1934.
Consistent with the parties' intention that the Offering will be an exempt
transaction, we currently anticipate offering the Securities to both U.S. and
non-U.S. persons and institutions. The Company confirms that accredited
investors across this range are acceptable, and acknowledge that upon
completion of the Offering there may be as many as 50 new investors in the
Company. You shall advise us of those states in which the Securities have been
qualified or exempted under the appropriate securities laws. The Company agrees
not to solicit any offers or take any action which might jeopardize the
availability of the exemption under the Act.
2. EXCLUSIVITY
During the term of this Agreement, the Company agrees to retain the Agent on an
exclusive basis to perform the services described herein. If the Company or any
of its management, directors or shareholders receive an inquiry concerning a
possible investment in the Company or become aware of the possible interest of
any third party concerning such investment, they will promptly inform the Agent
of the prospective investor and its interest. The Company shall furnish to the
Agent the names of all parties with which the Company has had discussions or
contacts prior to or during the term of the Agent's engagement hereunder
concerning an investment in the Company.
3. TERM
The Term of this engagement shall extend for three (3) months from the date of
this Agreement and it shall automatically renew on a month-to-month basis
thereafter. Either party may terminate this Agreement at any time after such
date by giving the other party thirty (30) days prior written notice of such
termination at which time the Company shall pay the Agent all unpaid
out-of-pocket fees and expenses incurred up to the date hereof, as set forth in
Paragraph 5.
4. FEES
As compensation for the services rendered by the Agent hereunder, the Company
agrees to pay the Agent a cash fee ("Placement Fee") as follows:
3
Xx. Xxxx Xxxxxxx [SOUNDVIEW TECHNOLOGY GROUP LOGO]
Tricord Systems, Inc.
February 10, 2000
Page 3
If a closing of the Offering, or a closing of a subsequent Offering, occurs
either
(a) during the term of the Agent's engagement hereunder, regardless of
whether the party or parties to such Offering ("the Investors") were
identified or introduced by the Agent or others or whether the Agent
rendered advice concerning such Offering, or
(b) at any time during a period of six (6) months following the effective
date of the termination or expiration of this Agreement and provided that
the Company receives funds from an Investor (but regardless of whether or
not such party participated in any previous Offering since the date of this
Agreement)
then the Company shall pay to the Agent a Placement Fee equal to six percent
(6%) of the gross proceeds raised from the Investors. Payment of such Placement
Fee shall be a condition of closing. If there is more than one closing, then
only that portion of the Placement Fee applicable to each closing shall be
payable to such closing.
In addition, if there occurs a closing of the Offering, the Company will grant
to the Agent five year non-cancelable warrants to purchase Common Stock (the
"Placement Warrants"), to be issued as of the date of the closing of the
Offering, and exercisable at 100% of the common equivalent price per share of
the Securities sold in the Offering, which provide to the Agent the right to
reinvest an amount equal to seventy percent (70%) of the Placement Fee that is
earned hereunder. The Placement Warrants shall include the same rights and
privileges as the securities issued in the Offering, and shall include (without
limitation) a "net issuance" exercise feature and standard anti-dilution
protections.
The Company and the Agent each represent to the other that there is no other
person or entity that is entitled to a finder's fee or any type of brokerage
commission in connection with the transactions contemplated by this Agreement
as a result of any agreement or understanding with it.
5. EXPENSES
In addition to any Fees that may be payable to the Agent, and regardless of
whether a closing of the Offering occurs, the Company hereby agrees to
reimburse the Agent for all of its reasonable out-of-pocket fees, expenses and
costs arising out of the Agent's engagement hereunder. Reasonable out-of-pocket
expenses include, but are not limited to such costs as, telephone, telex,
courier service, copying, accommodations, travel, direct computer expenses,
database services, secretarial overtime and legal costs (subject to a cap of
$25,000 for such legal costs without prior approval by the Company).
Out-of-pocket fees and expenses will be billed by the Agent and will be due
and payable upon receipt of such invoice. Upon the earlier of the termination
or expiration of this Agreement, or the closing of the Offering, any then
outstanding unreimbursed expenses shall be immediately due and payable. Any
obligation pursuant to this Paragraph 5 shall survive the termination or
expiration of this Agreement.
4
Xx. Xxxx Xxxxxxx [SOUNDVIEW TECHNOLOGY GROUP LOGO]
Tricord Systems, Inc.
February 10, 2000
Page 4
6. INDEMNIFICATION
In addition to the payment of fees and reimbursement of expenses provided for
above, and regardless of whether an Offering is consummated, the Company agrees
to indemnify the Agent with regard to matters contemplated herein, as set forth
in Appendix A, attached hereto, which is incorporated by reference as if fully
set forth herein. This Paragraph 6 shall survive the termination or expiration
of this Agreement.
7. INFORMATION
The Company agrees to make available to the Agent all information concerning
the business, assets, operations, financial condition and prospects of the
Company which the Agent reasonably requests in connection with the performance
of its obligations hereunder. The Company recognizes and confirms that in
providing its services under this Agreement, the Agent will be using and
relying upon data, material and other information furnished by the Company, its
employees and representatives (the "Information"). The Company hereby agrees
and represents that all Information furnished to the Agent in connection with
this Agreement shall be accurate and complete in all material respects at the
time furnished and that if such Information, in whole or part, becomes
materially inaccurate, misleading or incomplete during the term of the Agent's
engagement hereunder, the Company shall so advise the Agent in writing and
correct any such inaccuracy or omission. Accordingly, the Agent assumes no
responsibility for the accuracy and completeness of such Information. The Agent
will not be required to make an independent verification or evaluation of any
Information.
The Company shall provide the Agent, prior to the dissemination of a Memorandum
and at the closing of any Offering, a written representation that the
Memorandum is complete and correct in all material respects and does not
contain any untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein not misleading in light
of the circumstances under which such statements are made. The Company agrees
to notify the Agent promptly in writing (i) of any material adverse change in
the Company's financial condition and (ii) concerning any statement contained in
the Memorandum or Information which is not accurate or which is incomplete or
misleading in any material respect.
8. DISCLOSURE
The services or advice to be provided by the Agent under this Agreement shall
not be disclosed publicly or made available to third parties not affiliated
with the Company without the Agent's prior written approval, except as required
by law. Notwithstanding, the Agent shall be permitted, upon the closing of the
Offering, to publicize such Offering.
Except as contemplated by the terms hereof or as required by applicable law or
pursuant to an order entered or subpoena issued by a court of competent
jurisdiction, the Agent shall keep confidential all material non-public
information provided to it by the Company and shall not disclose such
information to any third party, other than such of its employees and advisors
as the Agent determines to have a need to know, or use such information other
than as provided in this Agreement. In addition, investors receiving material
non-public information shall be required to acknowledge such confidentiality
obligations.
5
Xx. Xxxx Xxxxxxx [SOUNDVIEW TECHNOLOGY GROUP LOGO]
Tricord Systems, Inc.
February 10, 2000
Page 5
Please note that the Agent is a full service securities firm engaged in
securities trading and brokerage activities, as well as providing investment
banking and financial advisory services. In the ordinary course of our trading
and brokerage activities, the Agent or its affiliates may at any time hold long
or short positions, and may trade or otherwise effect transactions, for our own
account or on the accounts of customers, in debt or equity securities of the
Company or other entities that may be involved in a proposed Offering. We
recognize our responsibility for compliance with Federal Laws in connection
with any such activities.
9. GOVERNING LAW
This Agreement shall be governed by and construed in accordance with the laws
of the state of New York, without regard to the conflicts of laws provisions
thereof, and may not be amended or modified except in writing signed by both
parties.
10. SUCCESSORS
This Agreement and all rights and obligations thereunder shall be binding upon
and inure to the benefit of each party's successors, but may not be assigned.
11. SEVERABILITY
If any provision of this Agreement shall be held or made invalid by a statute,
rule, regulation, decision of a tribunal or otherwise, the remainder of this
Agreement shall not be affected thereby and, to this extent, the provisions of
this Agreement shall be deemed severable.
12. AUTHORIZATION
The Company and the Agent represent and warrant that each has all requisite
power and authority, and all necessary authorizations, to enter into and carry
out the terms and provisions of this Agreement.
6
Xx. Xxxx Xxxxxxx [SOUNDVIEW TECHNOLOGY GROUP LOGO]
Tricord Systems, Inc.
February 10, 2000
Page 6
Please confirm that the foregoing correctly sets forth the understanding and
agreement between SoundView and the Company by signing the enclosed copy of this
Agreement and returning it to us whereupon this letter shall constitute a
binding Agreement as of the date first above written. We look to working with
you on this assignment.
Very truly yours,
SOUNDVIEW TECHNOLOGY GROUP, INC.
By: /s/ Xxxxxxxx Xxxxxx
-----------------------------
Xxxxxxxx Xxxxxx
Managing Director
Agreed to and Accepted as of the date above.
TRICORD SYSTEMS, INC.
By: /s/ Xxxx Xxxxxxx
------------------------------------
Xxxx Xxxxxxx
Co-Chief Executive Officer
7
Xx. Xxxx Xxxxxxx [SOUNDVIEW TECHNOLOGY GROUP LOGO]
Tricord Systems, Inc.
February 10, 2000
Page 7
APPENDIX A
Indemnification
The Company agrees to indemnify SoundView, its employees, directors, officers,
agents, affiliates, and each person, if any, who controls it within the meaning
of either Section 20 of the Securities Exchange Act of 1934 or Section 15 of
the 1933 (each such person, including SoundView, is referred to as an
"Indemnified Party") from and against any losses, claims, damages and
liabilities, joint or several (including, all legal or other expenses
reasonably incurred by an Indemnified Party in connection with the preparation
for or defense of any threatened or pending claim, action or proceeding,
whether or not resulting in any liability) ("Damages"), to which such
Indemnified Party, in connection with its services or arising out of its
engagement hereunder, may become subject under any applicable Federal or state
law or otherwise, including but not limited to, liability (i) caused by or
arising out of an untrue statement or an alleged untrue statement of a material
fact or the omission or the alleged omission to state a material fact necessary
in order to make the statement not misleading in light of the circumstances
under which it was made, (ii) caused by or arising out of any act or failure to
act, or (iii) arising out of SoundView's engagement or the rendering by any
Indemnified Party of its services under this Agreement; provided, however, that
the Company will not be liable to the Indemnified Party hereunder to the extent
that any Damages are found in a final non-appealable judgment by a court of
competent jurisdiction to have resulted from the gross negligence, bad faith or
willful misconduct of the Indemnified Party seeking indemnification hereunder.
These indemnification provisions shall be in addition to any liability which
the Company may otherwise have to any Indemnified Party.
If for any reason other than a final non-appealable judgment finding any
Indemnified Party liable for Damages for its gross negligence, bad faith or
willful misconduct the foregoing indemnity is unavailable to an Indemnified
Party or insufficient to hold an Indemnified Party harmless, then the Company
shall contribute to the amount paid or payable by an Indemnified Party as a
result of such Damages in such proportion as is appropriate to reflect not only
the relative benefits received by the Company and its shareholders on the one
hand and SoundView on the other, but also the relative fault of the Company and
the Indemnified Party as well as any relevant equitable considerations, subject
to the limitation that in no event shall the total contribution of all
Indemnified Parties to all such Damages exceed the amount of fees actually
received and retained by SoundView hereunder.
Promptly after receipt by the Indemnified Party of notice of any claim or of
the commencement of any action in respect of which indemnity may be sought, the
Indemnified Party will promptly notify the Company in writing of the receipt or
commencement thereof and the Company shall have the right to assume the defense
of such claim or action (including the employment of counsel reasonably
satisfactory to the Indemnified Party and the payment of fees and expenses of
such counsel), provided that the Indemnified Party shall have the right to
control its defense if, in the opinion of its counsel, the Indemnified Party's
defense is unique or separate to it as the case may be, as opposed to a defense
pertaining to the Company. In any event, the Indemnified Party shall have the
right to retain counsel reasonably satisfactory to the Company, at the
Company's expense,
8
Xx. Xxxx Xxxxxxx [SOUNDVIEW TECHNOLOGY GROUP LOGO]
Tricord Systems, Inc.
February 10, 2000
Page 8
to represent the Indemnified Party in any claim or action in respect of which
indemnity may be sought and agrees to cooperate with the Company and the
Company's counsel in the defense of such claim or action, it being understood,
however, that the Company shall not, in connection with any one such claim or
action or separate but, substantially similar or related claims or actions in
the same jurisdiction arising out of the same general allegations or
circumstances, be liable for the reasonable fees and expenses of more than one
separate firm of attorneys, for all the Indemnified Parties unless the defense
of one Indemnified Party is unique or separate from that of another Indemnified
Party subject to the same claim or action. In the event that the Company does
not promptly assume the defense of a claim or action, the Indemnified Party
shall have the right to employ counsel reasonably satisfactory to the Company,
at the Company's expense, to defend such claim or action. The omission by an
Indemnified Party to promptly notify the Company of the receipt or commencement
of any claim or action in respect of which indemnity may be sought will relieve
the Company from any liability the Company may have to such Indemnified Party
only to the extent that such a delay in notification materially prejudices the
Company's defense of such claim or action. The Company shall not be liable for
any settlement of any such claim or action effected without its written consent,
which shall not be unreasonably withheld or delayed. Any obligation pursuant to
this Appendix shall survive the termination or expiration of this Agreement.
